Defense attorneys in the Anthony Pellicano case are calling for subpoenas against the New York Times reporters who have been leaked FBI memos.
Prosecutors have cited several stories in the Times that drew on FBI witness interview summaries as a reason to halt discovery in the case, blocking defendants from any further confidential info.
Stymied, attorneys for former L.A. police officer Mark Arneson, who is accused of running names through law-enforcement databases for Pellicano, contended in a motion that the government ought to turn its attention to the Times reporters on the story.
“If the government is truly serious about learning the person or persons responsible for leaking government investigative reports to the New York Times reporters, it has an immediate remedy: it may simply go to the heart of the problem, the New York Times reporters who allegedly obtained the protected materials from an as-yet-unspecified source,” argued attorneys Stephen D. Miller and Chad S. Hummel.
“Under long-standing federal case authority, the government may subpoena these reporters before a federal grand jury,” they added.
Motion was filed in Los Angeles federal court on Monday
Their call for scrutiny on the media was backed by Pellicano’s counsel, Steven Gruel, who said, “I fully support it.” Asked specifically if he favored subpoenas, Gruel added, “I would assume that would be one of the things that they could do. You do have the arsenal of the grand jury.”
Times culture editor Sam Sifton voiced support for his reporters on the Pellicano beat, David Halbfinger and Allison Hope Weiner — “We totally stand by our reporters. They’re great and they’re doing great work.” — but referred further questions to a Times spokesman.
The paper’s rep declined comment on this particular case but said in a statement, “Historically, we have opposed the subpoenaing of reporters in the course of leak investigations. We believe the appropriate role of the press is to report on government and other entities rather than (to testify as) compelled witnesses.”
The rep said no one from the Justice Dept. has contacted the Times regarding the leaks.
It is fairly difficult to subpoena members of the media. According to DOJ regulations, Attorney General Alberto Gonzales would have to personally authorize such a subpoena. Those guidelines also say media subpoenas should come only after “all reasonable attempts” are made to obtain information from alternative sources.
At the last hearing in the case on May 1, Assistant U.S. Attorney Daniel A. Saunders told Judge Dale S. Fischer he believed the Times stories had violated an order forbidding prosecutors or defense teams from sharing discovery materials.
He also said the U.S. Attorney’s office in San Diego had begun an investigation into how the Times had obtained the FBI’s interview summaries.
Fischer refused to issue an order before any written motions had been filed. But she supported the prosecution’s suggestion that it stop discovery until at least the next hearing, scheduled for next Monday.
Defense attorneys have adamantly opposed the halt in discovery. Terree Bowers, attorney for defendant Terry Christensen, said, “Our position is that it’s extremely presumptive and unfair for the government to essentially accuse the defendants of leaking this information. There are just as many indicators, or more, that it may be coming from the prosecution.”
He also said he believes the original protective order was a contract between prosecutors and the defense teams and accused the prosecution of being in breach. “The main thing is that the defendants shouldn’t be unilaterally cut off from an agreement with the government.”