Lawyer's plea agreement will keep reporters out of jail

SAN FRANCISCO -- Attorney Troy Ellerman swore under oath that he wasn't the source for media leaks of secret grand jury testimony of elite athletes discussing steroids. He even went so far as to blame the government for sharing the transcripts with two San Francisco Chronicle reporters.

Ellerman kept quiet for more than two years as the reporters, Mark Fainaru-Wada and Lance Williams, went to the brink of imprisonment for refusing to divulge their source.

And it turned out he was the source all along.

Ellerman, who represented two key figures in the BALCO steroids investigation, admitted in court papers filed Wednesday that he allowed Williams and Fainaru-Wada to view transcripts of the grand jury testimony of baseball stars Barry Bonds, Jason Giambi, Gary Sheffield and sprinter Tim Montgomery.

The Chronicle published stories in 2004 that reported Giambi and Montgomery admitted to the grand jury that they took steroids, while Bonds and Sheffield testified they didn't knowingly take the drugs. The leaked testimony also was featured prominently in the writers' book, "Game of Shadows," which recounts Bonds' alleged use of steroids.

A federal judge ordered the reporters jailed after they refused to divulge their source, but they have remained free pending an appeal to the 9th U.S. Circuit Court of Appeals.

Ellerman's plea deal states that federal prosecutors will no longer try to put the reporters in prison, but Williams and Fainaru-Wada still declined to discuss the case.

"As we have said throughout, we don't discuss issues involving confidential sources," they said in a joint statement.

Ellerman's attorney, Scott Tedmon, could not immediately be reached.

"Ultimately, the reporters did not have to go to jail and they did not have to compromise on ethics, and that's a good thing, All the press can promise, and it's not a lot, is that we're not going to give you up."
-- Peter Scheer, executive director of the California First Amendment Coalition

Peter Scheer, executive director of the California First Amendment Coalition, called it one of the best possible outcomes for journalism.

"Ultimately, the reporters did not have to go to jail and they did not have to compromise on ethics, and that's a good thing," Scheer said. "All the press can promise, and it's not a lot, is that we're not going to give you up."

Ellerman agreed to plead guilty to four felony counts of obstruction of justice and disobeying court orders, and to spend up to two years in prison and pay a $250,000 fine. A judge still has to approve the terms of the plea agreement; no hearing date has been set.

Ellerman briefly represented Victor Conte, the talkative founder of the Bay Area Laboratory Co-Operative who went to prison for steroid distribution and has long been a prime suspect in the grand jury leaks.

He later represented BALCO vice president James Valente, and it was while preparing Valente's defense against steroids charges that Ellerman became a key source for the two Chronicle reporters.

Conte and Valente were among five men who pleaded guilty in an earlier phase of the investigation.

"I find the fact that Troy Ellerman has admitted to leaking the BALCO grand jury transcripts to be outrageous," Conte said in an e-mail to The Associated Press. "This man was an officer of the court who was highly paid to provide the services of a criminal defense attorney. Instead, he chose to serve his own agenda and act in a way that was tremendously damaging to his own clients."

Ellerman, a 44-year-old resident of Woodland Park, Colo., is commissioner of the Professional Rodeo Cowboys Association.

In March 2004, he signed an agreement that he would not disclose grand jury testimony given to him to prepare the defense. But in June of that year, he allowed Fainaru-Wada to come to his office and take verbatim notes of Montgomery, and the Chronicle published a story about the sprinter's testimony on June 24, according to court documents.

After telling Judge Susan Illston that he was angry about the leak, he filed a statement with the court swearing that he wasn't the source. And in October 2004, he filed a motion to dismiss the criminal case against Valente because of the leaks.

The following month, he again allowed Fainaru-Wada to take verbatim notes of the grand jury transcripts, this time of the testimony of Bonds, Giambi and Sheffield, the court papers show.

Prosecutors said a "previously unknown witness" they did not identify approached the FBI and offered to help prove that Ellerman was the source. Larry McCormack, former executive director of the Pro Rodeo Hall of Fame and a private investigator connected to the BALCO investigation, confirmed to The Associated Press late Wednesday that he was the one who tipped off FBI agents.

"Doing illegal things and watching people go to prison behind it and thousand and thousands of dollars being spent on it ... I didn't think it was right. I told Troy that several times," McCormack said.

"I feel bad for Troy and his family, and I wish he'd never done this to begin with," he added.

San Francisco U.S. Attorney Kevin Ryan said the plea deal should end speculation that his office was a source of the leaks,

"I've maintained from the beginning that neither the agents nor the federal prosecutors involved in the BALCO case were the source of any grand jury leaks," he said. "I've always had the utmost confidence in this team's integrity."

Besides Conte and Valente, chemist Patrick Arnold, Bonds' personal trainer Greg Anderson, and track coach Remi Korchemny have all pleaded guilty in the BALCO probe. Korchemny and Valente were sentenced to probation and the others were each sentenced to jail terms no longer than four months.

Bonds has never been charged, but suspicion continues to dog the San Francisco Giants slugger as he chases baseball's career home run record.

He told the grand jury he thought Anderson had given him flaxseed oil and arthritic balm, rather than the BALCO steroids known as "The Clear" and "The Cream." A federal grand jury is investigating him for possible perjury and obstruction of justice charges.