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Criminal Law/James Risen's conviction


QUESTION: James Risen's conviction for withholding his journalist's sources was upheld by the Court of Appeals, and the Supreme Court has not accepted the appeal. It's presumably possible that the Supreme Court might accept a future case with the same issue and rule in the journalist's favor. If Risen should already be imprisoned, how would that new decision affect him, if at all?

ANSWER: Richard,

Currently James Risen is not incarcerated but "As The Post noted in a recent editorial, the Justice Department wants Risen to testify in the trial of Jeffrey Sterling, a former CIA official charged with disclosing classified information about U.S. efforts to undermine Iran’s nuclear program. The government alleges that Sterling illegally leaked the information to Risen, who used it in his book 'State of War.'"  Risen's argument against testifying is that a reporter’s privilege should prohibit the government from compelling him to identify his source. But the U.S. Court of Appeals for the 4th Circuit ruled against him, and the Supreme Court declined to hear his case upon receiving writ of certiorari.

Risen's attorney, Randall D. Eliason, is under subpoena as well to disclose confidential communications he has had with his client as the Government has found a loophole in the protections afforded to their attorney-client privilege.

To your question then, should Risen be imprisoned and the SCOTUS decide to hear his appeal then he would be released if the Court rules against the 4th Circuit.  If the Court holds with the 4th Circuit then he would most likely have to complete his sentence.  This entire incident raises the issues surrounding the freedom of the press and media.  Is Risen a whistleblower or is he an opportunist who used the information he gleaned in his book, "State of War," for commercial profit? We shall see.  It is easy to see how the media and journalism can be hijacked and slanted in any direction for political purposes.  I think it will be far more difficult to find journalists who seek the truth and seek to hold onto it.     

State of War:

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QUESTION: Thanks, Jeffrey, for your very prompt and interesting reply. Unfortunately, though, it does not address my question, which is: What would happen should Risen be imprisoned if the Supreme Court then accepts a *different* case with the same issue and rules in favor of the (other) journalist? How if at all would this new decision affect Risen's imprisonment?

ANSWER: Richard,

I see.  Actually the result would might the same.  If the SCOTUS would hear a similar case and rule accordingly then Risen could petition the Court under a writ of habeas corpus to have them decide as to whether or not he is being held unlawfully.  In short, yes it could positively impact his sentence, should that actually occur. Cheers.    


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QUESTION: Jeff, I'm really sorry to drag this out, but I'm still not clear. You say "Risen could petition the Court under a writ of habeas corpus to have them decide as to whether or not he is being held unlawfully." Which court? What is the likelihood that under those circumstances the petition would be denied? If it were denied, is there any possible appeal?


No worries, it is my pleasure.  He would have to petition the Court that convicted and sentenced him.  It most likely would be the Federal District (Trial) Court which covers the area in which he lives/resides.  What is the likelihood the petition would be denied?  It is hard to say.  The writ of habeas corpus literally translates to "that you have the body."  It mandates that the prisoner (body) come before the court for the judge to review the legality of the party’s arrest, imprisonment, or detention.  Today, habeas corpus is mainly used as a post-conviction remedy for state or federal prisoners who challenge the legality of the application of federal laws that were used in the judicial proceedings that resulted in their detention.

Federal statutes (28 U.S.C. §§ 2241–2256) outline the procedural aspects of federal habeas proceedings. There are two prerequisites for habeas review: the petitioner must be in custody when the petition is filed, and a prisoner who is held in state government custody must have exhausted all state remedies, including state appellate review. Any federal court may grant a writ of habeas corpus to a petitioner who is within its jurisdiction. The habeas petition must be in writing and signed and verified either by the petitioner seeking relief or by someone acting on his or her behalf. The petition must name the custodian as the respondent and state the facts concerning the applicant’s custody and include the legal basis for the request. Federal courts are not required to hear the petition if a previous petition presented the same issues and no new grounds were brought up. Finally, a federal judge may dismiss the petition for the writ of habeas corpus if it is clear from the face of the petition that there are no possible grounds for relief.  Therefore there is no appeal per se, but another writ may be submitted although it could be denied.  

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Jeffrey Hauck


I would welcome the opportunity to answer questions relating to or related to the field of criminal law.


Criminologist. Professor of Criminal Justice. Licensed Private Detective with expansive clientele base encompassing hundreds of cases. Donates resources and time to the Children's Rescue Network in Orlando, FL.

Associate of Science; Bachelor of Arts; Master of Science, Doctor of Jurisprudence Degree.

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