THE LATEST ON THE CHIQUITA/CINCINNATI ENQUIRER CASE:

From the N.Y. Times News Service

 CINCINNATI - Faced with a long prison term and financial ruin, Michael
Gallagher did what criminals routinely do in such circumstances: He cut a deal
with prosecutors, swapping incriminating information against someone else for
leniency and a lighter sentence.
 But Gallagher was not just another white-collar miscreant or small-time
hoodlum. He was an investigative reporter who had worked for Cincinnati's
dominant newspaper, The Enquirer. His decision to reveal the name of a
confidential source, along with notes, documents and secretly taped
conversations, is echoing through the legal and journalistic communities as a
major assault on the revered principle of protecting sources. And the case is
raising questions about the legal rights of sources who are burned by
journalists.
 Most legal precedents on this subject involve efforts to protect confidential
sources in the face of attempts by prosecutors or others to force disclosure
of their names. Indeed, it is something of a badge of honor among journalists
to go to jail - or promise to - rather than identify a source.
 Gallagher had promised his source, George Ventura, a former lawyer for
Chiquita Brands International, that he would go to jail rather than reveal
that Ventura had helped him gain access to Chiquita's voice-mail system,
according to evidence disclosed last week. But in the end, Gallagher struck a
deal with prosecutors and identified Ventura. Now it is Ventura who faces the
prospect of going to jail. He is charged with violations of Ohio's electronic
communication privacy law and unauthorized access to a computer. If convicted,
could be sentenced to as much as 12#020# years in prison.
 Bill Kovach, curator of the Nieman Foundation at Harvard University, said
Gallagher's actions were unfortunate for all journalists. ``In throwing over a
source, he has given up the right to ever claim to be a journalist,'' Kovach
said. ``His integrity was on the line and he surrendered it. It hurts the
stature of journalism all around to have someone behave publicly the way
Gallagher has behaved.''
 That view was echoed by Jane Kirtley, the executive director of the Reporters
Committee for Freedom of the Press. ``I've dealt with reporters who would -
and do - go to jail to protect sources, so this is a very painful case,'' Ms.
Kirtley said. ``It smacks of saving your own hide by letting your source take
the consequences.''
 The rationale for protecting sources is straightforward: Often the only way
to obtain information about criminal wrongdoing, corporate mismanagement or
public corruption is by promising anonymity to someone who has information
about those matters.
 In an affidavit filed in the Cincinnati case, Sandra Davidson, a journalism
professor at the University of Missouri, said that if a reporter does not keep
a promise of confidentiality, sources will dry up and so will the flow of
information. ``That chilling effect, however, will not stop at that particular
journalist, but will also affect the ability of the journalist's colleagues to
gather information,'' she said. ``If the sources of information dry up, then
the functioning of the whole system collapses.''
 The initial contact between The Enquirer and Ventura had come in early
October of 1997, several months after Gallagher and another reporter, Cameron
McWhirter, had begun work on the Chiquita project. Ventura, who had left
Chiquita a year earlier, sent an e-mail message to McWhirter offering to help
with the story, according to testimony and statements in court by Daniel
Breyer, a special prosecutor for Hamilton County.
 A short time later, in a taped telephone conversation with McWhirter, Ventura
said, ``You've got to have someone run through those voice mails,'' according
to Breyer. In the same conversation, Ventura provided secret access codes for
the voice mails of at least two Chiquita lawyers, the prosecutor said.
 Last May, the Enquirer published an 18-page special section challenging the
business practices of Chiquita, the huge banana company based in Cincinnati.
But less than two months later, the newspaper, owned by Gannett Co., published
a front-page apology, agreed to pay Chiquita more than $10 million and fired
Gallagher, its star investigative reporter, saying he had misled his editors.
 By mid-September, Gallagher had reached a bargain with the special prosecutor
in which he pleaded guilty to two felonies, carrying a total sentence of up to
2#020# years in prison. To avoid more extensive charges, he told prosecutors
that Ventura had provided him with access codes to the Chiquita voice-mail
system and agreed to testify against his former source.
 McWhirter, who has never identified Ventura or anyone else as a source,
testified that in October 1997 he had passed the voice-mail access codes on to
Gallagher, who quickly used them to gain access to the voice-mail system 15 to
20 times before being informed by his editors and lawyers for the newspaper
that what he was doing was probably illegal.
 But Gallagher continued to tap into the voice-mail system without his
editors' knowledge, according to his testimony last week. Gallagher said he
believed protecting the identity of a source is ``one of the highest
responsibilities a journalist has.'' He offered no explanation for disclosing
Ventura's assistance.
 Like many confidential sources, Ventura was a disgruntled former employee. In
an interview last week, he said he had been angered by Chiquita's treatment of
some of its employees while he was working for the company in Honduras, and
that he had quit partly in protest. But it was also disclosed in court by
Breyer that Ventura had demanded $1.5 million from Chiquita, and had
threatened to file a discrimination complaint and go to the press.
 As a result, Breyer said, Ventura was suspected of being a source for the
articles even before Gallagher revealed his identity. Nonetheless, Ventura was
not indicted until after the reporter agreed to cooperate and confirmed
Ventura's role to prosecutors.
 In defending himself against the 10-count indictment returned by a county
grand jury last September, Ventura has taken the unusual step of invoking
Ohio's shield law. He claims that the protection afforded journalists who
refuse to reveal sources should also apply to the sources. The judge in the
case, Ann Marie Tracey, has not yet ruled on the shield law question. It is an
issue for which there are few legal precedents and little agreement among
journalists.
 The law must not only shield the journalist from having to reveal his or her
source,'' said Ms. Davidson, ``but the law must also shield the source from
having his or her identity revealed by the journalist.''
 But Ms. Kirtley sees a danger in extending the protections. ``Allowing a
source to use the shield law as a sword to control the reporter would signal
yet another attempt to erode the intent of shield laws, which is to protect a
journalist,'' she said.
 As for Gallagher, he faces a maximum sentence of 2#020# years, having pleaded
guilty to two of what might have been hundreds of counts. He also faces a
civil suit brought by Chiquita. And, judging from the questions asked in court
last week by Ventura's lawyer, Marc Mezibov, both Gallagher and the Enquirer
face the likelihood of a civil suit by Ventura for breach of contract in
divulging his identity.