Hearing - Weds Mongongu Part II
Mongongu, De Ceaurizz and Frelat arrive on the morning of Mongongu's cross-examination.Campbell and Brunet were walking and talking together down the hall approaching the chamber.
BRUNET: please have seat. Welcome back Mr. Jacobs.
Q: During the break talk to anyone about CoC?
a: no
[MORE]
q: what makes you remember this particular test from last july?
a: when I see the document, i know the aliquot was done at 11:20.
q: I'm asking about your testimony based on what you always do, or something you explicitly remember?
a: i remember having performed the aliquot, and then I remember having returned the bottle?
q: how many aliquots do you do per year?
a: about 400 irms's in the time at the laboratory.
Q: of those 400 you specifically remember this one?
a: yes, I remember doing it, and giving the bottle to esther so she could continue her procedure.
q: you have a picture in your memory of this and what time you did it?
a: i don't remember the time, but I see here 11:20
OBJECTION: mischaraterizing?
JACOBS: I'm not characterizing anything, I'm asking a question.
BRUNET You are being asked very precise questions. You were asked about aliquots a year, and answered 400 total. This will go faster if you take a little time and answer the precise question.
JACOBS: Please read the last question.
a: yes, I do have an image of having done that.
q: this was done on Jul 22 2006, right?
a: yes.
q: what is the data of the next IRMS you did after this?
a: i don't know.
SUH converses with JACOBS.
q: you don't remember the date.
a: no.
q: remember the time of the next irms aliquot you did?
a: no, i don't remember that.
q: you were also involved in doing the irms on other samples in this case.
a: yes.
q: the ones done in april talked about yesterday.
a: yes.
q: you submitted a declaration about that testing.
a: yes.
EXHIBIT 74. -- it's in English.
q: you remember giving this?
a: yes.
q: your signature?
a: yes.
q: written in english?
a: yes.
q: did you make sure you understood everything before signing it under penalty of perjury.
a: yes.
Paragaph 7?
q: what did you mean "accosted"?
q: did he grab you?
a: no
q: did he physically interfere with your work?
a: because of disturbance.
Paragraph 12,
On two previous B sample, observers stand back quietly.
q: so you don't have great experience with this?
a: well, two is enough?
q: I'm trying to find out what you mean by disruptive? did either throw a sample on the floor?
a: no.
q: did they touch the instrument?
a: no?
q: did they physically prevent you from working?
a: the first two days they were very close to me.
q: you understand they have a right to observe what is going on?
a: yes.
q: and to observe, they have to be close enough to see what is going on?
a: close but not very close?
q: what is standing over your shoulder that made you uncomfortable?
a: yes, they were close?
q: standing right over your shoulder?
a: I was preparing, and they were right here.
q: you recall Dr. Brenna said he stood right over your shoulder, and you didn't complain about that?
a: well it isn't that comfortable with people that close to me when I work?
q: Did Brenna make you uncomfortable?
a: when anyone is too close to me when I'm working?
q: did you submit a declaration about him being too close?
a: no.
q: you never filed a complaint except this declaration?
a: what I did was, I needed to be able to concentrate. I put a scotch tape on the ground where they were not supposed to step over, whomever.
q: in the middle of this retesting process?
a: after the first two days, exactly.
EXHIBIT 99, ISL IN FRENCH, Section 5.2.4.3.2.4
q: the ISL says that you have a right to have a witness removed if they interfere, correct? If you felt Mr. Davis and Dr. Scott were interfering you caould have had them removed?
a: yes.
q: you didn't do that.
a: no
q: shortly after the testing was done, the results were reported in L'Equipe.
a: yes.
q: april 24.
a: about.
q: did you see the article?
a: yes.
MARK AS GDC 11234.
q: is this the article you saw?
a: it seems to be.
ON SCREEN.
q: apr 24th, do you recall seeing it about that time?
a: more or less.
q: specifically mentions these tests that several were positive?
a: yes.
q: reported by damian ressiot of L'Equipe?
a: yes.
q: do you know him, spoken with him, any L'Equipe reporter?
a: no
q: were you aware L'Equipe had previously reported leaked information from LNDD?
a: no
q: did you leak it?
a: no
q; Did you ask M Frelat? Dr. de Ceurrizz?
a: no.
q: did you ask anyone?
a: no?
q: Did Dr. De Ceurrizz ever ask you?
a: no
q: do you know if he ever asked anyone?
a: no
q: Did he express any concern these confidential results were leaked within 24hours of their being complete?
a: he was not happy about it no.
q: what did he say to you about it.
a: I can't quote him, but he was not happy.
q: we'll ask him later. Now Mr. Suh.
MR SUH CROSS EXAMINES
q: We're going to begin with the log files.
APR 17 LOGS
q: do you recognize this as the first page we talked about yesterday.
a: yes.
q: and you did not see it until recently.
a: i saw them when they were taking out of the lab when Mr. Botre was there.
q: QC is a critical part of any labs work?
a: yes.
q: a critical part of WADA accreddited lab is QC?
a: yes.
q: the process you described yesterday for QC begins with stability runs?
a: could I have the sheet in front of me?
q: I'm not asking about that yet. Reread the question please.
a: first of all you start with...
q: The QC process begins with a stability run?
a: no, you start with focusing on the Co2 detection
q: that is a separate process from stability runs?
a: yes.
q: following that, the step is stability runs?
a: yes. that's it.
q: following them, calmix irms analysis.
a: yes.
q: following that, calmix acetate?
a: yes.
q: following that, samples and blanks for each fraction of hte sample?
a: yes
q: followed by a cal mix acetate to wind it all up?
a: yes.
q: this process is called a sequence, correct?
a: well the sequence is separated into two. first there is the instrument verification, and then the sequence of the samples and the blank urine.
q: would you describe this as one sequence or two?
a: I suppose it could be one sequence, but I insist on the fact that there is the verification of performance, and then the injection of the samples.
q: the first part deals with QC?
a: yes.
q: and the second part has sample testing and QC?
a: yes.
q: and this sequence for each specimen runs automatically in the isoprime instrument?
a: yes.
q: in other words, once you start the sequence beginning with the stability, calmix, calmix acetate, blank, sample, blank sample, calmix acetete runs automatically?
a: you don't launch the sequence for everything.
q: the sequence is supposed to run together and automatically?
a: i'm not sure I understood.
q: earlier you described this as an automatic sequence?
a: yes, you start the sequence.
q: after you start it, the technician shouldn't need to interfere, it's automatic.
a: no, you can intervene.
q: it's designed to run automatically unless the technician intervenes?
a: the tech may decide to launch line-by-line.
q: it is a process by which they are supposed to run one right after another, and unless there is intervention, it will run automatically?
a: yes.
q: the ordering the sequence is run is important?
a: yes.
q: and run this way every time
a: yes.
q: and the results of each of these tests is important?
a: yes.
q: and the results from each of these tests are results that should be monitored in the testing process?
a: yes.
q: we do all of these for a reason?
a: yes.
PAGE 37 of USADAs BRIEF.
The mix cal acetate results form the controls run immediately befor and after the A and B samples were not only consistent with each other and the verified values established by Eurofina, the are also consistent with all other results from the MixCal Acetate controls control batch.
q: you would agree that the mix cal acetate for the B 17 should be run immediately before and after the sample for the procedure you just described.
a: yes.
GDC1056.
q: you were asked a little bit about this yesterday. 11:42:51, which is "commencing mixcal 01" and followed by "saved to mixal 01.raw" followed four lines "commencing mixcal01" followed by "saved mixcal 01.raw "
q: yesterday you said you were the one who did this testing on the isoprime?
a: yes.
q: and your decision to give the same file name to each of the entries you give here.
a: yes.
q: and you realize when you use the same name, the old data is deleted.
a: yes.
q: and the reason why this occurred this time, is because you had to prime the liner?
[ BOTRE HELPS the INTERPRETER ]
YOUNG: what i think is important...
[ SLOWING THINGS DOWN BECAUSE THEY ARE FRENETIC AND HE DOESN'T LIKE WHAT'S HAPPENING ]
q: 11:4808, four entries...
a: yes.
q: prime liner?
a: yes.
q: when you prime the liner, what does that mean?
a: when you put a new insert on the instrument on the GC, you have to perform a few injections to condition it.
q: so it's your testimony that you started the sequence, beginning with a stability run, then stopped it, changed something in the insntrument, and then primed the liner?
a: no. priming the liner, above all; change the liner before you do the QC.
q: haven't you been taught to change the liner before you start the testing sequence, which should have been run in order?
a: don't understand
REREAD QUESTION
a: but the changing of the insert had nothing to do with the sequence.
q: what I understand you to be saying is that you did instrument maintenance after stability, before the sequence was completed?
a: the changing of the liner was done before all stabilisation.
q: the way to charge the liner after the stability run?
a: the stability is to see is the spectormeter is stable.
q: how many times have you changed the liner in the isoprime instrument.
a: a lot, a whole lot.
q: about how many?
a: Once or twice a week.
q: once or twice a week you change a liner and charge it.
a: yes.
q: you don't have any records you changed the liner at this point, do you?
a: well, it would be in the maintenance log next to the instrument.
q: did you consult the log prior to your testimony here?
a: yes.
q: you consulted the log before your testimony?
a: yes.
SUH: request LNDD produce this one day's maintenance log.
BRUNET: Seems fair to me. Can we get it during lunch?
YOUNG: We don't have it.
BRUNET: get back to us when you can get it.
Q: when else in april did you change the liner? how many times?
a: as i told you, once, or twice a week.
q: how many times in March 2007?
a: i don't know.
q: times in February?
a: i don't know?
...
q: how many times in may.
a: no.
q: the only time you remember changing on a specific date is this here?
a: yes, because we were starting those specific analyses because I said to myself I'm going to change the liner and put a new one in.
q: I see. you're saying you changed it on april 17 in conjunction with these particular entries here.
a: each time i put a new liner in, I condition it.
q: you realize if you condition it, you could do it with a different file name?
a: i could have but i didn't do that.
q: believe you testified yesterday : 12:17:43 mixcal irms 01 was the one you intended to keep.
a: yes, that's where I started.
q: the is the one you intended to use.
a: once I did my two injections into charge the liner, I started doing the analysis of the precision of the instrument.
a: from what I remember, the one at 11:48:08 and 11:49 and 12:06 those were to charge the liner.
q: the one to keep is 12:17?
a: that's where I started to check the precision
LNDD 921-1014; USADA EX 87. DOC PACK
p1001
q: show me where in those pages you see the results for this test of cal mix 01 starting at 12:17?
a: no.
q: it's not in the doc pack is it?
a: no.
q: next page on the log file. 14:42:01, opening sample log file, and onto next page GDG1058 a number of entries that say processing sample 1,2,3,4,5,6,7,8 you see that?
a: yes
q: you see between the two series there's a 10 minute delay at 15:34:38 to 15:46:27. what happened to that 10 minute gap?
a: I'm not sure what that represents.
q: there's a time gap of 10 minutes. What happened?
a: i don't know.
q: let's go to the bottom 15:48:26, below there is an entry at 18:21:42, a 2-1/2 hour gap. what happened in that 2-1/2 hours?
OBJECT: lack of foundation, was this operator working the instrument at this time
SUH: we had an agreement we weren't going to make foundation objections. And in the spirit of arbitration, we'd resolve those afterwards.
BRUNET: proceed.
a: i don't know.
q: time entry at 19:52:43 same day. 20:17:24 the result is run, and again at 21:08:26, on the Blank F2.
a: yes.
q: of course the data from the preceding one is gone.
a; yes.
q: why did you decide to start this sample run over again?
GDC1058 is being looked at.
q: why does this record show you deleted data from the first run and started again?
a: there was no data from the first run because there was no complete processing.
q: and you remember that?
a; i see it there on the log.
q: aside from this, do you have any other notes that help you remember the processing was stopped.
a: no, it's there.
q: what is there that tells you the processing was stopped?
a: you see, at 19:52 it says "commencing'; at 20:17 it says it is saved. There is no written entry that the processing was complete, where there was in the case of 21:08 wnere it says processing complete in the book.
Suh tries to get to GDC1060
YOUNG asks to see the book of 1058 on the screen. [ He needs to learn quickly what this is about. ]
q: why was the processing incomplete?
a: To put in Liquid nitrogen in the cold trap
q: how did you know to do that?
a: at the end of a certain time, for the sequence to continue, I have to refill.
q: how do you remember at that time you had to stop the sequence for a refill?
a: I do it all the time before starting, I always add LN.
q: how do you know at this time , on this occasion you stopped to do that?
a: [wrinkles brow] I can't say, I don't remember specifically, but I do do this as part of the procedure.
q: so you're assuming this time you filled the cold trap?
a: yes.
GDG 1060, 9:49:41, gap to 10:04:53
q: you see about a 10 minute gap, you see that?
a: yes.
q: do you remember what happened there?
a: no.
q: same page, 11:21:41, unclear line, to 12:16:27; can you tell us what happened during the two legible entries?
a: no.
GDC 1061.
q: down to 17:37:52, gap to 18:28:27 about 50 minutes, what happened in that gap?
a: when I'm looking at the book here, there were two samples injected on that day. [ chin in hand ] so I don't know what happened in that gap.
q: 19:12:45 to 19:29:17, 16 minutes. What happened there?
a: don't know.
[ Outside smoking? wonders someone here]
q: GDC 1063 10:52:15 11:09:42, there?
a: don't know.
q: 11:54:09 12:29:52, there?
a: no, but was I on the instrument at that particular time.
q: question is whether you know anything about it.
a: no.
BREAK FOR LUNCH
19 comments:
Thank goodness. Mr. Jacobs is attacking her selective memory. I also love how USADA objects, and Mr. Brunet directs the witness to cooperate with defense. Hey USADA, keep objecting.
Wow. when did she write this declaration? Was it on Saturday after she found out that she was involved in the Landis case?
I call BS! Didn't she say yesterday that she only learned that this was related to Landis a few days ago? Now she is claiming she read the L'Equipe article on April 24th.
HAHA she can recall July of last year, the specific time and date of the BIGGEST test of her life, but cannot recall any other test she has given after that... Man Jacobs needs to stand up and call BS!
This case needs to be tossed right now, this is silly and a waste of everyone's time (though I do appreciate TBV putting this up for us). I just see USADA currently 0 for 3 with their witnesses. Are they in this to "win" or they really out to put the lose on LDNN?
Mongongu's not terribly convincing as either a scientist or a witness, but unfortunately I don't see where this is going.
So what if she's an airhead ?. That wont make a bit of difference unless they can establish that she's done something wrong and it looks like that is extremely unlikely. She just has to say 'Je ne comprend pas' or whatever and it's end of question.
Incidentally, I have noticed that the USADA witnesses appear to be defensive, either passively, in the case of the Mme Mongongu or actively in the case of Shackleton (IMHO). Are expert witnesses usually defensive ?
I think this is enough to strike this witness.
I has a picture perfect memory of the exact test (which was anonymous, only ID'ed by numbers), but no memory of anything else.
The lack of relevant maintenance logs is telling. Everyone knew that landis was going to base his defense on the accuracy of the test and the condition of the equipment. If the log were clean or exculpatory it would be there the fact that it is not should be embarrassing to the prosecution.
The prosecution is hoping that these unexplained custody and test time lapses will be ignored because it all happened in a secure environment. The defense only has to point to the L'Equipe leak to show that there was a bad person inside the locked area.
Wow, this testimony should be translated into French and published in le Equipe. This lab is an embarrassment!
As a lawer involved in Chemical exposure cases this type of testimony would doom a case.However it appears from prior rulings and the course of the proceedings this is a show trial, it will be embarrasing for USADA but they are 34 wins and no loses for a reason. USADA should not be prosecuting this case but they are because they know from the outset that the outcome will always be in their favor.
Daniel, I have no perspective from which to evaluate this. Could you say more about how this compares with what you have seen in chemical exposure cases? Why, exactly, is it bad testimony?
USADA now has to produce a maintenance log to confirm that she changed the liner at 12:17 which she says that she is positive that she did at that precise time. I can't wait to see it. If it says anything different, it will show that she is saving over files for reasons other than maintenance, and her entire testimony will be shot.
Daniel, please elaborate. I know that in a criminal case the chain of custody is essential becasue of the burden of proof (beyond a reasonable doubt). Here we are supposed to be dealing with a burden of proof that is higher than the US standard (more likely than not) but which I have trouble with. Should this have an impact here (the slightly enhanced burden of proof)?
I would put money on the maintenance log being in Paris. And that it cannot be removed from the premises under some lab certification requirement. Everyone willing to proceed with fax'd copies of a photocopy of the single page? Another waste of time that a discovery process would have avoided.
Another point. Did folks pick up on the apparent plan to have the two sides have only equal time and that it has been fixed at a maximum? If this is the panel's concept of fairness, then their cognitive function is called into question. And was USADA/Wada's time running when they screwed up with their translator. The lost time should come oup of their allotment or be added to the length of the hearing.
pcrosby
All USADA has to do is have two of the arbitrators in their back pocket. It doesn't matter what the witnesses say or what evidence is introduced. We've already seen that two of the arbitrators aren't even on speaking terms with the third. That's par for the course. I think we can assume that some people with some money and power want this hearing to show Landis guilty, for whatever reasons. Judging by these kangaroo court arbitrators, I'd say they'll get what they want. Still fun to watch, though.
Some sloppy lab documentation that may not survive in a court but I'm not so sure that it won't survive here. i'm not convinced this is a level playing field. It seems more like Landis has to prove his innocence against a presumption of guilt.
I didn't catch anything at this point that was proven to be absolutely damning with this witness though she hasn't been solid.
cleduc
just to let everyone know, tomorrow is a public holiday in france. many places are closed friday as well since it's a "bridge" day (the day between a holiday and the weekend). thursday any post office will be closed, and the lab could be shut til monday. that could mean this "missing" log may not be produced until tuesday.
Followup on my comments. In a chemical exposure case or for that matter any legal case destuction of evidence and gaps creates an inference that the evidence would be sisfavorable to your position. Failing to follow procedures would disqualify the evidence as being reliable and admissable. So most of what USADA is relying on would never be able to be introduced. The fact that in Spite of this USADA pursues the case, you have Arbitrators rule on matters without consulting the 3rd arbitator and the rulings thmselves leads me to believe that the outcome is predetermined.
They will look bad but they will win and that in the long runn is what will be remembered.
Daniel:
Sad, but I suspect your assessment is true. All the indicators are that the 'majority' of the arbitrators believe they are above any moral or actual laws. They couldn't give a toss how this appears to the public. They are convinvced that the public are too stupid to see through their corrupt opinions and decisions. Anyway, who can prove they were wrong ... that's the crux of the matter and one which nobody can tackle.
The best course of action at this point is to take Floyd's original plan of making this farce public and take it to its logical conclusion. Mass coverage. The more the merrier. The more the public spotlight shines on our friends on the panel, the more they'll think about the implications of their judgements on their own careers.
Hit 'em where it hurts ...
Daniel,
Have occassional (?) blind spots. You're right, spoliation of evidence would weigh heavily in a court (party destroys evidence that might be favorable to adversary gets hit with a presumption that it is) - but I suspect that no one but Campbell on the panel would see it this way.
The panel ("majority") has failed to enforce the limited discovery that it did order. Can't expect them to use a rule of evidence that is adverse to WADA/USADA.
pcrosby
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