The reporter's lawyers argue that a stiff sentence would defy precedent.

01:00 AM EST on Sunday, December 5, 2004

BY TRACY BRETON
Journal Staff Writer

PROVIDENCE -- Even though his source has been revealed, television reporter Jim Taricani is scheduled to be sentenced Thursday for criminal contempt for defying a court order to reveal who gave him a secret FBI videotape that was part of the Operation Plunder Dome corruption case.

Lawyers for the Channel 10 investigative reporter were hoping that U.S. District Court Judge Ernest C. Torres might vacate Taricani's conviction and allow a new trial if the source came forward before Taricani's sentencing, court papers indicate.

But in an order issued last Wednesday -- just hours before a special prosecutor filed papers identifying defense lawyer Joseph A. Bevilacqua Jr. as the person who leaked the tape to Taricani -- Torres made it clear that even if Taricani's source were to identify himself between the date of Taricani's trial and sentencing, "it would have no bearing on his conviction or any motion for a new trial."

"Once a defendant is convicted of criminal contempt, he can no longer be purged of the contempt," Torres said.

Taricani now faces the prospect of being imprisoned because he defied an order issued by Torres to disclose, before his Nov. 18 criminal trial, who gave him the videotape, in violation of a court order that barred the prosecution and defense teams from disseminating it before it was shown to jurors in the 2002 Plunder Dome trial.

Taricani's sentencing is set for 10 a.m. Thursday. Unlike most federal criminal offenses, there are no sentencing benchmarks that judges must apply in meting out a sentence for criminal contempt. However, in this case, the most Taricani could face is six months' imprisonment, because Torres told Taricani last month -- when he turned the civil contempt case into one for criminal contempt -- that the maximum sentence he'd impose was six months to serve.

If the judge had contemplated a stiffer sentence, he would have had to have given Taricani the right to a jury trial. Instead, the judge alone conducted the trial, which lasted less than one hour and was based entirely on legal arguments.

The sentencing hearing is likely to be much more dramatic than the trial.

Taricani, 55, an award-winning investigative reporter who is the recipient of a heart transplant, is expected to address the court in an attempt to convince Torres not to send him to prison, where his doctors say he could be exposed to life-threatening conditions.

Special prosecutor Marc DeSisto intends to call Bevilacqua to testify about the circumstances surrounding his giving the videotape to Taricani, and why he waited so long to identify himself as Taricani's source.

The judge will have to weigh each man's credibility. Each has a different version of events regarding the offer of confidentiality Taricani made to Bevilacqua, a Providence lawyer who represented Plunder Dome defendant Joseph A. Pannone in the City Hall corruption case.

Whether Bevilacqua will actually testify before Torres, or assert his Fifth Amendment right against self-incrimination, is another matter. Since Bevilacqua is on the hot seat too -- his lawyer, Thomas A. Tarro III, says he expects Bevilacqua to face a charge of criminal contempt or a civil contempt proceeding for leaking the tape -- he may refuse to answer questions even if he appears, Tarro said Friday.

It is unclear what sentence DeSisto will recommend for Taricani. In court papers submitted thus far, the special prosecutor hasn't made clear what sentence he believes the judge should impose. However, in papers submitted Wednesday to Torres, DeSisto asks the court to take into account certain things which he asserts reflect badly on Taricani's offense and character, including what he says are misrepresentations made by Taricani in his legal battle to keep his source confidential.

DeSisto asserts that, contrary to Taricani's repeated claims in public and to the court, "Mr. Bevilacqua, the 'source,' did not request any promise of confidentiality," and had been urging Taricani to reveal his identity for more than 2 1/2 years, but Taricani "had encouraged Mr. Bevilacqua to maintain his silence" after making an unsolicited promise of confidentiality to him.

Taricani asserts that Bevilacqua is "a liar," and that he never would have shielded Bevilacqua's identity and run the risk of being imprisoned if Bevilacqua had not insisted on confidentiality.

Taricani's lawyers are urging Torres to show mercy based on the circumstances of the case and the reporter's medical condition. They are asking the judge to impose a sentence of probation with no more than 30 days' home confinement.

Taricani "possesses exemplary character and high moral values," they say, and he is not someone who has engaged in "anti-social" behavior, or who needs to be deterred from further illegal conduct that will harm the public.

They note that Taricani was found guilty of criminal contempt because he was trying to uphold a promise he made as a journalist to protect a confidential source, something, they say, which "is important to the free flow of information -- an important value protected by the First Amendment. Few, if any, other federal criminal offenses involve conduct our society recognizes as legally protected or intrinsically valuable," they argue.

Taricani's lawyers say that he "has relied on confidential sources to report more than 100 stories, on topics including public corruption, clergy sexual abuse, organized crime, misuse of taxpayers' money and the ethical shortcomings of a Chief Justice of the Rhode Island Supreme Court. During his career, he has scrupulously maintained the confidentiality of his sources and has never disclosed the identity of a confidential source to anyone other than another colleague working with him on the same story."

They note that airing the secret videotape -- which showed Frank E. Corrente, the top aide to former Mayor Vincent A. Cianci Jr. taking a $1,000 cash bribe -- did not affect any defendant's right to a fair trial. They also point out that the punishment meted out to Plunder Dome prosecutor Richard Rose -- who was found to have shown one of the FBI tapes to a friend and a family member -- was a 30-day suspension from the case and a $500 fine.

Taricani's lawyers also assert in court papers that whatever sentence Torres fashions should be relatively light, so as not to be disparate from other sentences meted out to reporters in the handful of criminal contempt cases prosecuted elsewhere.

"Charges of criminal contempt brought against journalists for the refusal to reveal their source are extraordinarily rare," they argue. "To the defendant's knowledge, there have been only nine cases from state courts in the history of the United States where reporters have been sentenced to incarceration after being charged with criminal contempt," and only two such cases, in addition to Taricani's, in the federal courts, they say in a sentencing memo submitted to Torres.

None of the reporters had to serve more than two months in prison. One got a suspended sentence and another had to serve just two hours, Taricani's lawyers point out.

The two other federal cases were in 1958 and 1992. In the 1958 case, a federal judge sentenced a reporter to 10 days' imprisonment for refusing to disclose the identity of a source of information that Judy Garland claimed was defamatory. In the 1992 case, four newspaper reporters served just eight hours in prison after refusing to testify in a federal extortion case in South Carolina against a politician they'd interviewed about campaign contributions.

The nine state cases involved reporters in California, North Carolina, Florida, Texas, New Jersey, New York and Kansas.

Tim Crews, a publisher of a small-town paper in California, was sentenced to five days in prison for disobeying a court order to reveal a source for a story he wrote about a California Highway Patrol oficer accused of theft. Another reporter, Sarah Owens, served two hours behind bars for disobeying a court order to testify about statements made to her by a North Carolina murder defendant. Miami Herald reporter David Kidwell served 15 days in a Florida prison for disobeying a court order to testify about a jailhouse interview with another murder defendant.

In Texas, two reporters, James Campbell and Felix Sanchez, were given 30-day prison sentences for refusing to testify, under a court order, about interviews with teenagers who attended a party where a murder occurred, but the sentences were later vacated by a federal court.

Florida reporter Tim Roche served 18 days behind bars for disobeying a court order to identify the person who provided information to him about a closed court proceeding. Another Florida reporter, Cynthia Mayer, received a 10-day suspended sentence for disobeying a court order not to reveal events occurring at another court proceeding that was closed to the public.

New York Times reporter Myron Farber served 40 days for disobeying a court order to produce notes and turn over sources to the defense in a murder case, but was later pardoned by then-New Jersey Gov. Brendan T. Byrne. The Times paid $286,000 in fines.

Kansas reporter Joe Pennington was given a 60-day sentence or disobeying a court order to reveal a source in a murder case. New York reporter Dilworth Choate was given a 30-day sentence for hiding behind drapery to listen to jury deliberations, then disobeying a court order not to write about the deliberations.

After convicting Taricani, Torres told him that he is aware of his medical problems and that Taricani's heart transplant requires "special care." But the judge also said "Mr. Taricani, to his credit, has continued to live a very active life; he has vigorously continued to pursue his profession and he's traveled abroad recently."

"I'm aware that the [U.S.] Bureau of Prisons has some first-rate medical facilities that are fully equipped to handle a wide variety of serious medical conditions, and I'm told that they have successfully managed and attended to the special needs of heart transplant patients," the judge said.

The Bureau of Prisons has submitted a report to Torres that says it can provide "the necessary and appropriate care for Mr. Taricani should he be incarcerated in a federal correctional facility."

Barbara J. Cadogan, health systems administrator for the Northeast Regional Office of the bureau, notes that the federal Medical Center in Devens, Mass. -- the same prison hospital where former City Hall official Frank E. Corrente is serving his sentence -- would be able to handle Taricani's heart and kidney problems. If necessary, Cadogan says, more specialized care could be provided by the University of Massachusetts Medical Center, which the Bureau of Prisons has a contract with.

However, Taricani's heart doctors -- Richard S. Shulman, who has offices in Providence and Newport, and Marc J. Semigran, who heads the heart failure and transplant unit at Massachusetts General Hospital in Boston -- insist that placing Taricani in prison, even a prison hospital, will put his life in danger because of his fragile medical condition.

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/