Tuesday, May 22, 2007

Hue - Mailbox- Tuesday

Ok, I can take some questions if you have them.
Bill

Will Davis have a chance to do the software demo tomorrow?


That is worth watching. The Truth? Can we handle the truth? If the Panel doesn't allow it, something is fishy.

[more]

Any idea how much time Landis defense has left?


We'll get an exact count at the start, tomorrow. They are almost finished and Davis is their last witness. Redirect also seems short, but USADA has al ot of time left.
Time was always difficult to control when I was a lawyer and time preservation and expenditure by the Landis team was terrific in the trial. Plus, remember, Barnett gratuitously offered more time to them, so it should not be a problem.

I assume this arbritration has no direct effect on other's cases involving LNDD, but now that Landis's team has shown what appears to be gross incompetence by the lab's employees will the results be at least admissable in other cases if the panel sides with Landis?


It may be relevant in future cases as a template. I believe LNDD was the Landaluze lab, as well. They are not having a good year. The more interesting question is whether other cases can be reopened on this "new" evidence.

USADA offered 3-4 hours of their time to Landis yesterday. Can they back out of that now? I think Floyd's pretty much out of time without it.


I think Landis is ok on time. they would look very petty to withdraw the offer and I don't think the Panel will let them.

can you explain a bit more about the burden of proof issue and how it's changing?is it typical in arbitration for the burden to be on the defendent? what are the circumstances where it switches?


USADA has met the first burden; That Landis has has both his "A" and "B" samples from Stage 17 reported as an adverse analytical finding. Now it is Landis' burden to show any violations of International Standards. If they determine he did, USADA would have to prove that the violations didn't "cause" the adverse findings (he was a doper)

On a more qualitative note, what are the odds that the panel will care one way or the other? in other words, the totality of the evidence is what it is regardless of burden so even if the burden is on usada and they don't meet it but the panel still thinks he doped, would they rule against landis anyway?


They didn't do that in Landaluze. That Panel thought he was a doper (because there was good evidence he was) but he showed one LNDD technician analysed parts of both his "A" and "B" samples. It was established that that was an International Standards violation and the Spanish ADA failed to present any evidence to rebut the presumption.

What are the issues with regard to appeals? my understanding is that either side can appeal. to whom do they appeal, what is the (potential) bias of that body? do they have to grant every appeal? with they simply review evidence and briefs and rule or will there be a whole new trial?If, say, the landis wins 3-0, is the usada in so deep that they'll appeal no matter what or is there a chance that if they lose they'll "take it like a man" and let it go?


Both parties as well as WADA and UCI may appeal. The appeal is to CAS. The hearing would be in the US but will be in private and it will follow Swiss Law. The hearing is brand new. They will have to do it all over again.If USADA lets it go, UCI and or WADA can carry on an Appeal.

I know that I am biased in favor of Floyd, but I don't see how the panel could possibly rule against him based on what I have seen so far. Am I seeing this wrong?


If the Panel rejects his arguments that International Standards were violated. He will lose. I wouldn't make a call on it even tonight. Waqit until all the evidence is in and the arguments made. then, figure out what Botre's roll is because that is a wildcard.

About the manual/auto subtraction thing... If the code/methodology for the automatic process is now lost, shouldn't it be done manually, so that whatever process is used can be documented (even though they didn't)? If they had done it automatically, couldn't Landis claim that it's faulty because we don't know what the process is?


That is part of the argument, I think. Check TBV's summary later this evening as he will comment on that.

WHY wouldn't the panel compel LeMond to testify under cross examination? OR was this a miscalculation on the part of team Landis? I would thinks that since LeMond has a supposed history making false statements( the Lance Armstrong's threat against LeMond's wife) it seems that it would be pertinent. Now FL is posited as the only villain, which may not be so, and despite the media characterizations it's a "he said, he said" thing . Thank you.


I don't think the Panel understood the power it had to compel testimony under California law. Brunet said a number of times they couldn't make him but they could go to a Circuit court Judge (that is what i am) and ask him/her to order the witness to testify. If the witness wouldn't testify after that, contempt of court proceedings could be brought. Perhaps the value of the testiimony didn't warrant the investment of the time all that would take. You are welcome!

Assuming that Davis does as well on cross as we all expect (hope?), seems that would be ripe for a motion for a determination that the burden has shifted to USADA/WADA. Closest thin I can think of that is similar to a directed verdict in this system. Lack of procedural rules should make it possible to do, although they might refuse to address it. They can hide behind the timeline, but it would be interesting to have the water tested. A 2-1 or 3-0 on the issue shifting the burden to USADA/WADA would be instructive, diminish the impact of Botre and stagger USADA/WADA


We talked about this quite a bit when i was out there. I thought cases would just end on calls for votes such as you suggest at natural times during the testimony. I think that the Panel could do that (has the power to do it that way) but won't, choosing instead to hear everything and render a long and detailed decision.

One thing still bothers me; none of the defense testimony is that the tests show Landis did not dope. The USADA testimony is that the tests show he did dope. Also, since I've not been following closely, what about the issue of the additonal testing that was done, with the defense persons present; is the defense saying these tests are not accurate?


Landis said he didn't dope so there is evidence he didn't. It is very hard to prove a negative. The defense is systematically going through the tests to suggest that errors violating the International Standards rendered interpretation of any "positve" results impossible.

However, judges (sorry Bill) and juries have been known to base their decisions on biases and on improper "evidence," and simply not tell anyone about it. So . . . let us hope that the panel here does their job fairly and justly.


what goes on behind closed doors may be like watching sausage being made. sometimes, it is not pretty. Botre's role will be important. and i echo your hope everything here will be fairly considered.

I think I have you all covered, then. Everyone have agood night!!!!!

Do you think if Landis when he can sue USADA, WADA or LNND for defamation of character, lost wages or anything else?


That is a very interesting question. Let's let some of our legal eagles take a stab at that one. I'll Mongongu (cut and paste) any good answer and post it tomorrow.

48 comments:

Anonymous said...

Q: Will Davis have a chance to do the software demo tomorrow?

Anonymous said...

Q: Any idea how much time Landis defense has left?

Anonymous said...

Too stunned by Davis testimony on ineptitude and arrogance of Frelot and Mongongu to be able to speak.

Anonymous said...

Q: I assume this arbritration has no direct effect on other's cases involving LNDD, but now that Landis's team has shown what appears to be gross incompetence by the lab's employees will the results be at least admissable in other cases if the panel sides with Landis?

this guy said...

can you explain a bit more about the burden of proof issue and how it's changing?

is it typical in arbitration for the burden to be on the defendent? what are the circumstances where it switches?

and on a more qualitative note, what are the odds that the panel will care one way or the other? in other words, the totality of the evidence is what it is regardless of burden so even if the burden is on usada and they don't meet it but the panel still thinks he doped, would they rule against landis anyway?

Anonymous said...

Anyone care to guess if Oscar Periero has been following the proceedings?

Anonymous said...

Q: USADA offered 3-4 hours of their time to Landis yesterday. Can they back out of that now? I think Floyd's pretty much out of time without it.

this guy said...

another question: what are the issues with regard to appeals? my understanding is that either side can appeal. to whom do they appeal, what is the (potential) bias of that body? do they have to grant every appeal? with they simply review evidence and briefs and rule or will there be a whole new trial?

if, say, the landis wins 3-0, is the usada in so deep that they'll appeal no matter what or is there a chance that if they lose they'll "take it like a man" and let it go?

Chaz said...

I know that I am biased in favor of Floyd, but I don't see how the panel could possibly rule against him based on what I have seen so far. Am I seeing this wrong?

Anonymous said...

About the manual/auto subtraction thing... If the code/methodology for the automatic process is now lost, shouldn't it be done manually, so that whatever process is used can be documented (even though they didn't)? If they had done it automatically, couldn't Landis claim that it's faulty because we don't know what the process is?

strbuk said...

Judge Hue, now that I am partially over the shock, WHY wouldn't the panel compel LeMond to testify under cross examination? OR was this a miscalculation on the part of team Landis? I would thinks that since LeMond has a supposed history making false statements( the Lance Armstrong's threat against LeMond's wife) it seems that it would be pertinent. Now FL is posited as the only villain, which may not be so, and despite the media characterizations it's a "he said, he said" thing . Thank you.

str

Anonymous said...

One thing still bothers me; none of the defense testimony is that the tests show Landis did not dope. The USADA testimony is that the tests show he did dope. Also, since I've not been following closely, what about the issue of the additonal testing that was done, with the defense persons present; is the defense saying these tests are not accurate?

Anonymous said...

Bill,
Assuming that Davis does as well on cross as we all expect (hope?), seems that would be ripe for a motion for a determination that the burden has shifted to USADA/WADA. Closest thin I can think of that is similar to a directed verdict in this system. Lack of procedural rules should make it possible to do, although they might refuse to address it. They can hide behind the timeline, but it would be interesting to have the water tested. A 2-1 or 3-0 on the issue shifting the burden to USADA/WADA would be instructive, diminish the impact of Botre and stagger USADA/WADA.
pcrosby

Anonymous said...

str-Nothing lemond has said about LA, or anyone else AFAIK, has been shown to be "making false statements" including the example you cited. armstrong would surely have sued lemond by now if given the opportunity. youll notice that he hasn't...

Anonymous said...

Question: I thnk the defense would be much more compelling if they could show directly, on a case by case basis, why the positives were wrong.

To the question: can the 'take home' message be distilled down to the point where it is clear/without a doubt operator error?

Anonymous said...

Anon 5:32

If they have demonstrated that the tests were garbage, then how do you propose they disprove them?

It seems to me that this testimony demonstrates that the positives are questionable at best - in other words, not proof of doping. And I agree with an earlier comment - that is not getting off on a technicality.

BetweenRides

Sachi Wilson said...

I'll add to Judge Hue's comments.

this guy @ 5:18 -- the burden of proof is not always on the defendant. That is a feature of this sort of proceeding; most litigation places the burden of proof on the plaintiff (and that is what you are familiar with.) The shifting burdens that we keep talking about are, in lawyer speak, more accurately called the burden of "persuasion" -- the burden of proof always will remain on Floyd in this case. But once he puts on enough evidence to show that the LNDD work was shoddy, USADA will have to _persuade_ the panel that it was not. So it is a shifting burden of persuasion, not proof. That is kind of a slippery difference, but we lawyers understand it, and I hope that I've explained it well enough for you.

As for all the questions as to whether the panel could rule against Floyd on this evidence, and why -- well, one can only hope that the panel will rule that there was insufficient evidence that Floyd doped, given the testimony to date. However, judges (sorry Bill) and juries have been known to base their decisions on biases and on improper "evidence," and simply not tell anyone about it. So . . . let us hope that the panel here does their job fairly and justly.

the Dragon said...

Well, have to wait to see that Davis holds up on cross. Am comfortable with that, yet before this Trial (as a sports investor) I would have placed the odds on 2-1 against Landis at about 1-20. Not sure that has moved to much better than 1-8.

Regards,

Anonymous said...

Considering how USADA's case has gone today, they may want to call Lemond as their rebuttal witness. I don’t think science is going to do it for them, they need a dancing monkey bad!

-wds

Anonymous said...

(Sean in NH)

I'm sitting here reeling from all of this.

One thought that keeps coming to mind: all the WADA folks who testified that that reviewed the LNDD work and found no problems! Given the magnatude of the problems that were there... what's next?

Also: what about the head of the French ADA who conducted his own review of LNDD and found it beyond reproach? How can he rationalize that away?

Wow.

the Dragon said...

Bill,

Back to our discussion last night about USADA possibly hanging LNDD out to dry.

Wouldn't USADA have known/anticipated the testimony of M-A, Amory & Davis? If so, does that give my/our hypothesis any/more credence?

Granted we haven't seen Davis cross, yet not many other answers make sense to me.

Might Machiavelli be alive and well in USADA?

Regards,

bill hue said...

Dragon,
No discovery in this proces, just general contentions in the briefs. So, what goes around No depositions of mongongu and Ferlat, comes around no depostions of Landis'experts..

MX said...

So just conjecture on how this will shake out:

Brunet will lean heavily on Botre in the final decision-making process.

If Botre tells the panel in private that he sees no violation of IS, then Landis loses 2-1.

If Botre effectively gives the green light to hang LNDD out to dry, then Brunet and Campbell side with Landis, and McLaren ultimately agrees to do the same, on the condition that the panel's decision be carefully written to limit the condemnation to LNDD rather than the entire testing/anti-doping regime.

Anonymous said...

Bill,

Is there a list of your terms somewhere? I would like to have the Young Ruse and the Young Gambit, the walking objection, and others in a handy place.

Great job to your coverage, objectivity and observation.

Anonymous said...

Ok so a lot of this looks good the last couple of days. But what comparison do we have? I mean, who's to say that Tyler Hamilton didn't look pretty good after his PhDs testified about ghosts etc.? Do you have any sense for whether the Landis people feel they've done what they need to do? Are the procedural objections yet at the level of the Landaluze case?

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

btw: Did you know that Tyler Hamilton was caught in a lie---under oath?

Closed hearing protected his dirt--unlike Floyd's open hearing.

PR = risk

bill hue said...

I don't have a glossery but maybe I'll ask TBV if I can do one.
I don't have a sense of the results. I think I may be surprised.
this case is much better than Hamiltons, if you read that decision.

tbv@trustbut.com said...

There is a glossary, roster and decoder ring right here.

We've been bad about keeping it up to date. If Bill wants to add entries, we'll all be happy.

hint, hint.

TBV

Chris said...

Do I read the Davis testimony correctly that they tested the winner of the 2007 Tour De France on a machine with a 486 processor running 20-year-old (1987) software?

Sachi Wilson said...

That's the way I read it too, Chris. Boggling, isn't it.

Ken said...

I was already deeply concerned by what had come out during the cross examination of USADA witnesses (particularly the lab techs), and while I wanted to believe FL was innocent I was only sure that the system was broken and that there were very serious problems at LNDD.

The testimony I have seen by defense witnesses the past two days, however, has absolutely blown me away. I may not understand all the acronyms being thrown about, but I do understand the need for sound processes and procedures.

USADA was not able to touch Floyd's witness on Monday and I doubt they will have much success with Davis. While I think it might be wiser for the USADA's case to get Davis off the stand as quickly as possible, I would really like to see a vigorous cross examination as I think there is more to be learn from a really good cross examination than during direct testimony. If Davis can handle the cross examination the way M-A did then we will know his testimony is rock solid.

Pending a major meltdown tomorrow by the defense or major recovery by USADA, I simply do not see how any legitimate and fair verdict could be anything but a 3-0 decision in Floyd Landis's favor.

If the result is anything else then it is absolute proof that the fix is in and this is nothing but a show trial, which is what I contended in my blog this morning that so many here read (BTW: thank you for the link and comments).

I believe what the evidence has shown that the level of incompetence is so bad and so systemic at LNDD that it is to the level of willful on an institutional level. The technicians may not be bad people, but they are incompetent and this is the fault of the lab's management. LNDD should have made sure that all staff had received proper training and that proper procedures were put in place and enforced. Rather than trying to go for the highest AAF rate of any WADA accredited lab they should have strived to have had gold standard procedures that ensured that innocent athletes did not get falsely accused. As it stands now, LNDD should be stripped of their accreditation and a full investigation conducted into their operation to see if criminal charges should be brought against anyone at the lab under French law.

LNDD is absolute proof of the fact that the same testing lab should not be testing both "A" and "B" samples of the same athlete and that the laboratory testing the "B" sample should have absolutely no idea of the sport the samples are for let alone who the athletes are. In fact neither lab should know which lab tested the other sample.

WADA also owns a great deal of the blame for the LNDD disaster because it was WADA's policies of being a good neighbor and not criticizing fellow labs that allowed things to go so terribly wrong at LNDD.

Anonymous said...

Sorry to be fretting over the comparison to Hamilton, whom I believe to be guilty (esp. given subsequent evidence etc.), but have a look at the 'conclusions' from his site. It all sounds a little too familiar.



Conclusions drawn by Tyler Hamilton & his experts:

Tyler's test results are flawed and inaccurate

The HBTT was rushed into use before it was properly validated and before the required proper materials (antibodies) were available to conduct the test

The anti-doping system is lacking in critical areas: 1. Well-funded research and 2. Independent review of new test methods

Proper oversight of accreditation is needed. Labs should not be able to implement tests by their own choosing

USADA and the LAD and Athens laboratories all acknowledged issues with the test, the validation, and the capability of some of the materials (antibodies) used. Yet, they proceeded with charges against Tyler based on their belief that some parts of the test worked properly while simultaneously ignoring the components they knew did not work properly

No athlete should be tested or charged with a doping violation through the use of a test that is not properly validated and generates fluctuating or inaccurate results

Anonymous said...

Bill-

Do you think if Landis when he can sue USADA, WADA or LNND for defamation of character, lost wages or anything else?

Thanks for your great coverage.

Anonymous said...

i meant if Landis "wins" not "when" can he sue.

thanks!

Anne Lydsay said...

I’ve been following the case on the website with interest, but am becoming worried about the increased bias towards Floyd. It seems now that even a guilty decision will not be good enough in a lot of the reader’s minds. People need to accept that if Floyd is found guilty, despite the very strong case put forward in his defense, then the case against him is indeed VERY strong. For people to move on from the French Lab, LNDD, WADA etc being biased against Floyd, to the arbitration panel being biased is too big a leap. At some point if he is continually found guilty, we have to accept he is. For the sake of the integrity of the majority of cyclists, let’s hope the case he has presented results in him being cleared by the panel, but if convicted, we must accept that despite shoddy practices in testing, he doped.

Jim T said...

That's just the problem - if the lab's practices are shoddy, we don't know if he doped. We don't know one way or the other. If Floyd is convicted, I'll need to see it back up by some very convincing reasons why the panel found the way it did.

anne lydsay said...

So you are saying unless the arbitration panel find him innocent, you do not trust their judgement. If he is found guilty it is because he tested positive for doping, and did not put forward a case good enough to prove he didn't. We have to accept that the arbitration panel will rule correctly one way or another based on the evidence presented, and that they are more qualified to make that judgement than any of us.

Anonymous said...

to anne,

Thats exactly what many people, including myself, are saying. Or rather is not so much about not trusting their judgement as much as their impartiality and fairness. Unless the USADA really does well tomorrow, it doesn't seem there is nearly enough evidence to support a guilty verdict. He may be found guilty because it is not in the system's interest to allow him to be found innocent. If the system truly is rigged, then a guilty verdict does NOT mean he doped, but rather the system is rigged. We have no way of knowing how or upon what basis they will rule. It may be fair and it may not.

This is the largest issue in these proceedings: Is the system rigged and is justice accesible to athletes?

We have to wait to see all the evidence and then try to make the call. But many decisions made thus far do not not seem to indicate a fair and just system.

kre

Jim T said...

No, I said that since we've seen evidence of sloppy lab work we don't know if Floyd doped or not. I'll need to see the arbs back up their guilty result with some solid reasons.

Are you suggesting the arbs DON'T have to give their reasons and that we should just trust them? If they find Floyd guilty, they're required to give their reasons in writing. I'll be waiting to read what they write.

Once I read what they write, I'll form an opinion one way or the other.

Anonymous said...

I'd like to see Suh channel Atticus Finch on his closing:

The witnesses for the USADA, with the exception of the former director of the UCLA lab, have presented themselves to you gentlemen, to this court, in the cynical confidence that their testimony would not be doubted.

Confident that you gentlemen would go along with them on the assumption, the evil assumption,
that all cyclists dope,
all cyclists are basically immoral beings, all cyclists are not to be trusted around our women.


OK, maybe not the very last part.

anne lydsay said...

99.9% of these tests prove negative, so I can see that Landis may have been the unlucky based on the proceedures and his test came up positive. On the balance of probability however, for him to have 4 more negatives after B testing (again assuming 99.9% are negative despite testing proceedures), is too much for me!!

Michael said...

I bet the remaining 'B' samples aren't going to come into play. The techs admitted they knew whose samples they were testing.

Also, if the Arbs find Landis guilty, do they have to state their reasons? I don't think they did with the Hamilton decision. Only Campbell wrote a dissent.

Anonymous said...

I have of course watched closely, and up until this morning kept my opinions to myself. Now that most of the testimony is in, and the real scientists for both sides have had their due, I now understand FL's frustration. There is no way you can look at the facts presented and believe that any concrete conclusions can be made, let alone a positive test result. Except for the fact that it is rife with sloppy or non-existant work. All the other smoke and mirrors are meaningless. This case from the start should have been just about the science, and once you look at the science, it is quite clear that Floyd Landis is innocent. The rest of this crap is just that, crap. I still want anyone to justify what Greg LeMond has to do with whether Floyd Landis cheated during the TDF. If the USADA had any competent science to back up their case, he would have never been there. Period.
So let's keep to the facts, not the crap.
Mike
Green MTN.
Ephrata, PA.

Anonymous said...

anne: I'm wondering where the 99.9% stat comes from. Do you have a source for that? Not only that, but we actually have no way of knowing how many A samples are tested positive, then the B's test negative. The problem with Landis's samples is they KNEW it was his B sample, and had the ability to "prove their own work" (and it sounds like a lot of manipulation was done to the B sample... and the question is "why?"). The fact that the lab is unreliable does make the results unreliable... and probably the other way as well. This lab has considerably more positives (according to opening statements, 300% more positives) than any other WADA lab... so the point is are they that much better than the other labs? As we've seen in testimony (even from the UCLA WADA lab), it's not likey they are better... just the opposite.

Remember... just because the police arrest a suspect, doesn't mean they are guilty. Look at the evidence, not the accusation.

Anonymous said...

I'll be looking forward to the cross on Davis today. He seemed to pull Floyd's case together nicely on direct. His testimony offered further examples of sloppiness in critical record keeping (the kind of records necessary to prove a finding of use of a banned product, or not), examples of how LNDD techs didn't understand how to operate / did not operate their testing machinery correctly / how incorrect operation affected the reported results, and how the newer machine still had protective packaging on it (Micky Mouse ears) that did/does affect the sensative magnet on the instrument-leading to innacurate results. If Davis gets to do his software demonstration,that has the potential to be highly instructive. If his testimony holds up on cross, as I expect it will, USADA's closing could be interesting.

If there is any justice, LNDD needs to be shut down until/if they can operate in a professional manner. WADA/AFLD has some explaining to do about their certification and statements of confidence in this lab.

How will the panel vote? That's hard to say, and to be fair, we need to wait until the hearing is over, as they should, to form a final opinion. What is easy to understand is that the panel's vote will be a reflection of whether or not, or by how much, this process is rigged. Let's hope sanity prevails.

Jeff from Newark, DE

Anonymous said...

Anon 6:04
Anne didn't follow the facts of the hearing or she can't appreciate them. She's free to have her own opinions.

Anonymous said...

Hey Bill, there's a big difference between gratious and gratuitous.