Covering the Front and Back Pages of the Newspaper
February 15, 2007
BASEBALL: The Real Leaker
It's always nice to be vindicated. When grand jury testimony was leaked from the BALCO investigation, pointing to Barry Bonds and others using steroids or other performance enhancing drugs, lots of people (most vociferously, Bonds' defenders) assumed that it must be, had to be, the prosecutors doing the leaking. I never did a post here on the topic, but I did respond in comment threads when I saw this point made, arguing that it was at least as likely that the leaks were coming from defense lawyers rather than prosecutors. For example, in December 2004, Will Carroll wrote:
My response in the comments:
My sense, though, is that many leaks in high-profile cases come from people lower down in the pecking order (court clerks, secretaries, word processors, etc.) who have less of an agenda and more personal or financial interest in handing sensitive information to reporters. Nothing happens in the law without a whole lot of people seeing it, and you can't watch all of them all the time.
I was too glib there about the law, by the way - a grand jury witness can only legally disclose the substance of his or her testimony, but can't, say, leak whole transcripts, at least not if they got them from the government. Obviously, my mind was heavily on Ken Starr's Lewinsky investigation of Bill Clinton - the leaks in that case almost invariably benefitted Clinton, allowing him to ride out each individual bit of the storm, where if the Starr Report had arrived out of the blue, it would have finished Clinton in one blow.
None of which is to say that prosecutors can't or don't misbehave with leaks - but it's always important to remember that there are just as often incentives to leak on the defense side as well.
In January 2005, CrimProfBlog argued that it had to be the prosecutors or the defense lawyers, and that it was unlikely to be the defense:
David Pinto linked to that analysis, to which I commented:
While David kept his opinions to himself, others were not so shy - TalkLeft's Jeralyn Merritt, for example, asserted, "I rule out the defense."
Now, the truth is out: the leaks came from a defense lawyer for Victor Conte, who - get this - was devising a deliberate fraud on the court by leaking and then moving for dismissal of the charges on grounds of improper leaks, which his motion (including his own sworn false denial of being the source of the leaks) blamed on the government.
Hey, we can all be wrong, but I think this post is a good example of the crow that should be eaten by some of the more vociferous proponents of the "it has to be the government" theory.