Without a shield

The fatal shooting of an off-duty Michigan State Trooper rocked Detroit during the summer of 1985. A seven-year veteran of the force, Paul Hutchins, 30, was on evening stroll along the downtown riverfront when he was shot in the head during a robbery and left to die by a group of teens.

During the investigation, police and prosecutors learned that a local television reporter had broadcast a segment just a month before the shooting that included interviews with gang members at Hart Plaza.

Could he have recorded the killers?

Investigators wanted the tapes of interviews and other footage that wasn't broadcast to see if witnesses could identify anyone involved in the Hutchins attack. They wanted to show them to a grand jury investigating the shooting. They wanted to find the killers.

But the television reporter, Bradley Stone, and his station, WJBK-TV2, then owned by Storer Communications, Inc., resisted. Stone had promised the gang members he wouldn't reveal their identities as a condition of doing the interviews. And they had threatened him with harm if he showed their faces or revealed their identities, he said in court filings.

Guided by a 1949 law that privileged print — but not broadcast — journalists from testifying in some court proceedings, Wayne County Circuit Judge William Giovan ordered Stone to produce the tapes.

"There was nothing I relished about possibly putting somebody in jeopardy, No. 1," Giovan now says. "But the law was very clear. The only possible excuse for me not authorizing the subpoena was the privilege they alleged, and it was clear that there wasn't one."

Stone went to jail in defiance of the order, but was released after a day while he appealed. He was unsuccessful in the Michigan state courts and also lost in the federal system: The U.S. District Court in Detroit and the next higher court, the Sixth Circuit Court of Appeals in Cincinnati, chose to not apply rulings from other federal jurisdictions that prevented reporters from being forced to testify in some situations.

By the time the Sixth Circuit issued its decision in March 1987, the Michigan Legislature had altered the state law, extending protection from some grand jury proceedings to broadcast journalists, and four people had been arrested in the trooper's death without investigators viewing the tape. They were convicted that summer and remain in Michigan prisons. One was convicted of a second murder committed after Hutchins's death.

Now, nearly a quarter of a century later, the legal maze created by Stone's battle in a criminal proceeding has trapped a Detroit reporter faced with possibly choosing between betraying a confidential source in a civil case on one hand, or facing jail time, fines or both on the other. Also as a result of that controversial ruling, the Sixth stands virtually alone in the nation's 13 districts in not recognizing any privilege for journalists in protecting confidential sources.

David Ashenfelter, who covers federal court for the Detroit Free Press, has been ordered three times to testify in a deposition about the confidential sources who provided him with information for a 2004 article.

U.S. District Judge Robert Cleland has rejected Ashenfelter's arguments for federal privilege against testifying, saying the appellate court made it clear in the Stone case that it doesn't recognize one.

Cleland also has denied Ashenfelter's claim that testifying would violate the reporter's Fifth Amendment rights against self-incrimination. Ashenfelter says revealing who gave him what information could subject him to prosecution under, among other laws, the Espionage Act.

Cleland last week for the third time ruled Ashenfelter must sit for a deposition and answer questions about his sources for the 2004 article in which he used unnamed U.S. Department of Justice sources who revealed to him an internal investigation into then-Assistant U.S. Attorney Richard Convertino.

In the first terrorism trial following Sept. 11, Convertino had won convictions in 2003 against three of four men charged in alleged plot that included, among other things, an attack on an air base in Turkey. After it was revealed Convertino had not shared evidence with the defense, U.S. District Judge Gerald Rosen in December 2003 ordered a review of the case. A month later Ashenfelter's article appeared.

Convertino sued the Justice Department, alleging the leak to Ashenfelter violated his civil rights guaranteed by the federal Privacy Act. Convertino resigned in 2005 and in 2006 was charged with obstruction of justice and other charges of which he was eventually acquitted. Convertino maintains that he was punished for complaining before Congress about department policies, including a lack of resources to fight the war on terror.

As part of the discovery in his civil lawsuit, Convertino has sought the identity of Ashenfelter's sources for the January 2004 article. Upward of 30 Justice Department witnesses who could have had access to the information about the investigation into Convertino have denied providing the information, says Convertino's Washington, D.C., attorney, Stephen Kohn.

Following Ashenfelter's refusal to name names, Convertino is seeking to have the court fine the reporter up to $5,000 a day. To win his case and show the Privacy Act was violated, Convertino needs the sources' identities. And now he needs it from Ashenfelter because other efforts have failed.

While Ashenfelter has argued keeping his sources confidential is part of the First Amendment guarantees for press freedoms, Kohn argues another important principle is at stake.

"Protection of the American people from fraud and corruption in government, that's No. 1," he says. "That's why the Privacy Act was passed as one of the most important post-Watergate era reforms. Until the Privacy Act, those in power like Richard Nixon and J. Edgar Hoover regularly used official leaks of information to discredit their opponents, demean them."

In August, Cleland first denied Ashenfelter's request to keep his sources confidential and not testify, known as invoking the reporter's privilege. In the 23-page opinion, Cleland relied on the appellate ruling in Stone's case to guide his decision.

"The Sixth Circuit has explicitly declined to recognize a qualified First Amendment privilege for reporters," Cleland wrote, referencing the 1987 ruling. "The Sixth Circuit ... has adopted a view opposite from most other circuit courts by declining to recognize any reporters' privilege, qualified or absolute, in civil cases."

Free Press attorney Herschel Fink remembers the Stone case well. He says editors at that paper, and other Detroit media leaders, opined against the station fighting the subpoena for the tapes. (In fact, Fink admitted he did some ghost writing for then-Freep editor David Lawrence's column on the issue.) It was, after all, just a few minutes of tape and was part of an investigation into a cop killing, and other media leaders felt a judge would rule against the station and set a bad case-law precedent.

"Bad facts made bad law," Fink said at a recent forum about shield laws. "Sometimes the stakes are very, very high."

Robert Powell, a Detroit attorney who argued Stone's case as counsel for WJBK at the time, has followed the Ashenfelter-Convertino dispute. He sees similarities in the court rulings if not necessarily the conditions of the cases.

"This is a civil case compared to the criminal case, which is the biggest difference. In a criminal situation, it's the grand jury investigating a crime versus a private party pursuing a private remedy," Powell says. "The interests are a little different."

One of Stone's other attorneys, Henry Saad, is now the chief judge of the Michigan Court of Appeals. He declined to discuss the Stone case with Metro Times, except to note one unique aspect of it: the Michigan's Legislature's quick response in changing state law to add broadcast journalists to the privilege law.

"There have been a few situations, whether it's litigation or court opinions, where the Legislature takes notice of things and will respond," Saad says. "It doesn't happen that often just because there are hundreds of thousands of cases and only so much legislation."

The Michigan statute adopted during Stone's case provides that journalists do not have to disclose sources except in capital cases during grand jury proceedings.

"Since Michigan statutes recognize a privilege in those special circumstances which themselves are secret, the courts often extend the privilege to regular civil and criminal proceedings," says Dawn Phillips Hertz, attorney for the Michigan Press Association.

But there is no federal shield law that would apply to Ashenfelter's situation. Congress currently is considering two bills that would create a federal shield law for reporters and prevent their testimony in some court proceedings. But it comes too late to help Ashenfelter.

Attorneys for the Pulitzer-winning journalist and the former federal prosecutor were to set a date for Ashenfelter's deposition by the end of this week. It will be held at the federal courthouse in Detroit so Cleland can be there to rule if Ashenfelter continues his refusal to betray the confidentiality pledge made to his sources.