The Channel 10 reporter faces up to six months in prison on a charge of criminal contempt for refusing to reveal a source.

09:44 AM EST on Thursday, December 9, 2004

BY EDWARD FITZPATRICK
Journal Staff Writer

PROVIDENCE -- A big Rhode Island moment is set to unfold in federal court this morning.

Jim Taricani, a familiar face for years as an investigative reporter for Channel 10, is scheduled to be sentenced at 10 a.m. for refusing to disclose the source of a secret FBI videotape. A judge had issued an order barring dissemination of the tape, which shows a high-ranking City Hall official taking a bribe.

The clash of fair-trial and free-press interests stems from the Operation Plunder Dome probe, which put the state's best-known politician, former Mayor Vincent A. "Buddy" Cianci Jr., behind bars.

And as it turns out, the source of the tape was Joseph A. Bevilacqua Jr., a Plunder Dome defense lawyer and son of a former Supreme Court chief justice who resigned amid an impeachment inquiry spurred by questions about his alleged ties to mob figures.

"Only in Rhode Island can you get these circumstances where people seem to know everyone involved and they seem larger than life," said Joseph V. Cavanagh Jr., a First Amendment lawyer who is not representing anyone in this case but plans to attend today's sentencing.

Cavanagh noted the source's identity came to light only because of a chance meeting at a coffee shop between Taricani and the FBI agent in charge of the Plunder Dome investigation, W. Dennis Aiken.

Taricani ran into Aiken at the Au Bon Pain near the federal courthouse on Nov. 18, just hours before Taricani was convicted of criminal contempt for refusing to divulge his source.

Aiken, who's known Taricani 22 years, offered to sign a waiver of confidentiality in hopes that others would follow suit, thus narrowing the list of those who might have leaked the tape. But Taricani told Aiken that Special Prosecutor Marc DeSisto had already shown him a waiver of confidentiality signed by his source.

As it turned out, Bevilacqua's waiver was the only one DeSisto had shown Taricani. So DeSisto summoned Bevilacqua for a second deposition, leading Bevilacqua to confess that he was source.

"Rhode Island is like a small coffee shop," Cavanagh said. "Everyone knows everyone and just bumps into each other and talks about their personal business."

And so it was this morning, on the steps outside the federal courthouse, as familiar faces turned up in the line of about 20 people waiting to allowed inside to attend the hearing.

Among them was Aiken. DeSisto had arrived by 9:30. By 9:40, Taricani appeared with his wife, Laurie White. And just behind him, walking up the street, accompanied by one other person, was perhaps the day's most intriguing attendee -- Bevilacqua.

Also among the crowd were local press, and broadcast trucks from Boston stations, and an NBC truck -- the Channel 10 parent -- out of New York.

A single female protester was also on the scene, standing between two law-enforcement officers, and carrying a sign that said: "Persecuted free press equals police state ."

TODAY, THE STAKES will be high -- both for Taricani and the larger issues involved.

While he is hoping for no more than home confinement, Taricani could face up to six months in prison. At the Nov. 18 criminal contempt hearing, Chief U.S. District Judge Ernest C. Torres told Taricani, "There's no way of telling what the sentence is going to be at this time because, as I say, I don't have all the facts yet, but you ought to be prepared for any eventuality at the time of sentencing."

Cavanagh, who has done work for The Providence Journal, said he is concerned about what today's proceedings could mean for First Amendment rights, which protect free speech and a free press.

The judge has granted DeSisto's request to subpoena Bevilacqua to testify today. Cavanagh said it's unusual to have such testimony at a sentencing hearing. He said he's concerned that, based on what's said today, Taricani could end up facing charges in addition to his criminal contempt conviction.

"Are we on a slippery slope here?" Cavanagh asked. "The purpose of the testimony is unclear as to whether it applies to additional issues or subjects of investigation that at this point are unstated. I am wary of that First Amendment issue looming in the background and the whole issue of what is lawfully obtained information."

Cavanagh noted that at the Nov. 18 hearing, Torres told Taricani, "You're under no obligation to do this, but one of the things I would consider of some significance in determining your sentence is whether at the time the tape was provided to you, you knew that the tape was being provided to you in violation of a court order."

Taricani has told The Journal he did not believe that he was asking a source to break the law when he asked Bevilacqua for the tape. Taricani has said Bevilacqua told him the court order no longer applied to him because he was no longer representing anyone in the Plunder Dome case.

But when Taricani asked the judge for leniency, DeSisto responded with a memorandum stating that Bevilacqua had never asked Taricani for a promise of confidentiality. According to the memo, Bevilacqua said he denied being the source of the tape when he was deposed in 2002 because Taricani didn't want him to come forward. Taricani has called those claims false and absurd.

While some see Taricani's prosecution in the context of a broader assault on First Amendment freedoms, others say the release of the tape occurred amid diminishing respect for court orders.

Joyce A. Faraone, president of the Rhode Island Trial Lawyers Association, said that in the last 5 to 10 years, people have begun to show less regard for court orders, such as restraining orders or child-support orders.

"The rule of law is meaningless if people feel they can willy-nilly decide whether they have to obey court orders," Faraone said. "If you start chipping away at the sanctity of court orders, we lose our position as a civilized society."

Faraone said she doubts any judge would relish being in Torres' seat today. But, she said, "His role is to impress upon society at large that court orders need to be followed."

Also, Faraone said that as officers of the court, lawyers are held to a higher standard and must not make misrepresentations. "So I think Mr. Bevilacqua is in a difficult situation" if he's found to have lied about leaking the tape to Taricani, she said.

Meanwhile, DeSisto is arguing that Taricani should pay the legal bills that the government has incurred since Torres ordered him to divulge his source in October 2003.

In a memorandum yesterday, DeSisto said the law allows Torres to order restitution to victims of certain offenses, and a victim is defined as "a person directly and proximately harmed as a result of the commission of an offense."

In this case, DeSisto said, "The government has been directly and proximately harmed as a result of Mr. Taricani's willful failure to abide by the order of this court compelling him to respond to the special prosecutor's questions.

"This harm is reflected by the extensive delay and additional investigation that followed Mr. Taricani's refusal to respond to the special prosecutor's questions and identify the individual that provided Mr. Taricani with the videotape protected by the protective order," DeSisto wrote.

Since October 2003, almost 600 hours of investigation have been devoted to trying to find out who gave the tape to Taricani, DeSisto said, noting that he and other lawyers have charged rates ranging from $125 to $200 per hour.

"With costs, this amounts to over $100,000 of additional expense that the government would not have otherwise incurred if Mr. Taricani had complied with this court's October order," DeSisto wrote.

DeSisto's memo concluded by asking Torres to order Taricani "to pay such restitution for the legal fees and costs incurred by the government as this court deems appropriate."

Taricani's lawyers have argued that Torres can make him pay only the government's legal bills as an alternative to imprisoning or otherwise punishing him. Also, Taricani's lawyers have maintained that investigative and prosecution costs aren't the type of expenses that should be the subject of restoration orders.

-- With reports from projo.com reporter Jack Perry