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Radio talk-show host fights special prosecutor's subpoena

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  1. Protecting Sources and Materials

    NMU         RHODE ISLAND         Confidentiality/Privilege         Nov 1, 2001    

Radio talk-show host fights special prosecutor’s subpoena

  • A special prosecutor sought the deposition of a Rhode Island radio personality, who then claimed a reporter’s privilege against testifying about confidential sources.

A radio talk-show host has not proven he is a journalist, so he is not entitled to special First Amendment protection against a subpoena for his testimony, a special prosecutor in Providence, R.I., is arguing in a federal case.

Special Prosecutor Marc DeSisto wants radio host John DePetro’s testimony as part of DeSisto’s court-ordered investigation into how a government videotape of alleged corruption at city hall wound up in the hands of a television station, which broadcast it.

DePetro’s program, “Independent Man,” airs daily on Rhode Island radio station WHJJ-AM. He has frequently discussed the federal investigation, dubbed “Operation Plunder Dome,” that has led to indictments charging Mayor Vincent A. Cianci Jr. and others with racketeering.

The government videotape purportedly shows Cianci’s top aide taking a cash bribe from an undercover FBI informant, according to the Providence Journal. NBC affiliate WJAR-TV/Channel 10 broadcast the videotape in February.

DePetro never obtained the government videotape, said his attorney, Joseph V. Cavanagh Jr. But DePetro’s testimony has been sought because “they think he might have information that could lead to the disclosure of how Channel 10 got the tape,” Cavanagh said.

A federal court order on Aug. 8, 2000, prohibited attorneys in the racketeering case from disclosing contents of the government videotape. When Channel 10 broadcast the footage, U.S. District Judge Ernest C. Torres appointed DeSisto to investigate whether the court order had been violated.

Cavanagh argued in court documents that, because DePetro is a journalist, the special prosecutor must first exhaust other avenues of obtaining the information before seeking DePetro’s testimony. For example, the prosecutor could seek testimony from Channel 10 employees, Cavanagh argued. Channel 10 and its reporters have not received any subpoenas, said the station’s attorney, William P. Robinson.

But DePetro has not demonstrated that he is a journalist entitled to a reporter’s qualified privilege against compelled testimony, the special prosecutor responded in court papers. Even if DePetro is a journalist, a special prosecutor is not required to exhaust other ways of getting information if a court order has been violated, DeSisto argued.

Cavanagh said he does not think the prosecutor is using the subpoena as a tool to stop DePetro from discussing Operation Plunder Dome on the air.

“I really don’t see any signs that he has any interest in trying to close down discussions by John DePetro,” Cavanagh said. “This special prosecutor’s only job is to find out did anyone violate (the court order). So I don’t see a bigger agenda here.”

Cavanagh and DeSisto are waiting for Torres to schedule a hearing about the subpoena.

(U.S. v. Vincent A. Cianci Jr.; Media counsel: Joseph V. Cavanagh Jr., Blish & Cavanagh, Providence) MD

© 2001 The Reporters Committee for Freedom of the Press

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