Court Ruling Raises Issues for 'SF Chron' Investigative Unit

By: Joe Strupp The ongoing court battles for San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada could not have come at a worse time for the newspaper's heralded investigative unit.

The Chronicle's "Enterprise Team," which dates back to the 1970's San Francisco Examiner, before transferring to the Chronicle when the two newspapers merged staffs in 2000, currently operates with five full-time reporters, according to Enterprise Editor Steve Cook, who has overseen the unit since its Examiner days.

But he said two of those reporters are on temporary leaves. Seth Rosenfeld is out until at least early 2007 on hiatus to write a book, while Erin McCormick recently began a maternity leave. That leaves veteran reporter Susan Sward, along with Fainaru-Wada and Williams, as the group's full-timers.

With a federal judge ruling Tuesday that Williams and Fainaru-Wada must reveal their sources in the BALCO story, or face jail, the unit's size has moved closer to potentially becoming even smaller. Fainaru-Wada admitted today that the recent ruling brings the prospect of jail closer to reality. "It makes it all more immediate," he told E&P Wednesday. "It is one further step."

Although the newspaper is appealing the ruling to a federal court of appeals, which may take months to decide, the reporters' steadfast decision not to reveal their sources for the leaked grand jury testimony could put them in jail, further draining the unit's reporting resources.

"I would not want to see the paper operate without Lance and Mark," Cook told E&P Wednesday. "They are very valuable reporters. The effect on the investigative unit is not as important as the effect on the newspaper."

Williams and Editor Phil Bronstein, who are both off today, could not be reached for comment.

Obviously, if Cook's unit is further reduced by reporter leaves or the jailing of the BALCO reporters, other staffers could be transferred in as needed. But the looming cloud of the court battle and potential jail is another concern Cook and his staff must consider.

"It is more than a headache to have this going on," said Cook. "But I don't think it has affected their work. They're going about doing their jobs." He added that, despite the latest court ruling, he does not expect the reporters will end up in jail.

"We really don't believe they will be behind bars," Cook said. "Because we believe the First Amendment protects the right to protect confidential sources. I'm really, really hopeful that a judge or a panel of judges will see that and make the decision, but it is really beyond our control."

Fainaru-Wada said he and Williams continue to work on the BALCO story and have not begun any kind of preparations for jail or other further action if their appeals are rejected. "Maybe we're in denial, but the only way to deal with it is to continue to work," Fainaru-Wada said. "Keep going through the process and hope we win and dealing with [jail] when it happens."

Attorney Eve Burton, who is representing the paper in the legal proceedings for parent company Hearst Newspapers, also believed jail was unlikely. "It is a long train ride from here to the Ninth Circuit [Court of Appeals] and then finally, if necessary, to the U.S. Supreme Court," she wrote in an e-mail statement. "I believe we will prevail at one of those stops. During this journey, pending appeal, tradition and law would suggest that there is virtually no chance of anyone going to jail."

Cook said he did not believe that the latest court ruling, or other recent decisions that have gone against reporters' anonymous sourcing -- such as the Judy Miller case last year -- would make investigative reporters or editors more tentative about digging up such confidentiality-sourced stories.

"The reporters I know are in the business with a mission, to represent the public and find out information that the government does not necessarily want known," he said. "I think that they see that as their mission, and they will continue to seek out that sort of information."