Detroit paper must provide documents and a witness regarding confidential source, judge rules

Lilly Chapa | Reporter's Privilege | News | January 18, 2013

A District Court judge ruled this week that the Detroit Free Press must hand over documents and provide a witness in a long-running case involving former federal prosecutor Richard Convertino and his quest to reveal a reporter’s anonymous source.

Judge Robert Cleland’s ruling requires the Michigan newspaper to turn over documents directly or indirectly related to Convertino and present a witness who can testify at a February deposition for the former prosecutor's lawsuit against the Department of Justice.

The decision is another step in the nine-year saga in which Convertino has attempted to learn who revealed to Free Press reporter David Ashenfelter details from the Justice Department's ethics probe against him. Ashenfelter took a buyout from the Free Press and left the newspaper earlier this year.

The Free Press’s lawyer, Herschel Fink, said he is pleased that the court reaffirmed Ashenfelter’s Fifth Amendment right, which protects him from self-incrimination, but does not understand why it is necessary for Convertino to have access to the requested documents.

“We raised that issue in our response to the judge’s ruling to produce the documents that Mr. Convertino requested,” Fink said. “We’ll see where that takes us.”

Since Ashenfelter's Fifth Amendment protection prevents him from talking about the case, Cleland ruled that someone who knew the identity of the source other than Ashenfelter must be present during the deposition. According to Fink, an earlier investigation revealed that only Ashenfelter knew who leaked the information. Cleland has previously ruled that Ashenfelter is not protected by a First Amendment's reporter privilege.

Ashenfelter’s 2004 article detailed Convertino’s possible misconduct in a high-profile terrorism trial using an anonymous source. Convertino sued the Justice Department for violating his privacy by revealing the information to Ashenfelter and tried to force the reporter to reveal his source.

In March 2011, the case was dismissed, but the Federal Court of Appeals reinstated the case in June and recommended the District Court compel the newspaper to produce information concerning Convertino.

"We believe that Convertino submitted ample evidence to suggest that additional discovery could reveal the source's identity," the appeals court said in an opinion.

Fink said the ongoing case is a strong argument for implementing a federal shield law.

“This case for the past nine years has emphasized the need for protection for journalists,” Fink said. “The passage of a federal shield law is very important to protect journalists, their sources and the free flow of information to the public.”

Convertino and his lawyer did not return calls for comment.

Related Reporters Committee resources:

· Michigan - Privilege Compendium