Ashenfelter-Convertino: Essential reading

Posted on April 24, 2013 by Joel

By Joel Thurtell

A federal judge has ordered the Detroit Free Press to reveal the names of US Justice Department officials who illegally disclosed secret grand jury information about a former assistant US attorney, Richard Convertino.

Convertino has sued the Justice Department. He’s trying to learn which US Justice Department officials illegally leaked negative information about him for a January 17, 2004 Free Press story.

Four documents are basic to understanding the case involving a star Free Press reporter, David Ashenfelter, and the former federal prosecutor, Richard Convertino. The documents are:

I. Professional Integrity section of Detroit Free Press-Newspaper Guild labor agreement

II. “3. Attribution, unnamed sources” and “4. Confidentiality” in December 13, 1984 “Free Press Ethics Guidelines.”

III. “Confidentiality” clause of March 3, 2001 “Detroit Free Press Ethics Policy” in place January 2004.

IV. “3. WE PROTECT THE INTEGRITY OF THE FREE PRESS,” February 25, 2004 “Detroit Free Press Ethics Policy.”

I. No person employed by the Free Press shall, for any reason, prepare for publication material which is inaccurate, misleading or false.

ARTICLE XI, Section 1 – “Professional Integrity,” from Agreement between Detroit Free Press, Inc. for Detroit Free Press and Newspaper Guild of Detroit.

II. The December 13, 1984 “Free Press Ethics Guidelines” sent to “Free Press newsroom” from then Free Press Executive Editor Dave Lawrence preceded the March 7, 2001 guidelines. Here are excerpts related to confidential sources:

3. Attribution, unnamed sources:

Our readers usually are best served when we can identify news sources by name. We should work hard to identify the source(s) although there will be instances when the pursuit of truth will best be served by not naming a source. Sources will be named unless the reason not to do so is an overriding consideration. Except in a justifiable instance, we will not allow an unnamed source to use us to attack an individual or an organization. We will work hard to corroborate information from any unnamed sources. A decision to use unnamed sources will be made with teh advice and consent of a supervising editor.

4. Confidentiality:

Since the U.S. Supreme Court has ruled that the First Amendment does not extend to journalists the absolute right to protect the confidentiality of news sources, reporters on their own cannot guarantee sources confidentiality in a published story. If a demand is made after publication for the source’s identification, a court may compel us to reveal teh source. In circumstances where the demand for absolute confidentiality is made as a condition for obtaining the story, that situation needs to be discussed with a supervising editor before a commitment is made. Trust works both ways — the editor must be able to trust the reporter, and vice versa.

III. Text of the “Confidential Sources” section of the March 7, 2001 Detroit Free Press Ethical Guidelines in force on January 17, 2001 when the Free Press published a story based on illegally-leaked information from the US Justice Department. The Free Press policy of December 13, 1983 that preceded the 2001 policy as well as the February 25, 2004 policy follow the 2001 policy that was in effect in January 2004:

CONFIDENTIALITY Because the U.S. Supreme Court has ruled that the First Amendment does not extend to journalists the absolute right to protect the confidentiality of news sources, reporters on their own cannot guarantee sources confidentiality. If a demand for absolute confidentiality is made as a condition for obtaining the story, that situation needs to be discussed with a department head or higher editor before a commitment is made.

More recently, the Supreme court has ruled that the First Amendment does not bar a breach of contract suit for damages when a newspaper breaks a promise of confidentiality. That breach can arise from disclosing a source’s name, inadvertently or otherwise, from too detailed a description of the source or from an inadequately disguised photograph.

These legal concerns suggest that unnecessary promises of confidentiality be avoided, and the need for the promise be weighed against its value.

In making such a promise, take care to avoid ambiguity. Keep the promise specific; a pledge to not use a source’s name is preferable to agreeing to make the source unidentifiable.

Also, take reasonable steps to insure a promise is kept: Make sure the commitment is known by supervisors and by photo editors and others who might inadvertently disclose an identity.

If a promise goes beyond the source’s name, consider reading the description back to the source to insure the source is comfortable with it.

If there appears to be a need to break a promise, seek advice from legal counsel.

Further on in the same document, the subject of confidential sources was addressed again:

SOURCES They should be named. We don’t use unnamed sources unless absolutely necessary to tell the story.

– When we’re forced to use unnamed sources, we must strive for multiple sourcing. When we can’t name a source, we must be as specific as possible about identifying the person, to attempt to preserve the credibility of the story.

– Avoid using the word “source” if possible; “person” is preferable.

– We must strive to explain each time to readers why we’re not naming a source. (The explanation doesn’t have to accompany the first reference to the source, but should be high enough to give the reader appropriate knowledge.)

– In finding people to quote in a story, whenever possible and appropriate strive for a diversity of sources — people of more than one race, age group, gender and geographic locations.

IV. On February 25, 2004, Free Press managers replaced the 2001 ethics guidelines with a 10-point set of rules for news reporting entitled “Detroit Free Press Ethics Policy.” The new policy was implemented five weeks after the January 17, 2004 Convertino story. Here are portions of the new policy dealing with confidential sources:

3. WE PROTECT THE INTEGRITY OF THE FREE PRESS

We name our sources. The use of unidentified sources in published material requires the approval of a managing editor or the highest-ranking editor available.

 

 

 

 

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Convertino case: Judge orders Free Press to name sources

Posted on April 18, 2013 by Joel

By Joel Thurtell

Former assistant US attorney Rick Convertino’s lawsuit against the US Justice Department is still alive, despite a federal judge’s decision to let a Detroit Free Press reporter, now retired, off the hook as a witness in the ex-prosecutor’s federal whistle blower lawsuit.

Convertino is suing the Justice Department and Justice officials under the federal Privacy Act for disclosing to the Free Press secret grand jury information that he says destroyed his career.

Because US District Judge Robert Cleland allowed then Free Press reporter David Ashenfelter to invoke the Constitution’s Fifth Amendment protection against incriminating himself by naming names, Ashenfelter is a dead end as far as discovering who the sources were. Cleland on January 15, 2013 ordered the Free Press to turn over to Convertino Ashenfelter’s notes, including e-mails and electronic files, and to make further effort to find other current and former Free Press staffers who may know who Ashenfelter’s sources were.

On June 22, 2012, a Washington, D.C. appeals court panel ruled that Convertino is entitled to pursue discovery in his Privacy Act lawsuit against the Department of Justice.

US District Judge Robert Cleland on January 15, 2013 ordered the Free Press to produce documents related to the Free Press sources and to provide a company witness to testify about Ashenfelter’s sources.

As a consequence of the judge’s order, the newspaper offered free legal services to four current and six former staffers who, the newspaper contends, may know who the reporter’s unnamed sources were.

In a January 28, 2013 e-mail memo, Free Press publisher Paul Anger asked the current and former Free Press editors if they knew the source or sources for then Free Press reporter David Ashenfelter’s January 17, 2004 Free Press story, “Terror Case Prosecutor is Probed on Conduct: Outcome of Investigation Could Give The Defendants a New Trial.”

The “terror case prosecutor” in the paper’s headline was Convertino, who had earlier filed a whistle blower lawsuit against the government. The civil suit was put on hold after the US Justice Department charged Convertino with obstruction of justice. A jury took four hours to acquit Convertino on October 31, 2007, whereupon he revived his civil lawsuit against the government.

The Obama Justice Department is prosecuting other government leakers aggressively. For example, a CIA leaker has been sentenced to prison. Lewis “Scooter” Libby was convicted in the Valery Plame leak case. For some reason, Obama’s minions aren’t breathing down the necks of Ashenfelter’s leakers.

In a December 8, 2008 column, I quoted from the Free Press policy on confidential sources in effect in January, 2004: “If a demand for absolute confidentiality is made as a condition for obtaining the story, that situation needs to be discussed with a department head or higher editor before a commitment is made.”

In that column, gave this advice to Richard Convertino:

Dave Ashenfelter wasn’t the only one at the Free Press who knew the names of his federal sources. Why don’t you subpoena the people who edited his story?

I had some advice for Dave Ashenfelter, too:

It’s not too late, Dave — get a second legal opinion.

If Dave had sought other advice, he might not have had to invoke the Fifth Amendment to avoid incriminating himself.

A key question now is whether any of the 10 present and former Free Press staffers Anger queried was “a department head or higher editor” when the Free Press published Ashenfelter’s story.

The January 28 memo from Paul Anger is titled  “Court Order to Reveal Source(s).” It states:

As you may know, the plaintiff in Convertino v. United States Department of Justice, et. al, a civil case pending in federal court in the District of Columbia, is suing the Justice Department because he claims it violated the Privacy Act when it allegedly disclosed information about him to the Free Press. As part of his litigation, Convertino needs to find the person who gave secret grand jury information to the Free Press. The Free Press is not party to the litigation.

As part of the litigation, Convertino subpoenaed the Free Press, demanding information concerning the identity of a confidential source(s) for a January 17, 2004 article in the Free Press headlined “Terror Case Prosecutor is Probed on Conduct: Outcome of Investigation Could Give The Defendants a New Trial. The article is attached.”

“We opposed the subpoena but were recently ordered by Judge Robert H. Cleland to designate a corporate representative who can testify with regard to whether there is a current or former employee who knows the source’s identity.”

“In July 2006, you received a memorandum from the Gannett Law Department asking whether you knew the identity of the person(s) who provided, commented on, or confirmed the information attributed to ‘Just Department officials” in the article. You were instructed to contact a Gannett Law Department representative if you had such knowledge. You did not respond and the newspaper consequently concluded that you had no knowledge of the source’s identity.”

“In light of Judge Cleland’s recent order, I am responsible once again to inquire whether you have that information, i.e. whether you know that names of sources of information about Mr. Convertino in the article that appeared in the January 17, 2004 edition of the Free Press, and what information each such source provided to the newspaper.

If you have such information, especially considering the lengthy history of this litigation and the personal interests at stake, you may want to consult with a personal attorney who can advise you in this matter. In that respect, the Free Press has engaged Lee Levine, Esq. to be available personally to advise you (or any current or former employees) who wishes personal legal advice in this matter. Mr. Levine is copied on this message.

“The newspaper will pay for legal services rendered to you by Mr. Levine.

“If you do not know the name of the confidential source for the January 17 article or the information he or she provided, please confirm that fact in a reply email.

“If you do know that information, please send me a reply e-mail stating ‘yes.’ If you do that, we will follow up with you for more detail.

“Finally, because of a Court-imposed deadline, please respond to this message or contact Mr. Levine no later than 5 pm on January 28, 2013.”

JOTR note: the time on the Anger memo was 3 PM — two hours before the deadline. As a result, the deadline was extended to January 31.

On February 15, Paul Anger was deposed by Convertino’s attorney. Learn what the top manager of the Detroit Free Press said about use of confidential sources at the Free Press in a forthcoming JOTR column.

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Texas may ban CABs

Posted on April 6, 2013 by Joel

By Joel Thurtell

In spite of all the uproar about high-interest Capital Appreciation Bonds and 1000-percent interest rates in California schools, the California Legislature has not outlawed these taxpayer ripoffs and may only limit their use.

In Texas, meanwhile, a bill has been introduced into the Legislature to ban CABs outright.

It seems that in Texas, as in California, schools are borrowing at 1000-percent interest rates.

According to The Associated Press, “A bill to eliminate the option has cleared a state Senate committee, and if passed by the Legislature, will allow Texas to join Michigan as the only two states to bar school districts from using the bonds.”

Michigan banned CABs in 1994, following publication by the Detroit Free Press of my April 5, 1993 investigation of Michigan schools; use of CABs.

The story of California’s CAB scam was broken on this blog starting on April 27, 2012.

I’ll be speaking about how I uncovered the Michigan CAB scandal at the annual conference May 10 of the California League of Bond Oversight Committees in Sacramento.

 

 

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