The freedoms enshrined in the Bill of Rights are among our most cherished liberties, but they are not always in perfect balance. Sometimes, in fact, they conflict with one another in troubling ways. Such was the case last week when U.S. District Judge Martin Feldman of New Orleans had to balance the constitutional guarantee of a fair trial for defendants charged with major felonies and the First Amendment rights of journalists seeking to protect the identities of their confidential sources — all against the backdrop of federal rules shrouding grand jury matters in secrecy. In the end, Feldman made the right call, but getting there was not easy.
The case involves alleged local crime lord Telly Hankton and his extended family of accused hit men, drug dealers and money launderers. Hankton, who is already in jail for murder, and a dozen co-defendants were indicted in October 2012 on 22 felony counts, including racketeering and murder. Four days before that indictment came down, Hankton and five of his co-defendants were featured in a front-page story in The Times-Picayune. The story predicted their imminent indictment on racketeering charges and cited various unnamed sources.
Not long after the story ran, attorneys for Hankton and five of his co-defendants filed motions to dismiss the indictment. The motions alleged that FBI agents Richard "Chip" Hardgrave and Keith Burriss improperly prejudiced the grand jury by discussing the newspaper's forthcoming story with several T-P reporters days before the story ran. Reporter John Simerman and then-city editor Gordon Russell (who both now work for the New Orleans Advocate) testified that they showed the agents a "draft" of a graphic that accompanied their story (but not a draft of the story itself) in hopes of getting more information. The agents testified that they met with the newsmen mainly because they were concerned the story might jeopardize the safety of agents about to arrest dangerous criminals. Hardgrave and Burriss also testified that they were concerned about possible "leaks" as a basis for the story.
The motions put Feldman in the difficult position of having to balance the conflicting constitutional rights of the reporters and the defendants. Reporters are loath to testify about their stories because doing so exposes them to potential jail time if they refuse to give up confidential sources. In this case, agents Hardgrave and Burriss admitted they met with Simerman and Russell, but two days of testimony painted a picture of reporters and federal agents fishing for information from each other, to little avail.
"We asked a number of questions about the indictment and didn't get a lot of answers," Russell testified. For their part, the agents said the meeting assuaged their concerns about improper leaks and protecting potential witnesses who were still on the street. None of those witnesses were named in the story or depicted in the accompanying graphic, the agents testified.
Hours after the evidentiary hearing ended, Feldman denied the defense motions. His ruling noted that the government "admits that FBI agents disclosed information" that appeared in the T-P's story, but he concluded that such disclosures constituted "minor lapses" and that the defendants "failed to show any prejudice" as required under controlling case law. "There is simply no indication, beyond speculation, that the agents' statements substantially influenced the grand jury's decisions to indict those defendants mentioned in the article," Feldman wrote.
Turns out that was the easy part. The difficult part was keeping loquacious defense attorney Arthur "Buddy" Lemann from trying to force Simerman and Russell to identify other unnamed sources from the witness stand. Lemann repeatedly tried to ask the reporters to identify, either specifically or in general terms, other unnamed sources. Each time, T-P attorney Lori Mince objected, and each time Feldman sustained her objection — often adding a stern warning to Lemann to steer clear of such questions.
On several occasions, Feldman lamented the difficulty of maintaining "this very serious and tenuous balance" — and more than once he confessed he was "not a big fan of the First Amendment." The judge also noted that his job required him to "apply the law as it is, not as I would like it to be." He did exactly that, protecting Simerman and Russell at every turn from inquiries that threatened exposure of their confidential sources. Moreover, the judge noted several times that the newspaper's lengthy story reflected "good reporting and lots of shoe leather." His written ruling made no mention of the First Amendment, but from the bench Feldman struck a balance that protected the conflicting constitutional interests as well as possible.