BALCO proves writers need a shield

Published 9:00 pm Saturday, February 17, 2007

What an extraordinary world we live in.

The Washington State Cougars are in the top 10; Duke isn’t ranked at all.

The world’s greatest golfer is black; the world’s best rapper is white.

And this week, thankfully, the source of the BALCO grand jury leak stepped forward.

Troy Ellerman, a Colorado attorney, admitted that he provided confidential grand jury testimony to San Francisco Chronicle reporters. Ellerman allowed reporter Mark Fainaru-Wada to take verbatim notes of grand just testimony of Barry Bonds, fellow baseball players Jason Giambi and Gary Sheffield, and sprinter Tim Montgomery in 2004.

Fainaru-Wada and fellow Chronicle reporter Lance Williams turned the notes into material for stories they wrote for the newspaper in which Giambi and Montgomery admitted they used performance-enhancing drugs. Bonds and Sheffield both testified they didn’t knowingly take steroids, but the substances they described matched prosecutors’ descriptions supplied by BALCO.

Fainaru-Wada and Williams also collaborated on the best-selling book “Game of Shadows,” a greatly detailed expose that used much of the confidential testimony.

Ellerman, onetime defense attorney for BALCO founder Victor Conte and company executive James Valente, pleaded guilty to two counts of contempt of court for leaking the grand jury testimony. He also pleaded guilty to obstruction of justice and making a false declaration. The latter charges were connected with Ellerman’s complaining to a federal judge about the leaks in 2004. He even filed a motion in October 2004 to dismiss the case against Valente, arguing that the leaks made a fair trial practically impossible.

Ellerman’s admission frees the reporters from almost certain jail time. The two were under grand jury subpoenas since May demanding they testify and turn over documents that might reveal the source. Fainaru-Wada and Williams, backed by The Chronicle, refused to take the stand.

Sadly, Ellerman won’t get through unscathed. He faces a jail sentence of up to four years and a possible fine of $250,000.

Although BALCO founder Victor Conte and four other defendants have pleaded guilty to steroid distribution and money laundering, the BALCO case is far from over. One question is whether a separate grand jury will indict Bonds for perjury in his testimony that he never knowingly took steroids.

Many journalistic outlets have declared this a victory, but several trouble spots remain.

Although President Bush once lauded Fainaru-Wada and Williams as having done a public service, his Justice Department did much to grind down the First Amendment and damage the role of independent journalism in a democracy.

By threatening to jail reporters and seize a news organization’s phone records, as the Justice Department did, it erodes society’s check on abuses of power and other unlawful activity.

The Chronicle had the financial wherewithal to fight the government in court. What happens, though, to a news organization that can’t afford to spend the millions of dollars needed for legal expenses in a protracted series of court battles?

Where does that leave the future of reporting malfeasance, governmental or otherwise? Many investigative pieces require protecting the identities of whistleblowers and other sources who stick their necks out to tell controversial stories for the public good.

To allow reporters to protect their sources, a federal and/or state shield law is needed. Although 32 states and the District of Columbia recognize the need for reporters to protect their sources, Washington is not one.

The state’s courts, however, have ruled in favor of qualified privilege for protecting confidential sources, based on the First Amendment and on common law.

One such bill died last year in the State Legislature, only to reappear in this year’s session.

An enlightened public depends on its passage.

Sports columnist John Sleeper: sleeper@heraldnet.com