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Court rules against bid to unmask Free Press tipster

Holly Fournier
The Detroit News

The U.S. Sixth Circuit Court of Appeals has upheld a district court opinion allowing a former Detroit Free Press reporter to take the Fifth Amendment to avoid revealing sources who leaked information about a Department of Justice ethics investigation.

The investigation into former prosecutor Richard Convertino was detailed in a Jan. 17, 2004, Free Press article by David Ashenfelter, who cited anonymous sources inside the government agency.

Convertino aimed to compel Ashenfelter to reveal his sources as part of the former prosecutor’s lawsuit against the Justice Department. Convertino said his privacy was violated when the leak disclosed information about the investigation to Ashenfelter.

His lawsuit against the department was dismissed in 2011 by a federal judge in Washington. But an appeals court said the case should be frozen while Convertino tried to identify the sources.

Ashenfelter welcomed the decision Friday.

“After more than 10 years of worry, stress and sleepless nights, I’m relieved that this legal nightmare may finally be over — at least for me,” Ashenfelter said in an emailed statement.

A lawyer for Ashenfelter, Richard Zuckerman, said Convertino now can ask the Sixth Circuit judges to reconsider their decision or appeal the decision to the U.S. Supreme Court.

“The likelihood of either type of relief is remote and that’s being kind,” said Zuckerman.

Convertino declined to comment early Friday afternoon, saying he had not yet read the ruling. His attorney was not immediately available for comment.

The appeals court decision comes after a district court approved Ashenfelter’s use of the Fifth Amendment in response to questions at two depositions in 2008 and 2009, according to the opinion released Friday.

Free Press lawyer Herschel Fink said Ashenfelter was able to use the Fifth Amendment in part because of allegations made by Convertino.

“While we don’t think that David (Ashenfelter) did anything wrong, we certainly pointed out to the court that Mr. Convertino, who was an experienced federal prosecutor, had alleged Ashenfelter was in a criminal conspiracy with the leaker,” Fink said.

Convertino twice moved for the district court to reconsider, claiming Ashenfelter had no reasonable fear of prosecution. The former prosecutor also referenced a statement by then-Attorney General Eric Holder that the Justice Department would “not prosecute any reporter for doing his or her job.”

The district court denied both motions, upholding Ashenfelter’s right to invoke the Fifth Amendment.

“I think one significant effect of the decision is that it adds another layer of defense for journalists to be able to protect their sources,” Fink said. “Particularly in cases involving national security and governmental leaks.”

All of the litigation was rooted in a scandal involving prosecutorial misconduct during a high-profile 2003 terrorism trial in Detroit.

Two terror convictions Convertino won in the case were tossed out at the request of the Justice Department after prosecutors accused him of withholding relevant information from defense attorneys and other misconduct. Convertino resigned in 2005 from the Justice Department amid the controversy.

Ashenfelter said his story accurately portrayed the investigation.

“My 2004 story said Richard Convertino was being investigated by the Justice Department for his handling of a major terrorism trial in Detroit,” he said. “He was investigated, indicted, prosecuted and eventually acquitted. My story was accurate.”

HFournier@detroitnews.com

(313) 223-4616

@HollyPFournier