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cjclong
08-26-2009, 04:37 PM
A NY Times article says a California Court of Appeals has ruled that that prosecutors lacked probable cause to seize the drug test results, some of which have been leaked, of major league baseball players. If the government does not appeal this ruling the article says the results will be destroyed.

frikativ54
08-26-2009, 09:06 PM
The government should definitely appeal. What do they mean, no probable cause? They've got an MLB drug ring on their hands. Of course they have reason to believe that illegal behavior is going on; the MLB is not above the law.

rj_lucas
08-26-2009, 10:40 PM
The government should definitely appeal. What do they mean, no probable cause? They've got an MLB drug ring on their hands. Of course they have reason to believe that illegal behavior is going on; the MLB is not above the law.

Could you clarify for us what illegal behavior you're referring to? The use of anabolic steroids and human growth hormone was legal when these tests were conducted in 2003, and they're legal now.

Further, the use of these substances was not prohibited by MLB policy in 2003. Their use is prohibited now. Players testing positive for these substances today are in violation of MLB policy. They have not committed a criminal act.

Barry Bonds and Roger Clemens are under legal scrutiny today not because they are accused of using performance enhancing drugs, but because they are alleged to have committed perjury before a Grand Jury and members of Congress, respectively.

This issue would be better served if we stick to the facts and leave the smear campaigns to the New York Times.

Rick
rickjlucas@gmail.com

cjclong
08-27-2009, 08:05 AM
As I understand it the search warrant only listed 10 tests to be seized and the Feds seized them all. A search warrant has to be specific in what is to be seized and the probable cause to seize what is requested in the warrant must be granted by a judge. You can't just get a warrant saying bad things are happening but must show probable cause that a particular person or or persons named in the warrant has been involved in a particular crime and that there is reason to believe that the items to be seized are proof of that crime. The officers with the warrant may normally only seize what they have requested in the warrant issued and nothing else. Without reading the opinion by the appeals court it appears that the search warrant only asked for 10 tests and so they had no legal authority to seize the entire list. Additionally, the person or person who is releasing names to the media may be guilty of a crime themselves.

David
08-27-2009, 01:07 PM
Steroids was and is legal only with valid prescription. Most baseball players who used steroids were using it illegally. There are valid medical uses of steroids, but, by US law, steroids can't be used or prescribed for strictly athletic performance reasons.

rj_lucas
08-27-2009, 02:02 PM
Steroids was and is legal only with valid prescription. Most baseball players who used steroids were using it illegally. There are valid medical uses of steroids, but, by US law, steroids can't be used or prescribed for strictly athletic performance reasons.

Again, for the sake of remaining factual, a wide range of anabolic steroids are available over-the-counter without a script. Others, as you've noted, are RX only. HGH is RX only.

And I realize it seems like a legal nit-pick, but while obtaining these meds without a prescription is illegal, the USE of them is not. That's critical in the case of those players who maintain they used these substances under the direction of a trainer with the assumption they were OTC supplements.

Believe it or don't believe it, that's not the point. There is a constitutional presumption of innocence in this country that must be maintained.

Rick
rickjlucas@gmail.com

David
08-27-2009, 04:03 PM
Use of a prescription medication without a valid prescription is illegal.

boardburn
08-27-2009, 04:26 PM
Anabolic steroids, as a class of drugs, were registered as Schedule III controlled substances by the US government, register #70 FR 74653, as of 1/17/06.

It is a violation of law to have or use these substances without a valid prescription, and it is illegal to prescribe them for purposes other than their intended medical necessity.

Here is a link to the DOJ's website... This is a list (not complete by any means) of the substances covered in Schedule III. If you are having trouble sleeping, reading the links on this website should fix you right up...

http://www.deadiversion.usdoj.gov/schedules/listby_sched/sched3.htm

Tom

frikativ54
08-27-2009, 04:43 PM
If you are having trouble sleeping, reading the links on this website should fix you right up...

http://www.deadiversion.usdoj.gov/schedules/listby_sched/sched3.htm

Tom

Thanks. I'll try that tonight. :p

rj_lucas
08-27-2009, 04:53 PM
Use of a prescription medication without a valid prescription is illegal.

Apologies, I'm not making my point clearly. I'll use an illustration. Trainer applies 'salve' to athelete's bicep. Salve is, in reality, a topical steroid. Assume, for the sake of argument, the athelete believes the salve to be an OTC ointment.

The athelete has used a steroid that was not perscribed to them. That is a fact. Have they committed an illegal act? If someone slips GHB into your drink at party and you consume it, have you committed an illegal act?

Again, I'm going to come back to a presumption of innocence, vis-a-vis the list of names.

The media has annointed itself as the judge, jury, and executioner on this issue, as they so often do. Do we really want to follow that lead?

I understand we all have our personal opinions, and it's not realistic to expect personal neutrality in all things. But hopefully we can all agree that it is the duty of prosecutors and the courts to meet the burden of proof on this or any other legal matter.

Rick
rickjlucas@gmail.com

godwulf
08-27-2009, 06:07 PM
Use of a prescription medication without a valid prescription is illegal.

In addition to rj's explanation, let me just add this, from my own professional experience.

Every day of the week, my office conveys positive drug test results - for methamphetamine, cocaine, ecstasy, marijuana, you name it - to Superior Court judges, in connection with Family Court cases...people who are drug testing because of child custody and visitation disputes. In thirteen years, and after many thousands of such reports, I have never seen or heard of a single individual being charged with a crime in connection with any positive test result. Not even when they come to test directly from court, and end up testing positive for three or four illegal drugs.

The most drastic action available to the courts, in those situations, is to order a change of custody or a suspension of visitation; unless someone is on Probation or Parole, or is being similarly monitored for some reason, under special circumstances, simply testing positive for an illegal or non-prescribed substance is not cause for punitive legal action.

godwulf
08-27-2009, 06:09 PM
I should have added..."or the one testing positive has been driving".

David
08-27-2009, 06:23 PM
What you are describing is the illegal use of a drug. Who is legally responsible (player, trainer, other) is also an important question (maybe the trainer is at fault), but that doesn't make the use itself legal or the legal questions to stop. If there is evidence of illegal use of medications, the police or feds or whomever will look into it, they will ask questions of all parties involved. They will do things like ask the user (player) if he had a prescription and, if so, to show it. If the player says he didn't have a prescription and used it unknowingly, they will talk to the trainer and others.

Even when owned legally, the presence of certain prescription drugs will invite questions from authorities (marajuana, pot, Quaaludes, codeine, steroids, HGH). If you take a trip on an airplane to Tulsa and have a bottle of codeine in your bag, the airport official will ask for proof that the medicine was prescribed to you. They aren't saying you don't have the right to have the medication, but they want to see proof. If you don't have proof, you could be in trouble (just ask Rush Limbaugh).

My personal guess is that of the MLB players who used prescription grade steroids, 99 percent knew what they were taking and 1% had a legal prescription (meaning, they were using it legally). As steroids can't be legally prescribed for purely athletic reasons, 99 percent couldn't have gotten a legal prescription anyway.

cohibasmoker
08-28-2009, 06:15 AM
Apologies, I'm not making my point clearly. I'll use an illustration. Trainer applies 'salve' to athelete's bicep. Salve is, in reality, a topical steroid. Assume, for the sake of argument, the athelete believes the salve to be an OTC ointment.

The athelete has used a steroid that was not perscribed to them. That is a fact. Have they committed an illegal act? If someone slips GHB into your drink at party and you consume it, have you committed an illegal act?

Again, I'm going to come back to a presumption of innocence, vis-a-vis the list of names.

The media has annointed itself as the judge, jury, and executioner on this issue, as they so often do. Do we really want to follow that lead?

I understand we all have our personal opinions, and it's not realistic to expect personal neutrality in all things. But hopefully we can all agree that it is the duty of prosecutors and the courts to meet the burden of proof on this or any other legal matter.

Rick
rickjlucas@gmail.com

Are we to believe that a bunch of "rogue" trainers decided upon themselves to start mixing "hot" ointments, they then applied the ointments to only a select group of athletes and these athletes had no idea they were receiving "hot" ointments?

The athletes in turn could not figure out why they suddenly gained muscle-mass, extra weight and all of a sudden, they started jacking baseballs out of ballparks at record paces.


Jim

treant985
08-28-2009, 07:23 AM
I'm not really surprised of the outcome. A 9-2 ruling is a pretty solid majority when it comes to anything supposedly 'controversial,' meaning that the decision wasn't even a close one among the judges.

The g'ment argued that they went in for the 10 results for which they had a warrant and that the other results were in "plain sight," so they didn't need a warrant for them. It's a clever argument--but ultimately it had to fail, especially when it comes to computer records like in this case.

It'd be like seizing 10 people's medical records in one file cabinet, then having 50 other file cabinets "in plain sight" in the same office and deciding to take all those people's records, too. If you analogize this to computer records, then everything on a computer could be considered plain sight.

I doubt MLB will appeal. It'd just cost money, and I doubt the Supreme Court would even take up the case at all (they only have to hear cases that they feel like, with a few rare exceptions).

treant985
08-28-2009, 07:26 AM
It'd be like seizing 10 people's medical records in one file cabinet, then having 50 other file cabinets "in plain sight" in the same office and deciding to take all those people's records, too. If you analogize this to computer records, then everything on a computer could be considered plain sight.

Well, maybe a better example would be if a doctor's office kept ALL of their patients' records in ONE huge manilla folder, yet the warrant is only for a few of the patients' records. To get the 10 you need, you have to go through the other 100 you don't.

cjclong
08-28-2009, 07:52 AM
Treant, I believe that the appeal, if there was one, would be by the Federal prosecutors and not MLB since the opinion by the California appeals court went against the Government and upheld the position taken by the players union that the tests for which were not named in the warrant should not have been seized.

treant985
08-28-2009, 08:57 AM
Treant, I believe that the appeal, if there was one, would be by the Federal prosecutors and not MLB since the opinion by the California appeals court went against the Government and upheld the position taken by the players union that the tests for which were not named in the warrant should not have been seized.

yea, you're right. I switched the two parties. MLBPA won, fed prosecutors lost.

rj_lucas
08-28-2009, 11:32 AM
The g'ment argued that they went in for the 10 results for which they had a warrant and that the other results were in "plain sight," so they didn't need a warrant for them. It's a clever argument--but ultimately it had to fail, especially when it comes to computer records like in this case.

Federal prosecutors overstepping their authority? Wow, next thing you know, we'll be hearing about something equally hard to believe, like, say, the Earth is round :p

Rick
rickjlucas@gmail.com

treant985
08-29-2009, 09:53 PM
Federal prosecutors overstepping their authority? Wow, next thing you know, we'll be hearing about something equally hard to believe, like, say, the Earth is round :p

Rick
rickjlucas@gmail.com

I sat down and read the opinion (had a road trip today), and it really was obnoxious the way the lead agent (Novitsky, who's been known to have some kind of personal problem with Barry Bonds) handled the search warrant.

The warrant specifically told the agents that they could only seize the entire files if there was absolutely no way to sort it out on-site; employees of the company (which wasn't involved in anything illegal, offered to help sort everything), but Novitsky refused and took all records to 'peruse later.'

Additionally, the warrant said that the agents could only examine the evidence once computer experts had gone through and picked out only the relevant portions...and again Novitsky refused this.

The opinion says that the proper result is that the evidence will be turned back over to the testing company and the g'ment can't use anything they got except for the 10 players they were originally after.

frikativ54
08-29-2009, 10:19 PM
Federal prosecutors overstepping their authority? Wow, next thing you know, we'll be hearing about something equally hard to believe, like, say, the Earth is round :p

Rick
rickjlucas@gmail.com

Rick,

I am sure glad there are federal prosecutors. Without them, there would still be Barry Bonds in baseball. We have the feds to thank that baseball is as clean as it is. Hopefully, this decision will be appealed.

rj_lucas
08-29-2009, 11:05 PM
Rick,

I am sure glad there are federal prosecutors. Without them, there would still be Barry Bonds in baseball. We have the feds to thank that baseball is as clean as it is. Hopefully, this decision will be appealed.


No offense Les, but is that really where we want our Federal Government to be spending their time and resources?

Might their focus have been better directed on, say, Bernie Madoff and the other Masters of the Universe as they brought an entire economy to the brink of collapse?

Nero fiddles while Rome burns, but by golly, at least we brought down Barry Bonds aka Public Enemy Number One.

Rick
rickjlucas@gmail.com

frikativ54
08-29-2009, 11:35 PM
No offense Les, but is that really where we want our Federal Government to be spending their time and resources?

Might their focus have been better directed on, say, Bernie Madoff and the other Masters of the Universe as they brought an entire economy to the brink of collapse?

Nero fiddles while Rome burns, but by golly, at least we brought down Barry Bonds aka Public Enemy Number One.

Rick
rickjlucas@gmail.com

Why does it have to be an either/or proposition? Go after everybody, I say. And I think that it is important to show baseball that these athletes are not above the law. They are humans, and just because they are sports heroes doesn't mean that they can do whatever they want. I say stop being such cowards and release the whole list!

treant985
08-30-2009, 01:30 PM
Regardless of where prosecutors focus their attention, they still need to play by at least some semblence of the rules. Based on what I've read about this Novitsky guy, he's got the same mentality as the people he's chasing: I'm above the rules.

David
08-30-2009, 02:16 PM
If you don't enforce laws, you are in practice legalizing the activity. If your city says "Speeding is still illegal and speed signs will remain posted, but we are no longer going to give out tickets or otherwise enforce these laws" you can bet a majority of drivers will be speeding the following day, often by a lot.

So the flip side of not enforcing laws is that you are allowing the activity to proceed unfettered, essentially legalizing it.

cohibasmoker
08-31-2009, 09:36 AM
I sat down and read the opinion (had a road trip today), and it really was obnoxious the way the lead agent (Novitsky, who's been known to have some kind of personal problem with Barry Bonds) handled the search warrant.

The warrant specifically told the agents that they could only seize the entire files if there was absolutely no way to sort it out on-site; employees of the company (which wasn't involved in anything illegal, offered to help sort everything), but Novitsky refused and took all records to 'peruse later.'

Additionally, the warrant said that the agents could only examine the evidence once computer experts had gone through and picked out only the relevant portions...and again Novitsky refused this.

The opinion says that the proper result is that the evidence will be turned back over to the testing company and the g'ment can't use anything they got except for the 10 players they were originally after.

I really don't what this Novitsky did or didn't do but I've executed many a search warrant and it's not rocket science. The question is, while executing a search warrant, if additional evidence is found (relevant to the case or not), can the additional evidence be easily destroyed? If the answer is yes, seize it immediately. HOWEVER, if the scene is secured and you have control over the evidence and the actions of person(s) in the room, why not just pickup a cell phone, call the on-duty Judge, explain the situation and let the Judge tell you what you should do.

As for what the Federal Government choses to prosecute or not, that's really NOT our decision is it? However, the Feds have to play by the rules just like the rest of us.


Jim

cjclong
08-31-2009, 11:30 AM
Les, the reason that it has to be a limited proposition is that there are limited resources. There are only so many prosecutors and staff to handle cases. If you really want everything prosecuted then recommend huge tax increases to fund the additional prosecutors and staff needed. There are offenses right now that are not being investigated because of a lack of investigators and prosecutors. People think you just walk into a courtroom and question witnesses and that is it. Actually it takes hours and hours outside the courtroom to properly prepare a case and what you are seeing in a courtroom during trial is just the tip of the iceberg. Look how many months this case has taken and it isn't even in court for a jury trial yet. Everyone has the right to decide what they think priorities should be but I think there are real questions as to whether spending these kind of resources on prosecuting someone for allegedly lying about taking steroids is a valid use of those resources.