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Last week, the San Francisco Chronicle printed two major stories based on leaked grand jury transcripts in the BALCO steroids case. The stories infuriated lawyers on both sides, who have repeatedly complained that the torrential leaks are hurting them. At an Aug. 27, 2004, court hearing, prosecutor Jeffrey Nedrow and defense lawyers Robert Holley and J. Tony Serra discussed the issue with U.S. District Judge Susan Illston. The judge expressed bafflement about how to stop the leaks, but said she’d consider Serra’s suggestion to bring journalists into court and grill them about their sources. Holley represents BALCO founder Victor Conte, while Serra represents athletic trainer Greg Anderson. Case No. CR 04-0044 SI. Mr. Holley: Yesterday there was another news leak that was very damaging to this case that had to do with the Greek athletes and information that apparently was turned over by the United States government to the Greek authorities, and it was very upsetting. There was another very big article that came out in the Chronicle yesterday. It is a brand new news leak. The Court: Well, I have the paper at home. I just haven’t� Mr. Holley: I just want to bring that up because, obviously, it’s going to be the subject of a pretrial motion eventually, but in the event the Court wants to take any steps that it can in the meantime to try to avoid any further prejudice in this case. I just don’t know what to do. The Court: It’s hard to know exactly what to do. I have received from all of you, including your boss, or your colleague, abject denials of any involvement from everybody over whom I now have jurisdiction. Mr. Holley: Well, we know where some of the news leaks came from, and that is that there was a huge news leak that went into Playboy magazine that� The Court: That was an individual person who was quoted there. Mr. Holley: That was one person on that one, but then I think that a lot of leaks came from the turning over of the information to the United States Senate, as what Mr. Serra was talking about. [ Editor's note: A spokesman for the Senate Commerce Committee, chaired by Republican Sen. John McCain of Arizona, denied that the committee ever received any grand jury transcripts.] The Court: Well, the USADA [U.S. Anti-Doping Agency] folks have likewise submitted declarations denying any involvement. Mr. Holley: Well, somebody turned it over. The Court: I know that. Mr. Serra: Why don’t we have any independent person, entity, overseeing this investigation into leaks? The prosecutor assigned to the case shouldn’t be in charge of investigating his personnel. Seems to be almost a conflict of interest, and if an entity more objective could inquire, we may get some results. Because we’ve protested loudly on almost every occasion, and your Honor very graciously has entertained it in a serious fashion, and yet, week after week we’re damaged so severely. The last thing I read was the e-mails. You know, it’s a codefendant, but the spillover kills me also, and it’s flagrant and it’s ongoing and it’s not us over here. And, therefore, maybe some kind of an independent person, trustee, I don’t know what you would call it, [should] make the investigation. [ Editor's note: U.S. Attorney Kevin Ryan later requested a formal investigation by the Justice Department.] Mr. Holley: Yeah, like a grand jury investigation or something. � I don’t know what to do. This is a very difficult problem, and I’m glad that you’re sitting up there and I’m down here, but I have no clue what to do. Mr. Nedrow: Your Honor, we have submitted declarations, which I think are very thorough and detailed, regarding basically everybody from the government’s side who’s had contact with the transcripts. � The e-mails, like everything else in this case that’s been disclosed, have been in the possession of all the defendants for months. They have had them for months, as they have the grand jury transcript. They have had [Olympic sprinter] Tim Montgomery for months, as they have had the statement provided by Mr. Conte for months. They had the statements which were hand-delivered to each individual defense lawyer in court, of [shot putter] C.J. Hunter, which were leaked. So I would just reiterate to the Court that there never has been an item distributed to the press that has not been in the possession of the defense. Now, I agree that the officer who gave the interview to Playboy was improper, inappropriate. We’ve looked into disciplinary measures through the State regarding him, as a State officer. Setting that aside, there’s never been any evidence that the government was involved in these leaks, and really, the conduct of the parties vis-a-vis the media is, I think, something the Court should consider, because the government isn’t holding press conferences outside of court. Other people are. We did do a press conference after the indictment, and yes, I’d like to acknowledge that, absolutely, as we do in many cases, but that’s a separate matter from repeatedly making comments about the merits of the case in the paper, and the evidence. And that’s happened in this case with several, not all, but several of the defense lawyers. . . . I think the Court should and can consider the manner in which these leaks are now factoring into this litigation. What we’ve had is delays in going forward to trial, where the government’s requested trial, and I just think it’s fuel for the fire for the defense to come in and make these kinds of claims that the government is acting inappropriately. These leaks aren’t occurring on the eve of trial to prejudice a jury. They’re occurring at [the post-indictment] stage, where the defense has an interest in disrupting the trial process and delaying it. . . . I can’t say who is doing it, but what I can say about it is the government is not involved in doing it. � There’s no evidence of it, and to the extent that the accusations continue in that regard, I think some shred of evidence is appropriate if the accusations will continue to be made. � I’m not saying who I think did it, but what I do think is the effect is to harm the government far more than any defendant’s been harmed in this case. And Mr. Conte’s going to say right now, well, they hurt me. Well, Mr. Conte is the person, not the government, who sent a public letter to the press and the President of the United States saying, I’ll plead guilty if the government’s more reasonable. Mr. Holley: If the Court has our status memorandum on the media leaks, these leaks are things that not only hurt Mr. Conte in his criminal case that’s pending before this court, but it hurts him personally, and his reputation, it hurts him in his business reputation. Every time this thing comes out, he screams. They’re all devastating leaks that go absolutely against the defense. I cannot imagine anybody on the defense side who would leak the kind of information that’s being leaked to the press. It just would be appalling. If I find out it’s Mr. Conte, I’m off the case, but Mr. Conte and I have dealt with each other on these, and it’s true that I have had to go and put out fires. And the only thing I’ve said in the press about the leaks is, you’ve got to wait, because we disagree with this evidence, and you have to wait for a trial. The problem is that Mr. Conte’s business and his personal reputation are also tied into this. The wheels of justice turn slowly, and where Mr. Nedrow says these leaks don’t make any difference because it’s not on the eve of trial, I can tell you that the well has been poisoned. The name BALCO now is synonymous with steroid distribution, and even as I watch the [Summer] Olympics on television, they just call it “the BALCO scandal,” and it happens over and over and over again. . . . The Chronicle has been one of the major progenitors of the most devastating leaks. We have 27 of them here, not counting the most recent one that came out yesterday. It happens at least two or three times a month, and they’re dribbled out almost methodically. I have no clue why anybody would do this. I do not know, but it does seem that since this became an issue at our last hearing, and that was about a month and a half ago, there’s been a whole lot of leaks since then, and whoever is doing it, I think, has got to be a little bit wacko because it doesn’t make sense that somebody is doing it. We don’t know how to stop it, and I have talked to reporter after reporter after reporter, and they all tell me that they have never seen anything like it. It didn’t happen in the O.J. Simpson case, it didn’t happen even in the Peterson case. We didn’t see these leaks, that the information comes out during trial. And that’s why we wanted it to be here, and we still would like it to be here, but I think that the cows are already out of the barn, and it’s too late to close the door. But this has been just devastating to my client, and it has been very difficult for us because I’ve had to spend most of my time, rather than reviewing all those 30,000 pages of documents, trying to put out the fires. I don’t like dealing with the press. And the press, the ones that are here sitting in the back of the room, they call three or four times a day. Most of the time I don’t talk to them, and if I do talk to them, I talk to them about the integrity of the system and how we have to protect it. And another problem that we have with the leaks is that the press knows that there was a court order, and in particular, I’m talking about the grand jury transcripts. I don’t know what the liability, criminally or civilly, is in connection with printing material which was disseminated in violation of the court order. And that may be a problem because I’ve talked to reporters from The New York Times and various other places, and they say they would not have printed a lot of this information because they know there was a court order on it. We want to get to the bottom of it. The Chronicle knows who is giving the leaks, and if there were somebody that is on the defense side, I want to know about it because it’s going to have a substantial effect on the pretrial motions in this case. And if this case were to actually go all the way to trial, despite the leaks, then it’s going to have a devastating effect on our chances of getting a fair trial and convincing a jury of the untruth of some of the material that has already been disseminated. Mr. Serra: Judge, you could have a hearing and could order that the journalists be present. If they have disseminated material that was subject to a court order, they have aided and abetted a contempt. Therefore, perhaps the privilege will give way, and they will be required to respond affirmatively as to from what source they received the material. The Court: All right, well, that’s something that I will consider. But one of the things that you said early on � is that we need to get this matter going and resolved, because the delay is not helping anybody at this point. Mr. Holley: Right. The Court: So on that I completely agree. So we’ve got dates. We’ve got the December date. I’m happy to set a trial date once those motions are over, as soon as it’s convenient for people. Mr. Holley: We would like it. The Court: At least make those efforts. In the meantime, I’ll take another look at these things and see what matters may be done at this point. Mr. Holley: All right. The Court: But the one thing I was going to ask you about, I was reading just this morning, and I don’t put my finger on it now, but there were specific declarations, I think, from Mr. Walker and Mr. Dressler about proposed plea agreements � on which they were receiving phone calls from reporters within moments of having received them over the fax machine. So I would like you to undertake to double-check in your office and find out everything you can find out about how that might have happened, because I know it couldn’t have been they who did it. Mr. Nedrow: Your Honor, I would like to be able to respond to that issue specifically. I remembered it being raised in the prior hearing. � We will have a supplemental filing addressing that. Mr. Holley: I just want to point out, Mr. Conte reminded me, there’s underlining in the news articles, and what they are pointing out is that there is some innuendo as to where these leaks are coming from, and it doesn’t appear to be coming from the defense. I just want to point that out. The Court: Okay, thank you.

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