Monday, January 10, 2005
Here are several stories about grand jury leaks to the San Fransisco Chronicle in connection with the testimony of baseball stars Barry Bonds and Jason Giambi and others before a federal grand jury investigating illegal steroid use and distribution (the BALCO case). This story demonstrates that the Chronicle obtained an actual transcript of Bonds' testimony, and summarizes his statements. This story describes the federal investigation into the leak, and this story provides the Chronicle's justifications for printing the secret information and refusing to disclose its source. The source of the leaks is still unknown, and a federal judge overseeing the charges against the alleged steriod distributors in the BALCO case has refused to dismiss the charges in response to a motion by defense attorneys that the leaks have tainted the jury pool and will result in an unfair trial. The judge found that no evidence was presented which proved that the government was responsible for the leaks.
The fact that the Chronicle obtained a transcript of Bonds' testimony, however, suggests strongly that the leak came either from the government or the defense in the BALCO case. A grand juror, who some reports have speculated could be the source, would be an unlikely culprit. Grand jurors can request transcripts from previous witnesses to refresh their memory (this usually happens when a case is presented to them over a period of months and the grand jurors want to remember what a witness said months or weeks earlier). Also, it is not uncommon when a lengthy grand jury investigation concludes for prosecutors to present to the grand jurors the transcripts of all the witnesses in the case before they make their final decision, in case the grand jurors want to look back over the whole of the evidence. But in such a case the transcripts are marked as exhibits, and a grand juror would have a hard time swiping an actual exhibit without anyone noticing at the time or after the fact when it shows up missing. In all, it seems very unlikely that a grand juror would be the source of the leak, and if grand juror were the source, it would be due to serious prosecutorial negligence in enforcing secrecy rules or a prosecutor looking the other way.
Bonds or his attorneys surely would not have leaked testimony so damaging to his reputation, assuming they even had access to the evidence. This leaves one of the parties in the BALCO case as the likely culprit, either one of the defense attorneys, one of the defendants, or someone from the government. The defense attorneys and the defendants might have had an incentive to leak, since Bonds denied knowledge that the substances were steriods and said that he didn't think the BALCO defendant from whom he received the substances would have provided him with illegal steriods. It seems perhaps unlikely that one of the defense attorneys leaked the information, however, because leaking secret grand jury evidence to the media, and then moving to dismiss charges by blaming the government for the same leak, is a high risk venture that would take serious moxy if not insanity. Too much to lose, not enough to gain. One of the BALCO defendants is therefore a viable possibililty, assuming his attorney provided him with his own copies of the grand jury transcripts.
Discounting a burglary of a government office (of which no evidence exists), the other viable culprit would be someone in the court reporter's office who transcribed the testimony, or a prosecutor or government agent who would have received the transcript from the court reporter's office. Government leaks are, of course, not unheard of. Several years ago, I worked with a prosecutor who was fired from his job as a Special Assistant United States Attorney for leaking information to the press in a high profile mafia case that we both worked on (click here and here). Bonds' attorney, Michael Rains, suspects that a government employee was the source of the leak. He told the Chronicle, "My view has always been this case has been the U.S. vs. Bonds, and I think the government has moved in certain ways in a concerted effort to indict my client. . . . And I think their failure to indict him has resulted in their attempts to smear him publicly."
Peter Henning at White Collar Crime Prof Blog is right that we will probably never know the source of the leak, but for the reasons I've stated, I would place my bet on one of the BALCO defendants or a government employee. [Mark Godsey]