Monday, February 9, 2009

Oh, was I not supposed to say anything?

“It is not possible this was leaked without there being a violation of the law.” So says someone familiar with the Barry Bonds case about the release of information that Alex Rodriguez was one of the 104 players who tested positive for steroids in 2003. The government was not supposed to be able to link any of those test results with actual player names. But they did. And someone who did obviously didn't feel any need to keep that information to him or herself. According to this article, people who know the judge and are familiar with the case expect that there will be contempt hearings on this leak. I certainly hope so.

This leaking of sensitive or prejudicial information is something I have complained about before. Under most state's ethical rules, it's supposed to be a violation for the prosecutor to allow the public to learn about the existence of a confession. Prosecutors are supposed to be held accountable for the actions of the police and investigators who work on the case. I complained about this in the case of the 8 year-old murder defendant in Arizona. I complain about it because, despite this rule, I am unfamiliar with any prosecutor ever being publicly criticized for these leaks, let alone investigated for an ethical violation.

Here is a disciplinary case from Kansas in which a prosecutor was disciplined for inappropriate release and sharing of information obtained in a criminal investigation. The case involved rape allegations made by a young teenage girl. While the prosecutor declined to prosecute the rape allegation, he did think the parents of the teenagers who were at the party where the incident occurred should be made aware of what their kids were doing. So he publicly offered to show photos from the party, some of which were quite explicit, to any parents who came to his office. This prosecutor received a 6-month suspension for not having the sense to keep those photos private.

One of the violations this prosecutor was found to have committed was causing undue stress, humiliation, or embarrassment to a 3rd party. This would seem to apply to whoever leaked the information about A-Rod. The feds weren't supposed to know the identities of those players who tested positive. I can't think of any reason for anyone to release the information about A-Rod other than to embarrass him. Maybe it was a Red Sox fan.

Prosecutors need to be more careful with the information they receive through a criminal investigation. They get access to a lot of very inflammatory, very prejudicial stuff. They need to be mindful of what an awesome responsibility possessing that information is. They are not entitled to do whatever the hell they please with the information they obtain during a criminal investigation. I fear that message won't really sink in as long as prosecutors don't suffer any real consequences when they do leak things. The disciplinary action in the Kansas case was an encouraging step. Another good step would be for someone to pursue this leak about A-Rod and holds the person responsible accountable.


Erin said...

Prosecutors trying to use confidential lists to get identities? I've never heard of such a thing. ;-)

One Girl's Opinion said...

I don't know. It depends who leaked it. And after this went to Congressional hearings, it could well be anyone. And if it turns out it ones some of those higher ups, I'd be shocked if any charges were filed.

My bigger issue is why in 2003 Selig made that ridiculous deal with the players union about testing folks and then keeping the results a secret. What the hell was the point of testing them then?

I'm so sad for baseball. I hate Barry Bonds, I hate Roger Clemens (so glad he's not an Astro any more) and I've always disliked A-Rod but I dislike him on a whole new level now.

Though if I see one more lame "A-Roid" headline I'm going to vomit on my newspaper. Get a better line people!

S said...

The point of the 2003 secretive testing was to learn how big a problem baseball really had. So it was like one big grant of immunity. Baseball wanted to implement random testing; the players' union was resisting. So baseball said, "let us test a certain number of players. If the percentage of positive tests is above whatever mark, then we get our random testing." The percentage was above that mark, so baseball got its random testing.

I think the question about who leaked it isn't who was the ultimate person who spoke to SI, but how did THAT person get the info. This particular info, from what I've read, wasn't supposed to be available to anyone, so wherever it got out was necessarily a violation. Sort of like the Robert Novak - Valerie Plame thing. It wasn't wrong for Novak to write it, but we do need to know where he learned it.

One Girl's Opinion said...

I agree someone said something that they weren't supposed to say. But I'm being cynical because if it was someone powerful involved with the hearings ... I doubt anything will come of it.

I think the players union is culpable in all of this. And I wish Selig hadn't caved in to them with the 2003 testings. We wouldn't have all these stupid cheaters now mucking up the record books.

S said...

I'm also usually cynical about people being held accountable for speaking out of turn, but I choose to be optimistic right now. If the feds want to make examples of guys like Barry Bonds and Tejada, maybe the judge will want to make an example of the leaker.

At least out of the 2003 testings, we now have a real system of random testings. But, yeah, wouldn't it have been nice if the player's union way back in like 2000 had said, "Heck, yes, we'll agree to testing. We don't want cheaters in our sport, either!"

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