By: A judge was urged yesterday to end a newspaper reporter?s "bad-faith" claim that he has a Fifth Amendment right to refuse to identify unnamed sources used in a 2004 story about a terrorism prosecutor.
U.S. District Judge Robert Cleland is being asked to hold David Ashenfelter of the Detroit Free Press in contempt and order fines as high as $5,000 a day until he divulges who in the government leaked information about an ethics investigation of Richard Convertino.
In August, the judge ordered Ashenfelter to testify in a deposition, saying he had no First Amendment privilege to avoid Convertino?s questions. When the reporter finally appeared in December, he invoked both the First Amendment and the Fifth Amendment right against self-incrimination.
?I view the assertion of this [Fifth Amendment] privilege in bad faith. ... It?s a civil case. It has nothing to do with a criminal matter,? Convertino?s lawyer, Stephen Kohn, told the judge.
A finding of contempt ?is the only way this witness will give Mr. Convertino the testimony he?s entitled to under the law,? said Kohn, who accused Ashenfelter of playing a ?game.?
After more than an hour of arguments, Cleland did not rule from the bench but promised to make a decision as ?rapidly as possible.?
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.
Convertino, now in private practice, wants to know Ashenfelter?s sources as he presses a lawsuit against the Justice Department, claiming his privacy was violated by the leak about an ethics probe.
Cleland spent more time listening to Ashenfelter?s lawyer, Richard Zuckerman. He immediately focused on the deposition answers, including a Fifth Amendment response when the reporter was asked for his address.
?Looks like someone is playing games, sandbagging,? the judge said. ?That poses a very problematic situation.?
Zuckerman never wavered from his argument that Ashenfelter?s Fifth Amendment assertion was proper throughout the deposition, especially if a prosecutor believes it was a crime for someone to leak a document to him.
?I have to show you a risk, a reasonable possibility? that justifies the Fifth Amendment, Zuckerman told the judge. ?They?re suggesting stolen government property ended up in a reporter?s hands.?
He said the five-year statute of limitations on possible crimes is not a total shield for Ashenfelter.
?Prosecutors are creative people,? Zuckerman said.
Ashenfelter, 60, a past winner of the Pulitzer Prize, did not speak in court. He tapped his fingers on a notebook and occasionally flipped it over on a table. Convertino was not in the courtroom.
Cleland invited the Justice Department to discuss whether Ashenfelter could be vulnerable to prosecution if he discloses his sources. The agency, however, sent a lawyer from the civil division in Washington, not the criminal side.
?There could be circumstances where there could be an ongoing conspiracy,? Elizabeth Shapiro said. ?It?s not helpful to respond with maybes, but I?m not able to give you anything concrete.?
After the hearing, Kohn said Ashenfelter?s Fifth Amendment shield should be embarrassing to the news industry.
?A news-gathering operation is not a criminal enterprise,? he said. ?No newspaper should assert that it is.?
Free Press Editor Paul Anger, one of many from the paper 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?s lawyers have noted that a Web site accuses the reporter of aiding criminals in the Justice Department. Kohn told the judge that Convertino?s wife controls the site, not the ex-prosecutor.
When Ashenfelter was at The Detroit News, he was the co-author of a series on the deaths of U.S. Navy seamen that won the newspaper the Pulitzer Prize for public service in 1982.
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