An Interview with Mark Fainaru-Wada

“Sure, we’ve taken grief for what’s come out publicly about the source situation. I’ve wanted to scream at the top of my lungs to set the record straight.”

“I became obsessed with the story – it took hold of a different part of me…I constantly worried about getting beat – I would wake up paranoid and panicked about getting beat. It became consuming in a way my family was not prepared for.”

“Two times I got mad about the legal thing – once was thinking about being in jail while Bonds broke the record. The other related to my kids.”

Mark Fainaru-Wada: Interviewed on March 13, 2008

Position: investigative reporter, ESPN

Born: 1965, Los Angeles

Education: Northwestern, 1989, BJ

Career: Knoxville News-Sentinel, LA Daily News, The National, Scripps Howard News Service, SF Examiner 1997-2000; SF Chronicle 2000-2007, ESPN, 2007 –

Personal: married, two children

Favorite restaurant (home): Boulevard Restaurant, SF, “favorite spot of my wife and mine – we go there on anniversaries or moments we want to celebrate – the fois gras is great”

Favorite restaurant (away): Aunt Kizzy’s Back Porch, Marina del Ray, Ca., “great southern place in a shopping mall introduced to me by the guys from the San Jose Merc when I was on the Stanford beat”

Favorite hotel: Valley River Inn, Eugene, Oregon “beautiful little hotel right on the river – I stayed there when I was covering the Pac 10 – it’s cool and the food is good”

Author of: Game of Shadows, with Lance Williams

Mark Fainaru-Wada, excerpted from espn.com, March 8, 2008:

…When she returned from Australia, Jones graced the cover of Vogue as the picture of femininity and strength, sporting a form-fitting, sequined red dress. A headline proclaimed her “THE NEW AMERICAN HERO.” Inside, along with photos taken by Annie Leibovitz, a story announced, “Hail Marion: Marion Jones isn’t just the fastest woman in the world — she’s determined to be the greatest female athlete in history.”

Jones is now wearing government-issued garb for telling not one, but two separate sets of lies to federal officials. First, she lied to agents working on the BALCO case about her performance-enhancing drug use. Then she lied to a separate constellation of law-enforcement types about her involvement in an unrelated check fraud scheme.

Perhaps the most stunning aspect about Jones’ dissembling is the extent to which she worked to maintain her public persona, to give her adoring fans the impression that she was a victim. The lies and the attacks on her accusers were relentless, both from her lawyers and from her own mouth, and they revealed a woman whose nerve seemed to know no bounds. That stance four years ago, coupled with her eventual guilty plea last October, has served to cast doubt on just about every other athlete who insists he or she never touched a performance enhancer in their life — including the recent similarly adamant denials from Roger Clemens.

In many ways, Clemens’ tactics in dealing with allegations he used performance-enhancing drugs seem to come straight out of Jones’ playbook. He has forcefully and unequivocally denied that he has ever cheated; he has sued his accuser; he has lobbied politicians and employed a powerful Washington lawyer/strategist. Simply, he has gone on the offensive. And now he’s the target of a perjury investigation led by the FBI.

Jones’ public denials began in earnest in April 2004, when the San Francisco Chronicle published a story linking her to performance enhancers from BALCO. Her attorney, Joseph Burton, called the piece “character assassination of the worst kind.”…

Q. Will there be a sequel to Game of Shadows?

A. No sequel is planned. The story continues obviously, but we’ve done what we’re going to do from a book standpoint. The weird part is that HBO bought the rights to the book, so conceivably there will be a movie. That’s surreal, and really flattering. What’s really encouraging is that they hired Ron Shelton to direct, and he seems really interested. We’ll see what happens.

Q. Who should play you?

A. Nobody. People keep asking that. I’m praying they stick strictly to the book. The more Lance (Williams) and I get asked the more I try to ignore it because it’s too weird. The thing that’s cool is that the story could get told to a broader audience. The guys at HBO like Ross Greenberg seem really interested in talking about the broader issues – the impact of this stuff – and telling the story about the use of these drugs and Rob Garibaldi, the kid who killed himself, and looking at the folks at USADA as heroic. I think they have a grasp on telling the story in more than a sensationalist way.

The whole thing is out of my sphere or knowledge so I’m just stepping back and watching. Every now and then we get e-mailed some questions and we try to provide answers as best we can.

Q. If there were a sequel to Game what would it include?

A. The last update for the paperback was after the ’06 season. Obviously a lot of stuff has happened – the Bonds indictment, the Clemens saga, more Congressional hearings, more revelations about other players. It’s a story that does not seem to want to end even though I keep thinking it’s going to end. It’s a great story, the story of a lifetime and I’ve had a blast covering it and working with Lance. But it would be nice to work on something different after 4 1/2 years of working on the same story.

Q. What would be the end?

A. Good question. I always thought, for our purposes at the Chronicle, Bonds was at the end of the story. It seemed like the natural place where we would stop covering it. The Bonds case would play out and there wasn’t a lot of reason to chase other ancillary parts. Lance went to D.C. to do Clemens, but it’s not like the Chronicle will spend its energy chasing all the angles.

Now that I’ve moved (to ESPN) there’s a desire to continue chasing pieces of it. The question becomes, at what point do you decide ‘okay, we’ve done enough of this, let’s move on to something else’. When TJ (Quinn) and I got hired we recognized we had stuff we could add to ESPN’s coverage and we both hoped we could do stuff together outside of the steroids world. I’ve been there four months and in that time the story just exploded again. I started the day Bonds was indicted and then the Clemens stuff came out. It’s not like it’s slowed down.

Clearly cheating is not going to disappear. And this notion that baseball is clean now that it has a policy – which has plenty of loopholes in it – is a false notion. There are holes in just like there are holes in the NFL policy. Which doesn’t mean you cover these stories non-stop. Bonds and Clemens remain the last two central pieces of the story. After they play out you might have another federal investigation that touches another sport or other big names – just because cheating is so pervasive.

Q. What does it take to be an investigative reporter?

A. A lot of people are more qualified to answer that than I am. You have to have an interest in the area you are covering and be willing to dig and dig. Most good reporters think that way anyway – some people say there’s no difference between an investigative reporter and another reporter. On one level that’s true – we should all be investigating the areas we cover. But at the Chronicle we had a national investigative team that was afforded the time to dig. A huge part is having that commitment from your media entity. At the Chronicle it was ridiculous – they gave us free reign to cover this and other else for four years. It was a major commitment at a time the newspaper was shrinking and resources were scarce. Phil Bronstein recognized the importance of investigative reporting and having the time and energy to do it.

There was no magic to the story we covered. We worked sources the way people work sources. I tend to be anal – when I can call five sources I call ten or twelve. It’s a matter of being patient and continuing to push.

Q. Did the story return enough value to the Chronicle to justify the cost?

A. That’s a good question from a financial standpoint. The Chronicle had one of the biggest circulation declines recently. If that’s a gauge on value I guess people would argue not. We know we lost readers by virtue of people being Bonds fans and canceling subscriptions.

Was it worth it in the journalism sense that we did stories of public interest that weren’t being told and that were part of a discussion of eliciting change? It seems that’s what reporting should be about – informing readers and the public. It sounds Pollyanna-ish at a time when newspapers are bleeding like crazy. It’s not something Lance or I thought about – we just covered the story. Not only did we have the luxury of not thinking about the bottom line, nobody came to us and said we shouldn’t be covering this story, despite being in San Francisco and the Chronicle having marketing connections to the Giants – nobody said boo about that. There was never a question about going ahead with it once we got into the story and saw it was worth it.

Q. What was the impact of the Balco story on your personal life?

A. It was difficult. I’m always loathe to complain – we had a great job and got to do great stories and I wouldn’t change any of it. I felt like I used to have a good balance in my life in terms of work and home. I did investigative in sports and I thought I did relatively decent work but I also had a decent balance about it – I was able to leave m work at the office and get home and spend time with my wife and kids and not be immersed in my job. I wasn’t traveling that much. But when Balco happened that went out the window.

I became obsessed with the story – it took hold of a different part of me. The story was weird, too, because it was an investigative project and also a daily story. It became our beat. I constantly worried about getting beat – I would wake up paranoid and panicked about getting beat. It became consuming in a way my family was not prepared for.

When my wife met me I was in the middle of a break from journalism – I was teaching high school English after the National folded. This wasn’t what she bargained for. She has been incredibly understanding and so has the rest of my family. I’m not complaining. We had a great story to chase and we got to chase it and we had all the support we could want from the paper. Save for the legal crud it’s been a blast.

Q. How did the legal part affect you? (Fainaru-Wada and Williams were sentenced to 18 months in September 2006 for refusing to disclose the source of leaked grand jury testimony. Their sentence was dropped in February 2007 when defense attorney Troy Ellerman admitted that he leaked the information.)

A. I would advise anybody to avoid it all cost. It was the part of this that was sort of surreal. I’m good at denial – I spent a lot of time putting my head down and trying to get through it. The support we got was ridiculously great. The Chronicle was incredible – it spend ungodly amounts of money supporting us. Lance was a steadying force. He’s a calm dry Midwesterner and I’m a somewhat neurotic excitable Californian. He was a steadying force for both of us.

Q. Did you think you would serve time?

A. I’m good at denial. I spent my time not thinking about that happening and hoping it would go away. I’d be lying if I didn’t admit I thought about it every day we were facing the subpoena. After the sentencing hearing in September (2006) it became more real to me. I thought the lawyering was remarkable and that Eve Burton, Hearst’s general counsel, was doing everything to make our case. But the law seemed crappy and once we had our sentencing hearing we were going to end up in (jail) after our appeal was exhausted in March.

Two times I got mad about the legal thing – once was thinking about being in jail while Bonds broke the record. The other related to my kids.

Q. Your feelings the day Bonds broke the home run record?

A. I was out of the country on vacation and head about it through an e-mail. It all seemed inevitable to me – at that point it was obvious it was going to happen. There were so many aspects to the way it was playing out. It was obvious fans in San Francisco were embracing it – at least many were.

All of the people who loved Bonds said the story was about us going after Barry. The reality is we were just covering a story that Bonds happened to be central to. He was the most famous athlete in the story and he was directly connected to two men at the heart of the conspiracy. Now he’s subject to a perjury indictment. It’s not like we made Barry part of the story. We never begrudged what he was doing.

Clearly we wouldn’t be talking about a home run record if he hadn’t taken the drugs. Part of this has to do with Barry’s issues with the media and the presumption that the reason for the story is because he’s mad at the media and has been targeted by the media. We’re never going to convince those people that that’s not the case. Of course it’s not personal. We covered a story launched by the federal government. Unfortunately for Bonds it went straight to him.

Q. Play the role of a shrink. Why did Marion Jones and Barry Bonds lie to grand juries while Jason Giambi did not?

A. Interesting question. Lance and I have been loathe to offer opinions on stuff we couldn’t base on facts, so I’m reticent to answer that. I do think, not just about Bonds or Marion, but broadly speaking, that athletes live in an entirely different world than we do. They’re making millions of dollars and being treated as heroes, which is just so far removed from the normal existence of anybody else that perhaps it contributes to why they feel compelled to be defiant in certain ways.

Look at Marion’s stance – it’s so utterly bizarre. Her defiance was so intense she almost believed what she was saying. Part of it was the belief that they were doing nothing wrong. It’s just part and parcel of the way sports are and the way they’ve been treated. That’s a really broad brush. Not that I or anybody else could get inside their head. I mean, here’s Marion Jones, one of the most famous female athletes in the world – a heroic figure to girls everywhere. She’s made millions, and now she’s confronted with the prospect of being exposed as a fraud. I don’t know how any of us would react to that.

Q. What are your thoughts on Troy Ellerman?

A. We never have talked about sources. We made promises and kept those promises.

The one broad thing I’ve said and Lance has said repeatedly is that we got help from a lot of people on the story. It covered four-plus years and there were sources on all sides of the story. One universal thing was the belief that the case was being prosecuted upside down – that the athletes were skating – that the government by treating it like a traditional drug case to get the dealers was missing the point. The athletes were not guys buying crack on corners but multi-millionaires making more millions by virtue of using drugs. People who helped us on those stories universally sent out that message.

It’s very frustrating. Lance is so much better dealing with it than I am. I read too much and take too much personally. Sure, we’ve taken grief for what’s come out publicly about the source situation. I’ve wanted to scream at the top of my lungs to set the record straight. But it’s a combination of our lawyers advising us to talk about what’s important and to not say the wrong things and trying to ensure that the government doesn’t come back down on us.

One thing I know is that the way the story is portrayed in public is not a set of facts I’m familiar with. From the very beginning of the story in September 2003 as we began to contact sources the immediate focus was on (Victor) Conte and (Greg) Anderson and Balco and the athletes receiving immunity. Certainly after the indictments were handed out and the names redacted, our sources were like, “what the hell is going on – athletes should be held accountable.”

Q. That came from all sides?

A. From all sides. We dealt with the government side, the defense side, athletes, agents, others in the case who knew about it – all different spheres of sources are addressed in the story. There was a consistent theme throughout – why on earth are these athletes’ names being protected?

Q. Will you ever be able to write the complete story on how Balco was reported?

A. I don’t know if anybody cares. There are certain people who are interested – some who want to take shots at us about it. Some think it’s about the messenger, but does anybody really care about how we got this person or that person to talk? It’s such an inside baseball kind of thing. I’m happy to talk about it to the extent we can, but for the most part reporters don’t talk about source relationships. We have talked repeatedly about the dynamic of how we got people to talk.

I’m not going to break promises we made or talk about things beyond what we’ve deemed acceptable to talk about. I don’t mean that in a haughty or condescending kind of way. I don’t think you’ll find a reporter who will talk about source relationships. We did what reporters have done forever.

As it related to the grand jury we didn’t break any laws. Nobody accused us of that. We didn’t do anything unethical or immoral. We got truthful stories that were newsworthy and published them, not with careless disregard, because we believed they had value and were truthful.

Q. How much should readers know about sources?

A. It’s important as best you can to reveal as much as you can about sources. Nobody wants to use anonymous sources. It’s not like we wanted to use them to get these stories – we’d love to have people on the record. It’s just not the nature of investigative stories, and certainly not this one. But when you use them you want to tell as much as you possibly can. As a reporter you want to recognize possible biases and motivations.

The important thing is that our stories were based on documents that were part of the federal investigation. Early on in the story we were told by sources that Bonds was using these drugs. Essentially rules were laid down by our editor that we were not going to write a story about Bonds using drugs based on anonymous sources saying he did. It wouldn’t have been fair. We needed to see a document. In this case after the indictments were handed out the government handed over more than 30,000 pages of documents and evidence and discovery to defense attorneys, including 2,000 pages of grand jury testimony. It was material to be used in preparing for trial.

That’s the other sort of legal inside thing our lawyers point out when people say we trampled on Barry’s rights. You go before a grand jury not because you’re promised confidentiality. You go because you are subpoenaed and you promise to tell the truth and there’s a chance that if it goes to trial that stuff will become public. If you talk to the lawyers they all believed it was going to come out. In this case the grand jury had completed its business and had indicted four men. The material was not under a grand jury cloak but was discovery for defense as it prepared its case. That was all part of our process in getting to those documents. It was people wanting a promise of confidentiality because they wanted to whistle-blow on a story playing out behind a curtain.

From Associated Press, February 14, 2007:

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.

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.

(SMG thanks Mark Fainaru-Wada for his cooperation)