War over waivers in Detroit

The Privacy Act saga continues between Detroit Free Press reporter David Ashenfelter and former prosecutor Richard Convertino.

Ashenfelter filed court  papers on Tuesday in response to former U.S. prosecutor Richard Convertino’s arguments that the reporter waived his right to invoke the Fifth Amendment to protect the confidentiality of his sources.

The brief was in response to a motion filed by Convertino in U.S. District Court in Detroit on May 5, arguing that Ashenfelter waived his right to invoke his Fifth Amendment right when he declared in a court affidavit that his reporting was accurate and true.

In the court papers filed on Tuesday, Ashenfelter’s attorneys responded by arguing that Convertino had actually waived the argument of Ashenfelter’s waiver by failing to bring it up sooner.

“If Convertino believed that the Declaration constituted a waiver of one or more privileges that Ashenfelter would otherwise assert, Convertino could have sought a ruling as soon as he received the Declaration,” Ashenfelter’s attorneys argued in the brief.

Additionally, Ashenfelter’s brief argued that his declaration regarding the accuracy of his reporting was not a waiver but was instead a statement in support of his right to keep his sources confidential.

Judge Robert Cleland ruled in April that Ashenfelter was protected by the Fifth Amendment from having to testify about his sources.

Meanwhile, Convertino is also going after the Free Press editors for the sources’ identities.