Expose a scandal, face a prison term

Times Staff Writer

At a private reception at the White House Correspondents’ Dinner on April 30, 2005, President Bush praised two newspaper reporters for their award-winning stories on steroid use in professional sports.

“You’ve done a service,” Bush twice told Lance Williams and Mark Fainaru-Wada of the San Francisco Chronicle.

But today the two journalists, in a standoff with the Bush administration, face longer terms in prison than the combined sentences of all the defendants convicted in the steroid scandal they helped expose.


In September, a judge sentenced Williams, 56, and Fainaru-Wada, 41, to up to 18 months in prison for refusing to tell the U.S. Justice Department who leaked grand jury transcripts implicating baseball stars -- including Barry Bonds and Jason Giambi -- in the Bay Area Laboratory Co-Operative, or BALCO, steroid ring. They are free pending an appeal hearing, set for Feb. 12.

Impasses between journalists and prosecutors seeking to unmask their sources are increasingly common, familiar to anyone who followed the jailing of former New York Times reporter Judith Miller for refusing to reveal who disclosed the identity of undercover CIA operative Valerie Plame.

But the BALCO case -- although not fraught with the political overtones of the Miller case -- has broader implications for the media.

Not only journalists, but two former Justice Department officials, have suggested that prosecutors are overreaching. One of those officials said the subpoenas, if upheld in court, would greatly broaden the government’s ability to stifle investigative reporting.

“This is very disturbing,” said Mark Corallo, who was director of public affairs for the Justice Department under former Atty. Gen. John Ashcroft and involved in reviewing requests for media subpoenas.

“There is no national security issue here. There is no public safety issue. If they can make this the standard, then confidential-source reporting as you know it is done, over.”


The BALCO prosecutors, Brian Hershman and Michael Raphael, argue that letting people get away with violating a federal judge’s order -- in this case, an order not to release grand jury material -- could undermine justice.

The leak, on balance, “served only to titillate and hold up to public ridicule those athletes who admitted using steroids before the grand jury; witnesses who testified under the belief that their grand jury testimony would be ‘secret,’ ” the prosecutors argued in court filings.

The BALCO case began in 2003, when agents in Northern California raided a Burlingame laboratory that produced performance-enhancing drugs marketed as the Clear and the Cream. Over the ensuing months, as professional athletes were testifying before the grand jury, reporters from around the nation tried to learn which of them got drugs from the firm.

But when indictments were announced Feb. 12, 2004, against four defendants -- including BALCO founder Victor Conte and Bonds’ weight trainer, Greg Anderson -- prosecutors had redacted the drug recipients’ names. With no major athletes directly implicated, the case inspired curiosity but few ripples outside the Bay Area.

“All anyone cared about were the names, and there was this big chase to get them,” Williams, said in a recent interview.

He and Fainaru-Wada wrote stories about the athletes’ involvement based on anonymous sources. But many readers -- particularly Giants fans following Bonds’ pursuit of the home run records of Babe Ruth and Hank Aaron -- did not buy it, writing angry letters to the newspaper.


The athletes’ grand jury testimony, meanwhile, was distributed to all the parties and attorneys involved so they could prepare for trial. U.S. District Judge Susan Ilston ordered them to keep it to themselves.

When the Chronicle reporters published a story in June quoting from the testimony of sprinter Tim Montgomery, the judge demanded that the attorneys and parties sign sworn declarations that they were not the source of the leak.

In December, the reporters published stories directly quoting transcripts of Bonds and Giambi, with Giambi admitting under oath that he had used the drugs. Bonds told jurors that he had used a clear liquid and rubbing cream from BALCO, but denied he knew they contained steroids, the stories said.

The testimony sparked a furor; in a sport whose popularity has long been fueled by fans’ passion for record-breakers, many wondered if steroids were behind a recent slew of impressive feats.

Bush urged Major League Baseball to clean up its act. MLB imposed more stringent testing and tougher punishments on dopers, and Congress interrogated five high-profile players in a televised hearing.

In San Francisco, Judge Ilston asked the Justice Department to investigate the leak. Prosecutors eventually subpoenaed the reporters.


Although some states, including California, have shield laws that protect reporters from testifying, they hold no weight in federal cases. Legislation to create a federal shield law is before Congress. The last time the Supreme Court addressed the issue was in Branzburg vs. Hayes in 1972, when it upheld contempt convictions against reporters who had refused to appear before grand juries. Since then, many courts have hewed to Justice Lewis Powell’s concurring opinion that the government should strike a “proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.”

In the BALCO case, attorneys for the Hearst Corp., which owns the Chronicle, argued that no such balance had been struck. They asked the court to consider that uncovering the source of the leak was marginal when balanced against the public value of “revealing that a number of the nation’s best-known and most highly paid professional athletes had lied to the public about illegally using performance-enhancing drugs.”

Forcing the reporters to testify, they wrote, would set a debilitating precedent for investigative journalism. “These revelations could never have been made but for the promise two Chronicle reporters made to confidential sources that this story of sports gone awry would be told fully and accurately and that the journalists would never reveal their sources’ identities.”

Two former Justice Department officials backed them.

Jamie S. Gorelick, deputy attorney general under Janet Reno from 1994 to 1997, filed an affidavit saying that long-standing internal guidelines dictate that media subpoenas be issued only when “immediate action is required to avoid loss of life or the compromise of a security interest.”

Corallo, the former public affairs director, wrote: “Based on my experience, I believe that the subpoenas would not have been issued under former attorney Ashcroft’s administration for the further reason that compelling the reporters to testify in this instance would have an incalculable chilling effect on the press.”

Tasia Scolinos, the current director of public affairs, said Atty. Gen. Alberto Gonzalez has not changed policy on subpoenaing reporters. The number of approved subpoenas has remained steady over the last 15 years: 14 from 1991 through 2000, and five since then, she said. (Those do not include subpoenas issued by special prosecutors, such as the one investigating the Plame leak.)


Scolinos said the department errs on the side of restraint, typically granting requests from field offices only if the deputy attorney general, the public affairs director and the criminal division chief agree they are merited.

Breaches of grand jury secrecy “seriously imperil the entire system’s ability to investigate and uncover crime,” she said, “and when a federal judge asks us to open an investigation because the grand jury process has been violated, that is something we would obviously take very seriously.”

Media advocates say cases like BALCO are eroding the press’ check-and-balance role in society. Lucie Morillon, of the Paris-based advocacy group Reporters Without Borders, said the United States’ ranking in its annual survey of press freedom fell from 17 in 2002 to 53 in 2005. “The main thing in the U.S. is attacks on confidential sources,” she said.

After hearing from both sides in July, U.S. District Judge Jeffrey White in San Francisco said the reporters had to testify. When they said they could not, he sentenced them to up to 18 months behind bars.

Hearst attorneys hope a panel of the U.S. 9th Circuit Court of Appeals reads the case law differently.

“I want people to know that if the government wins this case, all they’re going to accomplish is putting two reporters in jail,” said Hearst general counsel Eve Burton. “They are not going to get this information from us.”


Williams, a reporter for 33 years, said he’d lose his credibility if he gave up the source.

Fainaru-Wada, a reporter for 17 years, said he and his wife have braced his 9-year-old son and 7-year-old daughter for the possibility that he might go to prison. “We tried to make it as fundamental as possible: “We made promises, you need to keep promises. “




Grand juries

Their role. A federal grand jury is a panel of 23 citizens who evaluate evidence presented by prosecutors and decide if there is enough proof to return an indictment.

Why they’re secret. Grand jury sessions are held in secret for several reasons: to protect jurors and witnesses from intimidation, to avoid tipping off suspects who could flee, to encourage witnesses to be forthcoming and truthful, and to avoid stigmatizing those who’ve been investigated but not charged.

Leaks do occur. Although prosecutors generally hold the secrecy of grand jury proceedings sacrosanct, leaks to the media are not unheard of. And if a grand jury investigation does lead to a trial, the grand jury material can be introduced as evidence and become public.


Shared testimony. In the BALCO case, the leak came after the grand jury session had ended, and the testimony was given to prosecutors, defendants and defense attorneys to prepare for trial. A judge ordered the recipients not to release the material.


Source: Times reporting