U.S. lawyers seek to uphold San Francisco Chronicle reporters' contempt finding

By Julia Cheever, Bay City News Service

December 22, 2006

SAN FRANCISCO (BCN) - U.S. Justice Department lawyers asked a federal appeals court today to uphold a contempt-of-court finding that could send two San Francisco Chronicle reporters to prison for up to 18 months.

Government attorneys said in a brief filed with the 9th U.S. Circuit Court of Appeals that there is a "solid wall of authority" from the Supreme Court holding that reporters can't withhold confidential information when it is needed in a criminal case.

The U.S. lawyers wrote, "For over 30 years, Supreme Court precedent has squarely held that reporters have no First Amendment or common-law privilege to refuse to testify in response to a legitimate federal grand jury subpoena."

The appeals court is scheduled to hear arguments on the contempt case in San Francisco on Feb. 12.

Reporters Lance Williams and Mark Fainaru-Wada are appealing a trial judge's finding that they are in contempt for refusing to reveal their source of grand jury transcripts in a sports steroid case centered around the Bay Area Laboratory Co-Operative, or BALCO.

A new grand jury is trying to find out who leaked the transcripts of sports stars' statements to the original grand jury probing the BALCO case in 2003.

If the contempt finding is upheld, the reporters could be sent to prison for the term of the new grand jury, or up to 18 months.

The reporters published grand jury testimony by professional athletes including Barry Bonds, Jason Giambi and Tim Montgomery in Chronicle articles on the BALCO case in 2004.

Although publishing the information was not a crime, it would be a crime for defendants or lawyers in the BALCO case to give reporters the transcripts. A trial judge ordered prosecution and defense lawyers and four BALCO defendants not to disclose the transcripts and all signed sworn statements after the leak saying they were not the source.

In a separate development, an FBI spokesman today confirmed a report posted by Yahoo.com on Thursday that the FBI is investigating Troy Ellerman, a former defense lawyer in the BALCO case, as a possible source of the leak.

Joseph Schadler, a spokesman for the FBI's San Francisco office, said, "I can confirm we have an investigation into allegations that Mr. Ellerman may have been the source of the leak."

Schadler declined to comment on whether anyone else is currently being investigated. Ellerman represented BALCO founder Victor Conte and later BALCO Vice-President James Valente, both of whom pleaded guilty last year to conspiring to distribute anabolic steroids to professional athletes.

Thom Mrozek, a spokesman for the U.S. attorney's office in Los Angeles, declined to comment on the allegation.

The U.S. attorney's office in Los Angeles is conducting the leak probe because federal prosecutors in San Francisco are among the people who received the 2003 grand jury transcripts.

Federal lawyers from the Los Angeles office wrote the brief filed with the appeals court today.

While California has a state shield law generally protecting reporters from revealing confidential sources, federal law has no similar privilege.

Lawyers for the reporters and the Chronicle argued in a brief filed earlier this month, however, that courts should balance a grand jury's need for information against reporters' First Amendment free speech rights and the public interest.

They contended that the BALCO leak didn't harm national security or law enforcement and the public was served by the reporting on athletes' illegal steroid use.

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