I can’t lie. The most interesting thing about the San Francisco Giants, to me, is still Barry Bonds. I know that they have an excellent stable of young pitchers, recently signed Edgar Renteria to work his National League-only magic and are silently putting together a roster capable of competing, at least in the terrible, terrible West. Yet, I am more interested to read about Bonds’ legal case than to peruse another discussion about Emmanuel Burriss’ ultimate ceiling, or Pablo Sandoval’s place on the diamond.

            I think it stems from the fact that I daylight as a lawyer and, from the beginning, this case was a trainwreck, with giant gaps between public perception and legal fact, and almost no one willing to explain the difference. I’m on record (somewhere, maybe here, who knows anymore?) as saying that if you asked 100 baseball fans what Barry Bonds was currently charged with, approximately 15% could accurately identify the combination of perjury, obstruction of justice and the case in which the testimony in question was obtained. I believe that over 50% would say the case is about whether he used illegal steroids, and another smaller percentage could identify the charges but not the reason he was being grilled in front of a Grand Jury in the first place. Yet, people have chosen sides and pronounced the home run king guilty or innocent based on factors entirely outside the realm of the law.

            In my opinion, the case is weak, if not non-existent. If Barry Bonds were a regular white dude named John Dowd and had given the same testimony in the same case, he would be well on his merry way to collecting those MVP Baseball Video Game royalty checks, with no other care in the world. Instead, he’s Barry Bonds. He’s a pretty big ass, which helps make him an easy target, and federal prosecutors in California seem to want to differentiate themselves from the locals in the easiest way possible: doggedly pursue a star for a relatively spurious claim instead of the local standard of letting the rich and famous run down kids while in drug-induced hazes before slapping them oh-so-gently on the wrist. I’m not going to bore everyone with legal mumbo-jumbo about why this case is total ass, but if anyone is interested, feel free to email me, or talk about it in the comments.

            However, this new batch of Bonds news allows me the avenue to bring up something that really grinds my gears, especially as a lawyer: Shield Laws and First Amendment “Rights.” I know, all of you just sort of blacked out for a minute, but I promise that this will be relatively light and very baseball-related. It will also, however, be two-and-a-half years late.

            Lots of people read “Game of Shadows,” and lots of people really enjoyed it, if that’s the right word. You can still find copies at your local Big Box Bookstore, generally in the bargain section, probably for 5-6 bucks. The authors, Mark Fainaru-Wada and Lance Williams, Chronicled* the BALCO sports “nutrition” center and the various athletes who, uh, allegedly used performance-enhancing drugs. Chief among their manifold sources (all extremely well-documented in the book) was leaked grand jury testimony. Because leaking grand jury testimony is sort of a big deal, the authors were subpoenaed to appear before a grand jury of their own and disclose the leak. They refused and were eventually sentenced to 18 months in jail for contempt of court. However, Troy Ellerman eventually admitted to the leak, and the reporters were freed.

            For their strength of conviction and the (admittedly strong) reporting in the book and their columns, the authors were awarded the Dick Schaap Award for Outstanding Journalism, an award established in 2002 and given only to the top of sports journalism.** Fainaru-Wada parlayed his fame into a job at ESPN, which is increasingly becoming (with SI.com), the final resting place for all of sports journalism’s top names.

            When they were originally subpoenaed and refused to disclose their source, there were statements of support from across the journalistic map. Reporters from the Washington Post (including Bernstein), pretty much every sportswriter covering baseball and even noted civil libertarian John Ashcroft came out in their support. Claims of first amendment privilege and howls of “free press!!!” reverberated around the scene like they meant something, or had any sort of actual thought or constitutional insight behind them. As usual, they did not.

            There is more legal mumbo-jumbo about the various states of Shield Laws in these United, but that can mostly be avoided by saying that there is no universal scope of protection and that the Supreme Court has discussed it (and vaguely then) in only one case. Still, one wonders how we got to the point where it was ok to benefit from someone else’s obvious law-breaking because you happen to be a journalist, let alone a sports journalist.

            I make no claims to being a sportswriter, or speaking for them. But only the most duplicitous or stupid sportswriter would claim that their beat is as important as matters like the Pentagon Papers or the Valerie Plame outing. Simply put, nothing in the sports beat is so important to public knowledge that laws should be broken in the reporting thereof.

            It is incredibly troublesome when grand jury testimony is leaked, because it can, and in many cases does, compromise the underlying case. Leaking the testimony can be tantamount to biasing the jury or judge, or encouraging an otherwise solid case not to be brought. It can also forever taint a person’s reputation. There are certain protections not available to witnesses in grand juries, including reduced access to an attorney. Answers given in a grand jury are generally more damning of an individual and may not even be admissible in open court, yet leaking that testimony will make it admissible in the court of public domain.

            The authors knew all of this, and knew that leaking grand jury testimony was incredibly illegal (Ellerman got 30 months in jail). Still, they went forward with the information and profited from its release. Their book would have been deeply hurt by its absence and they knew this as well. They placed themselves in a situation where the worst case scenario for themselves was facing a short bit of jail time and becoming martyrs for the entire journalistic world.

            I know that this country has a real problem with mass media, and access to secret documents, plans, etc. Still, there’s a point where a line is crossed, and laws are broken in order to find if other, less important crimes have been committed. That is what happened here. Leaking grand jury testimony, on the whole, is a far more serious offense than the use of performance-enhancing drugs. Abetting that leakage, and profiting from it, is probably very close to the same level of infraction. The original Supreme Court test for whether the reporter had a privilege did this sort of balancing. However, as stated above, the test is murky and generally has not been adopted. It is unlikely the Court will revisit this area, although there is some movement in Congress for federal shield legislation. I can only hope that situations like this are not included in the protection.

            This was actually supposed to be a short piece railing against shield laws, but it sort of morphed into a longer one along the way. Bonds gets me so fired up…..I just hope that the Giants don’t trade Sanchez for Cantu.

* See what I did there, using the newspaper they write for as a verb…see!??!?!

** The previous winners were Bill James favorite (and fellow Loyola Blakefield High School alum with Sean Kates and Tom Clancy) Jim McKay, Frank Deford, Bob Costas, Dave Anderson and domestic violence proponent Bob Ryan.