Kobritz’s Corner

The announcement by the solicitor general that the government would not appeal the latest in a long line of court rulings that found investigators illegally seized drug testing results of baseball players, could arguably be hailed as a victory.  But not in my view.    
The case stemmed from an agreement between MLB and the Players’ Association to conduct random drug tests during the 2003 season to determine the extent of steroid use among players. Test results were supposed to remain anonymous and there would be no consequences for testing positive.  When more than 5% of the players tested positive, the first drug testing policy in the sport was implemented, per the agreement between the parties.   
To its everlasting regret, the union inexplicably dragged its feet on disposing of the test results.  During the interim, the government, in the process of serving a search warrant on two drug-testing labs, came across spreadsheets that included the test results of hundreds of athletes in a variety of sports, including MLB.  Like kids in a candy store, the government raiders, led by the over-zealous Jeff Novitzky, seized all the information which was contained on computer files.
The Ninth Circuit Court of Appeals ruled in August that the government should have limited its seizure to information on the ten suspects named in the search warrant.  All additional information was obtained in violation of the Fourth Amendment, which prohibits illegal searches and seizures.  The latest decision was at least the fifth time the courts have rebuked the government for the manner in which it acquired the test results.  If the government had appealed to the Supreme Court, most legal experts predicted they would lose and the ruling would have become the law of the land.  Because the decision wasn’t appealed, the law established in the case is arguably limited to the Ninth Circuit.
Unfortunately, some of the information obtained in the raids has been leaked to the public, which is a crime under federal law.  Someone – Novitzky being the prime suspect – apparently prepared a list of names contained on the spreadsheets and gave it to government lawyers working on the case.  According to The New York Times, one or more of those lawyers told them the list included the names of Sammy Sosa, David Ortiz and Manny Ramirez.  Selena Roberts of Sports Illustrated alleged that Alex Rodriguez’ name also appeared on the list.   
Victory?  Tell that to the players whose reputations have been forever tarnished by the illegal disclosures stemming from those illegal seizures.  The players’ chances of being elected to the Baseball Hall of Fame have also been diminished, if not extinguished.  And how about the additional 100 players who live in fear of being outed?
The government has spent tens-of-millions of dollars in a vain attempt to use the fruits of the illegal seizure to prosecute ballplayers when they should have been focusing their time and effort – and our tax dollars – on ferreting out the government employees who so cavalierly made a mockery of our constitution.  Any government employee who would thumb their nose at the courts and our system of justice should be behind bars.  Is the government not prosecuting Roger Clemens for lying to a congressional committee?  And exactly how is that crime more heinous than what government attorneys did in this case?
The illegal seizure of information beyond the scope of the search warrant wasn’t Novitzky’s only misstep.  At the time, he was employed by the IRS, but whether voluntarily or otherwise has since moved on to the Food and Drug Administration.  His current target is seven-time Tour-de- France winner Lance Armstrong and some of the controversial tactics Novitzky employed in prior investigations have been repeated in the Armstrong case.  But Novitzky isn’t solely to blame for the government’s Gestapo tactics.  The prosecutors he worked for were either derelict in their duties or only concerned with “results,” turning a blind eye to Novitzky’s tactics knowing they could disavow knowledge of them if they ever became public.      
Justice would be better served if we knew which lawyers illegally leaked the illegally obtained information, rather than the names of the players on the list.  If the lawyers who violated the law get what they deserve, then and only then can we declare victory in this case.