Friday, August 18, 2006

Lots of Potential Contemnors in SF

The grand jury investigations involving Balco (Bay Area Laboratory Co-operative) and possible perjury by Barry Bonds may end up sending witnesses to jail for civil contempt for their refusal to testify in response to subpoenas.  Bonds' former personal trainer, Greg Anderson, went to jail in July for refusing to testify, and was released when the grand jury's term expired.  With a new panel in place for at least 18 months, he now runs the risk of spending a lot of time in jail.  In an appearance before the grand jury, Anderson apparently responded to a few questions, but refused to answer a key one: "Did you distribute anabolic steroids to Barry Bonds?"  The San Francisco Giants slugger denied knowingly using them in grand jury testimony in 2003.  Prosecutors have asked that Anderson be held in contempt again, and a hearing is scheduled for August 28 to decide whether he should be held on contempt for refusing to answer.  If he is ordered to respond to the question and refuses again, he may sit in jail for up to the 17 months remaining in the grand jury's term, assuming it's not extend by six months.  An AP story (here) discusses the latest twist in the Bonds perjury investigation.

How do we know what Bonds said before the grand jury?  That brings us to two more potential witnesses who have asserted they will not testify about who leaked Bonds' testimony to them despite being ordered by a federal judge, who refused to quash subpoenas to San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams.  Prosecutors are investigating the leak of grand jury material that is supposed to remain confidential.  The reporters, whose First Amendment privilege claim has been rejected by courts in a variety of situations, have stated that they will not disclose the confidential source of the grand jury testimony.  As discussed in an earlier post (here), the person who leaked the testimony of Bonds and other major league baseball players could face a criminal contempt and other charges for disclosing the transcripts.  Within a few weeks, there could be three people in jail for refusing to testify before the grand jury, and no one has even been indicted yet. (ph)

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The leaking of secret grand jury testimony relating to the BALCO steroid case resulted in numerous newspaper columns and a book called "Game of Shadows" written by San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams. Additional books on baseball and steroids have been and will be released in the near future to sate the public's desire to view the ongoing Barry Bonds drama, baseball's version of slowing down and looking at a car crash on the highway.

Under accepted First Amendment principles, the publishing of grand jury testimony by reporters is legal. So these gentleman will not face sanctions for performing this part of their job. However, since a crime was committed by the distribution of the transcripts, the authors now face subpoenas as part of an aggressive government effort to assure the sanctity of the grand jury proceedings. The government claims that it has exhausted all other methods to determine the source of the leaks, so it will now forcefully ask the authors to disclose what they know. Their refusal to cooperate could result in a jail sentence.

The main subject of the leaks, Barry Bonds, may also be able to take legal action. Bonds can pursue a Section 1983 complaint - action under color of state law. The act states that " (A) person who is not a state official acts under color of state law when [he/she] enters into a conspiracy, involving one or more state officials, to do an act that deprives a person of federal [constitutional] [statutory] rights".

Bonds and his attorney would have to first prove that the government was the source of the supposedly secret grand jury testimony. According to, that can be done.

"(T)he Chronicle in discussing its decision to release the information, gives away a big clue.The paper said that
.."(H)ere is how we decided to publish secret testimony: We don't believe that it's our responsibility to enforce federal secrecy provisions surrounding grand jury proceedings."
Under federal law, only prosecutors, case agents, government and court employees and others on that side of the fence are prohibited from disclosing matters that occur before the grand jury. The defense is under no such prohibition. If a person associated with the defense had been the source, there would be no federal secrecy provision to enforce."

If testimony was intentionally leaked by the District office of the Department of Justice in order to allow reporters to help the government "investigate" a possible perjury charge without being restricted by the constraints that apply to law enforcement officials, that is prosecutorial misconduct. If the documents were leaked to reporters in order to bring pressure on Bonds in the court of public opinion (unlike those who went to jail, Bonds has the financial means to mount a three year legal defense without being forced into bankruptcy), that is also serious misconduct.

But the illegal leak may also be viewed as satisfying the Section 1983 description of a private person conspiring with a state official. Reporters know that grand jury testimony is by law supposed to be kept secret by the government. Contact with an officer of the court to encourage them to break this law or being called and offered the illicit material by someone in the government can be viewed as actionable under Section 1983 interpretations. Bonds' attorney could credibly claim that a member of the press and the government conspired to deprive his client of the ability to get a fair trial in the future (be it under relevant Schedule III drug laws, perjury or simply contamination of the jury pool) due to the unlawful leaking of the grand jury testimony and related case documents.
There are proposals for a national shield law before Congress at the present time. A thorough debate that balances individual Constitutional rights of due process with any proposed national shield law should take place before any legislation is passed.

Bob Tufts
former pitcher SF Giants and KC Royals, 1981-83

PS - has Bonds ever received a target letter?

Posted by: Bob Tufts | Aug 24, 2006 5:12:32 AM

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