News: Put a Lid on It

Gallagher gets probation, the rest of us get the silent treatment, as the 'Enquirer'/Chiquita cases end

Jymi Bolden

(L-R) Special Prosecutor Daniel Breyer, ex-Enquirer reporter Michael Gallagher and Gallagher's lawyer, Patrick Hanley, at Gallagher's sentencing on July 16.

With ex-Enquirer reporter Michael Gallagher's sentencing on July 16, the seemingly impossible has been accomplished: The genie is back in the bottle.

As expected, Gallagher received probation from Hamilton County Common Pleas Judge Richard Niehaus for pleading guilty to two felony charges stemming from his accessing Chiquita Brands International's voice mail system. His sentence also includes community service.

During the sentencing hearing, it was reported that Chiquita had settled its civil lawsuit against Gallagher. Terms of their agreement were not disclosed, but it's clear that Gallagher agreed not to discuss the subject of Chiquita any further.

And so Chiquita's involvement with the voice mail theft's main perpetrators is finished. The scorecard?

· The Enquirer, which published the 18-page special series on Chiquita's business practices on May 3, 1998, and followed it with two weeks of front-page reaction coverage: renounced every word of the every story; paid Chiquita more than $10 million; ran three front-page apologies to the company and its employees; pulled the whole series from its Web site and the actual May 3 section from its internal library; was gagged by the agreement not to talk about it; has never written a word explaining its actions or discussing whether its stories were true or not.

· George Ventura, the ex-Chiquita lawyer who, under a promise of anonymity from Gallagher, provided the reporter with codes necessary to tap into Chiquita's voice mail system: pleaded no contest on June 30 to four misdemeanor counts of attempted unauthorized access to computer systems; was sentenced to two years of probation and 40 hours of community service; lost his job at a law firm in Salt Lake City; faces possible disbarment in Utah; settled a potential civil lawsuit against him from Chiquita by agreeing not to appeal the criminal case; was gagged by the agreement not to talk about it.

· Gallagher, the Chiquita series' lead reporter: was fired by The Enquirer; indicted by a Hamilton County special prosecutor on criminal charges; sued by Chiquita on 12 counts ranging from defamation to trespassing; pleaded guilty to two felony charges of wiretapping; named Ventura in court as his confidential source for the voice mail codes; was sentenced to five years of probation and 200 hours of community service; settled the civil lawsuit with Chiquita; was gagged by the agreement not to talk about it.

Through deft legal maneuvering, then, Chiquita has managed to prevent those who knew the most about the stories' allegations — and possible additional allegations that were not reported in the original Enquirer series — from ever bringing them up again. The stories were renounced, the reporter and source were discredited and gagged and Chiquita's reputation was vindicated. The lid has been slammed closed on the whole affair.

(The only participant in the Chiquita saga to address the subject of the stories' truthfulness, ex-Enquirer reporter Cameron McWhirter, told CityBeat that he stood behind his work on the series but that his efforts were ruined by Gallagher's crime.)

The cost of the county's yearlong criminal investigation into Gallagher's misdeeds is staggering. And that's besides the personal toll on Gallagher and Ventura — both out of jobs, with huge legal bills and likely at the end of careers. There's also the professional humiliation suffered by The Enquirer and its staffers, as well as the uncertainty hanging over Chiquita about the original stories' accuracy.

Hamilton County has spent almost $512,000 of taxpayer funds on special prosecutors to handle the Gallagher and Ventura cases, with the last two months of current prosecutor Daniel Breyer's time still to be billed. When all is said and done, it will turn out to be one of the most expensive special prosecutor cases in county history.

And what did we, as county taxpayers, get for our money? Well, if the wiretapping crimes were so serious, why is no one going to jail? If they weren't serious, why did we spend half a million dollars? County officials should remember that figure the next time they moan about not having enough funds to fix the county's emergency communications system.

There's no getting around the feeling that we've witnessed a yearlong public relations exercise dressed up as criminal investigations and prosecutions. By leveraging actual and threatened civil lawsuits against The Enquirer, Gallagher and Ventura with its status as victim of the crimes, Chiquita was able to convince judges to go easy on the defendants once the bad guys agreed to settle their private differences with Chiquita — which, by all accounts, included the key provision that none of them ever talk about this sordid episode again.

Are the streets of Hamilton County safer to walk now because these criminals have been handled? Maybe. Are the journalists of Hamilton County wiser now about the perils of taking on influential local corporations? Definitely.

Speaking of local journalists, it was interesting to note how the city's two daily newspapers treated Gallagher's sentencing. The papers ran practically the same headline on July 17 — "Former reporter given probation" (Enquirer), "Fired reporter gets probation" (Post) — but then took off in very different directions.

The Enquirer's Dan Horn focused on Gallagher the disgraced reporter telling the judge that nothing could excuse his crime. The third paragraph said it all: " 'What I did was wrong,' Mr. Gallagher said. 'I wish I had been a better man and had found a better way.' "

Kimball Perry focused his Post story on Gallagher's explanation to the judge as to why he accessed Chiquita's voice mail system in the first place — to verify facts he'd gotten from other sources. His third paragraph said, " 'It was a search for the truth. That's what we're all searching for,' Gallagher said."

A version of these quotes appeared in the other paper's stories much farther down. Perry recounted an exchange between Niehaus and Gallagher in which the judge asked the ex-reporter if stealing voice mails is ethical: " 'No, absolutely not," Gallagher answered. 'I'm here because I did something wrong. ...' "

Horn recounted another exchange in which Niehaus asked Gallagher if he accessed the voice mails because he felt it necessary to verify facts for the Chiquita series: " 'As a reporter, you're always looking for information to document the truth,' Mr. Gallagher said."

The point here is that two experienced courts reporters, who sat side-by-side in Niehaus' courtroom, wrapped up their coverage of the entire Gallagher saga with slightly nuanced versions of his sentencing. Horn led with Gallagher admitting that his crime against Chiquita (and his old paper) was inexcusable, while Perry led with Gallagher "steadfastly" maintaining that his original Chiquita stories were true.

In fact, both reporters were right — if not a little hopeful with their respective versions. The Enquirer would love for Gallagher to have absolutely no wiggle room in excusing his behavior, which helps justify why the paper fired him and made him the scapegoat for its internal goofs. The Post would love to think that Gallagher backed up the truth of his original stories (I'd love to think that, too), but he hasn't, and because of the lawsuit settlement he likely won't in the future.

And what about the future? What does this all mean?

Most journalism watchers agree that, because of the unique circumstances surrounding Gallagher's voice mail thefts, the Enquirer/Chiquita debacle has few lessons for the media as a whole. The main lessons — don't break the law getting a story and don't lie to your editors — are obvious to any experienced journalist.

But the way Chiquita went about leveraging civil lawsuits against criminal charges might offer ideas to other corporations that think they're being treated roughly and unfairly by the media. On the heels of Food Lion's winning case against ABC's 20/20 program, corporations now are successfully beating the media on news-gathering techniques (ABC's hidden camera, Gallagher's voice mails) rather than on libel issues.

The plea bargains reached by Gallagher and Ventura don't necessarily set legal precedent, says Richard M. Goehler of Frost & Jacobs' First Amendment and Media Law Practice Group. But their high-profile nature will get the attention of lawyers and judges.

"These cases bring heightened attention to how the media gather their facts," Goehler says. "They likely will paint with a broad brush how judges look at future media cases. Plaintiffs will focus more on the media's news-gathering techniques, I think, and that will make it more difficult for journalists to do their jobs."

There's still one loose thread hanging out that might have some legal resonance — the possibility that Ventura will sue The Enquirer and its parent company, Gannett. After being sentenced for his no-contest plea, Ventura released a statement decrying his "betrayal" at the hands of Gallagher and the newspaper for their broken promises to protect his identity as a source.

Ventura had tried to invoke Ohio's shield law several months ago to protect his status an anonymous source, but to no avail. Hamilton County Common Pleas Judge Ann Marie Tracey ruled that the shield law protected journalists from being forced to give up their sources but didn't require them to protect the sources, as Ventura had argued. And so he was identified in court by Gallagher.

Was Gallagher's action a breach of contract, a rejection of his verbal promise to protect Ventura's anonymity?

In an Enquirer article about Ventura's sentencing, Publisher Harry Whipple was quoted as saying "neither The Enquirer nor Gannett has revealed any confidential sources."

It's true that Gallagher was an ex-Enquirer staffer when he testified against Ventura and that McWhirter, who remained at The Enquirer until joining The Detroit News in January, did not name his sources during the county's criminal probe. But Ventura's lawyer, Marc Mezibov, argues that the paper is responsible for Gallagher's actions.

"Common sense and the law, I feel, will hold that the newspaper is responsible for promises Gallagher made as an employee," Mezibov tells CityBeat. "The (voice mail) information was obtained for and used by The Enquirer. They should be responsible for what is done with that information and with the source."

A good portion of Gannett's new ethics policy deals with the relationship between reporters and their sources, especially confidential sources (see "Gannett Announces Ethics Policy").

"(A)greements of confidentiality are between the newspaper and the sources, not just between the reporter and the source," states Gannett's Principles of Ethical Conduct for Newsrooms, announced on June 14. "The newspaper will honor its agreements with sources."

Mezibov says there is "no final decision" on whether Ventura will file a lawsuit against The Enquirer and Gannett. It will happen this summer if he does, Mezibov says.

If a lawsuit does move forward, two relatively minor developments bear watching. During their conversation at the sentencing hearing, after Judge Niehaus asked Gallagher why he had broken into Chiquita's voice mail, Gallagher said he didn't realize his actions were illegal.

"I didn't know at first it was against the law," he told the judge. "After I found out it was a federal misdemeanor, I stopped."

Gallagher previously had told the court that he might have been the victim of bad advice from Enquirer editors and lawyers, who allegedly told him at first that the voice mail access was not a crime. Then-Editor Lawrence Beaupre reportedly consulted with the paper's lawyers and told Gallagher never to access the voice mails again. Gallagher did anyway and lied about it to Beaupre.

Is Gallagher sending a message that the paper, at least for a brief period, condoned what he was doing?

Secondly, Gallagher filed a brief last week saying he did not, in fact, reveal a confidential source. "He vigorously disputes those claims that he revealed or 'gave up' a source," the brief states — perhaps a reference to an earlier statement by the special prosecutor that the prosecutor's office already knew Ventura was the voice mail code leak before Gallagher testified.

Is Gallagher trying to distance himself from the possible Ventura lawsuit through a semantic argument?

"The idea (that Gallagher didn't give up his source) is absurd on its face," Mezibov says.

The same can be said about the entire Enquirer/Chiquita proceedings.