By Joel Thurtell
That photo of reporter David Ashenfelter and attorney Herschel Fink in the February 11, 2009 online Detroit Free Press said it all.
They look like they dodged a big fat bullet.
Well, it was Dave who dodged the big one, since it’s the reporter and not the newspaper attorney who could be jailed or fined if the lawyer’s plan goes awry.
But it may be that Fink’s tactic of having Ashenfelter plead the Fifth Amendment will permanently parry Richard Convertino’s legal attempt to force the reporter to spill the names of U.S. Justice Department employees who illegally leaked information to Ashenfelter. He wrote that contraband info into a 2004 article that was published before Convertino was indicted on charges of corruptly pursuing a federal prosecution.
Convertino was acquitted by a jury and turned the tables on the prosecutors. He sued the Justice Department, demanding money for the damage to his reputation. Problem: Convertino needs the names of the Justice officials who leaked illegally to Ashenfelter in order to pursue his case.
They ain’t talkin.
Ashenfelter ain’t talkin, either.
First, Dave took the First, but that didn’t work. U.S. District Judge Robert Cleland pointed out that Convertino’s persecutors may have broken the law by leaking to Ashenfelter and the First Amendment is no shield against giving evidence in a criminal case.
Next, he pleaded the Fifth — that his testimony might set him up to be charged by the feds.
Hmmm. Let’s see if I understand this: Dave, or rather, the paper’s lawyers, want us to believe that the same feds who leaked to Dave now are going to charge him?
Of course, the Reporters’ Committee on Freedom of Information is right there behind Dave, but to me, that is a bit too rich.
After listening to Justice Department honchos testify that they couldn’t say whether or not they might charge Dave, the judge postponed making a decision.
You read that right: Representatives of the same office where people leaked illegally to Dave and could themselves be charged for so doing sat in court, raised their right pinkies and swore they couldn’t say for sure whether or not after four years of doing squat they might charge Dave with something that would no doubt involve one or more of them also being charged.
In other words, bullshit.
Convertino wants the judge to find Dave in contempt and fine him personally up to $5,000 a day till he coughs up the names, according to the Feb. 11 Free Press online. That’s tough stuff — it means Dave would have to pay out of his own pocket. The Free Press couldn’t bail him out.
Last year, a federal judge fined a reporter, USA Today’s Toni Loci, the same amount, only to have the fine set aside by an appeals court.
Well, if Dave skates, I’ll gladly give Convertino some names.
Because Dave isn’t the only one who knows who his sources were. At least, that would be true if he followed the Free Press ethical guidelines in force when he wrote his story. Then, the Free Press was still owned by Knight-Ridder, and the guidelines required that reporters quoting anonymous sources reveal the sources to management and get bosses’ permission before running the story.
Look at the masthead for any Free Press in 2004 and you’ll get an idea of whom Convertino might subpoena if Dave slips through his hands.
Drop me a line at joelthurtell(at)gmail.com
