07/27/07

Judge turns down Associated Press request to unseal names in Jason Grimsley case

By BOB BAUM
AP Sports Writer

PHOENIX (AP) -- A federal magistrate judge rejected a request by The Associated Press to reveal the names of players allegedly implicated in drug use by former major league pitcher Jason Grimsley.

"Disclosure at this time may compromise the ongoing investigation in several ways," U.S. Magistrate Edward C. Voss wrote in a seven-page order Friday.

The AP's application, filed last month in U.S. District Court in Phoenix, was opposed by the U.S. Attorney's office in San Francisco, which is conducting the investigation, and by the Major League Baseball Players Association.

The AP had asked the court to reveal names blacked out in a sworn statement by Internal Revenue Service special agent Jeff Novitzky. The document was used to support a warrant to search Grimsley's Arizona home last year.

"We're disappointed and not at all persuaded that disclosing the names at this late date could hurt any investigation that might still be under way," Dave Tomlin, AP's associate general counsel said.

Tomlin said the AP has not decided whether to appeal.

The AP contended in court filings and in oral arguments Thursday that the public had a right to access the entire document, but Voss ruled the possible damage to the probe outweighed any First Amendment and common law rights to release the names.

"Cooperation could be affected," the judge wrote, "investigation of named individuals could be compromised, leads developed from undisclosed information could be cut off, and evidence could be destroyed."

Voss based his decision, in part, on a sealed affidavit submitted by Jeff Nedrow, chief prosecutor in the investigation, outlining the current status of the probe. AP lawyers were not allowed access to that document.

The judge indicated his ruling could change once the investigation ends.

"As the government acknowledges in Mr. Nedrow's affidavit, the continuation of the investigation makes the government's interest paramount 'at this point,'" Voss wrote. "When the investigation concludes, the weight of the government's argument against disclosure will change dramatically."

Interim U.S. Attorney Scott Schools declined comment.

David Segui told ESPN in June 2006 that he was one of the blacked-out names. The Los Angeles Times reported last October that Roger Clemens, Andy Pettitte, Miguel Tejada, Brian Roberts and Jay Gibbons also were named.

Players in the Times report denied using steroids, and Randy Hendricks, the agent for Clemens and Pettitte, said he was told Grimsley denied making the statements attributed to him by Novitzky. Grimsley has not commented publicly, and Kevin Ryan, then the U.S. Attorney in San Francisco, said the Times report contained "significant inaccuracies."

"Speculation concerning who is or is not named in the Novitzky affidavit is unfair," Voss wrote.

The search of Grimsley's home grew out of the federal investigation of the Bay Area Laboratory Co-Operative.

Assistant U.S. Attorney Matt Parella said in court on Thursday that the probe had spread far beyond BALCO and includes track and field and pro football athletes, as well as major league baseball players.

"The indictments thus far relate to the `supply' side of the problem," Voss wrote. "What remains for possible prosecution is the alleged illegal possession and use of these substances. In this area, no indictments have been issued and the investigation continues."

Commissioner Bud Selig has appointed former Senate Majority Leader George Mitchell to head an investigation of the use of steroids and other banned performance enhancers in baseball.

"The court concludes that the redacted material has not been provided to others," Voss wrote in his decision on the AP's application.

A ruling has yet to come in a similar case filed by the Hearst Corp. in New York. Hearst lawyers contended this week that the public is entitled to any names shared by federal investigators with the Mitchell probe.

The Hearst case is based on the investigation of former New York Mets clubhouse employee Kirk Radomski. Names of up to 23 players mentioned in Novitzky's affidavit in that case should be made public if they have been provided to Mitchell, Hearst lawyers argued.