Ex-federal prosecutor Richard Convertino was hammered by a federal judge for his allegedly unethical conduct in the Detroit terrorism case and investigated by the Justice Department for his misconduct. However, Convertino is now moving against Detroit Free Press reporter David Ashenfelter who has refused to disclose the sources underlying his true story that Convertino was under investigation. Convertino argues “that publication of truthful information about him was a criminal act.” Ashenfelter may soon go to jail on contempt if Convertino continues to press for sanctions.
In a depostion by Convertino, Ashenfelter invoked his Fifth Amendment right against self-incrimination as well as the press freedom provisions of the First Amendment to protect his sources in a January 2004 Free Press article.
Convertino insists that Justice officials leaked the information to smear him in retaliation for his criticism of a lack of resources in his prosecution of four North African men in a 2003 sleeper cell terror trial.
Obviously, Convertino hardly makes the most sympathetic character. U.S. District Judge Gerald Rosen held:
Judge Rosen held that:
. . . the prosecution failed in its obligations to turn over to the
defense, or to the Court, many documents and other information.
. . . .clearly and materially exculpatory of the Defendants as to the
charges against them.. . . the prosecution materially misled the Court, the jury and the
defense . . . these failures by the prosecution were not sporadic or
isolated. Rather, they were of such magnitude, and were so prevalent and
pervasive as to constitute a pattern of conduct, that when all of the
withheld evidence is viewed collectively, it is an inescapable conclusion
that the defendants’ . . . fair trial rights were violated and that the
jury’s verdict was infected to the point that the Court believes there is
a least a reasonable probability that the jury’s verdict would have been
different had constitutional standards been met.
Convertino’s effort to bag an investigative reporter may focus renewed attention on the need for protections for journalists. As noted in a statement from the newspaper, the main priority for the next administration remains a federal shield law to protect journalists from federal prosecutors who routinely take such actions in federal cases.
A shield law for journalists is definitely required. wihout one no information sources will talk to reporters because they won’t want their names being brought out in court. The Law is totally unreasonable the way it stands now, it is unwilling to recognize the great benefits to the judicial system of protecting confidential sources. Judges for the most part reside in ivory towers while reporters exist in the real world and must deal with realities everyday. Reporters do not work for the prosecution or the police and should not be forced to do their jobs for them. Let them find their own information the hard way like the reporter did.
Attorneys need to read Convertino’s detailed complaint against Ashcroft/DOJ in order have any clue about what REALLY went on in Detroit:
http://fl1.findlaw.com/news.findlaw.com/cnn/docs/doj/convertino21304cmp.pdf
In re: Convertino/Ashenfelter, the Judge compelling the reporter to testify wrote:
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The Supreme Court has explicitly stripped constitutional protection from a reporter’s observation of criminal conduct:
“We cannot seriously entertain the notion that the First Amendment protects a newsman’s agree-ment to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.” Branzburg, 408 U.S. at 692.
For similar reasons, any reliance Ashenfelter placed on the Michigan reporters’ privilege is misplaced.
A reporter should not be allowed to use a state law to shield himself from disclosing his sources when the communication sought to be protected is a violation of federal law.
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Floyd Abrams wrote:
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“[Persuading the Court to grant First Amendment protection to journalists regarding their sources] was obviously going to be a hard sell. No such protection had ever been held to exist. Not only was the concept that the judicial system was entitled to ‘every man’s evidence’ itself deeply rooted in the Constitution, but merely determining the scope of the privilege (when would it apply?) and identifying who would receive it (only regularly employed journalists? freelancers? anyone?) were difficult matters at best.”
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