Thrusday, December 31, 1998

Lawyer: Reporters broke promise

Ex-Chiquita counsel says pair assured his identity safe

The Cincinnati Enquirer

        A Salt Lake City attorney is accusing two former Cincinnati Enquirer reporters of illegally taping his conversations and then breaking a promise to protect his identity.

        George Ventura made the allegations Wednesday in court documents that argue he is wrongly charged with stealing voice-mail messages from Chi quita Brands International Inc.

        Mr. Ventura, a former legal counsel for Chiquita, states that the charges against him are based on taped conversations recorded by former Enquirer reporters Michael Gallagher and Cameron McWhirter.

        In a motion seeking dismissal of those charges, Mr. Ventura's attorneys allege that the reporters committed fraud by secretly taping the conversations and, months later, giving the tapes to prosecutors.

        At the time, the motion states, the reporters were investigating Chiquita's business practices and had vowed to protect the identity of their sources.

        “The reporters promised Mr. Ventura anonymity in exchange for his conversations regarding Chiquita's business practices,” the motion states. “The reporters have broken this promise by identifying Mr. Ventura as one of their sources for their articles.”

        The articles, which referred to voice-mail messages from company executives, were renounced by the newspaper in June. The Enquirer also apologized to Chiquita and paid the company more than $10 million.

        Mr. Gallagher, the lead reporter, was fired by the paper and has since pleaded guilty to two felony charges accusing him of accessing the voice-mail system. He also signed a cooperation agreement that requires him to disclose his sources.

        Mr. McWhirter, who has taken a job with The Detroit News, also signed a cooperation agreement but is not required to name sources.

        Mr. Ventura's attorneys, Marc Mezibov and John Feldmeier, say those agreements suggest special prosecutor Perry Ancona “purchased” evidence from the reporters.

        “The leniency the special prosecutor is offering Gallagher and McWhirter in exchange for their testimony and information is clearly a thing of value,” the attorneys wrote. “This purchase of evidence clearly violates federal and state law.”

        They also argue that Mr. Ancona broke the law when he used the reporters' taped conversations as evidence against Mr. Ventura.

        Although the law allows individuals to tape their conversations, defense attorneys say these tapes are illegal because the reporters made them “for purposes of committing criminal and tortious acts.”

        Mr. Ancona declined to comment and the attorneys for Mr. Gallagher and Mr. McWhirter could not be reached late Wednesday.

        In other motions filed

        Wednesday, Mr. Ventura's lawyers say the charges against their client should be dismissed because:

        • The court order appointing Mr. Ancona identifies him as an “officer and agent” of the court. Defense attorneys say this is improper because it requires the court to manage the case and the prosecutor at the same time, which is a conflict of interest.

        • The 10 felony charges are too vague. The defense says the charges, which accuse Mr. Ventura of accessing the computerized voice-mail system, do not apply to the acts Mr. Ventura allegedly committed.

        • The charges are unconstitutional. The defense argues that ambiguous phrases in the law could create a “chilling effect” on investigative reporting and other computerized research.

        The motions were filed in Hamilton County Common Pleas Court. Judge Ann Marie Tracey will rule on them before Mr. Ventura's trial in April.


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