(CN) – A former federal prosecutor can keep pressing the Detroit Free Press to learn which government source leaked allegations of prosecutorial misconduct, the D.C. Circuit ruled.
Six days after Sept. 11, 2001, the Detroit Joint Terrorism Task Force raided the home of Nabil Al-Marabh, a man on the FBI’s terrorist watch list. Instead of Al-Marabh, they found three other men – Ahmed Hannan, Farouk Ali-Haimoud and Karim Koubriti – with false identity documents.
Former Assistant U.S. Attorney Richard Convertino was assigned to the case and “became convinced that Hannan, Ali-Haimoud and Koubriti … were members of a ‘sleeper cell’ of an international Islamic terrorist organization,” according to the judgment.
After a highly publicized trial, two of the men were found guilty of providing material support to terrorists, and one was found guilty of document fraud.
Before the men were sentenced, however, the U.S. Attorney for the Eastern District of Michigan removed Convertino from the case for possible ethical violations during the prosecution. Eventually, a court vacated the verdicts against the three men.
Reporters soon learned that the Department of Justice was investigating Convertino’s alleged prosecutorial misconduct.
On Jan. 17, 2004, the Detroit Free Press published a front-page article titled “Terror Case Prosecutor is Probed on Conduct,” which quoted anonymous Justice Department officials.
The Justice Department tried unsuccessfully to identify who leaked information to the article’s author, David Ashenfelter.
Though Convertino was later indicted on charges that he obstructed justice and made false statements in court, he was acquitted of all counts.
In February 2004 federal complaint against the Department of Justice, Convertino claimed that an unidentified employee intentionally disclosed confidential information to Ashenfelter. He subpoenaed both Ashenfelter and the Detroit Free Press to reveal the source.
After a long discovery dispute, Ashenfelter finally attended a deposition in 2008. A federal judge upheld the reporter’s use of the Fifth Amendment not to answer questions.
Citing an unwillingness “to prolong this litigation further,” a federal judge granted summary judgment to the Justice Department. The decision said Convertino needed to identify the source of the leaked information to establish a claim.
The D.C. Circuit reversed on June 22.
“We believe that Convertino submitted ample evidence to suggest that additional discovery could reveal the source’s identity,” Judge Karen Henderson wrote for a three-member panel. “First, the Eastern District may decide to compel discovery from the Free Press as presaged in its order denying Convertino’s initial motion to compel the Free Press. … Convertino also produced evidence suggesting at least one other individual at the Free Press knows the identity of the reporter’s source.”
She noted that “the District Court described [Convertino’s] efforts in the Eastern District as ‘monumental.’ Convertino’s failure to discover the source’s identify, then, was plainly not the product of a ‘lack of diligence.'” (Emphasis in original)
“It is reasonably likely that a Free Press editor was also privy to at least some of these documents in view of the Free Press’s assertion that it permits a reporter to publish an anonymously-sourced article only if the article is approved by ‘the highest-ranking editor available’ and the fact that the documents were created within the scope of the reporter’s employment with the Free Press,” she added. “At the very least, a deposition or document disclosure from the Free Press may produce information leading to the source’s identity. While its reporter invoked his Fifth Amendment privilege against self-incrimination, the Free Press – as a corporation – enjoys no Fifth Amendment privilege.”
After overturning the terror charges, Koubriti tried to sue Convertino. The 6th Circuit ruled in 2010, however, that the former prosecutor had immunity from the suit.