Judge considers BALCO reporters opposition to subpeona

By Julia Cheever, Bay City News Service

August 4, 2006

SAN FRANCISCO (BCN) - A federal judge postponed ruling today on whether two San Francisco Chronicle reporters should be required to reveal confidential sources in a sports steroid probe, but suggested the journalists have an "upstream" battle.

U.S. District Judge Jeffrey White said the law appeared to be set by a key 1972 U.S. Supreme Court ruling that held reporters have no right to refuse reveal their sources to a federal grand jury investigating a crime.

In light of that ruling, "Aren't you sort of swimming upstream?" White asked Hearst Corp. attorney Jonathan Donnellan, who is representing reporters Lance Williams and Mark Fainaru-Wada.

The judge asked, "How can I, as a district court, rule to the contrary?"

Williams and Fainaru-Wada are opposing subpoenas that would require them to tell a federal grand jury how they got confidential transcripts of sports stars' testimony in a previous grand jury's investigation of a steroid scandal centered around the Bay Area Laboratory Co-Operative, or BALCO.

White took their bid to quash the subpoenas under submission at the end of a two-hour hearing at the Federal Building in San Francisco and did not say when he will rule.

If the judge upholds the subpoenas and the reporters refuse to testify, he could find them in contempt of court and send them to prison for the remainder of the grand jury's term.

Outside of court, the two men said they hope they will win their case, but said they will go to prison rather than reveal their source.

Williams, 56, said, "I've decided to maintain the confidentiality. What happens to us is not up to me."

Williams also said, "We have a strong First Amendment case and I hope and believe we'll prevail."

Fainaru-Wada, 41, said, "If the court decides that they want to send us to jail for this, that's what happens. There's no other option for us."

The leaked transcripts contain testimony by professional athletes including Barry Bonds, Jason Giambi and Tim Montgomery before a grand jury investigating the BALCO case in 2003. Williams and Fainaru-Wada published the material in the Chronicle in June andDecember 2004.

In February 2004, four men, including BALCO founder Victor Conte, were indicted on charges of distributing steroids to athletes. The defendants and their lawyers were then given copies of the transcripts, but were ordered by a federal judge not to reveal them.

After the Chronicle published the material, all prosecutors, defendants and defense lawyers signed sworn statements saying they were not the source of the leak. The judge in the BALCO case, U.S. District Judge Susan Illston, then asked the U.S. Justice Department to investigate.

The two reporters' lawyers contend they should be entitled to protect their sources under a qualified privilege, in which their First Amendment free-speech rights would be balanced against the needs of the grand jury.

Donnellan argued that upholding the subpoenas "would be a devastating blow to the press and the public, which relies on serious investigative reporting on matters of public interest."

The attorney contended the 1972 Supreme Court ruling applies to probes of serious crimes and maintained the BALCO leak was not in that category.

But White noted that the leak entails possible crimes of perjury and obstruction of justice and asked, "How can you say it's not serious?"

Assistant U.S. Attorney Michael Raphael, arguing in favor of upholding the subpoena, told the judge that giving reporters a privilege not provided to ordinary citizens would be "in some sense a radical foray for a court to make."

Government lawyers have argued to White that Williams and Fainaru-Wada are the only people other than the source of the information who can explain how the transcripts were leaked.

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