Friday, May 18, 2007

Hue-Friday's Mailbox

The number 1 question we are getting is why no statement from the Landis camp about the situation that occured yesterday.

Both sides are prohibited by a gag order to comment on anything concerning the proceedings so it isn't likely that any statement will be forthcoming.

We are having some technical issues with the Q and A, sometimes the questions don't appear but the answers do. Go to "full post with comments" button and it will take you to full text.



This is where you should all post any questions you have today. We will try to answer them. If possible, try to keep them short so we can do them as quickly as possible.
Thanks.
TBV and Bill

"What is the mood in the Landis camp? I would think that they would be devastated after yesterday's disaster, but I haven't seen indication of that. And are they contemplating a public statement on the Geoghegan matter, as swimyouidiot suggests elsewhere?"
[MORE]


There is a "gag" order in effect so it is not likely the defense team will issue anything. The lawyers seemed rattled yesterday, for good reason. Today, they appear to have regained their footing. FL was roaming the halls early this morning and his mood seemed as it was 2 days ago, upbeat and friendly.

It was pretty clear that Lemond wanted to talk about Landis's "threatening" post before he was dismissed ("can I say one thing?"). Do you think the bombshell might actually be to FL's advantage since the prosecution was not able to cast aspersions directly on FL's character (that seems to be the obvious reason for bringing GL to testify).

I think the way it ended, if it stays in evidence, is a wash.


Could Will plea bargain and finger Floyd if in fact Floyd was at all responsible -

I suppose so.

Could that be used as further evidence of doping violation in an appeal at CAS?

Yes, because that would be a brand new trial.

If Floyd takes the stand in the arbitration he will have to say definitively what role he had in Will's (alleged) stupidity. If he then gets involved with a criminal trial of Will what can the criminal courts and doping authorities do with any inconsistencies in the testimony given here and there.

Whatever is said under oath anywhere, can be used to cross examine the person who said it in any proceeding.

Particularly, in a hypothetical scenario where Floyd begins to ride again after being vindicated, Will's trial is likely to happen concurrently to Floyd returning to the sport. Does the Wada/usada code allow a re-arbitration based on new evidence

Yes, if the new evidence establisheds a new violation of the anti-doping code.

Will might put on record despite the fact that Floyd answered the same charges in a previous and slightly different form?c) In investigating Will, do the cops and prosecutors in Malibu have a legal duty to disclose to the arbitrators any information that clearly goes to culpability or non-culpability of Floyd - either before or after Will stands trial or pleads guilty.

No, that is the Operation Puerto problem.

If Floyd takes the stand in arbitration can he answer questions selectively by relying on the fact that he does not want to incriminate himself in any present or future criminal matter involving him and Will?

Yes, a witness is permitted to plead the 5th Amendment, selectively or as a whole.

Can the arbitrators draw inferences from such selective comments and/or silences?

Yes, in a civil case, that can be considered.

Is it possible to create a false positive on the irms test for testosterone? Has this alreadt been asked and answered? Seems to me if Landis can establish that he can create reasonable doubt with all the lab mistakes. Am I right?

They have not discussed false positives in the USADA case and USADA would likely not bring that subject up. If Landis mentions it, they would do so through their own expert later in the week, where its entry into the record can be controlled.

Is it certain that the case will be appealed to CAS? Are grounds for appeal necessary?How does the prospect of CAS arbitration influence current Prosecution and Defense strategies?Why present the best prosecution/defense now and allow the opposition to better prepare for CAS?

The appeal is a matter of right to both parties, to UCI and to WADA, independently. The appeal is de novo, meaning that the evidense is presented anew to the new Panel, in closed session, without public scrutiny. so ant appeal strategy does not play out here. whatever doesn't work can be presented and accepted by a new Panel. whatever works here, might not work in front of a new Panel.

A commentor suggested that if we don't like the "rules" set out by the TdF/ASO, a rider can simply choose not to race their event. Is certainly true, but what testing procedures can be enforced by contract? Has FL's Phonak contract ever been made public (or any pro team's contract?) What does a pro cycling consent to when joining a team, or joining US Cycling? Or entering a UCI race?

By taking a US license, the athlete consents to the WADA Code.

Do you feel the arbitration panel lacks a sense of judicial dignity?

I feel their sense of dignity has been exemplory.

Unless I missed it, I haven't seen the items in Arnie Baker's slide show discussed. Specifically, the use of white-out on the form instead of correctly overwriting the mistakes, and the level of contamination in the sample. Will this be discussed, or has something made this irrelavent?

Landis started direct of his first witness so if the white-out is an issue, it will be developed during the Landis case.

21 comments:

Anonymous said...

What is the mood in the Landis camp? I would think that they would be devastated after yesterday's disaster, but I haven't seen indication of that. And are they contemplating a public statement on the Geoghegan matter, as swimyouidiot suggests elsewhere?

jr said...

It was pretty clear that Lemond wanted to talk about Landis's "threatening" post before he was dismissed ("can I say one thing?"). Do you think the bombshell might actually be to FL's advantage since the prosecution was not able to cast aspersions directly on FL's character (that seems to be the obvious reason for bringing GL to testify).

Great job, by the way. Thanks a million for all your hard work.

Anonymous said...

Mr Hue,

If Lemond was truthful, then Will is going to have to stand trial or plead guilty in a criminal trial. I am wondering whether Will, Floyd and other members of their team will likely have to testify in a criminal trial for witness tampering.
a) Could Will plea bargain and finger Floyd if in fact Floyd was at all responsible - could that be used as further evidence of doping violation in an appeal at CAS?
b) If Floyd takes the stand in the arbitration he will have to say definitively what role he had in Will's (alleged) stupidity. If he then gets involved with a criminal trial of Will what can the criminal courts and doping authorities do with any inconsistencies in the testimony given here and there. Particularly, in a hypothetical scenario where Floyd begins to ride again after being vindicated, Will's trial is likely to happen concurrently to Floyd returning to the sport. Does the Wada/usada code allow a re-arbitration based on new evidence Will might put on record despite the fact that Floyd answered the same charges in a previous and slightly different form?
c) In investigating Will, do the cops and prosecutors in Malibu have a legal duty to disclose to the arbitrators any information that clearly goes to culpability or non-culpability of Floyd - either before or after Will stands trial or pleads guilty.
d) If Floyd takes the stand in arbitration can he answer questions selectively by relying on the fact that he does not want to incriminate himself in any present or future criminal matter involving him and Will? Can the arbitrators draw inferences from such selective comments and/or silences? If no adverse inference can be drawn by the arbs and if Floyd knows he has no role in Will's stuipidity, what is stopping him from pretending he cannot answer questions relating to the criminal stuff simply so that he can say what works for his defense and no more. This only begs the question - if he claims not to know X, and then the Will criminal stuff shows he does no X, does Landis face a perjury charge for what he said in arbitration? If so when and if Floyd takes the stand we could see something that I would ascribe more credibilty to as an onlooker, ironically because of the alleged stupidity of his friend.

Anonymous said...

Case closed. We can all stop watching. It's ok because she said so.

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

Landis should walk away. He is trying to undermine the science and reduce it to a "he said/she said" and now that is burnt. toast. It doesn't matter now, nobody, and I mean nobody will listen to anything he says after his longtime "friend" made a disastrous lapse in character and moral judgement.

You are busted Floyd-stop it. Anything you do is self-serving and undermines cycling as a sport. You should take the Ulrich way and just drop out and be forgotten.

Anonymous said...

Well, I guess I'm "nobody, I mean nobody," because I'm still listening. Smoke and mirrors somehow didn't phase me. Who'da thunk it?!

I think we'll be inundated with Anonymous "it's over, give up, Floyd" posters here in the next few days. If they say it's so, it'll be so. Right?

*****WRONG***** Spin doesn't win.

Camille

pommi said...

Bill, are you the guy with the laptop, sitting in the first seat in the second-to-last row on the right side ?

bill hue said...

pommi,
yes!!!!
TBV is right in front of me.

Anonymous said...

What do you mean smoke and mirrors? Is that a reference to the "science" of the tests. How can you dispute that? Are you saying that Floyd is that "1" in "1" of a trillion. Floyd repeatedly pointed to the fact that none of his other tests came up positive during the tour. So what did they do? They tested the other samples. None of his other test came up positive on the "A" sample. Which is just a litmus for testing the "B". By the way "litmus" is "A test that uses a single indicator to prompt a decision." Namely to further test his blood for synthetic steriods.

How is that "spin". Are you saying that proving something by applying standards that are used for everyone is "spin"?

Anonymous said...

Floyd Landis = Tanya Harding !

Anonymous said...

Is it possible to create a false positive on the irms test for testosterone? Has this alreadt been asked and answered? Seems to me if Landis can establish that he can create reasonable doubt with all the lab mistakes. Am I right?

ilsanjo

Anonymous said...

exactly. That's what he is trying to do, and then base the case on a character. Namely, that he wouldn't do anything that endangers himself or cycling as a sport and is a stand up guy that wouldn't have, or have his "business" partners, i don't know, help him cheat or call up and try and intimidate anyone.

His case is based on that. That he is a stand-up guy so therefore the test (oops, the tests (plural) now) are wrong.

Anonymous said...

Great reporting job!

Is it certain that the case will be appealed to CAS? Are grounds for appeal necessary?
How does the prospect of CAS arbitration influence current Prosecution and Defense strategies?
Why present the best prosecution/defense now and allow the opposition to better prepare for CAS?

SMC - Houston

("Eightzero") said...

A commentor suggested that if we don't like the "rules" set out by the TdF/ASO, a rider can simply choose not to race their event. Is certainly true, but what testing procedures can be enforced by contract? Has FL's Phonak contract ever been made public (or any pro team's contract?) What does a pro cycling consent to when joining a team, or joining US Cycling? Or entering a UCI race?

Anonymous said...

I'm thinking that not getting to cross GL ends up not being a big deal. If Jacobs intended to scewer him about WG's call, based on GL's allegations that Armstrong threatened his wife, that is now a moot issue since WG in effect has confessed. It is questionable, IMHO, that grilling GL about FL's phone call to him would have gotten much more than "that's my story and I'm sticking to it.

Best thing for FL to do at this point is move way beyond the Lemond circus.

pommi said...

Bill, on a lighter note: is Papp wearing the same tie as Floyd ?

Illinoisfrank said...

Cross examine Joseph Papp:
Mr. Papp, do you work at the LNDD lab?
No.
No further questions.

BannaOj said...

Mr. Hue,

Do you feel the arbitration panel lacks a sense of judicial dignity?

AJ

Anonymous said...

Mr. Hue,

Unless I missed it, I haven't seen the items in Arnie Baker's slide show discussed. Specifically, the use of white-out on the form instead of correctly overwriting the mistakes, and the level of contamination in the sample. Will this be discussed, or has something made this irrelavent?

Bob

Anonymous said...

SMC,
I think that an appeal is guaranteed if Landis wins unless the panel unanimously throws out USADA/WADA's case before the end on the grounds that it failed to follow procedures required by accrediting agencies with citations. Even then there could be an appeal in an effort to preserve the system. If Landis loses, then it is at least in part a matter of expense - can he afford to do it and would the necessary professionals gamble on future fundraising to pay their bills. They are not working for free.

Another of the strange characteristics of this proceeding is that neither side is interested in building a record for appeal. Errors by the panel don't make any difference; no one looks at the proceedings and says they were wrong and what they should have done. In a trial a party raises issues that are losers in order to argue them at the appellate level. This is how our law evolves. Miranda warnigns came out of a case that lost at every level short of the U.S. Supreme Court. So did Brown v. Bd. of Education.

In this system if there is an appeal it is carried out in private and against the background of Swiss law (I think the latter is correct). The whole dog and pony show gets put on again with a new panel deciding what it will see and hear. What happens a Pepperdine is immaterial, except that it was the stepping stone to the new hearing. Well, a witness could not reverse their position on something without their prior testimony being waived under their nose. But that would be the only value of Pepperdine in the next step.
pcrosby