U.S. lawyers seek to uphold San Francisco Chronicle
reporters' contempt finding
By Julia Cheever, Bay City News Service
December 22, 2006
SAN FRANCISCO (BCN) - U.S. Justice Department lawyers
asked a federal appeals court today to uphold a contempt-of-court
finding that could send two San Francisco Chronicle reporters
to prison for up to 18 months.
Government attorneys said in a brief filed with the 9th U.S.
Circuit Court of Appeals that there is a "solid wall of authority"
from the Supreme Court holding that reporters can't withhold confidential
information when it is needed in a criminal case.
The U.S. lawyers wrote, "For over 30 years, Supreme Court
precedent has squarely held that reporters have no First Amendment
or common-law privilege to refuse to testify in response to a
legitimate federal grand jury subpoena."
The appeals court is scheduled to hear arguments on the contempt
case in San Francisco on Feb. 12.
Williams and Mark Fainaru-Wada are appealing a trial judge's
finding that they are in contempt for refusing to reveal their
source of grand jury transcripts in a sports steroid case centered
around the Bay Area Laboratory Co-Operative, or BALCO.
A new grand jury is trying to find out who leaked the transcripts
of sports stars' statements to the original grand jury probing
the BALCO case in 2003.
If the contempt finding is upheld, the reporters could be sent
to prison for the term of the new grand jury, or up to 18 months.
The reporters published grand jury testimony by professional
athletes including Barry Bonds, Jason Giambi and Tim Montgomery
in Chronicle articles on the BALCO case in 2004.
Although publishing the information was not a crime, it would
be a crime for defendants or lawyers in the BALCO case to give
reporters the transcripts. A trial judge ordered prosecution and
defense lawyers and four BALCO defendants not to disclose the
transcripts and all signed sworn statements after the leak saying
they were not the source.
In a separate development, an FBI spokesman today confirmed a
report posted by Yahoo.com on Thursday that the FBI is investigating
Troy Ellerman, a former defense lawyer in the BALCO case, as a
possible source of the leak.
Joseph Schadler, a spokesman for the FBI's San Francisco office,
said, "I can confirm we have an investigation into allegations
that Mr. Ellerman may have been the source of the leak."
Schadler declined to comment on whether anyone else is currently
being investigated. Ellerman represented BALCO founder Victor
Conte and later BALCO Vice-President James Valente, both of whom
pleaded guilty last year to conspiring to distribute anabolic
steroids to professional athletes.
Thom Mrozek, a spokesman for the U.S. attorney's office in Los
Angeles, declined to comment on the allegation.
The U.S. attorney's office in Los Angeles is conducting the leak
probe because federal prosecutors in San Francisco are among the
people who received the 2003 grand jury transcripts.
Federal lawyers from the Los Angeles office wrote the brief filed
with the appeals court today.
While California has a state shield law generally protecting
reporters from revealing confidential sources, federal law has
no similar privilege.
Lawyers for the reporters and the Chronicle argued in a brief
filed earlier this month, however, that courts should balance
a grand jury's need for information against reporters' First Amendment
free speech rights and the public interest.
They contended that the BALCO leak didn't harm national security
or law enforcement and the public was served by the reporting
on athletes' illegal steroid use.
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