Bush administration prompts subpoenas of San Francisco Chronicle reporters in BALCO leak case

By Julia Cheever, Bay City News Service

June 21, 2006

SAN FRANCISCO (BCN) - U.S. Justice Department lawyers told a federal judge in San Francisco today that a leak of secret grand jury transcripts in a sports steroid case "is no insignificant crime."

The federal attorneys wrote in a brief submitted to U.S. District Judge Jeffrey White, "The criminal violations at issue here strike at the very heart of the secrecy of grand jury proceedings and the integrity of the judicial system."

The government attorneys asked White to allow them to go ahead with subpoenas that would require two San Francisco Chronicle reporters to disclose how they got grand jury transcripts of a probe into the so-called BALCO case.

White will hold a hearing on Aug. 4 on a request by reporters Lance Williams and Mark Fainaru-Wada that he quash the subpoenas.

If the subpoenas are left in place, Williams and Fainaru-Wada would be called to testify before a recently convened grand jury that is looking into the leak of transcripts from an earlier grand jury that investigated the BALCO case in 2003.

In the BALCO case, Bay Area Laboratory Co-Operative founder Victor Conte and three other men were indicted by the earlier grand jury in February 2004 on charges of giving illegal steroids to professional athletes.

The four men eventually pleaded guilty to reduced charges and were given sentences ranging from probation to eight months in confinement.

Beginning in June 2004, the two reporters published articles that were purportedly based on transcripts of various athletes' testimony before the grand jury.

U.S. District Judge Susan Illston, the judge presiding over the BALCO case, ordered an investigation, which is being led by the U.S. attorney's office in Los Angeles on behalf of the Justice Department.

It is not illegal for reporters to publish alleged grand jury information, but it is illegal for certain parties in a grand jury proceeding to disclose information about it. Those who are bound by the confidentiality rule include the members of the grand jury, members of the prosecution team, court stenographers and any defense lawyers and their clients who have been given copies of transcripts. Violations of the rule can be punished as contempt of court.

In the summer of 2004, all prosecution lawyers as well as all defense lawyers and clients who had been given copies of the transcripts signed sworn statements saying they had not been responsible for the leak.

Lawyers for the two reporters argued in a brief filed with White last month that the subpoenas were unreasonable because there is "no serious crime" at issue and because the public was allegedly well served by the reports on steroid use.

The reporters also argued the subpoenas would harm their free speech rights and their relationships with confidential sources.

But the government brief contends that rulings by the U.S. Supreme Court and a U.S. appeals court in San Francisco have said that reporters do not have a federal free speech right to refuse to testify before a grand jury.

The brief also argues that even if such a right were created, the public's interest in having the law enforced would outweigh the reporters' rights.

Copyright © 2006 by Bay City News, Inc. -- Republication, Rebroadcast or any other Reuse without the express written consent of Bay City News, Inc. is prohibited.

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