SAN FRANCISCO – The judge in the Barry Bonds perjury case could find BALCO prosecutors, investigators or officials in contempt if evidence connects them to the leak of formerly anonymous 2003 Major League baseball drug tests that resulted in allegations that Alex Rodriguez took steroids.
A source familiar with the proceedings between the government and MLB players union said, "It is not possible this was leaked without there being a violation of the law."
Two former prosecutors said it was likely that Judge Susan Illston, who is presiding over the Bonds case, would order contempt hearings. The Rodriguez disclosure is especially serious because Illston and other federal judges had ruled that this was "information [the government] wasn't entitled to," said Charles La Bella, a former U.S. Attorney who practices criminal defense in San Diego. "It's unfair to tarnish an individual based on that illegally seized information."
On Saturday, Sports Illustrated cited "two sources familiar with the evidence that the government has gathered" in the BALCO investigation and "two other sources with knowledge of the testing results" in reporting that Rodriguez tested positive for the steroid Primobolan and testosterone.
The records pertaining to Rodriguez and others are part of a case involving Comprehensive Drug Testing (CDT), the Long Beach, Calif., lab that performed much of MLB's testing in 2003 and was subject to a government raid in April 2004. The case has several links to the Bonds case and to the seven-year probe into the Bay Area Laboratory Co-Operative (BALCO).
Among the evidence against Bonds is a positive drug re-test that originated from urine samples taken during MLB's survey testing in 2003, the same tests that allegedly produced Rodriguez's positive result.
Jeff Novitzky, the same lead investigator throughout the BALCO and Bonds probes, led the raid of CDT and seized the urine samples and test results of all 104 players who tested positive during the 2003 season, when baseball conducted survey testing to see if enough players tested positive to justify implementing a permanent program.
BALCO prosecutor Jeff Nedrow directed Novitzky to seize the records of the 104 players over the objections of CDT lawyers, according to court documents.
Not only are the records from the 2003 raid under seal, but also Illston and two other federal judges have ordered that anyone who publicly disclosed those records would be found in contempt. In a statement Saturday, Major League Baseball's Player Association reiterated that point: "Anyone with knowledge of such documents who discloses their contents may be in violation of those court orders."
Though determining who was responsible for the leak could prove difficult, Illston has several options. "Federal judges have extraordinary power," said John Bartko, a former assistant U.S. attorney.
Lawyers for the Players Association could inform San Francisco's U.S. attorney's office that someone violated the court order. Or Illston could beat them to the punch and take the course she followed in December 2004, when after repeated grand jury transcript leaks in the BALCO case, she referred the case to the Justice Department.
Rodriguez's test results were seized during the April 2004 raid, when BALCO prosecutors and Novitzky expanded a legal warrant for the records of 10 MLB players into a grab for the records of more than a hundred players – everyone who flunked the league's first test for steroids. Illston called the search a violation of the Fourth Amendment. She also suggested that if the records became public, MLB's interests would be harmed, saying, "I can't imagine that there's going to be any voluntary agreement [by the Players Association] to do this kind of testing."
Four district court judges ruled that the records of the additional nearly a hundred players, including those of Rodriguez – were illegally seized. The Players Association sought the return of the specimens and records seized. Illston was the first judge to order the material be returned.
On Aug. 19, 2004, a Nevada district judge granted the union's motion, ruling that "the government callously disregarded the affected players' constitutional rights" and ordered the return of all specimens, notes and memos "other than those pertaining to the 10 BALCO players named in the original search warrant."
That ruling meant everything had to be returned – including Novitzky's notes regarding the nearly a hundred players not being investigated as part of BALCO.
Two three-judge panels of the 9th Circuit Court of Appeals reversed the lower court judges. But that wasn't the end of it. The entire 9th Circuit set the reversal aside and had 11 judges hear the case this past December. In Pasadena, Calif., assistant U.S. Attorney Douglas Wilson argued that BALCO investigators could probe all 104 players who tested positive in 2003 because the lab's computer spreadsheet containing the results of the 10 players also contained those of nearly a hundred more.
The exact number of additional players who tested positive is unknown because some of the BALCO ballplayers in the original 10 did not test positive; Bonds' sample, for instance, has been revealed to have initially come back negative for known steroids.
The Associated Press reported that more than half the judges at that hearing were openly skeptical of the government's argument. Judge Mylan Smith said that permitting a narrow warrant to be expanded to large computer databases "would probably be frightening to the public because there's no end to it." The 9th Circuit's decision is expected in several months. The only avenue for the losing side would be an appeal to the U.S. Supreme Court.
Government and defense leaks have defined the BALCO case. The longest prison sentence in the seven-year steroids investigation has not been for athletes lying to Novitzky or to a grand jury about banned substances but for violating an Illston order.
Illston referred the December 2004 leaks of BALCO grand jury transcripts for prosecution. A grand jury was convened in Los Angeles. FBI agents investigated prosecutors and investigators, as well as reporters from the San Francisco Chronicle, defense attorneys and BALCO mastermind Victor Conte. On Feb. 14, 2007, Conte's former attorney Troy Ellerman pleaded guilty to disclosing the transcripts and was sentenced to 30 months in federal prison.
Because nearly a hundred other MLB players remain at risk of having their test results illegally leaked, experts said Illston or other judges involved in the case would probably act swiftly.
Incarceration is not out of the question.
"She can order that the matter be referred for prosecution," said La Bella. "And when a judge refers something, the government better take a look."
Since the San Francisco's U.S. attorney's office prosecutors, staff and investigators could be potential targets of an investigation, another agency would be enlisted to conduct a probe. As in the BALCO leak investigation, a grand jury would be convened.
- Susan Illston