By: A lawyer urged a judge Wednesday to end a Pulitzer Prize-winning reporter's claim that he had a Fifth Amendment right to refuse to identify unnamed sources who leaked information about a terrorism prosecutor.
A lawyer for former federal prosecutor Richard Convertino also asked that reporter David Ashenfelter of the Detroit Free Press be fined as much as $5,000 per day until he divulges who in the U.S. Justice Department helped him with a 2004 story about an ethics investigation.
In August, U.S. District Judge Robert Cleland ordered Ashenfelter to testify in a deposition. But Ashenfelter, 60, invoked the Fifth Amendment right against self-incrimination during the December deposition.
Stephen Kohn, Convertino's lawyer, told the judge that he viewed the invocation "in bad faith. ... It's a civil case. It has nothing to do with a criminal matter."
Kohn urged the judge to find the reporter in contempt because it was "the only way this witness will give Mr. Convertino the testimony he's entitled to under the law."
In reviewing answers from the deposition, the judge said Ashenfelter was "playing games, sandbagging" when the reporter invoked the Fifth Amendment when asked for his address.
"That poses a very problematic situation," Cleland said.
He did not rule from the bench but promised to make a decision soon.
Convertino, now in private practice, wants to know Ashenfelter's sources as he presses ahead with a lawsuit he has brought against the Justice Department. He claims his privacy was violated when information was leaked to the reporter about an ethics probe.
Convertino handled the first major terrorism trial after 9/11, but the convictions were thrown out because evidence was withheld. In 2007, he was acquitted of conspiring to hide evidence.
Ashenfelter's lawyer, Richard Zuckerman, said his client's Fifth Amendment right was properly asserted throughout the deposition, especially if a prosecutor believed it was a crime for someone to leak a document to him.
"They're suggesting stolen government property ended up in a reporter's hands," Zuckerman told the judge.
The judge invited the Justice Department to discuss whether Ashenfelter could be vulnerable to prosecution if he disclosed his sources, but the agency sent a lawyer from the civil division in Washington.
Elizabeth Shapiro, the lawyer, said she couldn't give a "concrete" answer.
"There could be circumstances where there could be an ongoing conspiracy," Shapiro said.
After the hearing, Convertino's lawyer said the reporter's Fifth Amendment shield should be embarrassing to the news industry.
"A news-gathering operation is not a criminal enterprise," Kohn said. "No newspaper should assert that it is."
Free Press Editor Paul Anger, who attended the hearing, said: "We don't think David's done anything wrong."
"We're responding to the arguments and the facts of the case," he said.
Ashenfelter was the co-author of a Detroit News series on the deaths of U.S. Navy seamen that won the Pulitzer Prize for public service in 1982.
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