The $20 million dollar Mitchell Report on anabolic steroids in professional baseball relied largely on the testimony of two former baseball trainers, Kirk Radomski and Brian McNamee. And the only reason the Mitchell Report contained such such evidence of steroid use by baseball players was because the Department of Justice forced Radomski and McNamee to cooperate with investigators from the Mitchell Report as a condition of their plea agreements. Was this an abuse of the government’s criminal powers? Was this legal? Was this ethical?
Frank Bowman, a former prosecutor and current law professor at the University of Missouri-Columbia, posted some interesting thoughts on the matter on Slate. The Justice Department’s behavior is problematic when it comes to “grand jury secrecy laws” and its policy on “uncharged third parties”:
A mere allegation of criminal wrongdoing coming from government sources can wreck a life or a career. If formal charges are filed, the defendant will at least have his day in court to admit or attempt to disprove the government’s case. But if the allegation comes in a report issued by the private sector, but engineered by the government, the reputational damage is done, and the defendant has no forum in which to contest it.
For precisely this reason, by law, federal grand jury proceedings are secret to protect the reputations of those who are investigated but never prosecuted. Historically, Department of Justice policy has been even more sensitive to these interests. In public filings and proceedings, the DoJ’s Principles of Federal Prosecution require prosecutors to “remain sensitive to the privacy and reputation interests of uncharged third-parties,” which “means that, in the absence of some significant justification, it is not appropriate to identify … or cause a defendant to identify, a third-party wrongdoer unless that party has been officially charged with the misconduct at issue.” (The italics are mine.)
Technically, the deals requiring McNamee and Radomski to cooperate with Mitchell probably don’t violate grand jury secrecy laws, because those laws bind prosecutors, agents, and grand jurors, but not witnesses like McNamee and Radomski. And technically, those deals might not have violated DoJ policy on uncharged third parties, inasmuch as Clemens and other players weren’t actually named in official filings or in a federal courtroom. But using plea bargaining leverage to require witnesses to divulge to Mitchell the names of people the Justice Department never intended to prosecute surely violated the purposes of both grand jury secrecy law and DoJ policy.
The requirement for Radomski and McNamee to cooperate with Mitchell was clearly outlined in their plea agreements:
I will cooperate with non-governmental anti-doping agencies at the direction of the government. I understand that this cooperation may include interviews, statements, or other proceedings.
Frank Bowman goes on to suggest that this potential abuse of government powers is serious enough for Congress to call a formal investigation.
Now, if you think that Professor Bowman is somehow sympathetic to Major League Baseball players who have used anabolic steroids or growth hormone, think again. Bowman believes the “hierarchy of the performance-enhancing drug market for professional athletes” is such that federal prosecutors should primarily target the “athletes” and not the “dealers” which is contrary to the customary prosecutorial practice of pursuing dealers instead of users.
Even if you agree with government involvement in anti-doping efforts of private sporting leagues, there should always be limitations on government behavior to prevent abuses of power.
Source: Slate
About the author
Millard writes about anabolic steroids and performance enhancing drugs and their use and impact in sport and society. He discusses the medical and non-medical uses of anabolic-androgenic steroids while advocating a harm reduction approach to steroid education.
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