May 22, 2013
Who is Shyster?
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Thursday, July 30, 2009
Who’s the leaker?We're all so interested in the names being linked from the 2003 tests, but no one (besides me and a few other lawyer types) seems all that interested in who's leaking the names. I wanna know, both as a lawyer -- and for as much as complain about the legal system, I still hold my duties as an officer of the court in pretty damn high regard -- and as a baseball guy.
You'll recall that the reason the names are still out there is because, while some Nero at the Players' Association fiddled, federal agents, acting on a search warrant in connection with the BALCO case, seized the 2003 test results from their custodian, Comprehensive Drug Testing. The warrant and its execution has been litigated to death (a great summary of it all can be found here), and the matter is still pending on appeal.
One's first thought might me to simply go to the docket and write down the names of counsel of record to see if one could guess who's leaking. If one did that, however, one would realize that there's no shortage of suspects. In addition to baseball and the union and BALCO and the government and everyone else with a direct interest in the case, there are multiple amici curiae who have weighed in as well. The U.S. Chamber of Commerce, labor groups, privacy advocates and folks like that, all of whom will be impacted by a ruling that has to do with workplace drug testing and the handling of sensitive medical information. In light of that, it's not hard to imagine that several dozen lawyers involved in the case itself are privy to the list, not to mention lawyers and others in-house at the various parties. And that's before you get to the judge, the law clerks, and anyone else who fits the description "lawyers and others connected to the pending litigation."
One of 'em -- probably more than one of 'em -- feels that leaking information subject to a court order is worth their while. Maybe they have an axe to grind against the players. Maybe they're pro-player and have some messed up, double-secret-reverse-psychology motive for outing the ones on the list. Maybe they just get a woody from seeing the information they leaked in the news. There are as many possible motives as there are suspects.
I wanna know who's doing it. Specifically, I want the judge to get good and angry and sic the feds on the matter to suss out who's doing it. Short of that, I want someone in the investigatory side of the media to take it upon themselves to find out who's leaking. Short of that (and I know that's not going to happen because the media isn't going to rat out one of their sources), anyone with ideas as to how to answer the question is encouraged to drop me a line. We can call it citizen journalism or angry mobism or whatever you want, but at the moment I find determining the identity of the leaker(s) to be a far more interesting and pressing question than who the rest of the famous 103 are. And just so no one is uncertain on this point and accuses me of being a tricksy Hobbitses, let me be 100% clear: If I learn who it is, I'm tellin'.
Maybe that seems a bit heavy handed on my part. But hey, like LaTroy Hawkins said, "it's America, dude."
UPDATE: Random Googling found this bit from AmLaw Daily back in February:
Charles La Bella, a founding partner of San Diego's La Bella & McNamara and former U.S. attorney for Southern California, told Yahoo's Littman that he expects U.S. district court judge Susan Illston to order criminal contempt hearings to determine who leaked the news of Rodriguez's failed test.
I'm guessing Illston is taking a bit kindly, because as far as I know, there have been no hearings on this matter. There should be.
Posted by Craig Calcaterra at 5:37pm
How has the players’ union not hired a lawyer to answer this question?
I have taken four ethics classes in my educational life, one for “mass media” and three for “psychotherapy.” The one for mass media was first and I really wonder exactly how far down one has to bury that information to run with these “leaks” and sleep well at night and get up tomorrow and not pursue any other part of it.
Could the fans hire ShysterLawyer to sue on behalf of steroid overkill and lack of interest?
Posted 07/30 at 05:54 PM
Dan Friedman said...
I’m 100% with you on this one, Craig, although I don’t think that’ll be much use to you. I have no resources, and no idea how to go about sussing this criminal out. All I have is righteous indignation, and plenty of it.
Posted 07/30 at 05:56 PM
Shaun P. said...
Right on, Craig, though like Dan, I’m short on ideas of figuring it out. Gotta think about it some more.
Posted 07/30 at 06:26 PM
It seems to me in situations like this, the same people who “don’t want their freedoms taken away” (i.e. health care, guns) are the ones (i.e. Platschke - yeah, I’m betting he’s a little more conservative than not) that don’t mind the leaking of the names, the gross seizure of our entire legal system, Reign-of-Terror/McCarthyism style, and would rather spout off about a “tainted” WS. It just MAKES ME SO MAD - the leaking of the names is *so* much worse morally and ethically than some stupid ball player taking some stupid drug that may or may not be illegal (um, they give steroids to hospital patients recovering from injuries and illnesses, so why can’t athletes take them???).
Had to rant.
Posted 07/30 at 06:38 PM
I not only want to know who leaked, I want to see them marched out in handcuffs.
As I’ve said before, the pattern of leaks implies malice - and not just towards the players, but to MLB, apparently for not going as far as the leaker would like.
Maybe it’s schadenfreude and the leaker represents the “off with their heads” school of sports-talk radio host, but hey, it’s a federal crime he’s committing and I think he should suffer the appropriate punishment.
Posted 07/30 at 07:19 PM
Oh, and two ancillary and rhetorical questions:
1. When ESPN basically monetizes whatever they had to pay for the leak by devoting their entire morning’s coverage to Papi (with a 5 minute Plaxico break every hour), that’s not exactly a media rebuke for illegal activity like leaking federal evidence.
2. Since when did Jose Canseco become the media darling in all this? By his own telling, dude was the Johnny Appleseed of steroids.
Posted 07/30 at 07:30 PM
And I realize 1. was not a question. I mis-wrote.
Posted 07/30 at 07:31 PM
Craig Calcaterra said...
I’ll throw this out there: any time I’ve been privy to the details of a crime (i.e. through my legal practice) the motives in play are always less complicated than people think. People basically want a few things in this world: money, sex, revenge, glory (power is a means to money, sex, revenge and glory).
The point is that vague political points, such as “I want to see those who disagree me pay more dearly for their ethical transgressions than they currently are!” are very rare when it comes to this sort of thing.
My guess is that whoever is leaking this is doing so because they’re getting paid, or they’re getting even, or they’re getting off, in the broadest sense of the term.
Posted 07/30 at 07:32 PM
Hell yeah Craig. At this point I’m pretty sure we lawerly types are supposed to start throwing our panties on stage.
Posted 07/30 at 07:54 PM
“Follow the money.”
That is all . . .
. . . But - where does the money lead to? What monetary incentive is there to leak the info? I doubt they are getting off, because of the serious legal implications of the situation - and since they are lawyers, I’m guessing a cost-benefit analysis leads the leaker(s) to realize they *may* get off somewhere else for far less of a risk (of course, that’s what’s getting them off in the first place - so who knows?).
Getting even - someone in the DOJ? Or federal court system? With a baseball player?
Follow the money . . .
Posted 07/30 at 07:57 PM
Bob Tufts said...
It makes a difference. If a source gives the media documents under seal, the reporter is on safe ground. If the reporters are pushing sources to break the law, they are complicit.
Can a citizen-journalist pose this question to Selena Roberts and Michael Schmidt?
Posted 07/30 at 08:07 PM
BALCO grand jury testimony leaker Troy Ellerman got 2.5 years in federal prison for his exploits in this area. (I cannot find if he was disbarred or not.)
I’d like to see the 2003 PED survey leaker(s) get at least that much, per name leaked. Plus hefty fines and disbarment.
Posted 07/30 at 08:12 PM
Craig Calcaterra said...
Chip: different deal with BALCO. Leaking grand jury testimony is independently illegal and subject to its own sanction. This is not that. This is violation of a court order that can lead to criminal contempt charges (i.e. lower jail time if any) but, more significantly for the lawyer involved, could mean disbarment or suspension.
Posted 07/30 at 08:27 PM
I seem to recall reading somewhere that these leaks loosely coincided with some major procedural event in the Bonds case.
It’s also possible that this is unrelated to Bonds. Perhaps the Feds are trying to flip a player on the list, and this is their way of threatening the (potential) witness.
Posted 07/30 at 10:03 PM
Jack Marshall said...
Craig, you could not be more right. The lawyers who did this need to be tracked down, and kicked out. Me, I object to shield laws, which allow the media to act as information launderers—-as far as I’m concerned, the reporter who publishes illegally leaked material is aiding and abetting, not to mention encouraging. I’d love to force the reporters to reveal the source. But journalists have somehow sold the myth that “the public has a right to know” stuff that the law and court rules say it DOESN’T have a right to know, and as long as that’s the case, the chances of catching the leaking scum are slim at best.
Posted 07/31 at 12:28 AM
Richard Dansky said...
Why do I have a mental image of Roger Goodell stuffing stacks of unmarked twenties into padded envelopes marked “For the guy with the list”?
Posted 07/31 at 12:52 AM
Dan Friedman said...
All of these leaks seem to be getting broken in the New York Times, correct? You say that somebody’s getting paid for this, Craig… if the New York Times turned out to be involved, would they (or their reporter) be committing a crime? Particularly if they are directly paying for the leak, obviously, but I doubt that’s the case.
I guess the next question is, who’s paying for the names, which leads to the question of who benefits? The media benefits, but as I just said, I really can’t imagine the New York Times paying directly for leaked material. Maybe it’s a conspiracy of officials from other sports trying to take down the great name of baseball? Yes, that must be it.
Posted 07/31 at 06:46 AM
Dan Friedman said...
Just noticed your post at the bottom, Richard… somehow I missed it before, but it looks like we’re on the same page!
Posted 07/31 at 06:47 AM
Craig Calcaterra said...
I didn’t say someone was getting paid in this instance. I said that money is one of the kinds of things that motivates people to leak information or otherwise do criminal things.
I would suspect that the Times is NOT paying for it, because if that was ever found out they would be ruined as a paper. Major news outlets just don’t do this. To be honest, I can’t see how money as a motive specifically fits in here.
As for the Times, I suspect that their reporters are simply workin’ it more, calling people connected to the case over and over again until they can find someone who says something. Whether that is ethical is another question altogether.
Posted 07/31 at 06:50 AM
Dan Friedman said...
I figured out who’s behind it: Jose Canseco.
I know that bloggers get their head’s ripped off for unsubstantiated accusations, but do blog commenters?
Posted 07/31 at 08:08 AM