Ethics Corner: Unnamed Sources Lead to a Libel Suit

By: Allan Wolper

In Absence of Malice, the 1981 film study on ethics, Florida liquor distributor Mike Gallagher is identified in a front-page story as a key suspect in the murder of a union leader. The paper’s law enforcement sources know Gallagher didn’t do it ? but they also know his late father was a bootlegger and his uncle was a made man. So the feds figure that if they use the media to squeeze Gallagher, he’ll rat on his relatives. Eventually, Gallagher is cleared, leaves town, and Megan Carter, the reporter who used anonymous sources to pummel him in her newspaper, The Miami Standard, resigns in disgrace.

Fast forward to Wilkes-Barre, Pa., where The Citizens’ Voice is facing a series of strikingly similar issues in a libel suit.

Here’s the crux of it: The Citizens’ Voice, relying almost entirely on anonymous sources, published 10 stories in 2001 that tried to connect local businessman Thomas A. Joseph to a prostitution, drug, and gun-running ring allegedly being run by Billy D’Elia ? who is the reputed head of a crime family in northeastern Pennsylvania. (D’Elia was being investigated by the U.S. District Attorney’s office at the time.)

The stories also claimed Joseph used The Metro, a now defunct Scranton, Pa., weekly newspaper he once owned, to launder money from D’Elia’s allegedly illegal activities.

But those sordid tidbits fed to the Voice weren’t enough to convince a grand jury that Joseph was guilty of anything more than being a close friend of D’Elia. In 2002, Joseph filed a libel suit against the Voice, parent company Shamrock Communications, and the reporters who wrote the stories, Edward Lewis and James Conmy.

Four years later the trial finally went to court, ending after two weeks on May 26. Sometime this summer, Luzerne County Judge Mark Ciavarella is expected to decide whether the newspaper defamed Joseph and caused his direct-mailing business, Acumark Inc., to lose millions.

George W. Croner, a former Justice Department official who is representing Joseph, told me, “My guy was never charged with anything because he didn’t do anything. This wasn’t the first time that a prosecutor has tried to sell his case through a newspaper.”

Three indictments were handed down this year as a result of the 2001 investigation, including one on June 1 against D’Elia for money laundering and conspiracy charges. But none of the language accompanying those charges indicates Joseph will be charged with anything, according to numerous published reports.

Scott Lynette, who became publisher of the Citizens’ Voice after the Joseph stories were published, said the D’Elia indictment is a vindication of his paper’s coverage: “We believe our stories were by and large accurate. Our position was that a grand jury was investigating a case involving money laundering, and we were covering those stories.”

Papers shouldn’t be stenographers for prosecutors. Still, testimony offered during the trial showed there was good reason for the Voice to report on Joseph’s lifestyle. Joseph admitted knowing his business associates had been called before a grand jury and acknowledged the mob boss sent some printing business his way.

The Joseph saga began in June 2001 when federal agents raided his home and office, scooping up all his business and personal records. The accounts of that raid ? based on leaks citing a sealed search warrant and an accompanying affidavit ? were published in the Citizens’ Voice and its Wilkes-Barre competitor, the Times Leader.

The raid was a legitimate news story. But the Times Leader decided to wait for an indictment before publishing anything else. Eight weeks later, the Citizens’ Voice weighed in with the stories that got them hauled into court.

No matter how the judge rules, the case is certain to create ethical debate because Lewis and Conmy, the two reporters, refused to identify their sources. But the newspaper’s attorneys undid the duo’s principled position by subpoenaing four state and federal law enforcement officials ? several of whom might have had a role in the leaks to the Citizens’ Voice. According to one reporter with knowledge of the case, “It put those officials in an awkward spot.”

Fortunately, the Justice Department wouldn’t allow the officials to testify, citing an ongoing investigation, which spares the Voice from explaining why it subpoenaed sources its reporters were trying to protect. “We did not view subpoenaing those officials as compromising our sources,” said W. Thomas McGough, a Philadelphia attorney representing the newspaper.

Most journalists would argue otherwise. Meanwhile, Joseph, like Mike Gallagher in Absence of Malice, must wonder why newspapers are so willing to publish the whispers of prosecutors.

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