Friday, December 22, 2006
A Yahoo.Com story (here) states that a former defense attorney for Balco (Bay Area Laboratory Co-operative) founder Victor Conte leaked the grand jury testimony of San Francisco Giants slugger Barry Bonds and perhaps other major league players who testified into the investigation of steroid manufacturing. Two San Francisco Chronicle reporters, Mark Fainaru-Wada and Lance Williams, published excerpts of the testimony, including Bonds' statement that he unknowingly took steroids in 2001. The lawyer, identified as Troy Ellerman, represented Conte and another Balco executive in the criminal case, although Conte switched lawyers in March 2005 and eventually agreed to a plea bargain. A former investigator who shared an office with Ellerman asserts that the lawyer disclosed the transcripts in 2004 to the Chronicle. In addition to his legal practice, Ellerman is the commissioner of the Professional Rodeo Cowboys Association.
The grand jury transcripts were likely supplied to defense counsel after the 2004 indictment of five defendants with Balco connections, including Conte and Bonds' former personal trainer, Greg Anderson. They may have contained Brady material, and so prosecutors had to disclose them to the defense, but that disclosure would have included significant restrictions on any pre-trial use of them. If Ellerman leaked the documents, it would in all likelihood violate a court secrecy order and could subject him to a contempt proceeding, although not under Federal Rule of Criminal Procedure 6(e)(7) because defense lawyers are not covered by the grand jury secrecy rules.
An interesting question is whether the two Chronicle reporters can avoid jail for contempt if Ellerman is the source for their stories recounting the grand jury testimony. Fainaru-Wada and Williams refused to testify about the identity of their source before the grand jury investigating the leak, asserting the journalist privilege to maintain the confidentiality of sources; the contempt issue is currently before the Ninth Circuit. While reporters have been unsuccessful lately in fighting demands for testimony about their confidential sources, there may be no need to obtain testimony from the reporters now and the contempt citation could be vacated. That would certainly be a nice holiday gift for Fainaru-Wada and Williams. (ph)