NEWS MEDIA UPDATE · VIRGINIA · Confidentiality/Privilege · July 14, 2006
News publisher subpoenaed by former federal prosecutor
July 14, 2006 · A former assistant U.S. attorney has subpoenaed Gannett Co. in an effort to identify a source who he claims violated the Privacy Act by giving personal information about him to the Detroit Free Press.
The subpoena, served Wednesday on Free Press-owner Gannett, commands “one or more officers, directors, or managing agents, or other persons who consent to testify on behalf” of the company to disclose the source’s identity. Reporter David Ashenfelter, who wrote a Jan. 17, 2004, article about alleged misconduct by the prosecutor in several terrorism cases, is not named in the subpoena.
The subpoena was served on McLean, Va.-based Gannett rather then on the newspaper in Michigan, where the controversy surrounding Richard Convertino has been widely reported.
Convertino was an assistant U.S. attorney in Detroit where he prosecuted the first trial of terrorists after Sept. 11, 2001. He won convictions for three defendants, but they were later overturned at the request of government because key documents had not been shared with the defense.
Ashenfelter reported that the U.S. Department of Justice was investigating possible misconduct by Convertino, which could require a new trial for the defendants in the terrorism case. Convertino sued the Justice Department under the Privacy Act, alleging officials there leaked information about his job performance from his personnel files to the Free Press.
Department officials told the paper that U.S. Attorney Jeffrey Collins requested an investigation into the matter in November after discovering possible ethical violations by Convertino. The Justice Department’s Office of Professional Responsibility is conducting the probe, the paper reported.
Convertino’s attorney, Stephen M. Kohn, contends in the letter accompanying the subpoena that his client has “exhausted every other reasonable alternative source for uncovering the identities of Mr. Ashenfelter’s sources.”
Kohn said in an interview that the subpoenas were served on the parent company because it was less intrusive to the journalist. If Gannett produces the information, the journalist would not have to testify, he said.
“We anticipate that you will have objections to our request for Mr. Ashenfelter’s sources, but in addition to your legal obligation we also urge you as a matter of policy not to refuse this request,” Kohn wrote in the letter to Gannett.
Kohn said that Gannett should reveal the information because the story was the result of a smear campaign, not the revelations of a government whistle blower.
“That has a very different level of protection than working with a confidential source to try to get something out into the public,” Kohn said.
Gannett officials declined to discuss the subpoena, only confirming the company had received it.