Thursday, May 13, 1999
Reporter not off hook yet
Judge raises jail time as possibility
BY DAN HORN
The Cincinnati Enquirer
A former Cincinnati Enquirer reporter could face a jail sentence if a judge decides he was in a “position of trust” when he illegally accessed corporate voice-mail messages.
Judge Richard Niehaus raised the possibility Wednesday in a letter he sent to prosecutors and the defense attorney for the former reporter, Michael Gallagher.
Mr. Gallagher pleaded guilty last year to two felony charges accusing him of illegally accessing the voice-mail system at Chiquita Brands International Inc.
When Mr. Gallagher entered the plea in Hamilton County Common Pleas Court, Judge Niehaus noted that the charges against him carried a presumption of probation.
But in his letter, the judge asked the attorneys to write briefs addressing the issue of whether Mr. Gallagher's job as a reporter put him in a position of trust.
The question is important because Ohio law allows jail time for defendants who commit such a crime if they were in a position of trust.
“If they so find,” the judge said of the attorneys, “then Mr. Gallagher could be subjected to a prison term.”
Mr. Gallagher's attorney, Patrick Hanley, said he does not think his client was in such a position when he wrote articles about Chiquita's business practices.
“There's no way Gallagher, in this case and in this situation, can be interpreted as having a position of trust,” Mr. Hanley said.
Daniel Breyer, special prosecutor, said he will research the matter to determine whether the trust issue would apply to Mr. Gallagher.
At first glance, Mr. Breyer said, he isn't sure it does. He said the position of trust typically refers to a position with the victim of the crime, in this case Chiquita.
“My initial reaction is that he is not in a position of trust with Chiquita,” Mr. Breyer said.
Mr. Gallagher was fired by The Enquirer last year after the newspaper published a front-page apology to Chiquita, renounced the articles and agreed to pay the company more than $10 million.
Mr. Gallagher was scheduled for sentencing today, but that has been postponed. A new date has not been set.
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