February 28-March 6, 2007

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The Byrne Report

BALCO Sleazoids

By Peter Byrne

I was not surprised that the San Francisco Chronicle's "ace" investigative reporters, Lance Williams and Mark Fainaru-Wada, allowed themselves to be manipulated by a sleazy defense attorney in the BALCO case. After all, the only people with motive and opportunity to leak secret federal grand jury transcripts to Williams and Fainaru-Wada were the BALCO defendants or their lawyers. After the reporters wrote a series of stories quoting the illegally viewed transcripts, attorney Troy Ellerman filed a motion to dismiss charges against his BALCO clients, arguing that press disclosures made a fair trial impossible. In a violation of journalistic ethics, Williams and Fainaru-Wade continued to access the transcripts in Ellerman's office even after it was clear that the attorney was using them to subvert the legal system.

For their efforts, the reporters won professional accolades, including a Polk Award. They penned a book trashing Barry Bonds, who is not formally accused of committing a crime. After the feds told the Chronicle and its reporters to give up the source of their illegally obtained grand jury information, they refused, citing First Amendment rights and the tradition of protecting anonymous sources. The journalistic profession almost universally united behind the BALCO Two, portraying them as principled and courageous individuals. Now, Ellerman is expected to be sentenced to two years in prison for undermining the grand jury system--and the reporters are off the hook.

There are so many things wrong with the argument that Williams and Fainaru-Wada and the Hearst Corporation are "heroes" for defying the government that it is hard to know where to begin in deflating this nonsense.

The practice of using confidential grand juries to investigate whether or not it is worthwhile to issue a criminal indictment made it to the American colonies from England, where it had been around in various forms since the 13th century. Grand jury deliberations are often used by unscrupulous prosecutors to obtain indictments for political reasons or when the "target" is clearly innocent but socially vulnerable. Because the target of a grand jury investigation is not allowed the benefit of counsel in the proceedings, and because exculpatory evidence is not required to be given to the grand jurors, the system is badly in need of reform or liquidation. Nonetheless, secrecy does protect witnesses from being preventatively coerced or murdered. It also protects targets from having their reputations and livelihoods destroyed by the publication of false testimony.

After accepting what amounts to stolen goods from Ellerman, Williams and Fainaru-Wada wrote article after article suggesting that Bonds criminally used steroids and committed perjury before the BALCO grand jury. While those may be true statements, they are not proven statements. Grand jury testimony can be hearsay; it is not subject to cross examination or factual verification; and it can be stocked with lies and finger-pointing. But without selective excerpts from grand jury testimony, the Chronicle had no story and the reporters had no book deal. Worse, Bonds and others who testified to the grand jury did so with the understanding that their testimony would remain confidential. They have no way of defending themselves against defamatory innuendo based on partial grand jury testimony made available by a defense attorney who, under the very eyes of the Chronicle reporters, committed a felony by declaring under oath that he was not the source of the transcripts.

There is no guarantee of the "right" of reporters to protect sources in American jurisprudence, nor should there be. Reporters with access to high-level officials often trade anonymity for the privilege of publicizing official lies, such as that Iraq had nuclear weapons and so on. That Judith Miller, the Scooter Libby mouthpiece, went to jail to protect such a Machiavellian bureaucrat is crazy-making. It perverts the sensible rule that, ethically, the duty of a journalist, as Joseph Pulitzer remarked, is to "afflict the comfortable and comfort the afflicted."

Personally, I have never granted a source anonymity, but I do not rely upon government officials to feed me stories. I might go to jail to protect a source who could be seriously harmed by going on the record with information of real public interest, such as the top secret Pentagon Papers. But when Daniel Ellsberg brought his stolen goods to the New York Times in 1971, he did not require anonymity. Sources who require anonymity usually have hidden agendas that are contrary to the public interest. Witness Plamegate and BALCO. In these instances, career-minded reporters eagerly allowed themselves to be used as pawns by sleazoids, regardless of the consequences. Miller helped her neoconservative sponsors initiate an unjust war that has killed untold numbers of civilians. Williams, Fainaru-Wada and their editors profitably lynched Barry Bonds with a rope woven of innuendo and perjury.

These are shameful, not courageous, acts.

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