Federal agent Jeff Novitzky has been widely criticized for what an appeals court ruled recently was an illegal search of the MLB testing records of approximately 100 players. But that probably wasn't his only transgression. Legal experts say Novitzky likely created the McCarthyesque list of players who reportedly flunked baseball’s anonymous steroid testing in 2003.
Some believe Novitzky deserves thanks for his actions. Others would assign blame. Either way, codifying player’s private medical records into a list that may have been distributed to as many as 200 people was probably illegal, experts say.
The loose-lipped lawyers, prosecutors, investigators or clerks who leaked the names of alleged drug-using players may also have committed a crime. But before Novitzky led the illegal search April 8, 2004, no list of players who had tested positive existed. Novitzky snatched a computer database and key that included all the results of the league-wide anonymous survey testing. The separately held key was designed to prevent lab techs and others from breaching privacy.
"This was just a spreadsheet," said Elliot Peters, an attorney representing the Major League baseball players' association. "The government created a list, which it tried to disseminate."
Peters said he believes Novitzky created the list, which in turn invited the criminal leaks. "I have a hard time not believing that once Novitzky put together the list, people in the government weren't chatting about who was on the list," Peters said.
MLB has contested the list's accuracy, claiming only 96 positive tests were recorded by the union in 2003, not the widely reported 104 positives. Both the Players Association and MLB have stated that 13 results were inconclusive, including that of Boston Red Sox slugger David Ortiz(notes), who The New York Times recently asserted had tested positive for steroids in 2003.
The next stage in the saga may not be about players who cheated but about lawyers, prosecutors or court officers who broke the law. Identifying suspects is likely where the federal agents assigned to this as yet unannounced investigation will begin.
This has nothing to do with the integrity of the game. It goes to the integrity of our federal justice system. If caught, the leakers likely would go to jail. Sacramento lawyer Troy Ellerman was sentenced to 30 months in jail for leaking sealed BALCO court files to the San Francisco Chronicle in 2004 and was released in January after serving 16 months.
"It's a pretty serious crime," Peters said. "Just about any federal judge would give a criminal defendant much more time for violating a court's sealing order than they would for someone using a steroid."
The players in the leaking game:
• Selena Roberts: The veteran Sports Illustrated reporter and author published the first leak in February with the blockbuster that Alex Rodriguez(notes) was among those who flunked the supposedly confidential 2003 test conducted to determine whether further drug testing would be warranted.
• Michael Schmidt: This June The Times reporter broke the story that Sammy Sosa(notes) was on the list. Then in late July he reported that Manny Ramirez(notes) and Ortiz had tested positive. Schmidt also declared in an interview with Editor and Publisher that he encouraged court officers to break federal laws: "Lawyers, clerks, assistants. Anyone from baseball to the players union to the federal government. Anyone who would have seen it."
That statement appeared to prompt the player’s union into taking the unusual step of questioning The New York Times’ role. "The leaking of information under a court seal is a crime," Player’s Association president Donald Fehr told Editor and Publisher the day after Schmidt’s interview. "That The Times is pursuing and publishing what it openly declares to be information which may not be legally disclosed is equally sad. We intend to take the appropriate legal steps to see that the court orders are enforced."
Reporters generally have significant latitude regarding freedom of speech. But Peters suggested that once a reporter asks sources to break the law to give him information, he or she can no longer shield the identity of that source from government investigations.
“If subpoenaed,” Peters said. “The reporter has to give up that information.”
• Those who have seen the list: Federal investigators, prosecutors and assistants, judges, law clerks, lawyers, paralegals, MLB players' union officials, MLB officials.
Many have assumed the likely suspects would be the prosecutors, Novitzky or a defense lawyer. But the pool of suspects significantly broadened when the case went to the Ninth Circuit appeals court.
Each of the 29 or so judges sitting on the Ninth circuit received a copy of the file, including the government's list. Each judge has four clerks, creating a pool of nearly 150. Then there are the three lower court federal judges. Each has two or three clerks, adding another 10 or so, not to mention the federal magistrates who heard the case, who with their assistants add another five, bringing the total to about 165.
Next are those who did the seizing: Novitzky and other IRS and federal agents. Prosecutors Jeffrey Nedrow, Matthew Parrella, Douglas Wilson and assistants and officials with the U.S. Attorneys offices. At least 25 federal prosecutors, investigators and assistants are likely to have viewed the list, bringing the number to roughly 190.
There are the law firms who have represented the player’s union and testing laboratories. There are secondary lawyers, paralegals and assistants. Assuming at least 10 people per firm, the figure grows to about 210.
Finally, with the MLB player’s union officials and MLB officials, it’s hard to believe there weren’t another 15 individuals, That would make a rough figure of about 225.
There are few more serious crimes to a federal judge than an officer of the court flagrantly breaking sealing orders. It’s worth recalling what happened with the San Francisco Chronicle leaks in June and December of 2004. Only after the second wave of leaks did Judge Susan Illston ask for an investigation – ultimately handled by the U.S. Attorneys office out of Los Angeles. Pressure was applied to the reporters and they appeared to be headed to jail – until their source took the fall. The sentence imposed on Ellerman, who represented BALCO vice president James Valente, was by far the longest in the entire seven-year BALCO saga
At first glance, it appears these latest leaks could be harder to result in a criminal conviction. Two hundred suspects make it sound like trying to solve the Zodiac murders.
But this isn’t only about the law. It’s also about turf.
Judges don’t believe reporters have the right to entice clerks, prosecutors, investigators or lawyers to break federal laws. Especially over articles about professional athletes who may have taken steroids six years ago.
"It strikes me by analogy that if you’re pushing someone toward committing a crime by calling clerks with the specific intent of violating a court order that is aiding, and abetting, an invitation to a conspiracy charge," said Charles La Bella, a former U. S. attorney and former chief of the criminal division for the Southern District of California who now practices criminal defense law in San Diego.
"I’d be surprised if there wasn’t an investigation."