He wants lawyers for the government and the Channel 10 reporter to address the question of restitution for expenses incurred in finding out who leaked the Plunder Dome videotape.

09:24 AM EST on Friday, December 3, 2004

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- A judge yesterday ordered lawyers to weigh in on whether Channel 10's Jim Taricani should pay legal bills that the government incurred in trying to figure out who gave the reporter a secret FBI videotape.

Chief U.S. District Judge Ernest C. Torres issued the order one day after special prosecutor Marc DeSisto revealed that it was Joseph A. Bevilacqua Jr., a defense lawyer in the Plunder Dome corruption case, who gave Taricani the tape despite a court order barring its dissemination.

Torres has already found Taricani guilty of criminal contempt for refusing to identify his source. Taricani is scheduled to be sentenced Dec. 9 and could receive up to six months in prison.

Yesterday, Torres ordered that "at the time of sentencing, counsel be prepared to address whether, in connection with the sentence imposed, [Taricani] should be required to pay or make restitution for all or any portion of the legal expenses incurred by the United States after entry of the Oct. 2, 2003, memorandum and order directing [Taricani] to answer the special prosecutor's questions."

The judge gave lawyers until the close of business on Tuesday to file memos on the matter.

The lawyers who are prosecuting Taricani have billed the government for $119,000. But those bills only run through mid-August of this year, so the total costs could be much more. On the other hand, more than $42,000 of the total was for work that DeSisto did in 2001 and 2002 -- before the October 2003 cutoff mentioned by Torres. So it's unclear what amount Taricani might be asked to pay.

The secret tape was part of the FBI's investigation into corruption at Providence City Hall, which led to the conviction of former Mayor Vincent A. Cianci Jr. The tape showed Cianci's top aide, Frank E. Corrente, accepting a $1,000 cash bribe from Antonio Freitas, an FBI informant posing as a corrupt businessman.

Channel 10 broadcast the tape on Feb. 1, 2001, two months before Cianci's indictment. Before being tried for criminal contempt, Taricani was paying a $1,000-a-day fine for refusing to divulge his source. While Taricani was paying the fines, which totaled about $85,000, Channel 10 has confirmed it reimbursed him all of the money.

After the judge's order became public yesterday, Channel 10 issued a brief statement saying, "Mr. Taricani's lawyers have received the order and will respond in writing to the court on December 7th."

Lucy A. Dalglish, executive director of The Reporters Committee for Freedom of the Press, said the order "demonstrates to me that the judge is really unsympathetic to Jim Taricani's point of view in this and he is really angry. The judge is getting cranky."

According to DeSisto, Bevilacqua has said he did not request a promise of confidentiality -- contrary to Taricani's repeated claims.

But Dalglish said, "I'd caution anyone listening to Mr. Bevilacqua to consider, number one, that Mr. Taricani would not have put himself and his family through this if there was not a request of confidentiality."

In March 2002, Bevilacqua gave DeSisto a waiver of confidentiality, which would release a reporter from a pledge of confidentiality, but after consulting with his lawyer, Taricani continued to refuse to answer DeSisto's questions. Dalglish said such waivers can be coerced and that Bevilacqua was under tremendous pressure when he signed the document.

Dalglish said she was not aware of any other "reporter's privilege" case where a reporter has been required to pay the government's legal expenses. "This is outrageous," she said, "because Mr. Taricani was tendering a defense based on a good-faith belief that he was upholding a First Amendment principle."

But judges have a lot of leeway in deciding what "remedies" to apply in criminal contempt cases, said Joseph V. Cavanagh Jr., a First Amendment lawyer who has done work for The Journal. "I see the judge trying to focus his attention on where he thinks some misconduct may have occurred and to fashion an appropriate remedy to address the alleged misconduct," he said.

"I don't think you'll find a precedent for a situation like the one that's unfolded here over the past three years," Cavanagh said. "Someone could make a movie out of it. Unfortunately, it looks like it's going to be a horror movie."

David A. Logan, dean of the Roger Williams University law school, who has taught media law for 20 years, said yesterday's order highlights that the case isn't over although the identity of Taricani's source is now known. "[Torres] is not blinking," he said.

At the last hearing, both sides agreed to a statement of the facts in the case, but "there doesn't seem to be a linear plot line anymore," Logan said. "We know more, but really we know less."

To get to the bottom of the conflicting accounts, Torres could request affidavits, have DeSisto take depositions or conduct a fact-finding hearing, Logan said.

After Bevilacqua was identified as Taricani's source, U.S. Attorney Robert Clark Corrente issued a statement, saying, "This revelation lifts the cloud of suspicion which had been permitted to linger, unfairly, over the FBI and this office."

Corrente -- who's not related to Frank Corrente, the mayoral aide filmed taking the bribe -- agreed it was appropriate for the court to appoint a special prosecutor.

"But it is just as important for the people of Rhode Island to be reassured that neither the FBI nor the U.S. Attorney's office leaked the [Frank] Corrente videotape in an effort to gain an unfair advantage in the Plunder Dome trial," Corrente said.

Freitas -- the informant who taped Frank Corrente taking the bribe -- wrote a letter to Torres yesterday, saying, "After watching Mr. Taricani's saga for the last three years and in light of the recent disclosure of Mr. Bevilacqua that he was the source of the leak, I feel that Mr. Bevilacqua should be punished, including jail time."

Freitas said that after reading about Bevilacqua's account of events, "it is obvious to me that Mr. Bevilacqua is a liar and has lied many times over."

Freitas asked Torres to "have mercy" on Taricani, citing the reporter's medical condition, which includes a transplanted heart. "I know how you feel about this information being leaked," Freitas told the judge, "because my undercover work was blown and I felt violated."

DIGITAL EXTRA: Recap the contempt case against Channel 10 reporter Jim Taricani, find related court documents and express yourself on the tape revelation, at:

http://projo.com/extra/2004/taricani/