July 1, 2008

Lynch Balks at Urging Passage of Shield Law

By Edward Fitzpatrick

Rhode Island's attorney general says his office's unique position makes it inappropriate for him to join 42 of his colleagues in calling for passage of federal legislation to protect reporters' sources.

PROVIDENCE -- Although the bill is backed by 42 other attorneys general, Rhode Island Attorney General Patrick C. Lynch is refusing to support the Free Flow of Information Act, which would create a qualified federal shield law for reporters.

The bill, which has passed the House and been recommended by the Senate Judiciary Committee, would make it harder for judges to order journalists to reveal confidential sources.

The most recent national push for the bill began with the Rhode Island case involving WJAR-TV (Channel 10) reporter Jim Taricani, advocates say. In 2004, Taricani was sentenced to six months of probation, on home confinement, for defying a court order to reveal who illegally gave him a secret FBI videotape that showed former Mayor Vincent A. Cianci Jr.'s top aide taking a bribe.

Attorney Joseph A. Bevilacqua Jr., 57, eventually acknowledged providing the confidential FBI videotape to Taricani. Bevilacqua was disbarred and received an 18-month federal prison sentence.

Lynch became president of the National Association of Attorneys General on June 19 during the group's annual summer meeting, held in Providence.

Four days later, in a June 23 letter, a bipartisan group of 41 attorneys general urged Senate leaders to pass a federal shield law, and prosecutors intend to deliver the letter when the Senate returns from its summer recess July 8. Texas Attorney General Greg Abbott, a Republican, wrote separately to endorse the bill.

In their letter, the 41 attorneys general said the act would bring federal law into line with the laws of 49 states, including Rhode Island. They noted reporter shield laws have been adopted, through legislation or judicial decision, in every state but Wyoming. "An overwhelming consensus has developed among the states in support of this public policy," they said.

But Lynch, a Democrat, did not sign the letter.

And yesterday spokesman Michael J. Healey said Lynch will not sign the letter in part because it deals with federal legislation. "Whether it's enacted or not will have no bearing or effect on the state law of Rhode Island, the courts of Rhode Island or our office's functioning," he said.

Also, Healey said, "Unlike all but two other states, the Rhode Island attorney general also functions as district attorney," so Rhode Island prosecutors bring many more criminal matters before grand juries than most attorneys general.

"Our position has nothing to do with First Amendment issues," Healey said. "It's simply about the propriety of a state that relies on the grand jury as much as we do telling the federal government how they should conduct grand juries. Our rationale is more based on jurisdictional issues than on philosophical issues. To be clear, we absolutely respect the work of journalists and how vital they are to our society."

Did Lynch feel an obligation to support the bill now that he heads a national group whose members overwhelmingly support it? Healey said, "When the attorneys general were in town, they could appreciate Rhode Island's responsibility with respect to grand juries versus their own."

Did Lynch feel he should support a bill prompted in part by a case involving a Rhode Island journalist? Healey said, "We have high regard for Jim Taricani. He stuck to his beliefs. And we respect him as a newsman. But again, because of our position as prosecutors who, by law, must send certain cases to the grand jury, we just wouldn't be consistent if we took the other position."

Bush administration officials have fought the shield law proposal, claiming it would jeopardize national security. But the bill has received support from Republican presidential candidate John McCain and Democratic candidate Barack Obama. (Lynch broke ranks with the state Democratic Party to endorse Obama over Hillary Rodham Clinton.)

Also, the June 23 letter was signed by the immediate past president of the National Association of Attorneys General -- Idaho Attorney General Lawrence Wasden -- and the president-elect, Nebraska Attorney General Jon Bruning. The letter was not signed by Massachusetts Attorney General Martha Coakley. But it was signed by every other attorney general in New England, including Connecticut Attorney General Richard Blumenthal.

The 41 signatories included the attorney general for Guam, but the rest represent states. Lynch was one of nine attorneys general representing states who did not sign the letter.

The 41 prosecutors said reporter shield laws "must now be viewed as a policy experiment that has been thoroughly validated through successful implementation at the state level." And, they said, "We are confident that the legitimate concerns for national security and law enforcement can be addressed in the court procedures for evaluating a claim of privilege."

Lucy A. Dalglish -- executive director of the Reporters Committee for Freedom of the Press, based in Arlington, Va. -- said she lobbied Lynch to support the bill during the National Association of Attorneys General meeting, and she is "very disappointed" he did not sign the letter.

Lynch's position is ironic given that "the whole push in the federal system" began with the Taricani case, Dalglish said. And since his state has a shield law, Lynch should understand "that justice can be served if reporters are afforded some level of protection from having to reveal confidential sources," she said.

"He's taking a classic prosecutor's approach," Dalglish said. "People who go before grand juries don't like to give up the notion that they can get anything and everything."

Dalglish said the number of subpoenas served on reporters in federal courts has been increasing over the past five years, and she hopes a federal shield law will reverse that trend. She said a federal shield law is needed to help ensure that people blow the whistle on public malfeasance or mismanagement.

"There have been a number of high-profile cases of government corruption in Rhode Island that even I am aware of," Dalglish said. "People within the government need to feel they can bring information forward, and sometimes they feel they can only do that if they are protected." [email protected] / (401) 277-7368

Originally published by Edward Fitzpatrick, Journal Staff Writer.

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