Tuesday, March 02, 1999
Voice-mail defense countered
Ex-Chiquita worker cited Constitution
BY DAN HORN
The Cincinnati Enquirer
Prosecutors say the First Amendment does not prevent them from pursuing criminal charges against the company attorneyaccused of illegally accessing voice mails at Chiquita Brands International Inc.
In a motion filed Monday in Hamilton County Common Pleas Court, Special Prosecutor Daniel Breyer argued the criminal case does not violate the constitutional rights of former Chiquita legal counsel George Ventura.
He said Mr. Ventura lost his First Amendment protection when he illegally told two reporters at The Cincinnati Enquirer how to access the company's voice-mail system.
Mr. Breyer's statement was in response to a motion to dismiss the charges, which Mr. Ventura filed with the court in December.
The special prosecutor also disputed Mr. Ventura's claim that the charges could have a “chilling effect” on investigative reporters.
“The First Amendment would have no more application to defendant's criminal behavior in this case than it would to Geraldo Rivera robbing a bank,” Mr. Breyer wrote in his motion.
“There is nothing about the defendant's conduct in committing these crimes that was constitutionally protected.”
Judge Ann Marie Tracey plans to hear arguments from both sides March 16 before making a ruling.
Mr. Ventura, a Salt Lake City lawyer, has argued the law he is accused of breaking is so vague that it gives prosecutors “unbridled discretion in enforcing the statute.”
His attorneys also have suggested prosecutors gained the cooperation of the reporters, Michael Gallagher and Cameron McWhirter, by promising them lenient treatment.
Mr. Ventura is accused of providing the reporters with access codes to Chiquita's computerized voice-mail system.
The reporters eventually published articles about Chiquita's business practices that relied in part on voice mails allegedlystolen from company executives. The newspaper in June renounced the series, apologized 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. 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.
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