Thursday, May 17, 2007

Hue - Post Hearing Observations

Lost in the endless rehashing of todays events are the legal issues still remaining from the Lemond testimony.

Will the arbitrators strike Lemond's testimony?


It is noteworthy that shortly after the Lemond testimony recess, Mr McLaren found his voice and began making rulings. It almost seemed Mr Brunet yielded the Chair to him and, in fact, McLaren took some immediate steps, including simply dismissing Lemond as a witness.

Mr McLaren took this step after inviting Mr Jacobs to continue his examination. Mr Jacobs wanted to call Lemond's credibility into question by asking him questions about the Armstrong arbitration case Lemond testified in. Without citation to legal reasoning, case law or other authority, Lemond's attorney told Lemond not to answer such questions. Lemond indicated he wouldn't answer them.

The Panel could not require him to answer because they have no authority over nonparties, the same rationale they used to deny Landis the opportunity to depose nonparty witnesses Mongongu, Ferlat and Chirpolini from LNDD prior to hearing.

This poses a problem for Landis because Jacobs yielded any opportunity to cross, even after McLaren invited him to continue. The Panel might decide that Jacobs made a tactical decision to terminate and deny his motion to strike the testimony, just as they have found reason at least three times before to deny a Landis request based on their determination that Landis' attorneys made tactical decisions and must live with them. I have called this "hoisting them on their own petards".

If the evidence is in, what does it mean? Right now, without cross, an inference exists that Landis admitted that he doped to Lemond by saying "What good would it do?" and "It would hurt my family and friends". Absent Landis's own version in evidence, that notion is viable, subject only to argument that those phrases mean a variety of other things, and they do.

Further, there is an inference that Landis threatened Lemond to try to keep him quiet about Landis' "admission" in the internet posting . Finally, yesterday's phone call can be construed to reestablish the threat previously made and it might be argued that by sharing confidence of the Lemond conversation with Will, Landis had to know Will would carry out the matter further. Of course, other arguments can be made; that Will was a loose cannon or there is no evidence that Landis had anything to do with it.

If the evidence is in, the Panel may simply assign whatever weight they want to give it and the in that regard, the evidence seems marginally relevant at best and pales in comparison to whatever or however the arguments on the science resolve themselves.

If the evidence is stricken and there are a few very good reasons why it might be: it is more prejudicial than probative and Landis didn't have an opportunity to cross on credibility, for example, the case can just move on.

But the rest of the cycling world probably will not move on. And whose fault is that? Landis', for demanding that the hearing be held in public, hoisted on his own petard again.


Jim T said...

If the panel want to make any rulings in Landis's favor to give an appearance of fairness, this is the one to make. Lemond's testimony is of little value to anyone, so why not just get rid of it?

USADA can claim that valid testimony was stricken and the panel ruled against them, so they look good, the panel can say they didn't always rule in USADA's favor, so they look good. It's a win for everyone, except ironically Landis, who would win the motion, but who has probably already lost the hearing.

Anonymous said...

But the rest of the cycling world probably will not move on. And whose fault is that? Landis', for demanding that the hearing be held in public, hoisted on his own pitard again.


I don't see how Flandis can live this down. On various Internet forums you can see that previous supporters have flipped. Wait until the editorial appear in newspapers over the next few days. It won't be pretty.

This whole thing was a huge mistake. As they say, it's the cover up that gets you. From a comment to Lemond that could be interpreted in many ways we get to where we are now.

Ali said...

So Floyd phoned up Greg (who he hardly knew) to complain about comments made by Greg alleging that Floyd doped. Greg pulls a 'I'll show you mine if you show me yours' and Floyd immediately folds with a complete confession to someone who has already been bad mouthing him to anyone who'll listen. Does that sound likely to you ?. Would anyone out there do that ?

If Floyd had confessed to Greg, do you not think that Greg would have stated expicitly by now what was said. He's happy to go in front of the world media and reveal that he was sexually molested as a child, but he can't quite bring himself to reveal what the 'doper' Floyd confessed to ?. I think not !.

It amazes me how easily some members of the public can be led. The first sign of a bit of scandal and they become enthralled, unable to think for themselves anymore.

Anonymous said...

...and Floyd immediately folds with a complete confession...

What complete confession? What Lemond claims Landis said could have been explained away in a number of ways. It hardly amounted to anything. But since Landis and crew decided to intimidate Lemond, Landis now looks guilty as hell.

Anonymous said...

I am not a blind Landis supporter but there are some curious (read, “fishy”) things going on here:

1) G. Lemond meets Landis one time, and then on their second ever conversation (not even in person) he divulges to a near stranger that he was sexually abused? This is really odd.

2) Would someone really be that stupid to call a witness the night before their testimony with threats/disgusting prank from their own cell which everyone knows the number will show up on the caller ID? If you wanted to threaten/be really vile, why wouldn’t you use a pay phone or something. Is Will really that stupid?

3) There is a jump to conclude that Landis’ threat to Lemond in the DPF post was in regard to the admission of abuse. Landis’ parenthetical statement further down the post “…who believes that if others didn't cheat (not sure about you)…” shows that what Landis had on Lemond most likely had something to do with the latter’s involvement in PED and not the sexual abuse. It seems like Landis’ threat was not to divulge the personal tragedy of Lemond’s abuse, but rather that perhaps the self proclaimed champion of clean cycling isn’t (or at least hasn’t been) so clean after all.

Aside: It was a mistake for Jacobs to play the Lance card with Lemond. He should have crossed Lemond on some of the improbabilities noted above rather than try to show a grudge against the Lance-centric cycling world. Thus, Landis’ attorneys have now committed two major gaffs. Firstly, Suh was wrong to stop down his cross on Monongu for that document, and Jacobs was wrong to get the Lance issue involved. These will be two costly mistakes in the long run.

Anonymous said...

Perhaps Mr. Hue could enlighten us as how a similar allegation of witness tampering would/should be handled in a criminal trial. Would the witness testify about this during direct in open court? Or would the attorney bring this to the judge's attention in chambers?

Anonymous said...

Huge mistake by Jacobs to discontinue cross on LeMond. He should have asked him questions about the call with Landis or his previous comments about Lance in general. He should have also asked him about the details of the call from Will. It would be very easy to make LeMond look like a jealous old fool. Instead, his testimony is now uncontraverted.

When Jacobs realized he couldn't ask questions about LeMond's deposition testimony, he took a hissy fit and went on a rant about the unfairness of arbitrations. Then, he was too flustered to continue and stopped asking any questions of LeMond.


bill hue said...

Typically such testimony would be reviewed in something called amotion in limine prior to trial. If it is more prejudicial than probative, it would be excluded. Of course, in a real trial, there is complete discovery so that such motions might be made and resolved well before trial. Here, in a classic move from the pre-discovery era, the surprise testimony was first revealed at trial and the attornys appeared flustered. That is the idea.

Anonymous said...

1. The whole Lemond thing is obviously awful/sleazy/etc, and does in fact have some probative value with respect to whether FL used a prohibited substance.

2. That said, consider that ADA was prepared to put Lemond on prior to the Geoghan call even happening. Quite frankly, FL's alleged "admission" doesn't strike me as being particularly compelling or probative, particularly without the testimony of the later phone call. I think it reflects extremely poorly on ADA (and their case) that they would feel the need to put this kind of pathetic evidence on...but now it's more powerful than it should have been.

3. Bottom line: Stick a fork in Floyd, but oddly enough, I am more firmly convinced than ever that he's 100% right that the whole antidoping enforcement process is completely broken and in need of major major reform. Setting aside whether the ultimate finding is "right" or "wrong," the sad part is that ADA will hail this as a successful process, when it was in fact a 3-ring circus.

Tyson said...
This comment has been removed by the author.
Anonymous said...

Perhaps he stopped cross examination of Lemond because he didn't want to use their 25 hour time allowance on "he said, she said" type testimony. I assume Floyd will take the stand and give his version of events to contradict the alleged confession. Perhaps Geogehan will testify as well to dispute what was said during the alleged phone conversation. At this point, we know a call was made from that number to Lemond. However, we only have Lemond's version of what was said. Seems crazy to think that Lemond made it up, but this case is becoming a soap opera.

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...

Great analysis of the case; bringing folks back into focus hopefully.

The fact that many people may have turned on Landis is an example of what spin and p.r. are all about. Ali is absolutely right. If Lemond had a firm, clear admission out of Landis it would have been public knowledge long before this.

Anon 7:43 is also correct. In a catch up comment to the prior post I wondered why they used Lemond here - when all they need is to make out a scientifid basis for the positives - and not save him to use as a bomb in rebuttal. Will's action made the firecracker a bomb; I am surprised that they did not alter their plan and save him. Probably too focused on going after Landis or Lemond was not willing to sit around and wait or to come back. Anyone know where he lives?