In a highly unusual court proceeding that pits freedom of the press against a defendant’s right to due process, two New Orleans Advocate reporters are being compelled to testify Wednesday in connection with a 2012 newspaper article that accurately predicted a sweeping racketeering indictment against alleged drug lord Telly Hankton.
The reporters, John Simerman and Gordon Russell, asked U.S. District Judge Martin Feldman to throw out subpoenas they received earlier this year, but the judge determined defense attorneys should be allowed to question the journalists about a meeting they had with FBI agents days before the lengthy article was published.
The story, which appeared in The Times-Picayune — where the pair worked at the time — cited numerous sources, including anonymous sources with knowledge of the probe, and outlined a wide-ranging federal inquiry that accused Hankton and his cohorts of a long list of crimes, including drug dealing and murder. Several of the defendants, including Hankton, could face the death penalty.
The hearing raises the specter that the reporters could be jailed or otherwise sanctioned should they refuse to answer certain questions and are held in contempt of court, said Mary Ellen Roy, a New Orleans attorney who deals extensively in First Amendment issues. The proceeding is further evidence, she said, of a national trend of judges acquiescing to efforts by both the government and defense attorneys to make reporters testify.
“It’s very troubling because reporters need to be able to rely, in certain instances, on confidential sources to get information that they may never otherwise be able to get,” Roy said. “They rely often on whistle-blowers who have very good reasons for not wanting to have their identities divulged. The more reporters can’t rely on the courts to sustain that confidentiality, the more sources will not come forward.”
In the Hankton case, prosecutors have said FBI agents met with the reporters because they feared the upcoming article might jeopardize law enforcement officers who were poised to make arrests in the case. Hankton, perhaps the city’s most notorious criminal, was already serving a life sentence for murder when the story appeared, and his operation has been implicated in several retaliatory killings.
Defense attorneys, however, claim the 35-minute meeting, which took place at the FBI’s Lakefront headquarters, marked an effort by the government to prejudice grand jurors and was part of an alleged pattern of agents using the media to inflame public opinion against criminal defendants.
They contend the leaking of “non-public information” is cause for Feldman to dismiss the charges and sanction the agents for undermining grand jury secrecy. A copy of The Times-Picayune article surfaced in the grand jury room before the panel returned its 22-count indictment.
In the article, authored by Simerman and edited by Russell, one law enforcement source likened Hankton to “Keyser Soze, the mythically ruthless villain from the 1995 film ‘Usual Suspects.’ ”
“While federal authorities recognize that Hankton’s reputation is nearly mythic,” the article said, “he’s earned it, in their view.”
FBI Special Agent Richard “Chip” Hardgrave, who was at the meeting with the reporters, has acknowledged in an affidavit that he was the source of the Keyser Soze reference. Hardgrave and Special Agent Keith Burriss, the other agent at the meeting, are also scheduled to testify Wednesday, as is their former boss, Todd Cox, who has said in an affidavit that he authorized the meeting.
Defense attorney William Gibbens, who represents Telly Hankton’s cousin, Andre Hankton, has accused the government of leaking information to reporters in a series of high-profile prosecutions, and he initially sought to question the reporters about their unnamed sources in other stories unrelated to Hankton.
Feldman, however, has ruled that defense attorneys must limit their questioning to the FBI’s meeting with Russell and Simerman and the news article about the pending indictment.
“Because defendants seek to prove that the agents violated grand jury secrecy during their Oct. 10 meeting with the newspaper reporters, testimony from both the agents and the reporters would be relevant, material and useful to an adequate defense,” Feldman wrote in a March 26 order.
The Times-Picayune is paying for the reporters’ legal representation.
Lori Mince, an attorney representing Russell and Simerman, asked Feldman to throw out the subpoenas, calling them a “fishing expedition.”
Louisiana has a shield law designed to protect the rights of reporters to gather information and protect their sources, but there is no federal shield law.
Feldman cited the First Amendment as “additional support” for limiting the scope of the questioning, but he said Russell and Simerman’s testimony is needed because it “may or may not contradict” the agents’ denial that they leaked sensitive grand jury information. “The agents admit that they disclosed certain information at the Oct. 10 meeting, and although they deny being the source of other disclosures, only Mr. Simerman, the author of the Oct. 13 article, can confirm the identity of his sources,” Feldman added.
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