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.