Friday, March 02, 2007

On "A Technicality"

When I started this post, I did a search for "getting off on a technicality" in google. At the time, two of the top four entries were about the Landis case. It may not be that way now, but it won't take too many pages of results to find some references.

A comment here raised the relevant question.

I am quite perplexed by the continuous use of the word "technicality" to describe a potential outcome of Floyd's case. Any one of the current mistakes by the LNDD should have rendered the case over before it began. To trivialize these mistakes as being mere technicalities makes me wonder what isn't considered a technicality. As in, why bother creating the rules and procedures, if you are not going to follow them?

What is "a technicality?" Is it something meaningful, or meaningless?

It depends on who is using the word, and why.

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Many people who are inclined to think he's guilty believe arguing about the process and science of the testing is a meaningless "technicality", and fret over the prospect that Landis could "get off" because of something like that. They know he's guilty, and he should be punished.

On the other hand, those who think him innocent are also wary of Landis "getting off on a technicality", even if it is an important one, because that will leave him unredeemed and smeared in the minds of those in the first group.

"Getting off on a technicality" is a code phrase in that usually means, "those guys have too many rights."

It isn't used when it is your guy who wins, you call it a "clear vindication." For a recent example of this, see SCA vs Armstrong.


Types of Technicalities

I haven't found a legal dictionary with a definition of "a technicality" because it's not a legal term, it just gets thrown around looking at legal processes and results.

As a guide, we're going to explore some different types.

One "technicality" is lack of a crime, as when a Perry Mason calls the "victim" to the stand, refuting the charge that his client murdered him. Or, in Landis' case, that there is no positive drug test, which is the major premise of the defense we've seen.

This is similar too, but different than an, identity problem, where the accused didn't do what is charged, demonstrated by Mason's extracting a confession from someone else at the trial. In Landis' case, this might be proving it wasn't his urine that was tested. While there have been questions raised about this, it is not yet clear how important this might be to the defense.

Another "technicality" is a substantive problem that raises questions about the correctness of some factual conclusion being used in evidence. TBV would say that things that affect test findings, such as details of how tests were carried out or interpreted are substantive technicalities.

If your worldview is that doping is a scourge, you are inclined to believe the specialists who run the labs, and disbelieve quibbling about "technicalities" that might call the substance of the results into question.

The last are procedural problems. These are issues where there was something in the process that either violate the rights of an accused in a prejudicial manner or raise question about the impartiality of the process in a prejudicial way. Depending on the legal system, the recourse to violation of a procedural problem varies. In American criminal law, among the remedies for a such a violation are exclusion of evidence, or dismissal of charges. These are the sorts of things that infuriate critics who believe criminals are escaping justice by, "getting off on a technicality"

If your worldview is based on ideas of equal protection, due process and individual rights, you are inclined to take these issues seriously. Here, there are also significant cultural issues between countries based on Common Law and those based on the Napoleonic Code.



The Landis case show how these problems mix together in various ways. The defense claim of no crime is based on what it presents as substantive problems.

The arguments for substantive problems include procedural problems. The issues of identity problems have not really been offered to say they aren't Landis's results, but to demonstrate procedural problems that may rise in aggregate to the level of a substantive problem in the reported test conclusions.

Many of Landis' arguments that there are substantive problems invalidating the claim there was a crime will appear to some viewers as trivial procedural problems, which are, to them, meaningless technicalities. To other viewers, these issues may completely impeach the credibility of the prosecution case.


Technicalities and Anti-Doping

The Anti-doping enforcement system is intentionally set up to seriously reduce the effect of procedural problems. It is aligned with the idea of a "harmless error", ignoring procedural problems unless they rises to the level of provably substantive problem. This is so frequent, it is news when procedural problems are not ignored.

A rare example of this is Landaluce, who "got off" because the same people worked on both the A and B sample tests. This was seen as clearly against the rules, and the defense did not need to show that this actually compromised the results. It was surprising because it was the sort of error that is often dismissed, even though it is like a student grading his own exam.


Substantive Problems and Anti-Doping

Substantive problems are also treated skeptically by the system. For example, the Landaluce defense made a number of substantive arguments which were dismissed by the panel, not because they were untrue, but because the panel was unwilling to consider them. For each issue, they decided there were conflicting experts, and unless the prosecution expert recanted his position, they were going to accept it no matter what the defense expert said.

In another case, the arbitrators blandly accepted an assertion that a sample left at room temperature 3 weeks trapped in customs would not have been degraded, and the results were valid.


Pursuit of many deep substantive problems is explicitly discouraged by the anti-doping rules. The athletes is denied the ability to seriously challenge the basis of the science underlying a test, or how the test is to be done. These methods are taken as correct, and not subject for review in the process of the case.

In simplified terms, you don't get to challenge whether a dunking determines if you are a witch.

You may be allowed to argue that the pivot point of your dunking stool was improperly greased, which is why you didn't sink.

It is not clear if you are allowed to argue that you were sinking, but the stool operator stopped the test and declared you were floating.

If the test protocol doesn't say how much grease there should be, or how long the test should take, or what constitutes "floating", it is possible for the process to say the methods were within the tester's discretion, and we trust him, so you're a witch.

These restrictions seriously hinder a defense, and oblige it to pursue paths that can make little sense to the public, and appear as "trivial technicalities." They want to hear you say, "there are no witches", or "dunking is an invalid method for determining if you are a witch". They don't expect you to be arguing about the amount of grease or how long you were given to sink. Thus, all these arguments come off as you sounding like someone with tricksy lawyers.

In balance, under the Anti-doping system one is more likely to be convicted on a procedural or substantive technicality than found innocent. The system itself realizes this, as demonstrated in the case of Zach Lund, where the ruling asserted he'd been badly served by the system, but banned him anyway, because the rules allowed no other outcome.

Nevertheless, with Landaluce we see the image of a "guilty" athlete "getting off on a technicality", which suits the agenda of the agencies.


The Point of Absurdity

One result of this system is that the procedural "technicality" that may win the case appears to the public to be nonsensical. We see with Landaluce that some procedural details can be considered important, and a defense may be wise to focus on them rather than rather than the truly substantive matters that can't be considered effectively by the process. Because the system is set up to ignore your substantive arguments anyway.

That is, it may be more effective to argue the Witchfinder said the wrong incantation, or had the holy book oriented in the wrong direction, than it is to say, "there are no witches, dunking doesn't prove anything, I sank anyway, even though the stool was wedged not to sink."

And should you be released on the "technicality" of incorrect incantation, many of your neighbors will think you're a witch anyway.

Since the system allows little opportunity to show the prosecution is, well, wrong, a defense is cornered into arguing "technicalities". Even if the athlete wins, the prosecution side can say he was "guilty" and leave the reputation damaged. The system has designed out the possibility of a true exoneration. The athlete is guilty when accused, and can only escape on a "technicality".

This is a system Franz Kafka could have designed.


Conclusion

Given the structure of the process, there are procedural arguments that have to be made by a defense. They may seem silly to Susie Soccer Mom and Joe Sixpack, but may turn the result one way or another. It would be legal malpractice not to make them. Observers should not interpret their presence in a defense argument as tricky lawyering or weaseling.

Yet everywhere we turn in the Landis case, subtle matters of interpretation appear, and each of these turns on a "technicality."

It would be so much easier for everyone if the meaning of "metabolite(s)" was not an issue. If all the test results were at clearly obvious levels one way or another, we'd be done by now. But that is not the case, we're in a "technical" area. Is finding out what "metabolite(s)" means an improper questioning of the test science? If the rule for evaluation is badly written and ambiguous, who should get the benefit of the doubt, the agency or the athlete?

When the outcome of a case depends so strongly on interpretations, and where the burden of proof lies, it is difficult to make a claim that any result will be clear and convincing. We may get a resolution, but no real answers.

It is possible the actual merits of Landis' guilt or innocence will not be determined by the process. The scientific, substantively gray areas may not be considered or satisfactorily resolved. This can happen if there are procedural problems on which the case may be decided, or if the evaluation of the substantive problems is short-circuited by a literal presumption of correctness to which challenges are not entertained.

If that is what happens, whichever side loses will have proponents that claim the reason was a "technicality", and not a matter of "substance", and that everyone else should imply exactly the opposite of the resolution.

All we can hope for is enough visibility into the arguments and process that the public will have the chance to make informed judgments about the quality and credibility of the result. The document releases Landis has given us a better view of the process, and an open hearing promises to give us even more. We should all be looking at the bigger picture of what the process and result will say about the current anti-doping system.

The "making it work" analysis we mentioned in For Legally Inclined Readers is a good starting point. We'll soon start our own series discussing issues raised in that paper as applied to the Landis case.

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6 comments:

daniel m (a/k/a Rant) said...

TBV,

Excellent analysis and extremely well written. Looking forward to more of the series.

- Rant

Anonymous said...

I think you could make a distinction between the scientific and legal ideas of "truth". That scientific truths are probabilities, while legal truths are verdicts. However, many scientific results that begat legal repercussions are defined by a legal framework (threshold substances, for example). Now, in the particulars of Floyd's case the idea is murky (is the IRMS result a threshold substance?), but in the end he will be rendered a verdict. In the Landaluze case the CAS panel decided to embrace both ideas of "truth", although one outweighed the other. Personally, I think if Floyd survives two hearings he should be free to race as he pleases.

-Ferren

Jim T said...

One thing I have never understood is that questioning the science behind the doping test is prohibited. What is WADA afraid of? If the tests have been validated in peer reviewed articles, then WADA can meet any challenge to the tests. If the tests haven't been so validated, then why are they using them?

I just finished an article (in a peer reviewed journal no less) that suggests that WADA doesn't really adhere to accepted scientific principles in determining its banned substances or in authorizing the tests used to find them. This is simply unexcusable - this system needs to be fixed.

Anonymous said...

Excellent analysis of the situation. Some of your best work yet. Your work is appreciated.

Anonymous said...

This commentary, and many more along the way have been enlightening, and also represent a truly unique use of technology. I'm an aging rookie cyclist - old techie - former athlete... I've read some of Dick Pound's books, many of the book on Lance. I found the '06 tdf and Floyd's story riveting.
I would suggest that when this saga reaches a point of resolution (and I am hoping for a resolution in Floyd's favour), that you, perhaps with Rant and a few others, can capture the tale of this unique labour and tell the story as a narrative, and capture the essence of the daily discovery and dialog in a published book - I think with some suitable editorial contributions (Phil et al) this should be preserved as a revolution in the sport / legal / media world.

I don't know what the copyright implications are to capturing and publishing/preserving a blog for posterity would be (in print), but this looks like something that may have mass appeal...

tbv@trustbut.com said...

JimT:

The reason they don't want to allow questioning the test is the elusive god of efficiency in the process. They don't want it bogged down by those issues.

They wrote the rules to suit their puposes, putting on the thinnest possible veneer of due process they felt they could get away with.

They use the tests they feel they can, because they are up against the terrorists, er, dirty dopers who are doing everything they can to beat them.

In all honesty, much of the time they work, and those positive are clear positives who cave when confronted.

The problem is that the assumption that all positives /are/ clear positives, and refusing to recognize the possibility of errors.

In my professional career, designing fault tolerant systems, my feeling is that only the error cases are interesting. If you refuse to acknowledge they exist, your system goes kerblooey in spectacular ways.

I would like a reference to the article you mentioned, it sounds interesting.


Anon, if someone is going to do a book, I hope they get a big advance, because I don't know that it will sell. I know that I don't have the time to become actively involved, and I've learned that my writing is good for the 10 word blurb, or succinct essary, but rarely any extended form. Which is to say, I gave up on my Great Novel about 25 years ago!

Blogger doesn't delete stuff, so this will remain here, suffering link rot, for longer than it'll be interesting to anyone but a masochistic academic.

We /do/ appreciate the kind words, make no mistake, but we're wary of claiming any great significance.

cheers,

TBV