Reporter again subpoenaed in DeNaples case

Of all the reporters who have covered Scranton businessman Louis DeNaples, none has been more prolific than Matt Birkbeck of the Morning Call in Allentown.

Since 2004, Birkbeck has written dozens of stories about DeNaples, who opened one of Pennsylvania's first casinos, only to be indicted by a grand jury for allegedly lying to state gaming officials about his associations with two reputed mob bosses and other criminals.

Those charges ultimately were dropped, but Birkbeck has continued to cover the legal and regulatory denouement of the DeNaples case.

Now the reporter finds himself on the verge of becoming an unwilling participant in that aftermath. For the second time, Birkbeck has been subpoenaed to testify in a controversial, long-running inquiry into whether secret information about the DeNaples grand jury was leaked illegally to the media.

On Oct. 8, the reporter received a subpoena to appear Thursday before a special prosecutor ordered by the Pennsylvania Supreme Court to investigate any grand jury leaks. The subpoena directs Birkbeck to bring "all notes, memos, e-mails, and any other material" relating to phone calls he had with three law enforcement officials involved in the DeNaples probe.

The demand covers the two years ending Dec. 31, 2008, nearly a year after a Dauphin County grand jury indicted DeNaples on perjury charges.

"I am puzzled as to why the special prosecutor is trying to talk to Matt Birkbeck," David M. Erdman, editor and vice president of the Morning Call, said in an e-mail. "We have published everything Matt has reported on, and nothing we have published violates any grand jury secrecy."

But Ted Chylack, a lawyer at Sprague & Sprague, the firm that represented DeNaples during the grand jury investigation, said it was appropriate to bring in a reporter for questioning.

"My view is that if there is a grand jury leak, there is supposed to be a process of securing the sanctity of that testimony," Chylack said. "If you have someone from law enforcement who is leaking information to a reporter about a grand jury, the reporter is part of a conspiracy to undermine the sanctity of the Grand Jury Act."

Birkbeck declined to comment. Gayle C. Sproul, a media law lawyer representing the Morning Call, said the paper was still evaluating the subpoena and "will make every effort to protect Matt's rights in this situation."

Once again, the stage appears set for a clash over the legal right of journalists to protect the identity of sources, even sources accused of breaking the law by disclosing grand jury secrets.

"The argument is for truth-telling," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "You want to encourage the public to come forward so that reporters have access to truthful information that they can disseminate to the public."

State law forbids grand jurors, court officials, police, and prosecutors from disclosing matters presented before grand juries. Witnesses and their lawyers, however, are free to discuss their testimony and observations.

State law also protects reporters from having to disclose confidential sources. The Pennsylvania Shield Law says that no reporter "shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial, or investigation before any government unit."

Last fall, the state Supreme Court forcefully upheld the shield law, refusing to compel a reporter for the Scranton Times to disclose a confidential source used for stories about a grand jury investigation in Lackawanna County.

Chief Justice Ronald D. Castille wrote that reporters can, without exception, protect sources' identities.

"The Shield Law was enacted to protect the free flow of information to the news media in their role as information providers to the general public," he wrote, adding that a reporter who writes about grand jury disclosures is not participating in a crime.

The Supreme Court has continued, however, to push the inquiry in the DeNaples case, rejecting the advice of a Dauphin County judge whose own investigation found no evidence of illegal leaks or need for a special prosecutor.

DeNaples, a wealthy, well-connected businessman, was awarded a state slots casino license in December 2006 to open the Mount Airy Casino Resort in Mount Pocono.

In July 2007, several newspapers, quoting anonymous sources, reported that the grand jury was investigating whether DeNaples had lied during the licensing process.

DeNaples' lawyers responded by asking the Supreme Court to dismiss the grand jury, complaining of leaks to the media and accusing prosecutors of trying to "viciously smear" DeNaples.

The court allowed the grand jury to proceed, and DeNaples was indicted in January 2008 on four counts of perjury. The charges accused him of lying about his relationships with organized crime figures and two men involved in Philadelphia's 2003 City Hall corruption probe.

In May 2008, the Supreme Court ordered Dauphin County Judge Todd A. Hoover, who supervised the grand jury, to hold a hearing on whether illegal leaks had occurred, and to recommend whether a special prosecutor was needed.

DeNaples' attorneys then issued subpoenas to 15 journalists, including Birkbeck and 10 from The Inquirer and Philadelphia Daily News. The subpoenas sought their testimony, along with notes, e-mails, and other materials used in their reporting on the grand jury.

Media attorneys objected, and the reporters were not required to testify or provide information in the closed hearings, held June 30 and July 1, 2008, before Hoover.

In August 2008, Hoover sent the Supreme Court a 10-page report, saying he had reviewed all the testimony, exhibits, and newspaper articles written about the grand jury and had found no leaks.

"We find that no violations of the secrecy provisions of the Grand Jury Act occurred and recommend that appointment of a special prosecutor is not warranted," he wrote.

The Supreme Court rejected Hoover's advice. On Feb. 24, it ordered Dauphin County President Judge Richard Lewis to appoint a special prosecutor.

The charges against DeNaples, in the meantime, were about to go away. In April, prosecutors agreed to drop the charges if DeNaples agreed to turn over control of his casino.

But the leak inquiry continued. In May, Lewis named Albert G. Blakey, a former York County judge, to serve as special prosecutor.

It is not known why only Birkbeck, and apparently no other reporter, was subpoenaed. Blakey did not return a phone call seeking comment.