- The Washington Times - Tuesday, April 21, 2009

DETROIT (AP) - A federal judge upheld the right of a Pulitzer Prize-winning newspaper reporter to invoke the Fifth Amendment when he refused in court Tuesday to reveal his sources in a 2004 story about a terrorism prosecutor.

David Ashenfelter of the Detroit Free Press appeared at the federal courthouse to be questioned in a deposition sought by Richard Convertino. The ex-prosecutor is suing the U.S. Justice Department over a leak that led to a Free Press story about an internal ethics investigation, and he wants to know the reporter’s sources.

During the closed-door deposition, Ashenfelter asserted his Fifth Amendment right against self-incrimination when asked for his sources, his lawyer, Richard Zuckerman, said.

Convertino’s lawyer, Stephen Kohn, objected, but U.S. District Judge Robert Cleland overruled him, Zuckerman said.

“Litigation has its ups and downs,” Zuckerman told reporters. “This was more of an up day than a down day.”

Cleland did not explain his rulings but said “sustained” or “overruled” when asked to settle an objection, Zuckerman said.

Kohn said he will ask the judge to reconsider. The deadline is May 5.

“We stand by our position that the Detroit Free Press is not a criminal enterprise. This is a red herring,” Kohn said, referring to Ashenfelter’s Fifth Amendment claim.

Ashenfelter turned to a Fifth Amendment defense after Cleland last year said he could not avoid a deposition by citing a reporter’s privilege under the First Amendment.

The reporter took the Fifth during a deposition in December, and Kohn asked that Ashenfelter be held in contempt and fined. The judge instead ordered a second deposition and allowed the reporter to file a sealed affidavit to elaborate on the Fifth Amendment claim.

It was not known what role the affidavit had in the judge’s key rulings Tuesday.

Ashenfelter’s lawyers would not let him comment after the deposition. Free Press Publisher David Hunke and Editor Paul Anger were also inside the room. Convertino was not present.

The newspaper’s lawyers do not believe Ashenfelter broke any laws, but they’re not going to take any risks by allowing him to testify in a deposition.

“The Fifth Amendment is asserted because prosecutors may act irrationally,” Zuckerman said.

Kelly McBride, head of the ethics faculty at the Poynter Institute, a journalism think tank, said it’s a valid defense in Ashenfelter’s case.

“I’d rather see a lawyer pick a path that he thinks he has a chance of winning and protecting the reporter’s source than backing himself into a corner where he has no options,” she said.

Convertino handled the first major terrorism trial after 9/11, but the convictions were thrown out because evidence was withheld.

In 2007, he and a U.S. State Department investigator were accused of conspiring to hide evidence in the case and were acquitted.

Richard Helfrick, a defense lawyer who had a client in the botched terrorism trial, was among the people waiting in a courthouse corridor to learn the outcome of Ashenfelter’s deposition.

“I’m here to support Dave. He’s done a lot of good reporting,” Helfrick said.

When Ashenfelter, 60, 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.

The Free Press this week won a Pulitzer for stories that led to the downfall of then-Mayor Kwame Kilpatrick in 2008. Ashenfelter’s reporting was part of the newspaper’s entry.

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