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Court reaffirms reporter's Fifth Amendment right

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  1. Protecting Sources and Materials
A Michigan federal court today ruled that Detroit Free Press reporter David Ashenfelter properly asserted his Fifth Amendment privilege against…

A Michigan federal court today ruled that Detroit Free Press reporter David Ashenfelter properly asserted his Fifth Amendment privilege against self incrimination, allowing him to keep the identities of confidential sources a secret.

The plaintiff, former U.S. prosecutor Richard Convertino, had been seeking the names of Ashenfelter’s Justice Department sources since 2006 for a Privacy Act lawsuit.

A Michigan district court denied Convertino’s motion to reconsider the April 21, 2009 ruling that accepted Ashenfelter’s Fifth Amendment objections. That ruling came after Ashenfelte’s counsel met with the judge in chambers to discuss facts that substantiated his assertion of possible self-incrimination.

“The court finds at least minimally sufficient facts to support such conclusion that Ashenfelter’s silence, maintained through the protections claimed under the Fifth Amendment, is a valid assertion of his rights, and his objections to deposition questions which sought a connection to the identity of his source have been sustained,” wrote U.S. District Judge Robert H. Cleland. 

Convertino argued in his motion to reconsider that Ashenfelter had waived his Fifth Amendment rights because he previously admitted that his confidential sources were Justice Department employees. Judge Cleland denied the motion because the issue of waiving had not been raised in the case prior to that motion. Courts may not accept new legal arguments in such a motion.

Ashenfelter had previously attempted to invoke a reporter’s privilege to protect his sources, but Judge Cleland denied that request, reasoning that the applicable body of law — that of the U.S. Court of Appeals in Cincinnati (6th Cir.) — did not recognize that privilege.