How do we feel about the Chron guys now?

Dave, As I've posted earlier, I don't see any great sanctity in grand jury testimony that should trump free and open information. So I'm on the same page as you. But Ellerman was given transcripts of the grand jury testimony as part of pre-trial discovery before his clients copped pleas. He did have the actual testimony of Giambi, Sheffield, etc. With that came a court order that he wouldn't share those transcripts with anyone outside of the defense team. He violated that court order.

I don't believe that grand jury secrecy produces a huge greater good that justifies a secret process, in which the government leads jurors around by their noses (in some cases on witch hunts), and the defense team can't even get inside. But if you believe that grand juries serve a purpose (prevent witness tampering, don't clue suspects in so they flee, keep innocent names out of the limelight if indictments aren't eventually handed down, etc.) then by violating his court order and leaking the testimony, Ellerman did screw with the process. It doesn't matter that the grand jury wasn't still sitting.

All of that said, that isn't the fault of the two reporters. They didn't leak the testimony. And there's nothing illegal about a reporter accepting information. They just accepted information and ran with it. That's what good reporters do. If they knew they were being played by Ellerman and still went back to him for info when what he was doing was clear (trying to use his own leaks to get a mistrial), it does call into question their judgment. But none of the people here excoriating them have full information about how it all went down. We don't know if that is true. They could have been getting info from other places, for all anyone knows. Either way, at the end of the day, it's still a judgment call, not a hard and fast ethics rule, unless they violated the law themselves. Anyone accusing them of that at this point, is doing it unfairly.

 

FB, Yeah, it's usually the prosecutor that has the motive to leak testimony. But there are a million motivations for Ellerman to have been leaking info that make perfect sense. How's this: My clients have already decided they are going to plea anyhow. And we don't think these athletes should skate free while my clients are taking a fall, so I am going to let the public know details about what they did and what they testified to under oath.

That would be perfectly logical. And even if the reporters were positive that it wasn't something that logical--that this guy was a sleaze up to no good--you and I just differ on the gravity of the situation. He violated an attorney's ethics. And he's paying. But really, from the reporters' standpoint, could an honest story of interest to a lot of people still trump that? It's an interesting judgment call.

All of that said, don't lose sight of the fact that in the end, EXACTLY what should have happened did happen. 1) The public got information about a clandestine story that would have remained buried. 2) The reporters didn't unfairly go to jail over a confidentiality promise. 3) An attorney who broke the law was caught and brought to justice. That is the way justice should work. Yet, there is still all this hand wringing.

It's so much better when things happen as they did in this case--with info flowing relatively freely and justice being carried out in public. Things weren't kept hidden for questionable reasons (grand jury secrecy), and in the end justice was served with regard to Ellerman. That seems American to me... Things being done in the open... What some are advocating is burying stories, doing things in secrecy, allowing zealous prosecutors to try to stifle the press with threats of jail over naming sources... It seems so backward to me that this is what people actually prefer. It's Kremlinlike.

 

jg, Please go back and read my posts earlier in this thread about grand juries. I really got into it. But to your question, the law is the law. you can't pick and choose the laws you want to obey (with the exception of civil disobedience, in which a protester is willing to pay the price for breaking a law he believes is unjust).

I did, however, point out in detail that grand jury secrecy serves little purpose and in so many ways is antithetical to American values. Great Britain did away with them in the 1930s and more than half the states don't use them. We should aspire to open and honest things. Not secret proceedings with prosecutors running the show (let's face it, grand juries don't investigate. They get led around). Our justice system gives ample opportunity for an innocent man to clear his name. Hand down an indictment. If it is meritless, the accused can get it dismissed. If it moves forward, he gets a trial that is actually skewed in his favor. As part of the deal, the constitution guarantees a public trial. Public, unlike a grand jury. The idea is that by allowing the public in--friends, family, reporters, etc.--you have witnesses who can make sure that the rules are followed and that the accused gets a fair shake. A secret proceeding, such as a grand jury, gives nobody any such guarantees. In fact, it has been used by the justice department to harass people for political reasons. And it's easy for them to do it, because there is no accountability.

But again, no, I don't advocate breaking the law, even if it is a stupid, relatively meaningless law like grand jury secrecy. The amazing thing to me about the hand wringing here, though, is that the leaker got caught. Justice was served. And we didn't need to send innocent reporters to prison. It should show people that an open and honest way of doing things can serve justice, and likely do it better than secret processes and court orders in which people are having their arms twisted to name names.

 

If you stood with the reporters, you should have been doing it for a principle. If you don't believe in the principle than you shouldn't have stood with them. The principle hasn't changed.

I've seen no one argue that a reporter granting confidentiality is an absolute or is backed up by any case law (other than states that have passed shield laws). Only you just now.

But I have seen people argue that our democracy would be made stronger if we enacted laws (which many believe are long overdue), including a Federal law, that gives reporters the right to offer confidentiality and not be compelled to ever name names. A free press benefits a democracy by being the fourth estate--it's another check and balance on what can be a corrupt system. The public is more informed by a healthy press that is good at getting out info. More info benefits people! If confidential sources contribute to a free flow of information, then the first amendment is strengthened, and as a result our democracy is strengthened.

That is my argument for shield laws. It's that simple. That and I don't believe in McCarthyistic practices, in which people who have broken no laws are threatened if they don't name names (and I admire people who live up to their word, despite those vile threats).

Sorry you feel like you've "stirred in the breeze." But those two reporters don't owe you shit. They do a job. They reported a story. It seems pretty clear that they got the story right. That is what it SHOULD be all about. Getting out open and honest info. We benefit from that! If they had gotten the story wrong, I'd have no problem with you screaming from a mountain. But they didn't.