How do we feel about the Chron guys now?

No, I said they were locked arm-in-arm. I never used the word "employee."

Maybe "entangled" would've been a better word choice.

Again, think bigger picture, Fenian. But I do think this can be seen as a whistleblower case to a certain extent, yes.

 

Yes, we're all bothered by the idea that the Chronicle reporters went back to Ellerman when they knew he was asking for dismissal of the case based on the leaks he himself made.

That idea is wrong.

The motion for dismissal was not based on leaks. It was based on a long list of what the defense called illegal violations by the federal agent Jeff Novitzky.

I've now succeeded, I think, in getting this straight in my head.

To begin with, the motion was made on Oct. 8, 2004 -- almost two months before the Bonds' grand jury testimony was reported on Dec. 3.

The motion's major thrust had nothing to do with leaks. It claimed a "personal vendetta" by Novitzky against Victor Conte. The 281-page motion claimed Novitzky's violations included holding Conte at gunpoint during the original BALCO raid and coercing statements without reading the defendants their Miranda rights. It also claimed -- this is good -- that the feds showed a grand jury transcript to a witness. Secondarily, the motion claimed the feds leaked confidential information to the U.S. Anti-Doping Agency, the government of Greece, and, yes, to the Chronicle.

A critical moment in understanding that the leaks had little if anything to do with the motion for dismissal came on Oct. 29, 2004.

That was still a month and more before the Bonds' report. On that day, the government threw a bomb at the defense. It made public more than 200 pages of previously sealed documents concerning its investigation. The government did it in response to defense claims of "outrageous" conduct by federal agents. Ellerman here called the prosecutors "unadulterated punks" for making public a document about his client James Valente and said the government's action would be "Exhibit A to our argument to dismiss the case."

Not one word about leaks to the Chronicle. The idea that leaks to the newspaper were used to undermine the case would come later -- much later, years later.

That's the point I was trying to make earlier about Ellerman's recent guilty plea. All plea agreements are made at the government's behest - you want to make the feds happy so you'll get the lightest sentence possible. In Ellerman's case, the plea agreement was crafted to make it appear he used his own leaks to get dismissal of the case; in fact, his arguments for dismissal were based on charges that the government had behaved badly, even illegally, in multiple ways, chiefly by coercing his clients into statements and other "outrageous" misconduct during the Sept. '03 raids on the BALCO lab. He also claimed the feds distorted the statements they had coerced.

But that wouldn't go down well in a plea agreement, would it? He couldn't come down on the government in the plea agreement and expect governmental leniency in sentencing. Better by far to make the press the bad guy. Even the government would like that.

So Ellerman was asking for dismissal based on many claims. But none of those claims iinvolved the Chronicle's use of the Montgomery leak on June 28. And none involved use of the Bonds leak which wouldn't be in the paper for another month.

In my mind, that absolves the Chronicle from any charge that it was complicit -- "duped," seems to be the board's favorite pejorative in all this -- in Ellerman's attempt to get the case dismissed.

 

That's an interesting take, but the reality more likely is this:

The reporters didn't want to go to jail. The Chronicle let Ellerman know that.

Then he agreed to come clean.

And all the timelines in the world won't change the fact there was a length of time when the reporters and the newspaper knew the lawyer had been leaking information but was seeking a mistrial because of leaks of information.

Telling only part of the story doesn't change the fact that the rest of it happened.

 

What does that mean? Ellerman didn't 'admit' anything until the feds secretly taped him confessing to Larry McCormack, who was wearing a wire.

 

Legacy just wrote the common assumption of Ellerman as "seeking a mistrial because of leaks of information . . ."

But haven't we just learned that's false?

Didn't the 281-page motion cite other reasons besides leaks?

Do help, someone.

 

I just did that. Three posts above you.

 

Conflicts highlighted in bold:

The motion's major thrust had nothing to do with leaks.It claimed a "personal vendetta" by Novitzky against Victor Conte. The 281-page motion claimed Novitzky's violations included holding Conte at gunpoint during the original BALCO raid and coercing statements without reading the defendants their Miranda rights. also claimed -- this is good -- that the feds showed a grand jury transcript to a witness. Secondarily, the motion claimed the feds leaked confidential information to the U.S. Anti-Doping Agency, the government of Greece, and, yes, to the Chronicle.

Like it or not, the motion did mention leaks to the Chronicle.

You can't be partially pregnant on this one.

 

I said the "major thrust".....

 

I don't have a link for this--had the text emailed to me--but here's the story from the Mercury News (not the Chron), detailing the defense's claims against the Feds. Completely consistent with Kindred's argument that while we're all focused on the leaked testimony, there were several other charges against the government as well.

Not saying this proves anything or exhonerates anyone, but it does correct some of the debate here about the motion to dismiss:

 

And here's the Chron's story for the same date:

 

Everybody cared? That's silly. MLB is the only institution that cares about preserving the anti-trust exemption. And the "stupid" players also happen to have the smartest representation in sports, and those lawyers were involved in crafting the Curt Flood Act which carved labor matters out of the anti-trust exemption. My guess is that their reaction to removal of the anti-trust exemption would be along the lines of "knock yourselves out."

That's splitting hairs. Ellerman threw everything he could against the wall and then, for good measure, manufactured some additional ammo himself by leaking the transcript information to the Chronicle that would point at Novitzky. Because the leaks were only part of Ellerman's case doesn't make this any better or worse.

How would everyone feel about this had Ellerman been successful in getting the dismissal?

 

Do you think Fainaru-Wada knew that Judge Ilston ordered Ellerman to sign a declaration not to leak? Let's get serious here. Do you think Fariaru-Wada knew that Ellerman had signed a declaration under penalty of perjury? Ellerman did accuse the goverment of leaking the transcripts and Fainaru-Wada knew that, too. You can rationalize all day and it still won't get the stink off of Fainaru-Wada.