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A reporter breaks his promise of confidentiality to save a former FBI agent from a life sentence. From the Winter…

A reporter breaks his promise of confidentiality to save a former FBI agent from a life sentence.

From the Winter 2008 issue of The News Media & The Law, page 24.

By Matthew Pollack

Village Voice reporter Tom Robbins felt torn as he watched former FBI agent Roy Lindley DeVecchio’s murder trial unfold.

For eight days the prosecution presented testimony that included a lot of suspicion about DeVecchio’s relationship with his informer, Gregory "The Grim Reaper" Scarpa, a notorious capo in the Colombo crime family. Seduced by Scarpa’s high-quality intelligence, the prosecution alleged, DeVecchio helped Scarpa commit four murders in the 1980s and early 1990s.

No witness, though, offered any evidence that directly linked DeVecchio to the murders. No witness, that is, until Scarpa’s former mistress, Linda Schiro, took the stand.

Schiro’s testimony could have been what the prosecution needed to send DeVecchio away for life. But, to Robbins, something about her story didn’t add up.

While completing research for a never-published book in 1997, Robbins and famed mob reporter Jerry Capeci landed an interview with Schiro, who Scarpa offered unfettered access to his mob dealings. Schiro though, would only speak to them if they promised confidentiality.

Robbins and Capeci obliged, offering her a series of promises they hoped would encourage her to share her story: they would not directly attribute any information to her; any information she offered would only be used in their book and for no other reason; and the would-be authors would not cooperate in any law enforcement inquiries that resulted from the book.

Ten years later, Schiro took the stand to testify against DeVecchio, offering a story that Robbins says differed greatly from the one she shared with him and Capeci.

In court, Schiro directly implicated DeVecchio in all four murders — quite convincingly by all accounts. In Robbins’ interviews, she told quite a different story.

Robbins kept the cassette tape recordings of his interviews with the mob mistress. On the tapes, Schiro does not mention DeVecchio once when discussing two of the murders and insists unequivocally that he was not involved with the other two. When it came to one of his alleged victims, Lorenzo Lampasi, Schiro is especially clear: "Lin didn’t do that. I know it for a fact."

With Schiro’s credibility and DeVecchio’s freedom on the line, Robbins wrote a tell-all news article for the Village Voice explaining both the contents of the interviews and his reasons for breaking his pledge to Schiro.

By the end of the day, both the defense and prosecution subpoenaed the tapes of the interviews. DeVecchio brought them to court the next day, on what should have been the ninth day of testimony. After listening to the tapes outside of court, the prosecutors dropped all charges against DeVecchio.

Robbins’ decision to turn over the tapes did not come easy.

Reporters typically take their promises of confidentiality very seriously — so seriously, in fact, that subpoenas often result in protracted legal battles that may culminate in costly fines or jail time for members of the press. Before he turned over the tapes, Robbins recognized the potential consequences. He may never get a source with sensitive information to speak with him again.

"It weighed incredibly heavy on me. As a journalist, having people talk to you is your business," Robbins said. "At the end of the day, this was a guy who would have been convicted on what was clearly perjured testimony."

And as Robbins explained in his lengthy article justifying his decision, the role of a reporter must sometimes take a backseat to the role of a responsible citizen.

"Those are the kind of high stakes that take precedence over contracts and vows of confidence, no matter how important they may be to the business of reporting, and regardless of how distasteful it may be to violate them," Robbins wrote. "The threat of a life sentence trumps a promise."

But according to Steven Wermiel, a media law professor at American University’s Washington College of Law, by saving DeVecchio, Robbins may have opened himself up to a host of problems that extend well beyond the inability to ever convince a source to trust him with sensitive information again: Schiro could target Robbins with private litigation for breaking his promises to her.

Under the Supreme Court’s ruling in Cohen v. Cowles Media Co., journalists, like all other citizens, must uphold their end of contractual promises, including, notably, promises to keep sources confidential. As a result, Robbins’ decision could expose him to a costly suit from Schiro.

"Whether Cohen applies is ultimately a matter of state law," Wermiel said. "The First Amendment was not a bar for the states to apply their breach of contract law to reporters."

Robbins contends that he considers any promises he made nullified by Schiro’s testimony.

"There was no confidentiality. She had already gone public with everything that she talked to me about — and more," Robbins said. "It was clear to me that she had put behind her fears and concerns about being public with this behind her."

Wermiel is less confident than Robbins that Schiro released him from his promise, drawing a distinction between what a source says to a reporter and what a source says in court.

"The source may know more about a situation than she is willing to testify about," Wermiel said. "There may be public information and private information, and a journalist may need to hold onto that private information."

To Robbins, it ultimately becomes a meaningless game of semantics.

"I don’t know that I could have done anything differently than what I did," Robbins said. "As journalists it shows that we know right from wrong. It shows that we know when to do the right thing."