The Final Twists in the DeFede Saga

By: Allan Wolper Three weeks ago, editors in The Miami Herald newsroom removed the life-sized mannequin that had slumped over the former desk of Jim DeFede -- a symbol of the failed attempt to persuade the paper to rehire its colorful metro columnist. The mannequin had been sitting there since shortly after DeFede was fired July 27 for secretly taping a telephone interview with former Miami city commissioner Arthur E. Teele Jr., before he shot himself to death in the newspaper lobby.

"We believed that kind of activity was a third-degree felony even if the intent was not malicious," Herald publisher Jesus Diaz Jr., told me last month, referring to a Florida statute which forbids recording a person without his consent.

Dade County State Attorney officials disagreed with Diaz's verdict, clearing DeFede after interviewing him and listening to the tape in the privacy of the Herald's executive offices. The Herald newsroom learned about the state attorney visit to the newspaper two days after it occurred when it was reported on a local television news program. (More about that later.)

The legal decision exonerating DeFede did not convince Herald executives to rethink their firing of him. They said he was let go because he behaved unethically when he "illegally taped" what they said was an "off-the-record" interview and then tried to use it in his column.

But that hadn't stopped Herald news executives from publishing key elements of that taped material in the final edition of the newspaper that day, even after informing their reporters that the information could not be used because of the conditions under which it was obtained.

DeFede was astounded. "Here I was fired because I gathered this information and I was told how unethical I was and they went ahead and used it anyway to make their story better," DeFede said.

Tom Fiedler, the Herald executive editor, said the paper acted "out of ignorance" when it used the material from the DeFede-Teele interview. "We didn't find out days later that it was off the record," Fiedler said.

There is a difference of opinion about whether the DeFede-Teele telephone conversation was off the record (the view held by Herald management) or whether just part of it was (DeFede's view).

But there is evidence that Herald executives knew the night of the suicide that the most explosive section of the tape -- a complaint by Teele that the state attorney's office had unfairly smeared him by claiming he had sex with a transvestite -- was off the record and used it anyway.

That evidence was in the transcribed notes of the telephone interview DeFede brought with him to the Herald newsroom and gave to Scott Hiaasen, a reporter working on the overall suicide story. Hiaasen that night shared that transcribed material with his editors.

DeFede's notes included a section indicating that Teele did not want to be quoted on his complaints about his alleged trysts with a now imprisoned transvestite.

The next day, Herald editors assigned Audra Burch, one of its best feature writers, to ask DeFede to go "on the record" about his "off-the-record" conversation with Teele. Which he declined to do.

--How It Started

This convoluted ethical saga began at around 4:45 p.m. on July 27 when Teele telephoned DeFede at his Miami home. Teele, facing 26 charges of fraud and money laundering, was distraught.

Miami New Times, an alternative weekly newspaper, had just published a non-corroborated story that accused him (among much else) of the alleged trysts with a transvestite prostitute that upset him so much.

"Who did I piss off in this town?" Teele asked DeFede, who said the commissioner was a friend of 14 years, adding that the transvestite allegations would hurt him with his "ministers and the church." The Herald later included that quote as well as Teele's agony over the transvestite charges.

Growing worried, DeFede said he pressed the record button on his tape machine to document his friend's pain. At this point, DeFede asked Teele if he wanted to go public about the transvestite allegations. Teele didn't want to.

At 5:52 p.m., Teele telephoned DeFede from the Herald lobby to tell him he had left some documents to help with a potentially explosive story the two men had discussed. It was a farewell present. Several minutes later, Teele shot himself.

At about 6:30 p.m., DeFede made the move that cost him his job. He informed Diaz and Robert Beatty, the paper's legal counsel, during a telephone conference call that he had taped his conversation with Teele.

They asked him to bring the tape to the newspaper. DeFede spent about 30 minutes taking down the key points of his talk with Teele and brought them to the Herald office.

Shortly after 8 p.m., DeFede met managing editor Judy Miller in the newsroom. Miller had always watched his back, supporting his hard-edged muckraking. She laughingly has said that she helped him make the switch to mainline journalism from the alternative life he led with New Times.

He gave her the tape and told her there were some issues about it, but added that "Beatty and Diaz are handling it." DeFede recalled that he told her that he taped Teele without his consent. But Miller said DeFede never told him he might have made it illegally.

Miller, they both agree, then told DeFede to write a column about his conversation with Teele and promised him space on page one alongside the main story.

Two hours later, Diaz, Elissa Vanaver, the paper's vice president of human resources, and Miller met in the publisher's office. Tom Fiedler was on the phone from San Jose. Fiedler, Diaz, Beatty, and Vanaver agreed that DeFede should be fired.

Miller fought for a one-month suspension, perhaps aware that Mitch Albom, the best-selling author who wrote a column for The Detroit Free, got off earlier this year with a public apology and just a three-week suspension after being caught fabricating parts of a story. (At the time, The Detroit Free Press was part of the Knight-Ridder chain. It has since been sold to Gannett.)

Shortly after the meeting on DeFede's fate, Diaz and Fiedler spiked the column he was assigned to write.

The next morning DeFede's attorney, Dan Gelber, contacted the state attorney's office.

The Herald executives had said that DeFede had committed a possible felony. DeFede felt he had been convicted in the Court of Public Opinion and had to testify. And he did -- answering questions for 90 minutes.

After the Herald was told about DeFede's testimony, Tom Fiedler telephoned Bob Steele, director of ethics for the Poynter Institute, in St. Petersburg, Fla. Diaz had told a press conference he would never hand over a reporter's notes. But DeFede had given a deposition. Did this change things?

"We talked about a number of ethical and legal issues that came out of the suicide and the matters related to Jim DeFede's situation," Steele said. What did he advise? "When an editor or publisher calls me seeking input and guidance, I call that proprietary," he replied.

Steele said he does not accept a fee for his advice, but noted that he would be compensated when he goes to Miami this month to run an ethics workshop for Herald reporters. "It's the kind of consulting work that all professors do," he said.

After some additional internal discussion, the Herald executives invited representatives of the state attorney's office to come to The Herald to listen to the tape -- but they kept possession of it. "We did it to help Jim," said Fiedler, noting that it corroborated DeFede's testimony.

But the action made Herald reporters uneasy because Jesus Diaz had said he would never hand over a newsman's notes short of a subpoena. Not to mention that Fiedler or Diaz never told anyone else in the newsroom about the arrangement. "It was a bad call on my part," Fiedler acknowledged. "I didn't think it was newsworthy. The next thing I know I am getting a call [two days later] from [television reporter] Michael Putney asking for my comment. But we had no desire to keep it secret."

Diaz told me that the Herald kept the meeting to itself because Joan Fleischman, its gossip columnist, had planned to write an item about the tape session -- hardly the way to handle such a sensitive issue. "We just got scooped on our own story," he told me.

That's accurate, but not true. No one assigned Fleischman to write a story about the taping session with the prosecutors. In fact, Herald executives did not know she was working on it until she interviewed them several hours before the television station broke it.

On Sept. 20, the Herald met with DeFede and reiterated that he had acted unethically by taping his telephone conversation with Teele -- noting that it was against Florida law even though he wasn't prosecuted.

Diaz and Fiedler both said that they supported the Florida law even though it represented a change of policy. In 1977, the paper fought an unsuccessful court battle to have it thrown out, only to be thwarted by the State Supreme Court.

"We fought it because we felt it was cumbersome, poorly drafted, was vague, confusing, and potentially unconstitutional," said Sam Terilli, the Herald general counsel from 1988 to 2000.

Terilli, a First Amendment lawyer with Ford & Harrison and an assistant professor of journalism at The University of Miami, said he had hoped that DeFede would be given his job back.

"Both the Herald and DeFede made decisions and took actions under severe pressure," he said. "He made a mistake. He apologized. He brought it to everyone's attention. You don't take someone out at dawn and shoot down their career under those circumstances."

Terilli said he also felt that Fiedler and Diaz were men of good faith "who made a decision in the heat of the moment."

When the Herald fought to overturn the Florida anti-taping law, it did so by alleging that a source who initiated a telephone interview implicitly agrees to be recorded, so taping him is akin to note taking and shouldn't require consent. There is a healthy debate about whether reporters, especially in the 38 states and The District of Columbia where taping calls is legal, should ask before recording interviews.

"Reporters in Florida tell me that they tape their interviews without telling their sources," explained Thom Julin, a First Amendment attorney who has represented The Herald.

In New York, taping sources is an important tool -- especially for investigative journalists. "It's not illegal and it?s not unethical," said Victor Kovner, a noted First Amendment attorney and libel lawyer for the Village Voice.