By Dan Kennedy • The press, politics, technology, culture and other passions

A possible collision course over a confidential source

Brian McGrory

Boston Globe columnist Brian McGrory, who wrote about a secret sidebar conference with two jurors over the recent mistrial involving the Mattapan killings, may be hauled into court and ordered to reveal the identity of a confidential source.

Boston Herald reporter Matt Stout reported on April 3 that John Amabile, the defense lawyer for murder suspect Dwayne Moore, was demanding to know who had leaked information to McGrory about the lone juror whose refusal to convict Moore led to a mistrial. Four people died in the shootings, including a 2-year-old boy.

(Update: The Globe’s Maria Cramer also covered Amabile’s complaint on April 3.)

If the prosecution had leaked to McGrory in defiance of an order by the trial judge, Christine McEvoy, Amabile told the Herald, he might seek to have the charges against his client dismissed.

McGrory, not surprisingly, declined to talk about the matter in any detail when the Herald contacted him, saying, “Obviously I quoted someone in the column on a grant of anonymity, and I hope you would understand that.” And McGrory told his own paper, “Because the information was provided to me under the condition of confidentiality, I obviously can’t reveal the nature of the source.”

The parties were back in court on Tuesday. Cramer reports that Amabile told Suffolk Superior Court Judge Jeffrey Locke, who’s looking into Amabile’s complaint, that he might subpoena McGrory or prosecutor Edmond Zabin. Cramer writes that “Locke urged him not to do so without seeking the court’s permission.”

And the Herald’s Laurel Sweet, who also reported on the Tuesday hearing, quotes Locke as telling Amabile, “I’m not taking any remedies off the table.”

The inquiry will resume on May 8. If McGrory is asked to attend, it sounds like he’d be well advised to bring a toothbrush.

McGrory would have little to worry about if Massachusetts were not one of 10 states lacking a shield law giving journalists the right to protect their confidential sources. Last month, a legislative committee heard a proposal to create such a law, a broadly defined measure that would appear to protect anyone engaged in journalistic activities, including bloggers and citizen journalists.

The McGrory situation shows why a shield law could be beneficial. Whoever leaked to him was confident that the Globe would not reveal his identity. It is clearly in the public interest to get as many details about the Mattapan case out into the open as possible.

If Amabile’s complaint somehow leads to the source’s identity being revealed, that would have a chilling effect on the next insider who’s tempted to pick up the phone and call a reporter.

Note: This post has been corrected and updated.

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  1. Stephen Stein

    I’m usually on the side of the journalist in these cases, but is this one so clear?

    “It is clearly in the public interest to get as many details about the Mattapan case out into the open as possible.” Maybe so, but is the public interest the most important thing here? These details were leaked in defiance of the judge’s order. The judge is the one charged with balancing the public interest against the other competing interests in this case. Is this wrong?

    “Whoever leaked to him was confident that the Globe would not reveal his identity.” Apparently. But the flip side is the leaker had confidence they could violate the Judge’s orders with impunity. Is this a good thing?

    • Dan Kennedy

      @Stephen: The principle here — and you can take it or leave it — is that the judge can move heaven and earth (and allow the prosecutor to be subpoenaed) in order to learn the identity of the leaker. But there are other interests at stake that should prevent him from forcing a journalist to give up his confidential source.

  2. Matt Kelly

    Let’s not forget that Jeff Locke used to be DA for Norfolk County back in the 1990s, and as I recall he was a good one. Not sure whether that means he might have some sympathies for prosecutors stuck with a lone loonie on the jury who tanked the case, or he might be bullshit that the prosecutors may have leaked because that’s unethical. Either way, he’s going to have lots of experience handling media messes like this, more than an ordinary judge would.

  3. Stephen Stein

    This just in:
    “According to several experts in Florida law, Sean Hannity could be compelled to testify about his conversations with George Zimmerman” even though Florida grants “a ‘qualified privilege’ for journalists that protects their conversations with sources.”

  4. L.K. Collins

    I agree with Steve Stein. It is the assumption of immunity is what is troublesome here.

    Violation of court orders with impunity goes against the grain of an ordered and fair legal system.

  5. John F.J. Sullivan

    Troubling, also, is the Globe’s far-too-frequent reliance on anonymous sources in the first place.

  6. peter sullivan

    Does it not seem plausible that whoever leaked the information to the Globe did so knowing that it would have some effect on the potential conviction or not of alleged cold blooded killers that killed a two year old boy.

    Not being a journalist, I have to wonder is there a line between being a responsible reporter and breaking the story no matter what.

    If the charges were to be dismissed, I would blame McGrory as much as the leaker.

  7. I’d like to hear from other journalists. Have you ever published something from an anonymous source? Did you ask yourself “Is this worth going to jail for?” when you did it? Were you ever threatened with jail time?

    • Dan Kennedy

      @Jim: Personally, I’ve done plenty of anonymous-source reporting. My beat for many years was the media, and you’re not going to get any critical information from on-the-record sources. I was never in a situation like McGrory’s, in which he probably had to think about the possibility of jail beforehand. But there is always the possibility that someone will sue you for libel and demand to know who said those awful things about them. Which is why most news organizations don’t allow negative quotes from anonymous sources, though we broke that rule occasionally — always after giving it quite a bit of thought.

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