The two reporters from The San Francisco Chronicle who wrote a best-selling book about one of sport’s biggest anabolic steroids scandals will now avoid being sent to prison for refusing to reveal their sources, after a lawyer admitted that he had been the journalists’ “mole” who leaked to them confidential federal court documents.
The development in the case came on Wednesday when Troy Ellerman admitted in a plea bargain deal that he had been the source.
Ellerman had worked as the defence lawyer for Victor Conte, the founder of Balco, the Californian company that had been at the centre of an FBI investigation into steroids in sport which exposed accounts of the supply and use of banned drugs by baseball slugger Barry Bonds, former Olympic sprint champion Marion Jones, and even managed to involve British runner Dwain Chambers.
Ellerman admitted allowing Chronicle reporter Fainaru-Wada to take verbatim notes of confidential grand jury testimony by Bonds, fellow baseball players Jason Giambi and Gary Sheffield, and sprinter Tim Montgomery in his Sacramento office in June and November 2004.
Articles by Fainaru-Wada and Williams quoted Giambi and Montgomery as admitting they used performance-enhancing drugs. Bonds and Sheffield both testified they didn’t knowingly take steroids, but the substances they described taking matched prosecutors’ descriptions of steroids supplied by Balco.
While he was secretly leaking the transcripts, Ellerman admitted this week that he was publicly complaining to a federal judge about the leaks, and even filed a motion to dismiss charges, arguing that the disclosures made a fair trial “practically impossible.”
The lawyer will plead guilty to two charges of contempt, as well as one charge each of obstruction of justice and filing false statements in a federal court, but as part of the plea, the Justice Department will withdraw subpoenas issued to the reporters Lance Williams and Mark Fainaru-Wada, who had been held in contempt by a federal judge since September for refusing to say who their sources were for a series of Chronicle articles and their 2006 book, Game of Shadows. They were due to appear at an appeal hearing on March 7.
Williams and Fainaru-Wada faced a possible 18-month jail term for refusing to name the source of their information on the case, while their newspaper was running up $1,000-a-day in court fines.
But Williams seemed confident that he and his colleague would not ultimately go to jail when he wrote to the SJA earlier this month, following supportive coverage on sportsjournalists.co.uk: “Although the threat of prison is sobering and the courts have ruled for the government so far, I have every confidence that our case will get sorted out eventually,” Williams wrote.
This week, his optimism was well founded when the Justice Department issued a statement: “The government believes that Ellerman’s guilty pleas alleviate the need for the reporters to testify.”
Ellerman now faces up to two years in prison and a $250,000 fine.
The press’s duty to protect sources
Throughout the case Fainaru-Wada and Williams (pictured below left) said that any attempt to force them to reveal their sources was an attack on press freedom, and they won support from politicians and civil liberties organisations.
Their lawyers argued that a 1996 US Supreme Court ruling opened the door for federal judges to recognise a journalist’s right to protect confidential sources when the value of the reporting to the public outweighed any harm caused by the leak.
In Washington, Nancy Pelosi, now the House Speaker, and several other congressional leaders urged the Justice Department to withdraw the case and expressed support for a national “shield law” for journalists, similar to laws in effect in California.
American lawyers specialising in freedom of speech welcomed the developments, at least guardedly. “In a sense, the system worked,” Peter Scheer was quoted in the Chronicle. “The reporters honoured their promise of confidentiality to their source, which is both their right and their responsibility to the First Amendment.” Other lawyers pointed out that in future, potential whistle-blowers might be deterred from coming forward by the treatment accorded to Ellerman.
Williams and Fainaru-Wada’s work on the story did much to push coverage of the case to international levels, and saw the Balco scandal result in congressional hearings on steroids in sport and a new steroid-testing policy for professional baseball.
By putting so much material into the public domain, their reporting also makes it almost inconceivable that Bonds – one of America’s biggest sports stars – will not be charged with perjury over his original grand jury testimony, where he claimed that he never knowingly took steroids. Bonds’ former coach, Greg Anderson, who pleaded guilty to drug distribution in the Balco case, has been in prison since August for refusing to testify against Bonds.
Indeed, so influential has been the Chronicle‘s coverage that Bonds’ lawyer, Michael Rains, said that he thinks Fainaru-Wada and Williams should be prosecuted on charges of conspiring with Ellerman to disclose the grand jury transcripts.
“I think they’re co-conspirators in a criminal enterprise with Troy Ellerman … a deceitful attempt to undermine orders of a federal judge,” said Rains, who unsuccessfully sued the reporters, the publisher of their book and the Chronicle on similar grounds last year.
“They bragged about getting these materials. They knew they were secret grand jury materials.”
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