By: E&P Staff
What follows is the text of the memo released Friday, Sept. 9 by the Miami-Dade State Attorney’s office, which details its decision not to press charges against former Miami Herald columnist Jim DeFede:
CLOSE OUT MEMO
Public Corruption Unit
At around 6:00 P.M. on July 27, 2005, former City of Miami Commissioner Arthur Teele shot himself in the lobby of the Miami Herald building. He later died from the self-inflicted wound. Teele had been suspended from office following his arrest by Miami-Dade Police last fall on corruption-related felony charges. He was later convicted on one of those charges — Threatening a Public Servant — and faced at least two upcoming trials on other corruption charges filed by the Miami-Dade State Attorney’s Office and the U.S. Attorney’s Office.
On the day of his suicide, an article had appeared in the Miami New Times, detailing some of the raw intelligence from the corruption investigation that was contained in police reports. The police reports had been released on May 3, 2005, pursuant to the discovery process in the State’s criminal case. Those reports became available at that time to the media, which had previously filed several public records requests seeking discovery materials in the case. The information included salacious and uncorroborated details about Mr. Teele’s personal life.
On the night of Teele’s death, the Herald disclosed that Jim DeFede, a Herald columnist, had spoken to Teele by telephone two times that day. The first conversation occurred when Teele called DeFede at home around 4:45 P.M. The second conversation occurred when Teele again called DeFede around 5:52 P.M. from the Herald lobby, minutes before taking his life. DeFede had voluntarily revealed to his editors that he had tape-recorded a portion of the first phone call without obtaining Teele’s consent, an apparent violation of Section 934.03, Florida Statutes. It is the latter circumstance that provided the predicate for this inquiry. Later during the evening of July 27, DeFede was fired by the Herald management, based upon his unconsented recording of his conversation with Arthur Teele.
SUMMARY OF INQUIRY
On July 28, 2005, the day following Teele’s death, this writer received a telephone call from Attorney Dan Gelber, who stated that he was representing DeFede in connection with any alleged violation of Section 934.03. Mr. Gelber stated that his client was anxious to cooperate with any criminal inquiry or investigation, including providing a voluntary statement to law enforcement. Gelber also revealed that DeFede, upon learning of the death of Teele, had created a partial transcript of the conversation contained on the tape, which included most of the conversation verbatim, with some summary notes. Gelber read the partial transcript over the phone to this writer. The tape itself and the recorder had been turned over by DeFede to an editor at the Miami Herald.
On July 29, two days after the suicide, DeFede appeared at the State Attorney’s Office, accompanied by his attorneys, Dan Gelber and Stephen Bronis, and submitted voluntarily to a non-immunized, sworn statement. Present during the statement were this writer, Assistant State Attorney Abbe Rifkin, Assistant State Attorney Joel Rosenblatt, and City of Miami Police Detective Leo Tapanes. It was agreed prior to the statement that the questioning would be limited to the circumstances leading up to the conversations with Teele on July 27 and the substance of those conversations, and that the taping would not be addressed in that statement. It was suggested by DeFede’s attorneys that Mr. DeFede was still anxious to cooperate fully and that the limitation on this statement was based solely upon their advice. They indicated that it was likely that Mr. DeFede would be providing a further statement at a later time concerning the taping incident, but that they needed time to properly advise him.
DeFede provided details concerning his 14-year friendship with Teele, the events leading directly up to July 27, and his conversations with Teele on that day and his reaction to them. DeFede recounted how he had first met Teele during his early days as a reporter for the Miami New Times, covering the Miami-Dade County government while Teele served as a County Commissioner. What originated as a professional relationship had grown into a personal friendship, which included his meeting at times with Teele for drinks and an occasional dinner. While the focus of these meetings often involved political discussions, they also included personal matters. DeFede had become acquainted with Teele’s wife. He and Teele shared mutual confidences. The relationship continued during the years that Teele moved from the County Commission to the City of Miami Commission, following Teele’s unsuccessful run for Miami-Dade County Mayor.
Regarding his conversations with Teele on July 27, DeFede characterized them as primarily personal. He said Teele had initially called his number at the Herald and left a voice message at 2:40 P.M. DeFede called him back at around 4:00 P.M. and Teele asked him if he could return the call in a half hour. This led to the call that DeFede received at about 4:45 P.M., which lasted until 5:10.
DeFede said that Teele had called him to vent his frustrations and sense of despondency, as well as his anger, over his legal and financial troubles. These latter had mounted significantly during the previous week with Teele’s arraignment on the federal charges. He said he took note of Teele’s desperate tone of voice, which came close to breaking. He seemed on the verge of tears. DeFede said that he had not known Teele, who was regarded by him and others as a combative and feisty political player, to ever show such utter despair. Teele’s deep sadness, to the point of misery, was evident during the conversation.
DeFede recounted that Teele was especially agitated over details about his personal life that had been contained in the police reports that were subsequently publicized in the media. Teele was particularly concerned that the reports had been difficult for his son to deal with and had cost him support among ministers and religious leaders in the community. Teele made no specific reference to the detailed and graphic accounts that had been published on that very day in the Miami New Times.
At one point in the conversation, as Teele was expressing his feelings about his perceived foes and his legal/financial predicament, DeFede asked Teele if he wanted to go ?on the record.? This would have signaled to a politician that quotes from the conversation might be published or used in a news story or column. Teele declined to go on the record, and the conversation continued, according to DeFede, on a personal level.
DeFede said that by the end of the first phone conversation on July 27, he felt that Teele’s mood had improved to the point that he felt less concern over Teele’s mental state. DeFede said that during the conversation he had alluded to a matter he was working on for a future column. He said Teele warned him to be careful about it because of the powerful interests involved in what he was investigating. DeFede said he thanked Teele for his concern and said he would be careful. Before hanging up, he asked Teele to say hello to his wife for him.
DeFede then discussed receiving the phone call from Teele, while Teele was in the Herald lobby, in which Teele told him he was leaving some materials there for him. DeFede said he asked if it was important enough for him to come over to the building and pick them up immediately, but that Teele assured him that it could wait until the next day. DeFede then described how he received phone calls from the Herald office shortly after the shooting occurred. He said he was stunned when informed of Teele’s actions and began shaking as he repeated, ?Oh, my God.?
DeFede said he went over to the building about an hour later, and prepared a column based on his last conversations with Teele, which he described as favorable toward him. It has not been published.
In the days following his statement at the SAO, DeFede spoke freely to the media on several occasions about his contact with Teele on July 27, including discussing the taping and his reasons for it. He published a column in The Miami Times commenting on his friendship with Teele, his last conversation with him, and the aftermath culminating in his termination by the Herald. He reiterated some of the comments he had made in his sworn statement about the conversation. He said the following regarding the unauthorized taping: ?I hit the record button on my tape recorded, instinctively, impulsively, not thinking about whether it was legal or not legal, whether it was right or wrong. I wanted to preserve a conversation the same way 911 calls are recorded.?
On Wednesday, August 3, 2005, this writer, accompanied by FDLE Special Agent Ricardo Tijorino, went to the Herald building to listen to the tape recording of the conversation between DeFede and Teele. The occasion was arranged through Robert Beatty, general counsel at the Herald, for the purpose of allowing law enforcement to assess the content of the tape prior to any decision to compel production of the tape pursuant an investigative subpoena. DeFede, through his attorney, indicated his agreement that the tape be played for investigators. The voluntary playing of the tape was done without any agreement being reached as to the future custody of the tape and with the clear understanding that the State would compel production of the tape by subpoena upon the Herald in the event that the State decided to pursue criminal charges against Mr. DeFede.
Upon listening to the tape, this writer concluded that it was totally consistent with Mr. DeFede’s prior description of the tape’s content and with the partial transcript related by Attorney Gelber. The conversation was indeed a very personal one, akin to a heart-to-heart conversation between two personal friends. It was devoid of any probing questions by DeFede or any apparent journalistically driven agenda. It consisted largely of Teele’s plaintive expressions of despair over his difficulties, and especially his bitterness over the purported revelations concerning his personal life. Teele’s voice cracked with emotion at certain points, and he seemed to be tearful. Teele expressed his respect for DeFede as a journalist, and at one point referred to their relationship in the past tense.
There were several awkward pauses in the conversation, punctuated by DeFede’s attempts to calm or support Teele or by his attempts to change the subject to a less troublesome topic. Teele’s declination to go on the record seemed to show intent on Teele’s part to keep the conversation on a more personal level and focused on Teele’s troubles. At the same time, Teele appeared to be signaling his expectation that DeFede would somehow use his position as an influential political columnist to write something that would represent Teele’s point of view against his perceived opponents. The tape recording lasted sixteen minutes.
On Monday, August 8, DeFede appeared voluntarily with his attorney at FDLE’s Miami headquarters for the specific purpose of answering questions about the taping. His statement to FDLE agents reiterated much of what was known from his prior statements in the media. He said he had commenced the taping about 5-6 minutes into the conversation when he became concerned over Teele’s unusually downcast state of mind. He said, ?I pushed the button out of concern for Art.? DeFede referred to the phone call as ?Art’s suicide note.? DeFede acknowledged that he had taped Teele on prior occasions, but only with Teele’s permission. He said that at the time of the taping he had no intention of keeping the tape or using the tape in the future, except possibly to listen to it for nuances and speak with Teele about it. He said that it would have been of no value to him except for Teele’s suicide, which led him to a feeling that he needed to ?represent? Teele after his death.
On August 11, 2005, DeFede submitted a letter of apology to the State Attorney, in which he admitted that the taping was ?a mistake for which I take full responsibility,? and pledged not to distribute his notes taken from the recorded conversation. A copy of the letter is attached hereto.
ANALYSIS AND CONCLUSION
Pursuant to F.S. 934.03(a), it is a third degree felony when any person ?Intentionally intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication.? There are no exceptions to this statute for journalists. The law is clear that a tape recording made by a newspaper reporter of a telephone conversation with a second person, without the knowledge or consent of the second person, is an illegal intercept. See Shevin v. Sunbeam Television Corporation, 351 So. 2d 723 (Fla. 1977); State v. News-Press Publishing Company, 338 So. 2d 1313 (Fla. 2d DCA 1976.
Under the unique circumstances of this inquiry, the narrow prism of a technical legal analysis will not suffice. There are compelling reasons for the State to exercise its discretion and decline to prosecute Mr. DeFede on a criminal charge. There appears to have been no malicious intent on the part of Mr. DeFede to violate the privacy rights of Mr. Teele, or to utilize the tape for any commercial purpose or to harm or embarrass Mr. Teele. It is apparent from all that is known from the inquiry that DeFede and Teele were personal friends and that DeFede may have been one of few journalists, perhaps the only journalist, in whom Teele felt, during the last hours of his life, that he could confide and trust to tell his side of his story. Based on the contents of the emotionally charged conversation that was the subject of the taping, it is not unreasonable to conclude that DeFede had a genuine concern over what appeared to be a serious and unusually dark state of depression for Mr. Teele. Indeed, Teele’s suicide less than an hour after the conversation had ended is itself confirmation of such a concern.
Mr. DeFede did not initiate the contact with Teele leading up to the conversation and at no time appeared to be attempting to elicit information from Mr. Teele for unauthorized use. His approach to Teele in the conversation was consistent with that of a person who was taken aback at the dark, defeatist tone of a friend’s voice, and concerned about his wellbeing. The taping occurred in the midst of an emotional moment with little time for reflection or premeditation.
Also, the character of conversation taped by Mr. DeFede is consistent with the comments that Mr. Teele himself recorded for DeFede. These latter comments were contained in a tape recording that was included amongst personal effects that Teele had with him at the time of his suicide. Mr. Teele’s comments and instructions to Mr. DeFede in that second tape, recorded on the same date and recovered by City of Miami Police investigators at the Herald lobby, has also been described by investigators as personal in nature and coming from a despondent Teele to his friend DeFede.
To his credit, Mr. DeFede admitted to the unconsented taping and cooperated with law enforcement in explaining his actions. This inquiry would not have occurred without his revelations and admissions.
Arthur Teele, who is entitled to the same privacy rights as any other person in such circumstances, is not alive to express whether he objects to DeFede’s having recorded their conversation. Furthermore, no complaint has been forwarded to this office demanding a prosecution of Mr. DeFede. DeFede’s actions may meet the elements of a crime under F.S. 934.03, but it is a crime without a victim or complainant. There appears to be no public benefit that would result from a criminal prosecution of Mr. DeFede.
Based on the foregoing facts and circumstances, it is the recommendation of this writer that this inquiry be closed and that no criminal charge be filed against Jim DeFede for his actions. However, it would be incorrect for anyone to assume from this result that Mr. DeFede’s actions, in tape recording a conversation without consent, were appropriate or justified. They were not. Had Mr. DeFede been utilizing his position as a journalist to secretly tape a private conversation for his own advantage or to the advantage or detriment of any other person, he would be prosecuted. It is the uniqueness of the tragic circumstances surrounding the death of Arthur Teele, and his last conversation with a journalist who happened to also be a trusted friend, which has led to the conclusion not to prosecute, rather than any special journalistic privilege or legal exception accorded to Mr. DeFede.
cc: Jose J. Arrojo