Baseball Musings: Shadowy Figures

June 22, 2006

Shadowy Figures

The government is turning up the heat on the authors of Game of Shadows.

The Bush administration urged a federal judge Wednesday to force two San Francisco Chronicle reporters to divulge who leaked them secret grand jury testimony of Barry Bonds and other athletes who took part in the government's probe of the Bay Area Laboratory Co-Operative.
Noting that it is a crime to leak grand jury materials to the media, "there is no reporter's privilege in criminal cases, under the First Amendment or under common law," federal prosecutors Brian Hershman and Michael Raphael wrote in a 51-page brief.

Even if compelled, I doubt the reporters will testify. After all, their testimony might be leaked! So in an ironic twist:

Both Fainaru-Wada and Williams say they aren't going to comply with the subpoena, which means they could be fined and jailed until they reveal their sources if they lose their legal challenge. The reporters also could be jailed for a fixed term for contempt if U.S. District Judge Jeffrey White forces them to appear before the grand jury.
They face more jail time than any of the five BALCO defendants, as the largest prison term was four months.

There are good reasons grand jury testimony shouldn't be leaked, and it's pretty much along the lines of why reporters don't divulge sources. If grand jury testimony is routinely leaked, people are less likely to testify. The players whose testimony was leaked might take the fifth instead of helping out if they knew their testimony would be made public. The argument goes that revealing sources drys up future sources. Leaking testimony might do the same for future grand juries.

Posted by David Pinto at 08:25 AM | Cheating | TrackBack (0)

Comments

There are good reasons grand jury testimony should not be leaked. It is illegal in and of itself. But taking the 5th is not always an option. Barry was not there voluntarily, and could have been jailed for exercising the right to remain silent. He recieved immunity; had to testify, and he had to tell the truth. I wondered if he dropped the ball on the latter. I'd be very surprised to see this escalate to point of jailing the writers. Unlike the Miller case this does not involve national security. Just a bunch of well paid junkie cheaters and liars.

Posted by: abe at June 22, 2006 11:20 AM

Well, if Barry didn't make a deal, he could have taken the fifth. He made the deal with the idea that the testimony would not be public. So in the future, why should any athlete agree to make such a deal and testify? They'll say no to a deal and take the fifth.

Posted by: David Pinto at June 22, 2006 11:28 AM

I respectfully disagree, Dave. To the best of my knowledge Barry was immunized by the Government. No deal required, he had to testify truthfully regarding the subjects covered by the government's immunity. He could avail himself of the 5th on unrelated subject matter. I.E. if immunity covered steroids he had to answer related questions, but could exercise the 5th if asked questions, on say possible tax evasion, that would put him in peril. He had no choice in this case as far as I can see. If the Crank or Craig S. Miles ESQ, have a different take I'd love to hear it.

Posted by: abe shorey at June 22, 2006 01:29 PM

So you're saying Bonds was not given a choice on the immunity. The government just called up and said, "We're giving you immunity, you have to testify." I would have thought the government would try not to make that deal to begin with, that they're better off trying to get a person without immunity. I would have thought the government approached these players, and their lawyers came back with, "They'll testify if they get immunity and the transcripts are sealed," at which point the government says, "That's fine, but they can't take the fifth." If there's something I really don't want to get out, I may decide to take the jail time (like these reporters may do) rather than reveal something that's publicly damaging to me.

Posted by: David Pinto at June 22, 2006 01:38 PM

Yes, once immunized there no jeopardy attached, in theory anyway. So the self incrimination angle is trashed, taking the 5th is off the table. Leaking grand jury testimony is wrong. But the Courts are rather hesitant to force credentialed media to reveal sources. I doubt sportswriters get jailed. If I'm wrong they should start with Mariotti, utterly contemptible.

Posted by: abe at June 22, 2006 02:36 PM