Monday, January 10, 2005
Grand Jury Leaks in Baseball Doping Probe: Who Dunnit?
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]
https://lawprofessors.typepad.com/crimprof_blog/2005/01/grand_jury_leak.html
Comments
One may choose to resent athletes for their incredible salaries and success, but it is not permissible to imply group violation of federal drug laws and jeopardize any American's civil liberties without documented proof. I am unfortunately familiar with the collateral damage that can result from such rampant and ill-informed speculation.
I pitched for the San Francisco Giants and Kansas City Royals in the early eighties. I played on a Royals team with Vida Blue, Willie Wilson, Willie Mays Aikens and Jerry Martin, who were all sentenced for cocaine possession. I also played with some players who were called to testify in the Pittsburgh drug trials. Despite my best efforts to continue playing baseball in 1984, I was unable to find a place in the major leagues or even at the minor league level. Later that year, I ran into a Royals official who passed along an apology to me from one of the players. When I asked why, he informed me that I had been blackballed after having a poor season. An inaccurate conclusion was reached that since I played with these offenders and my performance differed markedly from the prior season, I may also have been involved with drugs. These wild and baseless accusations even followed me through business school at Columbia University and during my interviews with Wall Street firms.
I do believe that there should be a stricter drug testing regimen, one based on sound scientific evidence that involves testing players before the season, All-Star Game and each round of the playoffs. (There also should be clear and transparent accounting principles for Major League Baseball, which is held to standards lower than those applied to companies like Enron, WorldCom or Global Crossing, whose demise resulted in real damage - the loss of thousands of jobs and millions of dollars in employee retirement benefits.) But the technical aspects of these decisions should be decided through the collective bargaining process between the Office of the Commissioner and the Major League Baseball Players Association, not by sanctimonious self-promoting elected officials in Washington. Any athlete who violates the law and the league substance abuse policy deserves to face credible sanction coupled with medical treatment. However, players that are law abiding do not deserve to suffer such guilt by association at the hands of a rabid and unprincipled press corps that traffics in rumors with great fanfare but buries the retraction in the back of the publication.
I do not unfairly connect all reporters to what occurred at CBS, the actions of former New York Times wordsmith Jayson Blair or others that committed plagiarism or submitted fraudulent stories. These reporters and politicians should not do the same to any individual that they cover.
Bob Tufts
(former pitcher, SF Giants 1981, KC Royals 1982-83)
Posted by: Bob Tufts | Jan 10, 2005 4:59:43 AM
Jesse is right that a BALCO defendant would have a more obvious reason to leak. However, from personal experience I know that prosecutors and agents working on high-profile cases get a lot of pressure from the media to disclose information. An unethical government employee has been known to leak information in exchange for favorable coverage on the case at hand, or even in exchange for favorable coverage in another case. It can become a give and take with reporters. Now, I'm not suggesting that the average, hard-working and ethical government employee would do this, but it has been known to happen. Also, such high profile evidence could fetch a pretty penny on a black market. So, it's not like there is NO pressure or motive to disclose as it relates to the government. The BALCO defendants are perhaps the more likely source, but we do not even know if the actual defendants, as opposed to their lawyers, even received personal copies of the transcripts. In the end, we cannot rule out someone from a government agency or a BALCO defendant leaking the information.
-Mark
Posted by: Mark Godsey | Jan 10, 2005 5:22:14 AM
Brilliant post, Bob. In some respects, I can understand the resentment of the overpaid athlete. What I don't get is the de facto preference that the owners keep the millions, possibly to just roll around in when they're bored. The money is made, and someone is going to take it.
And the leak in BALCO was Novitsky. Just a gut feeling, based on the case's history and that Playboy article on him.
Posted by: Grant | Jan 10, 2005 12:01:00 PM
As one who has worked in federal criminal law (and necessarily with grand juries, and with defense attorneys in high-profile cases) for over 20 years, I can say the government attorneys have very little incentive to leak this kind of transcript: it just gives the defense something to scream about. Individual federal agents may rarely happen to have unfettered access to a grand jury transcript not his own, and much more rarely may leak this or other sensitive case information to a pet reporter.
Much more likely is the leaking by defense sources, either in order to inject an appealable issue or to preempt and defang the damning transcript from being rleeased when it will really hurt, or even as part of a campaign to gain notice and celebrity for someone in the defense camp.
But there are numerous other possibilities, most involving monetary gain: witnesses themselves, either for monetary gain or 15 minutes of fame; the staff of the court reporter recording and transcribing the transcripts; U.S. Attorney's clerical or student aide staff used for copying, etc.; commercial copying firm staff; federal court clerk's staff; staff of the federal judge supervising the grand jury; defense firm office staff.
The only way to know is for an expert to examine the actual, physical copy of the transcript provided to the news organization(s), who can tell precisely what printer or copier it was produced on. And that,the news organizations will not allow. But I suspect thay paid for their trnacripts.
Posted by: john earnest | Jan 10, 2005 1:06:55 PM
As one who has worked in federal criminal law (and necessarily with grand juries, and with defense attorneys in high-profile cases) for over 20 years, I can say the government attorneys have very little incentive to leak this kind of transcript: it just gives the defense something to scream about. Individual federal agents may rarely happen to have unfettered access to a grand jury transcript not his own, and much more rarely may leak this or other sensitive case information to a pet reporter.
Much more likely is the leaking by defense sources, either in order to inject an appealable issue or to preempt and defang the damning transcript from being rleeased when it will really hurt, or even as part of a campaign to gain notice and celebrity for someone in the defense camp.
But there are numerous other possibilities, most involving monetary gain: witnesses themselves, either for monetary gain or 15 minutes of fame; the staff of the court reporter recording and transcribing the transcripts; U.S. Attorney's clerical or student aide staff used for copying, etc.; commercial copying firm staff; federal court clerk's staff; staff of the federal judge supervising the grand jury; defense firm office staff.
The only way to know is for an expert to examine the actual, physical copy of the transcript provided to the news organization(s), who can tell precisely what printer or copier it was produced on. And that,the news organizations will not allow. But I suspect thay paid for their trnacripts.
Posted by: john earnest | Jan 10, 2005 1:07:15 PM
What would be the government's incentive for the leak? Of course Bonds's attorney thinks it's "U.S. vs. Bonds", but in reality they're after BALCO, the suppliers. (The reasoning is simple: until people like Vic Conte realize they could get in trouble for supplying steroids, they're going to keep making new, less-detectable ones for athletes.) Bonds and the Giambis were the government's star witnesses; leaking their tesimony would only hurt the government's case. I think it's therefore MUCH more likely that it was a BALCO defendant who leaked the testimony.
Posted by: Jesse | Jan 9, 2005 9:32:33 PM