How do we feel about the Chron guys now?

It appears that Ellerman leaked the material to the Chronicle, and then accused the prosecutors of doing what he had done, and that the Chronicle people went BACK to him as a source when they knew he was engaged in, yes, dicking around with the GJ and that the Chronicle declined, for reasons of access, to inform its readers of this part of the story.
And I ask, completely without snark, if any part of what I just wrote is wrong, because that's the way it appears from here. If what I wrote is true, then the Chronicle was complicit in a very deft dirty trick.

 

As I posted before, I think where you fall on this issue still comes down to how "law-and-order" you are versus how "First Amendment" you are. Boiled down, this is simply two Constitutional concepts butting heads -- it happens all the time, and it's a good thing. It's happening now with regard to the war in Iraq and the president's power as CIC versus Congress's "power of the purse."

There are some folks (working in sports particularly) who think, "You don't mess with the court system. Period." Therefore, they think publishing the GJ transcripts was egregiously wrong.

Having grown up with a criminal defense attorney in the family, I don't feel that way. Crooked judges, crooked lawyers, crooked juries, crooked police. If the justice system were never "taken on," there would be no check on its power. The folks who do it for a living will tell you, "The American justice system is far from perfect, but it's the best system we have."

That's sort of the way I feel about journalism and the First Amendment.

Secondly, this notion of the "secret" grand jury is a complete fallacy. Too many people are (legally) allowed to discuss testimony for anything to ever be secret. Way too many people are given access to the content of GJ proceedings for it to be secret.

The Chron had to make a serious judgment call on this. They chose a path. As to whether it was the right path or wrong path -- that's subjective.

 

Yes.

Well-written, lugs.

 

My point is, Ellerman's leak of the testimony came long after the jury had shut down. Trials were about to start, or were in fact under way. The leak could have interfered in no way with the grand jury's work. And by the time the grand-jury testimony stories were written, the Chronicle's BALCO coverage was at least two years old.

As to whether or not anything you wrote is wrong, who knows? Again, all we know is what Ellerman said to make the feds go easier on him. Is that information that can be trusted to be the whole story?

 

He may not be the government, but in some ways, he and the government are locked arm-in-arm.

Hear me out on this.

MLB has been given something extraordinary by the U.S. government-- the Antitrust Exemption. That's some serious shit. It means MLB is above the laws all other U.S. corporations and even leagues have to follow. American commerce has been "messed with" in this regard. Lots of people feel MLB has abused it and is running wild. Some of that running wild includes, but is not limited to, a lax policy on steroids. It's been virtually unchecked until recently.

Do 5 minutes of reading on baseball's Antitrust Exemption. You'll quickly realize how extraordinary, significant, and potentially dangerous it is. Then ask yourself if you're still 100% sure the Chron reporters were wrong to test the limits.

 

Test what limits?
The exemption is about commerce, not about the conduct of the business. All it means is that baseball is not subject to antitrust legislation because, according to Oliver Wendell Holmes, it is not engaged in interstate commerce. (Yeah, right, but that's another argument). The exemption has to do with how baseball conducts its internal economic affairs in relation to the antitrust legislation that binds other businesses. It doesn't touch anything else. (For example, MLB could not conduct a conspiracy to commit a crime and then hide behind the antiturst exemption.) It has absolutely nothing to do with baseball management's alleged responsibility to police drug use among its players. And it certainly doesn't equate in any way to Barry Bonds' somehow being a government employee. It is a special status in regards to a specific set of federal laws.

 

How about the fact that the BALCO grand jury testimony reported by the Fainaru-Wada and Williams was uncontested? There was no cross-examination during the process. This was a completely one sided process. How fair, balanced and accurate was the information that was reported by the Chronicle? Is it possible that what was selectively collected and reported by Fainaru-Wada was taken out of context? Did the Chronicle reporters possibly have an agenda? Could they have simply filled in their narrative with athlete statements that were very carefully selected. Remember that what was leaked was not a complete transcript for any athlete, but simply what the two reporters selected. One simply has to ask these question because there were only a few statements from each of the athlete's testimony reported. What was said before or after the athlete's statements reported by the Chronicle that may have significantly changed the context and/or meaning? Should Fainaru-Wada, Williams and Ellerman be allowed to selectively present which statements get reported to the public and which ones should be excluded? Once again, was their reporting fair, accurate and balanced? How can anyone answer these questions without having access to the full transcripts? How fair was this to the athletes and others damaged by the leaks of the transcripts? Good reporting must be fair, balanced and accurate. Was this fair, accurate and balanced reporting? Are we supposed to just blindly accept the word of Fainaru-Wada and Williams?

 

Dave Kindred says, "My point is, Ellerman's leak of the testimony came long after the jury had shut down."

This is simply not true. The originaly BALCO GJ convened in December of 2003 and ended eighteen months later in June of 2005. Ellerman allegdedly leaked the transcripts in June of 2004 and again in November of 2004.

creamora

 

All grand jury testimony is unfair and unbalanced because it's always one one-sided. It's the prosecution's show. Witnesses' lawyers, if any, are not allowed in the room. But don't you think we'd have heard from the athletes' lawyers by now if they considered Chronicle's reporting to have misreported either the words or tone of the testimony?

 

Test the limits of what's considered journalistically ethical.

The Exemption is bigger than that, and you know it.

Congress was threatening to yank the Antitrust Exemption if MLB didn't toughen up its drug policy. That was dangled. And it's the only reason baseball jumped in line.

 

Creamora is right, I'm wrong in saying the jury had shut down. What's right is that the grand jury was finished with Ellerman's client. The indictment against James Valente was handed down on Feb. 12, 2004. The first report of leaked testimony, Tim Montgomery's, appeared on June 28 that year. Bonds' testimony was reported Dec. 3.

 

Kindred,

Ellerman was replaced as Valente's lawyer in March of 2005. A plea bargain was negotiated by Valente's new lawyer, Ann Moorman, in July of 2005. Ellerman had no role in Valente's plea bargain deal because he was replaced more than four months before the deal was made. The GJ was not necessarily "finished" with Valente because he was indicted. They could have been asked to bring additional charges at a later point in time. This was an ongoing steroid investigation until the original BALCO grand jury proceedings ended in June of 2005.

creamora