12:27 PM EST on Thursday, November 18, 2004

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- Chief U.S. District Judge Ernest C. Torres is on the verge of sending Channel 10 reporter Jim Taricani to prison, and he said he finds that prospect "very unpalatable."

"It is particularly difficult," Torres said in an interview this week, "because I have observed Jim Taricani over the years and he seems like a decent person."

But Torres has made clear he sees no First Amendment right for Taricani to defy a court order by refusing to identify the source who gave him a secret FBI videotape, which shows a top aide to former Mayor Vincent A. Cianci Jr. taking a bribe.

"Neither my respect for Mr. Taricani or the job that he does or his status as a journalist or the purity, or apparent purity, of his motives places him above the law or excuses his violation of the court order," Torres said during a Nov. 4 court session. "So I'm duty bound to take appropriate action, and Mr. Taricani has left me with no choice as to what that course of action must be. It must take the form of a criminal contempt proceeding."

Taricani's criminal contempt trial is set for 10 this morning at the federal courthouse. If the judge finds him guilty, Taricani could face up to six months behind bars.

As a federal judge since 1987, Torres has handled some of the most high-profile criminal cases in recent Rhode Island history -- from the trial of mobster Gerard T. Ouimette to the money-laundering trial of Stephen A. Saccoccia to Cianci's corruption trial.

Torres, 63, is known as hard-working and bright, fair and polite, according to lawyers and judges who have worked with him.

"He is very thorough, probably the most thorough of all the judges I've known over the years," Senior U.S. District Judge Ronald R. Lagueux said. "That's his main characteristic. It's well known around here that he gets in earlier and leaves later than everyone else. Maybe he doesn't like this phrase, but he's a perfectionist, and that's why he puts so much time in."

Torres is also known for maintaining tight control over his courtroom. He often talks about the potential for a trial to "turn into a circus." This week, he said, "I set rules of decorum and try to ensure an orderly process."

To some, Torres is known as "conservative" on the First Amendment, which protects free speech and a free press.

One of the state's leading First Amendment lawyers, Joseph V. Cavanagh Jr., said Torres is "probably conservative on the First Amendment. Based on cases and decisions that I've seen, he has a narrower view of the First Amendment than mine."

Linda Lotridge Levin, chairwoman of the University of Rhode Island journalism department and secretary of the Rhode Island Press Association, said that based on the Taricani case, "I'd say he is conservative or cautious on the First Amendment."

Journal file photo

Lawyers and other judges describe Chief U.S. District Judge Ernest C. Torres as hardworking, bright, fair, polite and "very thorough."

During the Cianci trial, The Providence Journal went to the 1st U.S. Circuit Court of Appeals in Boston, seeking access to sealed legal memos and surveillance tapes that Torres had refused to release. The newspaper called those refusals a violation of the public's First Amendment rights, saying Rhode Island was one of just five jurisdictions that didn't make such memos public. Torres said he was trying to ensure that Cianci and other defendants received a fair trial, and eventually released many of the memos.

The 1st Circuit ended up striking down the District Court's longstanding practice of refusing to place memoranda of law in the case file, where they're available for public review, saying that practice violated the First Amendment. But the 1st Circuit upheld most of Torres' method of handling memos in the Cianci case and backed his refusal to provide copies of tapes.

Cavanagh -- who has represented The Journal in other cases but not in that matter -- said, "In all fairness, [Torres] was trying to run a criminal trial, and that was his priority. But as someone who practices in that area, I think he didn't fully accommodate First Amendment interests as much as he could have in allowing timely access to court-related documents."

TORRES IS described as formal and reserved, but he's also credited with a dry sense of humor. During the Cianci trial, lawyers huddled in a sidebar conference, and Cianci's lawyer accidentally stepped on a prosecutor's toes. Picking up on a statement attributed to Cianci, Torres said, "Be careful, because the toe you step on today could be connected to the ass you have to kiss tomorrow."

Raised in New Bedford, Torres is the grandson of Portuguese immigrants and the son of a firefighter and a homemaker. He was the first in his family to attend college, earning an academic scholarship to Dartmouth College, graduating in 1963. He taught chemistry at Connecticut preparatory schools before enrolling at Duke University Law School, graduating in 1968.

Torres and his wife, Jan, settled in East Greenwich, and he worked in private practice. A Republican, he began to dabble in politics and was elected to the state House of Representatives, where he served from 1975 to 1980, becoming deputy minority leader.

In 1980, Torres was appointed to state Superior Court. But he resigned five years later so he could make more money to send his three children to college. He worked as assistant vice president in charge of the national staff counsel at Aetna Life Insurance Co. in Hartford, but he returned to private practice in Rhode Island just a year later. "The biggest factor was, my family missed Rhode Island," Torres said.

In 1987, President Reagan appointed Torres to the U.S. District Court on the recommendation of Republican Sen. John H. Chafee, and in 1999 he became the District Court's chief judge. District Court judges have lifetime appointments and annual salaries of $158,100.

FROM THE START, high-profile cases seemed to find Torres. In 1991, for example, he presided over the corruption trial of former Pawtucket Mayor Brian J. Sarault.

"When a high-profile trial comes up, a judge's job is to see that the trial is based on evidence presented in the courtroom," Torres said this week. "I understand that the media's job is to get information out to the public and sometimes these two things lead to disagreements."

But, Torres said, "I think this is the most open process imaginable. How many entities function in the way we do? All the information that goes into a decision is made public. A stenographic recording is made. There's a right to appeal. The decision is public, and the judge has to give reasons for the decision."

In the Taricani case, Torres spelled out his reasoning in October 2003, when he ordered the reporter to answer a special prosecutor's questions about the source of the videotape.

Torres noted that Channel 10 broadcast the secret videotape in February 2001 although Lagueux had ordered lawyers to keep the tape confidential. Torres said the "protective order" was meant to ensure a fair trial for Frank E. Corrente, the top Cianci aide shown in the video accepting a cash bribe, and to avoid compromising a grand jury investigation of Cianci, who was indicted two months later and eventually convicted of racketeering conspiracy.

Torres cited the U.S. Supreme Court's 1972 decision in Branzburg v. Hayes, which held that a journalist has no First Amendment privilege to refuse to disclose the identity of a confidential source to a grand jury investigating a crime when that information is relevant to the investigation.

Taricani's lawyers argued that compelling Taricani to identify his source serves no purpose because the Plunder Dome trials are over, and that the First Amendment prevents Taricani from being required to name confidential sources. Citing the public interest, they noted that Taricani has used information from confidential sources for reports that prompted criminal probes and prosecutions.

Torres rejected those arguments, saying, "dissemination of the [Corrente] tape contributed nothing to the investigation or prosecution of the alleged offenses. On the contrary, it only threatened to compromise the grand jury's investigation and/or violate the defendant's right to a fair trial."

Levin, who wrote a book entitled Mass Communication Law in Rhode Island, said other federal courts have cited the dissenting opinion in the Branzburg case in allowing reporters to keep sources confidential under certain circumstances. Also, she said that if the case hinged on state law, the Newsman's Privilege Act would probably have protected Taricani from having to divulge his source.

In his order, Torres said it's doubtful the Newsman's Privilege Act would have protected the confidentiality of Taricani's source and, in any case, "it could not trump the strong federal interest in enforcing court orders."

Levin said she finds the whole situation "just sad." She described Taricani as one of the finest TV investigative reporters in New England, saying, "It's bad for journalism, and ultimately it's bad for the public because they won't get information they need."

THOMAS G. BRIODY, a defense lawyer who spent 10 years in television news, said an arsonist once confessed to him "off the record" when he was a young reporter in Iowa. He said he ended up getting called before the county attorney and quickly learned the limits of First Amendment protections.

In the Taricani case, Briody said, "I can't imagine [Torres] is taking any pleasure in this. When he said he respects Jim Taricani, I think he meant it. He doesn't blow smoke at people. I think he believes the law does not afford Jim a lot of protection at this point."

Cavanagh, who was in the courtroom Nov. 4 when Torres told Taricani to reveal his source or risk prison, said, "I thought [Torres] made some thoughtful observations that signaled to me this is weighing on him, and he understands there is a conflict between the rule of law and a reporter's privilege."

"I really sense he did not welcome or relish the conflict that existed, but he was going to do what he believes in," Cavanagh said. "Similarly, I believe Jim Taricani will act based on what he believes in."

DIGITAL EXTRA: Recap recent Journal coverage of the Taricani contempt case, view surveillance video from the Plunder Dome trial and more, at:

http://projo.com/trial/content/