On April 20, Detroit Free Press reporter David Ashenfelter may win his second Pulitzer Prize. The next day, he may head to jail.
Ashenfelter, 60, is the latest reporter to face prison for refusing to reveal his confidential sources -- in this case, for a story he wrote in 2004 about alleged misconduct by a prosecutor in a terrorism case in Detroit soon after 9/11.
Jail time became a real possibility when US District Judge Robert Cleland recently refused to delay Ashenfelter's deposition about his sources or let him take his case to an appeals court.
The case is unusual in that Ashenfelter claims that his refusal to divulge the identify of his sources is justified not only by the First Amendment, which guarantees freedom of speech and expression, but also by the Fifth Amendment, which protects him against self-incrimination.
Many journalists have been uneasy about this invocation of the Fifth Amendment -- arguing that it suggests, inaccurately, that he may have done something wrong. But the lack of a federal shield law that would legitimize his stance has forced Ashenfelter to resort to some legal creativity.
At issue in this complex, four-year legal battle is a 2004 Free Press article -- which asserted that Assistant US Attorney Richard Convertino, then a celebrated prosecutor in Detroit, was being investigated by the Justice Department for misconduct in his handling of a terrorism case he had won.
Quoting anonymous officials, Ashenfelter wrote that Justice was investigating, among other things, whether Convertino had withheld from the defense evidence that had resulted in the conviction of three North Africans, two on terrorism-related charges.
In turn, Convertino, the former assistant US attorney, filed a civil suit against the Justice Department -- claiming it had violated the Privacy Act by leaking information about him from his personnel files. His suit continued even after Justice formally accused him of withholding evidence -- and after the verdict against all three young men was overturned based on the mishandling of that evidence.
It continued after Convertino resigned his post in 2005, and after he was indicted in 2006 on charges of lying to a jury to win convictions and withholding evidence in the 2003 terrorism trial. And after a federal jury in October 2007 acquitted him of subverting justice in that case.
And Convertino's hunt for Ashenfelter's sources, vital to his civil suit, continued, too.
Last August, Judge Cleland ordered Ashenfelter to reveal his sources. Michigan state law protects reporters from being forced to identify confidential sources, but the judge refused to apply it -- ruling that this was a federal, not a state, matter. Plus, he wrote, since the identity of Ashenfelter's sources was crucial to Convertino's case, the reporter had to disclose them. Ashenfelter refuses to do so.
While jail is a daunting prospect, this saga gets worse. Convertino has asked Judge Cleland to fine Ashenfelter between $500 and $5,000 a day for refusing to cooperate and to forbid Gannett, which owns the Detroit Free Press, or anyone else, from reimbursing him.
"This is an outrageous case," said Lucy Dalglish, a lawyer who heads the Reporters Committee for a Free Press, which supports Ashenfelter. "This is an outstanding reporter who has served the public by calling attention to mishandling of one of the first post-9/11 terrorism cases. Every word he wrote was true, yet he now faces jail and possible bankruptcy for doing his job."
Judge Cleland has scheduled a hearing for April 21, the day after the Free Press will learn if it won a Pulitzer for articles to which Ashenfelter contributed. Cleland intends to rule on whether the Fifth Amendment right against self-incrimination protects Ashenfelter from divulging his sources. If he decides it doesn't, he could send Ashenfelter straight to jail.
Last Tuesday, the House overwhelmingly approved legislation by voice vote that would protect such reporters. Sponsored by Mike Pence (R-Ind.) and Rick Boucher (D-Va.), the "Free Flow of Information Act" would enable reporters in many instances to refuse to identify those who provided news of public importance. The House handily passed an almost identical measure last year, but it was stymied in the Senate, partly because former President George Bush had threatened a veto.
With President Obama having endorsed the principle, a larger Democratic majority in the Senate and the support of such independent-minded Republicans as Sen. Arlen Specter (R-Pa.), the so-called "shield law" is now likely to pass. But the Senate, which has just begun a two-week Easter vacation, won't act before Ashenfelter's day in court.
So if Congress wants to protect this courageous reporter, it may have to make the law retroactive.