Steroid leaks were government's fault

The federal appeals court ruling against the government Wednesday in the long running Major League Baseball drug-testing case has several far-reaching ramifications.

The decision means that leaking the names of steroid-tainted players to Sports Illustrated and The New York Times likely constituted crimes, and that an investigation could be launched to identify the leakers. It also means that the blockbuster revelations about steroid cheating by Alex Rodriguez(notes), Sammy Sosa(notes), Manny Ramirez(notes) and David Ortiz(notes) were based on evidence gathered in an illegal search by lead BALCO investigating agent Jeff Novitzky.

Unless the Ninth Circuit decision is successfully appealed to the U.S. Supreme Court – a long shot according to legal experts – the ruling means that in 2004 the government acted irresponsibly by seizing the records of anyone other than the 10 players under investigation on the original warrant in the BALCO case.

"This was an obvious case of deliberate overreaching by the government in an effort to seize data as to which it lacked probable cause," wrote Chief Judge Alex Kozinski in an opinion that may handicap federal law enforcement's ability to conduct many kinds of searches on more significant criminal matters.

Players Association lawyer Elliot Peters said the decision means that the year's most sensational baseball stories about cheating were based on criminal conduct.

"I believe the people who were leaking information are committing crimes. Those leaks should be investigated,” said Peters, declining to comment on whether an investigation has begun.

"This makes the leaks so much more troubling," said Charles La Bella, a former U. S. attorney and chief of the criminal division for the Southern District of California who now practices criminal defense in San Diego. "The information shouldn't have been seized. People have been unfairly tainted by something the courts have ruled should never have been made public.

"My guess is that somebody somewhere has to be looking at this as a leak investigation."

Selena Roberts, the veteran Sports Illustrated reporter and author, published the first leak in February – the prime-time revelation that A-Rod was one of the 104 players who tested positive in 2003. Baseball conducted survey testing that year to determine whether a full testing program was warranted, and players were told that the results would remain anonymous.

Shortly after the A-Rod leak, Michael Schmidt of The New York Times wrote that Sosa had tested positive. Then in July, Schmidt reported that Ramirez and Ortiz also were on the list, citing as his sources lawyers who had seen the list.

Peters said that a list of players who tested positive was created only after the government’s illegal search.

"Everyone talks of this list, like there was a list [of players who tested positive]," he said. "There was a spreadsheet [at the testing lab that contained every test result]. The government created a list, which it tried to disseminate.”

The decision comes at a low point in the BALCO saga. After a series of guilty pleas and two court convictions, the once celebrated steroids investigation appears to have run aground. Prosecutors called off the highly anticipated trial of Barry Bonds(notes) in March to appeal an evidentiary ruling. Next month oral arguments will be heard in San Francisco before the Ninth Circuit on that separate matter: Whether documents that allegedly tie Bonds to steroids can be admitted into court without the testimony of his former trainer, Greg Anderson.

The ruling Wednesday dates back to Novitzky's search of Comprehensive Drug Testing Inc. of Long Beach, Calif., on April 8, 2004. Novitzky had a warrant for the records of 10 players caught up in BALCO. But he and his superiors decided to go beyond the legal warrant and seize an entire database with thousands of testing records in multiple sports – sparking a legal battle.

Three lower courts ruled Novitzky violated the Fourth Amendment, which protects against unreasonable search and seizures, and ordered the records returned and the notes of Novitzky’s investigation destroyed. Susan Illston, the judge in the Bonds case, was openly skeptical of Novitzky's conduct, saying in open court: "I think the government has displayed … a callous disregard for constitutional rights. I think it's a seizure beyond what was authorized by the search warrant, therefore it violates the Fourth Amendment."

On Wednesday the chief judge said the government made false representations that Novitzky had to take everything for technical reasons. "The record reflects no forensic lab analysis, no defusing of booby traps, no decryption," Kozinski wrote. "Rather, the case agent [Novitzky] immediately rooted out information pertaining to all professional baseball players and used it to generate additional warrants and subpoenas to advance the investigation."

Peters said it is hard for him "to pinpoint whether Novitzky was the wrongdoer or whether the assistant U.S. Attorneys were the wrongdoers." He said he spoke to BALCO prosecutors Jeff Nedrow and Matthew Parrella during the contended 2004 search. "They either let him [Novitzky] run amuck or wanted him to run amuck. The people lost here were the prosecutors."

The U.S. Attorneys' office said through a spokesman that the government was considering whether it would appeal to the Supreme Court.

There may be technical hurdles. The government didn't follow standard court rules. It failed to appeal lower court rulings. And the necessary political momentum may have evaporated from the last stages of a steroids probe running out of testosterone.

"They will have to get permission from the Solicitor General’s office in Washington D.C. to appeal to the Supreme Court," La Bella said. "Unless they believe they are absolutely, positively right on this one, they won't appeal. They don't want to make bad law that would cause problems in other cases."

Not that federal prosecutors are likely to be happy with the ruling. A large part of the decision directs law enforcement on what it cannot do in searches of computer files – potentially narrowing the scope of future investigations of more serious criminal conduct.

As for the consequences of the illegal search, Peters said he doesn't know who committed the leaks. But he does have an idea of who created and printed the two- to three-page list of players who tested positive, the list that was circulated among at least a handful of attorneys and that resulted in the leaks.

"I have a strong suspicion the list was created by Novitzky," he said.