NEWS MEDIA UPDATE · NINTH CIRCUIT · Confidentiality/Privilege · March 2, 2007
BALCO reporters no longer in contempt
March 2, 2007 · A federal judge issued a one-page order Thursday vacating contempt findings and sanctions in the case of two San Francisco Chronicle reporters who refused to divulge their source in the BALCO steroids investigation.
The order from U.S. District Judge Jeffrey White in San Francisco signaled the official end of Lance Williams’ and Mark Fainaru-Wada’s nearly yearlong legal battle to keep a promise of confidentiality to a source who allegedly leaked grand jury testimony.
Although the reporters still refuse to identify their source, defense attorney Troy Ellerman admitted that he allowed Fainaru-Wada to take detailed notes of secret transcripts at the same time he was asking for the case against his client to be dismissed because of the leaks, according to a Department of Justice statement.
Ellerman, who represented BALCO executives during the investigation, has pleaded guilty to two counts of contempt of court, one count of obstruction of justice and one count of filing a false declaration with a federal court, according to court filings. He faces both jail time and fines.
Following Ellerman’s plea last month, federal prosecutors withdrew the subpoenas issued to the reporters and to the newspaper.
The Bay Area Laboratory Co-Operative, known as BALCO, has been the subject of a federal investigation since 2003. Williams and Fainaru-Wada used the leaked grand jury testimony of athletes such as Barry Bonds and Jason Giambi for Chronicle articles and for their book “Game of Shadows” about the use of steroids within professional baseball.
Fainaru-Wada and Williams were subpoenaed in May and repeatedly refused to comply with prosecutors’ requests for the identity of the reporters’ source. The court held both reporters in contempt of court in September, and the Chronicle agreed to be held in contempt in October.
Although the reporters faced up to 18 months behind bars, the judge’s order allowed Fainaru-Wada and Williams to remain out of prison while the case was appealed. The Chronicle was fined, but that sanction was also stayed pending appeal. Oral arguments in the appeal were scheduled for this month, but Ellerman’s admission has effectively rendered the appeal moot.
(In re Grand Jury Subpoenas (Fainaru-Wada and Williams), Media Counsel: Eve Burton, Hearst Corp., New York) — ES