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

I realize you're speaking in universal terms here, but let me report what was said by the Chron lawyers in open court and uncontested by the feds. That is, transcripts of the grand jury testimony were made available to all defendants in the BALCO case for their upcoming trials. That means transcripts were available to an army of lawyers and staffers. Maybe the prosecutors supplied a transcript, or read it, to F-W & W. But maybe it was one of another, say, 50 people with whatever ax to grind he/she might have had. (Hell, maybe it was Conte proud of what he'd done.) The Chron lawyers also made the point that the availability of the transcripts effectively ended their right to be held in secret. (No one has bought that argument yet.)
What I'd like to know, as a believer in a press free to report the news without fear of government oppression, is this: Have the feds subpoenaed everyone who had access to the BALCO transcripts? Have they put those people on polygraphs? Have they even questioned them? If they have, I haven't read about it. Why threaten the press with prison -- the reporters committed no crime before refusing to do the prosecution's work for it -- when the criminal leaker is allowed to walk free without so much as a question asked?

 

Well, the Chronicle reported a couple months ago that it wasn't Conte after the prosecutors put some information (e-mails?) out that would seem to implicate him. It seemed like subterfuge to me. But again, only the reporters and the source know the truth at this point. As I said in an earlier post, it's about time for whomever leaked the grand jury transcripts to come clean and take these guys off the hook. Even Scooter Libby had the common decency to do that for Judith Miller. If nothing else, we'll know the source is a coward if he doesn't come clean and these guys go to jail.

 

That argument's been brought up on other theads (right guys ;D)-- the misconception of the 'secrecy' of the grand jury process.

So what you're saying is, it's possible the transcripts came from a defendant (or a witness)... or his lawyers... or his spouse... and that no law was broken by anyone.

And these guys might go to jail anyway.

 

Yes, Luggy's mentioned that possibility numerous times. However, when you consider motivation, all arrows point to the prosecution in this instance and prosecutors are the only ones who've attempted such blatant subterfuge.

 

No law broken is the Chron lawyer's position -- but no one's buying that, or F-W & W wouldn't have been in court. And, yes, what I'm saying is that the leaker is not necessarily a member of the prosecution team.

 

That, of course, is the most convenient thing to believe if you don't want to consider the possibility that the reporters may have granted anonymity to someone on the prosecution side who was illegally using them as a tool to advance their position. Even though common sense suggests that's most likely the case, it would indicate poor judgement by the Chronicle. So let's all be quiet about that strong possibility because, well, it doesn't fit the story that we all want to believe.

 

cran, there's no way of knowing that, and is it really fair to send somebody to jail for what we think happened?

We have this image of the courts -- all sacred and lofty and rule-governed.

Then there's how the courts actually run. Busy, sometimes confused human beings run the courts. They are flooded with mounds of documents. It's entirely possible people got cc'd transcripts... people who wouldn't necessarily get them under standard procedure. This kind of thing happens all the time.

 

Luggy, I like you, but please stop trying to reinterpret my opinions. I don't want anybody to go to jail and to suggest I have some wide-eyed belief in the criminal justice system is simply laughable.

I know you don't want to believe that prosecutors may have used these guys as tools, even though that seems the most likely scenario here. I agree that there's no way of knowing who leaked the transcripts. But it isn't right to ignore the most likely possibility just because it would bring the Chron's ethical judgements into question.

 

I have no story that I want to believe. I don't care who the leaker was. And who knows if the Chron story would "advance (the prosecution's) position"? How? Taint the jury of a trial that might never happen? Change of venue handles that. If we're talking "common sense," it makes just as much sense for another defendant's lawyer to leak and take the heat off his client. Once we start conspiratorial theories, there's no end.

 

The issue here isn't whether they were being used as tools. It's about the government infringing on the freedom of the press.

 

I think you're kidding yourself when you say it makes "as much sense for another defendant's lawyer to leak" to take the heat off a client as it does for prosecutors to try and taint a jury pool or for an overzealous IRS agent to smear people he doesn't like when it looks like they may not be punished the way he believes they should. And you must understand how difficult it is for defendants to get a change of venue. But I digress.

I don't understand why you think we shouldn't have intellectual curiosity about conspiratorial theories. I always considered that sort of exploration a very good way to get at the truth, something of a hallmark of good investigative journalism, too.

In this case, I think there are some rocks we just don't want to look under. No telling what we might find.

 

Awriter said it before I could.

As for exploring "conspiratorial theories" as a way to do investigative reporting, I'm reminded of the moment in "Alice in Wonderland" when the Red Queen shouted, "First the verdict, THEN the trial."