Two out? Decision on deck

If two San Francisco reporters lose an appeal, they could be jailed for refusing to reveal the sources of their stories on a steriods scandal.

From the Fall 2006 issue of The News Media & The Law, page 16.

By Elizabeth Soja

Journalists Mark Fainaru-Wada and Lance Williams have managed to avoid time behind bars up to this point, but the San Francisco Chronicle reporters still face jail time for refusing to divulge their sources.

On Sept. 21, a federal judge in San Francisco ordered the reporters to prison for civil contempt of court. U.S. District Judge Jeffrey White immediately suspended the sentence, however, and allowed Fainaru-Wada and Williams to remain out of prison until an appeals court hears their case.

Attorney Jonathan Donnellan, who represents the Chronicle and its owner, the Hearst Corp., said it is unclear when or for how long the reporters would go to jail.

If the reporters lose an appeal to a panel of judges from the U.S. Court of Appeals in San Francisco (9th Cir.), they can appeal that decision to the entire court. The prosecutors and defense attorneys disagree about whether White’s suspension of the journalists’ jail sentence runs only through the first appeal or would apply during an appeal to the full court.

“It is just to coerce them into testifying, and it would end if they chose to testify,” Donnellan said of the jail sentence. If they choose not to testify, he said, they could go to prison “for the life of the grand jury or 18 months, whichever time period is shorter.”

Fainaru-Wada and Williams have said they will go to jail rather than testify.

Donnellan said that the grand jury’s term will most likely expire sometime in 2007 but that the government could seek a six-month extension of the term or empanel a new grand jury at that point. However, regardless of when the grand jury’s term expires, Williams and Fainaru-Wada should not spend more than 18 months behind bars for civil contempt, according to federal law.

The case began in 2004, when Fainaru-Wada and Williams wrote articles for the Chronicle that quoted federal grand jury testimony from several well-known athletes who admitted to using illegal steroids obtained from the Bay Area Laboratory Co-Operative, also known as BALCO. Among those quoted were Barry Bonds of the San Francisco Giants and Jason Giambi of the New York Yankees.

Because grand jury proceedings are secret, federal prosecutors believe someone broke federal law and illegally leaked the testimony to the reporters. Witnesses, however, are allowed to discuss their own testimony.

Attorneys for Fainaru-Wada and Williams say the information the reporters received was not protected by the grand jury rules of secrecy because prosecutors voluntarily gave material from grand jury proceedings to defense lawyers for trial preparation. If grand jury testimony is released for the purpose of preparing for trial, it is no longer considered secret, according to Donnellan.

A reporter’s privilege

BALCO has been the subject of a federal investigation since 2003. Investigators allege the company and its founder, Victor Conte, are responsible for handing out banned performance-enhancing drugs to athletes, including Bonds and Giambi.

Fainaru-Wada and Williams were first subpoenaed by a federal grand jury in May. They asserted a reporter’s privilege under the First Amendment, saying that the interests of a free press outweigh the grand jury’s interest in the information.

Media organizations, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief on behalf of the reporters.

In August, White ruled that the government’s interest in identifying who leaked the testimony outweighed the reporters’ First Amendment rights. In response, federal prosecutors asked that the court order Williams and Fainaru-Wada to prison until they agreed to testify or until the grand jury’s term expires.

Although California’s strong shield law would allow them to refuse to testify in a state court, there is currently no federal shield law that grants such a privilege.

In a statement before the court on Sept. 21, Fainaru-Wada said that he respected the law but could not comply with it.

“I have great respect for the criminal justice system and understand the concerns about maintaining the sanctity of the grand jury process,” he said. “I am not above the law, and I appreciate the legal issues under consideration here. I do not wish to spend even a minute in jail. However, I cannot and will not betray the promises I have made over the past three years.”

Williams made a similar statement and said that he had no choice but to refuse to testify.

“To me, the choice in this case is all the government’s, and their demands are simply impossible for me to comply with,” Williams said. “They demand that I give up my career and my livelihood for if I betray my sources, I cannot work any longer in investigative journalism, work that requires above all the ability to keep confidences.”

If Williams and Fainaru-Wada do not prevail in the federal appeals court, their attorneys plan to take the case to the U.S. Supreme Court.

Donnellan said the case is a strong one because “it’s such a departure” from other federal leak cases involving subpoenas to the media.

“It’s not about national security,” he said. “In fact, this reporting has had a demonstrable effect. President Bush has praised the reporters’ work, Congress has said that it’s led to legislation, and it has led to positive changes in Major League Baseball.”