Judge: Jail steroid scribes, By: BY TERI THOMPSON and T.J. QUINN
Reporters stay mum on sources
SAN FRANCISCO - With more than 20 reporters from around the country and 40 of his own colleagues there to support him, San Francisco Chronicle reporter Lance Williams explained to a federal judge yesterday that he has no choice but to ignore a subpoena to reveal his confidential BALCO sources.
Rather than reveal the name of confidential sources to a grand jury, Williams and "Game of Shadows" co-author Mark Fainaru-Wada said they will go to prison if necessary.
"To me, the choice in this case is all the government's, and their demands are impossible," Williams said. "They demand that I give up my career and my livelihood. They demand that I throw over my most deeply held ethical and moral beliefs, both as a journalist and as a man."
In ordering Williams and Fainaru-Wada jailed for the full term of the grand jury investigating the leak, up to 18 months, or until they testify - U.S. District Court Judge Jeffrey White said he respected and admired the two reporters, but that federal law required that they testify or be held in contempt.
"The law in this circuit and I believe, in this country, is clear that reporters do not have a privilege (to protect their sources)," White said. "No one is above the law. Every citizen has to answer the questions of a grand jury."
White's decision upheld his ruling from a month ago that federal law compels the two men to testify, although they will remain free while the case moves to the 9th Circuit Court of Appeals. While that case proceeds, possibly taking as long as a year, lawyers for the two reporters said they hope Congress will pass a proposed federal shield law that would allow journalists to protect their sources and notes in certain cases.
The two reporters published grand .jury testimony from Barry Bonds, Jason Giambi, Gary Sheffield and sprinter Tim Montgomery in 2004, giving a big boost to a nationwide push for steroid reform. President Bush even complimented the two, saying they had done a public service.
But his administration is opposed to a shield law, which would put the federal government on par with 31 states and the District of Columbia. Senate Judiciary Committee chairman Arlen Specter (R-Pa.), however, said this week he would like the Senate to consider the bill this year, possibly during the lame-duck session following the Nov. 7 election.
"I think (the decision) speaks eloquently for the need for a federal shield law," Chronicle editor-in-chief Phil Bronstein said after the hearing. "It's a tragedy the government seeks to put reporters in jail for doing their jobs."
The shield law would not give blanket protection to reporters, but require a "balancing test" that would allow courts to determine whether there is an issue of national security or some other compelling issue at stake. The law, which would be applied retroactively, almost certainly would release Williams and Fainaru-Wada from the district court's ruling, as the BALCO case has been completed and the defendants already have served their sentences. Without intervention, though, they could spend more time in prison than all of the BALCO defendants combined.
Prosecutors from the U.S. Attorney's office argued that they need to go after any source who might have released grand jury information to the reporters. But the judge ruled their request was too broad, and ordered that the government limit its probe to only those sources who were under court order not to release testimony.
Lawyers for the reporters, however, repeated their argument that the government is wrong to describe this as a case about grand jury leaks, and they hope the appellate court will agree. The government, they argue, put the grand jury testimony into the public domain by releasing it to BALCO defense lawyers, before having it sealed in a protective order.
"It's not a grand jury leak; the government made a calculated choice to move the material into pre-trial context," attorney Jon Donellon argued.
Fainaru-Wada said he has not given up hope that an appellate court, whether it be the 9th Circuit or the U.S. Supreme Court, will reverse White's decision.
"So we're not focused on (prison) right now," he said. "I'm still hopeful."
