Telander's Note, a Column, and now SF Editor Bronstein Weighs In

He'd have needed a Sid Hartmann-sized recorder to get that all down.

 

FWIW, the Web site supporting Mark and Lance is now running...

http://www.markandlance.org/

 

RWH -- Please don't guess.
My "biggest problem" is that our business does a piss-poor job reining in the use of anonymous quotes, and thereby, too damn often, we wind up as de facto agents of the government, whether that's overzealous prosecutors with weak cases who want to win on the steps what they can't win inside, or Executive bureaucrats with a war to sell. I am behind these two guys, as I've said, while realizing that we don't have a leg to stand on here, and I am very much behind Cran's point that it's time for the cowardly bastard who leaked the stuff to step up or get his nuts put in a vise.

 

I'm sorry, but I'm a First Amendment guy as much as anyone and I have a problem with leaked grand-jury testimony. Grand jury testimony is supposed to be secret, so people will be encouaged to be forthcoming and tell the truth. If potential witnesses in cases more serious than steroids start wondering if their testimony is going to be leaked, how will that affect a prosecutor's use of the grand jury?

I'm all for writing stories based on reliable anonymous sources, documents obtained by legal Sunshine Law avenues and all sorts of resources. But just because we're reporters, we're not above every law.

The First Amendment is not blanket coverage for anything we want to do. It merely means the government can't keep us from publishing.

 

Which is exactly why I'm so damned ambivalent about this situation, hondo.

 

That's among the reasons I'm holding off on buying the cool T-shirt that the high priests of sports journalism are hawking at our virtual streetcorner. I'm pretty sure the Chronicle has said that Victor Conte was NOT the leaker. Now, if they could come out and publicly and rule out the prosecution team, then I'd feel a little more comfortable in the knowledge the reporters didn't trade their ethics for a couple of names.

 

On the subject of "grand jury secrecy," here's a section from the website Markandlance.org...
This summarizes the argument made by the Hearst lawyers made at the hearing. The prosecutors did not refute it.
And while the argument has gained no traction in court, it yet gives debaters room to say the "leak" could have come from any number of lawyers and their staffs involved in the case.
***

"Why do Mark and Lance's lawyers say this case has nothing to do with grand jury secrecy? This point is vital to any discussion of the issue."

Critics - and even some supporters - believe that Mark and Lance received their grand jury testimony from a source who violated grand jury secrecy rules. Their lawyers argue this wasn't the case. Grand jury secrecy interests aren't at play, they say, because the information was not leaked in the grand jury context, but rather in a pretrial discovery context after the grand jury had done its work and the BALCO principals were already indicted. At that point, they were preparing for a public trial. They believe that when the U.S. Attorney's office released the grand jury transcripts to the BALCO defense teams, the government removed that information from the domain of the grand jury and put it into the public. Judge Susan Illston later issued a protective order that prevented the parties from disclosing the transcripts. The government argues that whoever released those transcripts may have violated the sanctity of the grand jury, and that's what drives their case. But Mark and Lance are arguing that the government is mixing up secret grand jury proceedings with criminal trial proceedings -- an important distinction because trials are meant to be public

 

and I tend to agree with you.
By the way, hell will freeze over tonight, because you and I have agreed on two separate issues in the same day.

 

So you agree that grand jury testimony, within the actual grand jury sessions, should remain secret? Hope so.
Sounds like their lawyers are getting up there on the parsing scale. I'd sure feel better if this case were actually about something of vital interest to humanity -- terrorism, the environment, political corruption, etc. But a case involving neanderthal athletes who want to shorten their life expectancy by 30 years so they can juice and hit home runs and a glorified street drug dealer like Conte doesn't really make pushing the envelope on whether or not it was grand jury testimony worth it, to me.

 

[/quote]
So you agree that grand jury testimony, within the actual grand jury sessions, should remain secret? Hope so.
Sounds like their lawyers are getting up there on the parsing scale. I'd sure feel better if this case were actually about something of vital interest to humanity -- terrorism, the environment, political corruption, etc. But a case involving neanderthal athletes who want to shorten their life expectancy by 30 years so they can juice and hit home runs and a glorified street drug dealer like Conte doesn't really make pushing the envelope on whether or not it was grand jury testimony worth it, to me.


[/quote]

A fine line, highly arguable, but I think reporters who attempt to pierce grand jury secrecy -- by contacting jurors, by badgering lawyers, by stalking witnesses -- are properly held in contempt.

But if somebody hands me a transcript months after the testimony, and I find it's authentic, and my company's lawyers say it's likely to be made public in a trial anyway, and it's news, I report it.

(Which brings up a question I've been too lazy so far to figure out. How long after Bonds' testimony, for instance, did the Chronicle get the testimony and report it? I need to find that out.)

 

I've read that and it seems like technical hair-splitting to me, although I'm certainly not a lawyer and would be open to the legal insight of some of the lawyers on the board. I assume a ruling will be made on this issue as part of the appeals process, so I'll be interested to see how that aspect turns out.

While it "gives debaters room to say the "leak" could have come from any number of lawyers and their staffs involved in the case," if it's accurate, it also provides legal cover for prosecutors in the sense that it says there was no law broken even if it was prosecutors who leaked. There's plenty of room left for intrpretation there, either way. It clouds more than clarifies.

To me, the damage -- undermining of the grand jury process -- is still done. Sure, trials are meant to be public and, if there eventually was a trial (not a certainty) some of it may have come up in testimony and been subject to examination and cross-examination. Instead, the information was placed into the public domain by a leaker and wasn't subject to the scrutiny it would have received in the context of testimony at a trial. Sort of like the redacted names from the Grimsley affidavit (yet another Jeff Novitzky-procured "confession" that's being vehemently challenged) that just happened to get leaked.

 

Finally, looked up the dates of Bonds' testimony and the Chronicle reporting of it....

Bonds testifed Dec. 4, 2003. One day short of a year later, Dec. 3, 2004, the Chronicle published its report of the testimony. The grand jury had finished its duty. Indictments had been made -- none of athletes, even those who admitted steroid use, let alone those who testified to knowing nothing of steroid use. Trials were pending. A district court judge ordered a leak investigation to be conducted by the U.S. Justice Department. Now, as I've said, it doesn't matter to me if the prosecution leaked it or not -- but how dumb does a federal prosecutor have to be to get himself investigated by Justice? His career is over. Makes no sense.