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Expose a scandal, face a prison term

The harshest penalty in the BALCO steroid case may go to the reporters who broke the story.

November 14, 2006|Joe Mozingo | Times Staff Writer

SAN FRANCISCO — At a private reception at the White House Correspondents' Dinner on April 30, 2005, President Bush praised two newspaper reporters for their award-winning stories on steroid use in professional sports.

"You've done a service," Bush twice told Lance Williams and Mark Fainaru-Wada of the San Francisco Chronicle.

But today the two journalists, in a standoff with the Bush administration, face longer terms in prison than the combined sentences of all the defendants convicted in the steroid scandal they helped expose.

In September, a judge sentenced Williams, 56, and Fainaru-Wada, 41, to up to 18 months in prison for refusing to tell the U.S. Justice Department who leaked grand jury transcripts implicating baseball stars -- including Barry Bonds and Jason Giambi -- in the Bay Area Laboratory Co-Operative, or BALCO, steroid ring. They are free pending an appeal hearing, set for Feb. 12.

Impasses between journalists and prosecutors seeking to unmask their sources are increasingly common, familiar to anyone who followed the jailing of former New York Times reporter Judith Miller for refusing to reveal who disclosed the identity of undercover CIA operative Valerie Plame.

But the BALCO case -- although not fraught with the political overtones of the Miller case -- has broader implications for the media.

Not only journalists, but two former Justice Department officials, have suggested that prosecutors are overreaching. One of those officials said the subpoenas, if upheld in court, would greatly broaden the government's ability to stifle investigative reporting.

"This is very disturbing," said Mark Corallo, who was director of public affairs for the Justice Department under former Atty. Gen. John Ashcroft and involved in reviewing requests for media subpoenas.

"There is no national security issue here. There is no public safety issue. If they can make this the standard, then confidential-source reporting as you know it is done, over."

The BALCO prosecutors, Brian Hershman and Michael Raphael, argue that letting people get away with violating a federal judge's order -- in this case, an order not to release grand jury material -- could undermine justice.

The leak, on balance, "served only to titillate and hold up to public ridicule those athletes who admitted using steroids before the grand jury; witnesses who testified under the belief that their grand jury testimony would be 'secret,' " the prosecutors argued in court filings.

The BALCO case began in 2003, when agents in Northern California raided a Burlingame laboratory that produced performance-enhancing drugs marketed as the Clear and the Cream. Over the ensuing months, as professional athletes were testifying before the grand jury, reporters from around the nation tried to learn which of them got drugs from the firm.

But when indictments were announced Feb. 12, 2004, against four defendants -- including BALCO founder Victor Conte and Bonds' weight trainer, Greg Anderson -- prosecutors had redacted the drug recipients' names. With no major athletes directly implicated, the case inspired curiosity but few ripples outside the Bay Area.

"All anyone cared about were the names, and there was this big chase to get them," Williams, said in a recent interview.

He and Fainaru-Wada wrote stories about the athletes' involvement based on anonymous sources. But many readers -- particularly Giants fans following Bonds' pursuit of the home run records of Babe Ruth and Hank Aaron -- did not buy it, writing angry letters to the newspaper.

The athletes' grand jury testimony, meanwhile, was distributed to all the parties and attorneys involved so they could prepare for trial. U.S. District Judge Susan Ilston ordered them to keep it to themselves.

When the Chronicle reporters published a story in June quoting from the testimony of sprinter Tim Montgomery, the judge demanded that the attorneys and parties sign sworn declarations that they were not the source of the leak.

In December, the reporters published stories directly quoting transcripts of Bonds and Giambi, with Giambi admitting under oath that he had used the drugs. Bonds told jurors that he had used a clear liquid and rubbing cream from BALCO, but denied he knew they contained steroids, the stories said.

The testimony sparked a furor; in a sport whose popularity has long been fueled by fans' passion for record-breakers, many wondered if steroids were behind a recent slew of impressive feats.

Bush urged Major League Baseball to clean up its act. MLB imposed more stringent testing and tougher punishments on dopers, and Congress interrogated five high-profile players in a televised hearing.

In San Francisco, Judge Ilston asked the Justice Department to investigate the leak. Prosecutors eventually subpoenaed the reporters.

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