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…. V for Vendetta

So now the feds have gotten the United States Court of Appeals for the Ninth Circuit to reverse the original decision to protect the rights of the players and respect the collectively bargained agreement between MLB and the Players Association; and to allow the government to have access to the urine samples compiled in the very first round of drug testing, the survey results, as they were referred to way back when. I am interested in Circuit Judge Sidney Thomas’s dissenting opinion, (which I found at the Sports Law Blog):

…. One of the three extremely able district court judges who rejected the government’s argument summarized it best, stating: “What happened to the Fourth Amendment? Was it repealed somehow?” Although it only had a search warrant for data concerning eleven Major League Baseball players, the government seized thousands of medical records and test results involving every single Major League Baseball player. The government did not stop there, seizing thousands of other medical records for individuals in thirteen other major sports organizations, three unaffiliated business entities, and three sports competitions.

The government now seeks to retain all of the medical information it obtained about persons who were not the subject of any criminal inquiry. The stakes in this case are high. The government claims the right to search—without warrant or even a suspicion of criminal activity—any patient’s confidential medical record contained in a computer directory so long as it has a legitimate warrant or subpoena for any other individual patient’s record that may be contained as part of data stored on the same computer. The government attempts to justify this novel theory on a breathtaking expansion of the “plain view” doctrine, which clearly has no application to intermingled private electronic data.

As radical as the government’s position is, the majority goes even further. It holds that the government—without warrant or even a suspicion of criminal activity—may seize, retain, and view all confidential records in any electronic database on which private data responsive to a warrant resides. Under the majority’s holding, a magistrate would be required to review the seized data for probable cause after seizure only if an aggrieved party made a motion. Even then, if the magistrate concluded that the irrelevant data was “comingled,” the government would be entitled to retain the confidential medical records.

This new theory was not argued by any party, nor presented to any district judge at any time during the course of these protracted and hotly contested proceedings. The scope of the majority’s new holding in the digital age could not be greater; it removes confidential electronic records from the protections of the Fourth Amendment. The holding also squarely conflicts with the sound and sensible procedural protections detailed in United States v. Tamura, 694 F.2d 591 (1982), which direct the government to seal and hold documents containing intermingled data pending approval of a magistrate of a further search.

I agree with the careful findings and conclusions of the three district judges who rejected the government’s position. For that reason, and because of the profound consequences of the majority’s opinion on the privacy of medical records throughout the United States, I respectfully dissent.

“The stakes in this case are high.” As opposed to the stakes in this ridiculous, multi-million dollar crusade against Barry Bonds. As I read through the entire 115 page document, it became clear that it is Special Agent Novitzky behind all of these shenanigans, as his name comes up again and again as he ignores the law in his wanton and destructive vendetta against Bonds.

…. In contrast to the affidavit supplied in the first warrant application, which purported to “to ensure that samples of individuals not associated with Balco are left undisturbed,” the affidavit of Agent Novitzky in support of this warrant application sought “authorization to conduct a thorough review of all major league baseball-related computer data” and “to seize all data pertaining to illegal drug use by any member of major league baseball.”

The affidavit conceded that no specific information had been uncovered linking Balco to any individual baseball players beyond the ten listed in the April 7, 2004, search warrant. However, in contrast to the first warrant application, Agent Novitzky averred that even though there was no evidence that had been developed to link the ballplayers who were not listed in the first warrant to Balco, “it is logical to assume that a review of the drug testing records for other players may provide additional evidence of the use of similar illegal performance-enhancing drugs which establishes a link to the charged defendants in the charged [Balco] case, given the relatively small number of professional baseball players and the closely-knit professional baseball community.”

In other words, Novitzky was saying that he could care less about whether what he was doing was legal, he was gonna do it anyway; which, of course, is what he’s been doing all along. In point of fact, he has acted shamelessly in this “case,” abusing the grand jury process, the judicial proccess, and basically doing whatever the fuck he wants, all in the name of the law. Remember this one thing, this all started as a crusade against one player, a crusade enacted by one man; because he thought Bonds was an asshole. Here’s another interesting exchange that took place before the first ruling in which the players right to their samples was upheld:

…. A hearing on December 10, 2004, discussed infra, contains this colloquy:

Counsel: And the government never would have done the search warrants if the grand jury process could have worked out. But it didn’t. I feel —

Court: Say that last thing one more time. What you —

Counsel: What I just said was we may not have ever done the search warrants if the subpoena process worked out.

Court: But, I mean, there was a subpoena process pending in this building before Judge White.

Counsel: Yes.

Court: At the time you went and got your search warrants, and you didn’t allow that process to complete itself.

Counsel: That is true.

Again, who cares about the law when you are on a crusade, a vendetta against one player, right?

…. Bonds’ lawyer questioned why the government continues to pursue Bonds when he doesn’t believe the Giants’ outfielder was among those who tested positive in 2003.

”If Barry is one of the players that did not test positive in ’03 for steroids, I would hope that it would cause the government to rethink their continuing harassment they’ve engaged in for years,” attorney Michael Rains said Wednesday.

Harrassment, indeed. Here’s part of the majority opinion from the original ruling:

…. The documents presented to the Court in connection with this Motion reveal extremely troubling conduct on the part of the Government. The picture painted is one of almost desperate effort to acquire evidence by whatever means could be utilized. The Government negotiated with movants’ attorneys over the breadth of the grand jury subpoenas; received assurances in writing that the records of the ten athletes would be secured while the Court resolved the issue, and the day after the issue was presented to a Court, went to another district and sought a search warrant.

That conduct would be suspect in itself. But in seeking the warrant (not the correct procedure for obtaining documents for a third party who is not a suspect), the Government explained to the Magistrate that the records in question were in danger of being destroyed. This is blatant misrepresentation, as demonstrated by the records in this case. Four days after Movants filed a motion before Magistrate Judge Johnson for return of the property, the Government obtained a further warrant from a Magistrate Judge in the Northern District of California. And while a motion for return of that property was pending, the Government obtained two more warrants in the Central District of California (not from Magistrate Judge Johnson) and in Nevada. The image of quickly and skillfully moving the cup so no one can find the pea would be humorous if the matter were not so serious.

Another judge noting that the government’s actions, (or should I say, Agent Novitzky’s) raise serious concerns. But, hey, these players are breaking the law, aren’t they? we gotta get them, right? They’re taking drugs!?!

Now we can expect at least two more years of appeals, more thousands of hours of billable lawyers fees, and in the end; a mockery of our already beleaguered judicial system. This while our President and his cronies steal millions upon millions of dollars from taxpayers, orchestrate the deaths of tens of thousands of human beings, and our “government” does nothing to stop him.* But, you know, let’s break the law, spend millions and do anything we can to stop Bonds.

Meanwhile, all of this could have been avoided had Donald Fehr and the Players Association simply destroyed the samples when they had the chance. What a farce.

* Some might say there is no connection between this baseball “scandal” and the goings on in Iraq, or the pillaging of our hard-earned tax dollars for the gain of the already super-wealthy; but I heartily disagree. There can be no doubt that the members of our Congress are paying very close attention to these goings on, and find them to be a very neatly tied up basket of bullshit to keep the rest of us occupied with. One can imagine them seeing this as a very opportune distraction; on the one hand giving them a chance to be seen as hard on cheaters (and, of course, to be seen saving the children); and on the other, allowing them to continue their virtually criminal mismanagement of our government unnoticed.


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All commentary is the opinion of John J Perricone unless otherwise noted.
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