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Should the San Francisco Chronicle have published leaked testimony from the secret BALCO grand jury inquiry?

A medical mea culpa grabs headlines.
The Chronicle has sicced some of its most talented investigative reporters on a scandal involving the alleged illicit use of performance-enhancing drugs by professional athletes. The public's curiosity has certainly been piqued, and the Chronicle has responded -- writing more than 400 stories over 15 months mentioning the Bay Area Laboratory Co-operative, the sports medicine business at the center of a criminal investigation.

On Dec. 2 and 3, the Chronicle published substantial excerpts from secret testimony New York Yankee Jason Giambi and San Francisco Giants home-run champion Barry Bonds gave to the grand jury in the case. The paper revealed that Mr. Giambi admitted to injecting himself with growth hormone, and that Mr. Bonds testified to having unwittingly used what authorities believe were undetectable steroids -- banned by Major League Baseball and illegal without a doctor's prescription.

The publication of the confidential transcripts has ignited a debate among journalists and lawyers over the ethics of publishing information the courts keep secret to protect the integrity of investigations, as well as the rights of suspects.

The prosecutor, U.S. Attorney Kevin Ryan, has called for a Justice Department investigation of these and previous leaks. That would only heighten the already escalated tensions between journalists and the government in a number of cases in which journalists have protected anonymous sources of government information.

So you make the call. If you ran the Chronicle, what would you have done? To help you with your decision, we've compiled two opposing arguments based on our research with journalists and legal scholars. When you're ready, cast your vote in our unscientific poll and leave your comments below.

Pro: The public's need to know the truth about sports doping outweighs any probable harm

Chronicle Editor Phil Bronstein said it most succinctly last Sunday in an editorial column in the paper: "We don't believe that it's our responsibility to enforce federal secrecy provisions surrounding grand jury proceedings."

One major role of the press is to advocate for freedom of information and remove the shroud of secrecy that powerful people in government and private institutions sometimes use to shield their abuses from scrutiny. In this case, the athletes -- role models for millions -- may have achieved their stardom by cheating. The public has a need and a right to know this information, especially if it contradicts what the players have said in public and it comes from their own lips.

"Unless there's some good reason not to publish relevant information like this, the default option is to publish," said James Bettinger, director of the Knight Fellowships for professional journalists at Stanford. "Sometimes there is good reason not to publish -- jeopardizing the safety of a witness, enabling suspects to elude capture, not allowing the reputation of individuals to be smeared, etc. -- but I don't think any of that is the case here."

If the Chronicle had not pursued this case and published these transcripts, anti-steroid legislation might never have come forward in Congress, nor rulemaking from the International Olympic Committee, to say nothing of the public debate by young athletes and their parents.

Lance Williams, a lead reporter on many of the BALCO stories, including those that exposed the grand jury testimony, argues that the government was indeed hiding something that would never have come to light without probing from the press.

"From the beginning of the BALCO case, the government has conveyed a mixed message about the public purpose of the indictment," he told Grade the News. "Attorney General Ashcroft himself announced the BALCO indictment on TV. The purpose was to clean up sports. But in the indictment, all the names of the athletes were excised from the public file. You couldn't find out what was going on.

"The only reason the Chronicle has had two reporters working 14 months on BALCO is to fill out the gaps in the public case," Mr. Williams said.

Essentially, the government wanted to call attention to a high-profile anti-drug case, but keep popular athletes out of the publicity storm that would inevitably follow. Well, you can't have it both ways. The tremendous interest in this case around the world necessitates full disclosure -- not selective releases of information that make an example of the dealers while letting the users (who are, after all, public figures) off the hook.

Furthermore, while there is a tradition of keeping information learned in grand jury proceedings secret, there is debate over whether this system should be universally honored. The system of secrecy is designed to aid prosecutors primarily, not witnesses. In recognition of the potential for abuse in grand juries, California has sharply curtailed their use, though the federal government has not followed suit.

In the end, however, it is the lawyers, grand jurors and witnesses who are sworn to secrecy, not journalists. If journalists hold back on exercising their obligation to inform the public because they are afraid it might inconvenience the government, then little by little they abdicate those rights, until one day they are no longer honored at all. New York Times columnist William Safire writes that journalists have every reason to fear for their liberty -- they are under attack from "activist federal judges" who want them to disclose the sources of anonymous leaks .

News organizations should take every chance they can get to promote the principle that the public has a right to know, and it should be up to the government to justify and enforce secrecy.

Con: Journalists should weigh the value of disclosure against the harm to the grand jury process

There are times when the media serve the public by revealing government secrets. The Penatgon Papers, which exposed the truth about U.S. prospects in the Vietnam War, come immediately to mind.

But there are other times when more harm than good is done.

No doubt, the Chronicle's reports on famous athletes' testimony have boosted sales and the paper's profile nationally. More importantly, the leaked testimony has created great pressure for reform of steroid abuse in baseball and other sporting arenas.

But the key question is this: Could the same result have been accomplished by waiting until the grand jury concluded its job and the testimony became public -- when prosecutors took the BALCO case to trial? At that point, if the Chronicle smelled a coverup, it could still publish the testimony. And credibly argue that the greater good was served.

Editor Phil Bronstein ignores the question of timing and dismisses the harm to the integrity of this grand jury -- and the success of future grand juries -- with all of the angst of a getaway car driver who claims he's not responsible for bank security. He also sidesteps the enabling role the newspaper played when their source broke the law. Leakers, after all, can't succeed without the media.

The Chronicle's rush to publish now may unneccessarily jeopardize the interests of justice in this case. Ironically, it could also damage the watchdog role of the press. Recently several reporters on the East Coast were fined or threatened with jail for refusing to reveal confidential sources of government leaks. Were the Chronicle seen to be protecting leakers more for its own benefit than the public's, political and judicial support for the principle of journalists shielding whistle-blowers could erode further.

The purpose of secrecy, according to the Handbook for Federal Grand Jurors, is to protect grand jurors from harassment; prevent the escape of suspects; encourage witnesses "to give full and truthful information as to the commission of a crime"; and protect the reputation of people who are subject to an investigation but never charged.

By publishing such testimony, a newspaper is exposing unverified information that is difficult to corroborate. In exchange for honest testimony, witnesses are guaranteed secrecy.

Grand juries are exempt from many constitutional restrictions on prosecutors. Witnesses may be questioned without being informed that they might be suspects, and without an attorney present. They can even be questioned on the basis of illegally seized evidence.

"There's an old adage in legal circles that says a competent prosecutor could indict a ham sandwich before a grand jury," said Jane Kirtley, the Silha professor of media ethics and law at the University of Minnesota School of Journalism and Mass Communication. "It's important that this highly inflammatory and not-too-reliable information not get into the hands of the public before it's verified through a trial. ... It can damage people's reputation and compromise the presumption of innocence."

Rory Little, a professor at Hastings College of the Law in San Francisco, concurred. The media, he said, "assert that the public has a right to know no matter what; let the chips lie where they may. But that's not necessarily true. ... People will not be candid with grand juries if they think it's going to all come out in the media."

Mr. Bronstein writes that the BALCO story is important because it "resonates" with readers. But this investigation lacks the gravity of Watergate or the Pentagon Papers. The Chronicle should have weighed more carefully the harm that could come from rushing unconfirmed testimony into print.

CORRECTION: A previous version of this page incorrectly characterized grand jury secrecy requirements. Witnesses are free to recount their testimony.

 

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