Wednesday, May 23, 2007

Hue - Wednesday - Mailbox

NEW AFTERNOON MAILBOX ABOVE-12:53 a. m.

I can take questions again throughout the day, if you have them. However, you might have to find the Mailbox lower on the page and my answers will be more sporadic today, due to my Court Schedule.

I picked this one up from yesterday's mailbag. I saw To "Kill A Mockingbird" on tv when I was 6 years old. I told my mom I wanted to be a lawyer and she bought me the book, which I read when I got older. I know its a cliche by now but it is the truth and it is my life, and what ultimately became of it;

A reader wrote this in the Comments and I think it expresses one of the many reasonable points of view about this case, with a very beautiful illustration from a great American film, "To Kill A Mockingbird";

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 .....


[more]




Some of the questions have expressed the hope for the equivalent of a directed verdict of acquital. I thought that you might want to discuss the advantages of a well argued acquital by the arbitrators. In particular, if the decision is sufficiently compelling, an appeal hearing before CAS might be avoided
.

The appeal isn't upon the record, as we normally think of, so whatever these Arbitrators write, may or may not be relevant to the appeal. Here is why: The Appeal is de novo, a brand new, all over again hearing, considered by the International Arbitration Board called CAS, under Swiss law, in the US and in private, not public. 3 brand new international arbitrators will be selected.

Question for the Judge - In my experience, AAA cases permit the panel to award attorney's fees and costs to the prevailing party, even if there is no contractual right to them in the underlying contract. What about this case? Thanks!


I see that attorney fee issue addressed in many of the USADA AAA-CAS Arbitration award decisions but i have yet to see the athlete having to pay USADA's attorney fees and that is all i can evaluate because USADA has won every single case. If USADA lost, would the Arbitrators award Landis attorney fees? We can only guess, because no athlete has ever won. You are right, though, they have the power to award them to the prevailing parties under AAA. There are supplimentary Proceedures for AAA-CAS Arbitration Hearings and if they vary from this answer, i'll post, later today.

You may decide to withhold any tip-off of your Final Judgement (I understand), but if you could just say if the Mon & Tues witness testimony had a MAJOR impact on your previous thoughts, that would be enough to tide me over. :)


It has. I have been waiting to see what they could do, as the evidence seemed overwhelming for awhile, with the WADA lab heads all saying everything in writing checked out. This evidence explains how the evidence could appear to check out and still be wrong. There are still some holes to fill and if left uncovered, Landis will not have done enough to turn the burden. he has smart lawyers and there are smart lawyers on the other side who are all aware of the stakes and what is left done or undone. pay attention to closings becuase if someone left something uncovered, the other side will jump on. that is why coming to an opinion before all the facts and arguments are in is a trap.

Who goes first in closing arguments?


USADA, then Landis, then USADA (rebuttal, because they have the burden of proof). If they get 90 mins each, Landis will use all 90 in his single turn. USADA would split up its time between the two presentations anyway the see fit.

It is amusing that Catlin's word is believe when it looks good for Floyd's case, but when he says things like: "Asked his opinion on whether Landis doped at last year's Tour, Catlin said, simply: "There's no question about it. My opinion is doping is going on." http://sports.espn.go.com/oly/cycling/news/story?id=2876110&name=FPT-2876110-051918&srvc=sz
His comments are conveniently overlooked. TBV accusing the USADA of throwing the search for truth overboard and just trying to win is one of those "speck in someone else's eye, log in your own" kind of dichotomies.



Amusing how you sythesize the case down to 1 sentence in one AP article. Did you see or hear anything else about Catlin's testimony on TBV? Did you read either of our on the spot commentaries or summaries? Did we "forget" to mention that part of Catlin's conclusion and it was only to be found at the bottom of a story about a dancing monkey in the mainstream media? Can you cite to anywhere TBV glossed over Catlin's conclusion in his summary or where TBV or I said Catlin favored Landis and mentioned nothing else? You can't because we didn't. We are accused of being biased many times by people who are themselves biased, and wish not to see the counter point to their world view developed or who pretend they can't go somewhere else to find exclusively their own view with no counter point, when in fact they can go anywhere (minstream media, DPF, other bulletin boards) to get that view reinforced.
We present both sides. We seek the truth. To accuse us of the contrary is unfair, diminishes what we do and is wrong. You are free to surf elsewhere if you disagree. It is a free world. What I want to make clear is that we are introspective enough and accusing us of hypocracy won't cause us to change our ways as clever as one thinks one's point is.
Bill Hue

I'm struck by the revelations and cell phone photos presented by Simon Davis. It feels like pivotal testimony to me - the rabbit perhaps. I'm also thinking that his testimony would be fractionally as valuable if the extra B samples had not been tested. Any comments on the irony of such damning relevations coming out of the April retesting which had been vigorously fought by the Landis team (understandably enough).

sometimes you get what you wish for but it was not what you hoped it was. sometimes you get what you wish for and it is exactly what you wanted/needed. sometimes you never get what you wish for. We'll see later because this case is not over.

Is someone who is innocent (or believes they are innocent), more likely to do stupid things to convince others questioning their innocence, then someone who is quilty?


In my experience I have never had a feel or empiricle proof for either option.
bill

Most of us assume there will be an appeal. Do you have any idea if that will occur before our during the Tour in July? I know there was talk of wanting to declare last year's winner before this year's race.

Will Floyd also be tried by that French agency, regardless of this trial and the CAS? I'm sorry I can't remember the acronym at the moment. And did I read correctly that with the Will G disaster that they will not try to appeal to the U.S. government?


No appeal can possibly take place before July. you are looking at the end of 2007/beginning 2008 at the earliest. AFLD has reserved ruling on its hearing. Some doubt its jurisdiction other than to keep a rider from riding in the country of France. a poster expressed some doubts about whether Landis could continue his PR efforts to cause change in the US sports anti-doping efforts, given Will's problems but that is that reader's point of view, only.

Someone asks who carries the water if USADA ;oses and doesn't appeal. either WDA or UCI can appeal independently or in conjunction with any party.

Given the stakes of this particular case- it has to be viewed as one of, if not the most important case USADA and WADA have ever prosecuted- will the arbitration panel risk their reputations on lowest common denominator science? Can/will they really tell the defense that "good enough" is good enough to convict?

Given the legitimate questions brought to light during recent testimony, and the malleable nature of LNDD's SOP, it seems to me that a "horse shoes and hand grenades" window of certainty is just too broad for a case this important. Can't USADA be expected to have this one clean?


The measue to be tested is the "comfortable certainty" of the Panel. Has Landis been able to prove Iternational Standards violations? If so, did those "cause" the adverse analytical findings? Sre, lots of things factor in but the easiest way to get rid of "background noise" in a legal decision is to just go back to what is simple and clean. Examine it carefully, weigh the evidense and almost always, the answer pops right out. it is only when you try to make the facts fit an answer you want that the decision becomes tortured.

You mention "holes that need to be covered" by Landis' team....what are they?


He has to cover every single adverse test and if the "additional" "B"'s come in, he has to cover every additional "B". Did you hear (see) McLaren's question about the Maslynx reprocessed data, "looking like" the original data? That is what i'm talking about. That was an arbitrator with a vote, asking whether any of the Davis testimony makes a difference if the data was reprocessed on a different machine with different software.

has Landis fallen short by not making a clearer and more concise argument that testing procedures violated the standards and caused the false positive? His team is smart: if this argument could have been made, would they not have made it?


You might get that in closing. The main arguments are lack of competance in running the machine and tests, a hint of potential for manipulation and very little on the false positive aspects, which i would have found more compelling, myself. If not persued, it wwasn't there to take, i think.

35 comments:

Anonymous said...

Some of the questions have expressed the hope for the equivalent of a directed verdict of acquital. I thought that you might want to discuss the advantages of a well argued acquital by the arbitrators. In particular, if the decision is sufficiently compelling, an appeal hearing before CAS might be avoided.

Malvern said...

Not relevant to any real specific details of this case, but a comment I would like to make about Floyd personally. I don't believe that Floyd would ever sit there in front of his mother and tell lies.

Anonymous said...

hey Malvern, why wouldn't floyd stand in front of his mother and tell lies ? I've lied to my parents, and my wife too- and get this, I consider myself a basically honest and honourable character. It depends on the cause and the circumstances, but to say it is beyond Floyd to lie in front of his mother, I have to ask why do you say that ? has he demonstrated his character to be honourable beyond reproach ? What were those words it was reported that he yelled to the peloton when he launched his breakaway victory ?"Come on motherfuckers..."

Anonymous said...

Seems to me that cyclists need a union in order to gain some traction in the due process world.

Anonymous said...

The concept of the pure "rational actor" exists only as an economic/legal fiction. The notion that we can measure deviations from such an idealized and objective benchmark of rational behavior, and that we should attempt to do so in the courtroom, is a farce. We all become perfect when standing in judgement. The reality, of course, is that even the most rational and intelligent among us occasionally deviate into the ditches of un-reason, at least once a day, on this path of life. Of course, silly, this is why the science matters to begin with. We want science because everything else is just pretend. I can guess what you think I intended by X behavior, and you can guess what I think you intended by Y behavior . . . but we are both likely part wrong and, if lucky, part right. The point of science is that it should be more right than wrong -- it's the "state of the art." This phrase also necessarily implies imperfection. In observing this case, I am once again mystified by the amount of faith many people, and the press, continue to place in faith-based conclusions grounded in colors and words. It's all just voodoo. If you wear yellow, it will protect from sunburn or jaundice. Phooey.

Anonymous said...

The whole sport is very poorly organized and since it is, the sport is unusually susecptable to the predations of WADA and Pound. The tighter the sport's organization the less likely things like this can happen:

Cycling-track-European soccer-baseball-hockey-u.s. basketball-u. s. football.

I mean look how easilly the NFL dealt with the Merriman case last fall. Many people still put him on their all-pro teams.

-Skip

Anonymous said...

Skip,

If the NFL were a multi-national organizations, with key playes, sponsors, teams, events, and governing entities from numerous different countries, cultures, and linguistic backgrounds . . . the pciture would be more complicated in the NFL too. The comparison isn't fair. It's like saying the US should learn from Sweden's example how to address cutlural difference.

Anonymous said...

Why is it necessary to portray witnesses for one side as evil, isn't it possible that at least some of these individuals believe in what they are doing and have certain skills and experience that lead to their declarations?

Is this the "war" mentality espoused by Will?

Isn't it possible that witnesses for Floyd's side may also have biases or agendas? I am not suggesting this, but if you are accusing some without proof, why not give them all the same treatment. Maybe we can't believe anybody in this affair.

Could it not be that those who lead the fight against doping are not doing so by comptemt for the athletes, but to defend those who want to compete clean?

Sorry, but I am offended by the "evil empire" type comments.

Anonymous said...

...de novo appeal to CAS.

It should be noted that Richard Young is in the CAS pool of Arbitrators, as is Mr. Pound (IIRC).

I think this issue ends here and now.

Anonymous said...

Hi Bill,

Before I ask my question, I just wanted to say that we've missed your on-the-scene observations this week although TBV is of course, doing his regular fantastic job. (BTW, anyone else wonder when that man sleeps?!)

I haven't been able to read all of the defense witness' testimony yet, but in my cursory reading, it seems they definitely proved massive problems with Floyd's tests. I am wondering then, if you have re-thought the Early opinion you wrote in the Mailibu View comment section. I KNOW we should "all come to our own conclusions", but it is invaluable to me to read what someone with your knowledge of the case & law thinks.

You may decide to withhold any tip-off of your Final Judgement (I understand), but if you could just say if the Mon & Tues witness testimony had a MAJOR impact on your previous thoughts, that would be enough to tide me over. :)

Of course, I will always believe Floyd innocent of doping, but it would be nice if someone as intelligent, discerning, handsome, & witty (enough sucking up?) as you would agree with me. :) :)

THANKS again for all your work!
susie b

Sam said...

Judge Hue,

If Mr Landis does not prevail, what are his legal options...could this realistically become a U.S. Supreme Court case? If Mr Landis does prevail, does he have any recourse to bring an action for damages against USADA and or WADA or LNDD?

Thanks for your keen, objective insights...you are an asset to the Bench.

Anonymous said...

anon 7:17

Yes I agree with you about the advantages of a sport organized within this country only like the NFL is. That's why in my spectrum the NFL and NBA are at the extreme end of capability. Even within the US though you see how the more poorly organized MLB keeps having fresh scandals on doping brought up.

Likewise on the international sports scene cycling is at the inept extreme in handling problems because there is no coherent organization. Thus you have major players using doping as a platform to further their own interests and those interests are not checked by a decent union or simple access to the courts.

Another international sport, soccer, also has all sorts of players, but the overall organization haas checks and balances that prevent any person or cabal from abusing others (at least long term). I am talking about Euro based soccer here. The players even can access the court system in a way that cyclists can't. Also the pronouncements of WADA, while recognized by organized soccer don't overwhelm the sport.




-Skip

Anonymous said...

to anon 6:58,

I doubt Floyd would sit through this whole thing with his parents and lie.

What he says to his other combatants in the heat of battle has no bearing on lying. What you realy him saying is not even a lie but a throwing down of a gauntlet.

By choosing the public route, working to establish the flaws in the system, and otherwise challenge the system, he has thrown down the gauntlet with a wholly different set of combatants.

Despite the few mistakes of his team, he has been honourable in this fight, as much as could be expected when a man's career work, reputation, image and integrity has been smashed before the truth had been heard.

Think about that for a minute. Had Mr. Landis proceeded in te normal route, had a cursory case built around "some errors" (wiki defense lines) and not employed this strategic approach, very few of us would know or understand the utter disarray of the LNDD Lab, the directives of the USADA and the complete distrust of the athletes as it realted to the ADA's.

Moving into the final day, I think we owe Mr. Landis a massive amount of thanks for taking this case to the public. We owe him our respect for playing this out for the world to see, for better or worse, warts and all. If people are looking for a "perfect" hero in Mr. Landis, they are surely mistaken. For this, I think Floyd's Mom and Dad know their son is a human being, with the flaws and imperfections that most of us have. For this reason, I feel that they must believe thier son when he says, to them and the world in the most public way, "I did not dope". It is for this same reason that I consider Floyd to be honest when sitting there claiming innocence.

Anonymous said...

Bill

Who goes first in closing arguments?

Anonymous said...

"It should be noted that Richard Young is in the CAS pool of Arbitrators, as is Mr. Pound (IIRC)."

Does anyone know if Richard Young and Richard McLaren (or any of the other arbitrators on the Panel) have sat on the same arbitration tribunal together?

randy said...

Mr. Hue, I'm struck by the revelations and cell phone photos presented by Simon Davis. It feels like pivotal testimony to me - the rabbit perhaps. I'm also thinking that his testimony would be fractionally as valuable if the extra B samples had not been tested. Any comments on the irony of such damning relevations coming out of the April retesting which had been vigorously fought by the Landis team (understandably enough). Other TBVer's could weigh in here also. Thanks!

Anonymous said...

Skip,

Fair enough. True about the spectrum of organization on bot sides of the pond. ANy thoughts on claims, like those made by Phil Liggett and Lance, that that fact of so many scandals related to doping in cycling can be cited as evidence of how seriously the sport takes the issue . . .unlike most other sports including European soccer? After all, a few big soccer names were also among Doctor Fuentes lists. Is the fact that most never heard about them evidence of a great sport that is highly organized, or just evidence that we have yet another sport refusing to deal with it's own dirty laundry. Or maybe both.

cindy said...

I think the addtional B samples did what they wanted them to do... put an other negative light on Landis... the "leak" to the press again. The non obsessed assume that those extra B's proved him guilty and I think that was the goal. The average person isn't sitting at their computer and hitting the F5 key on their laptop 500 times a day following the case here on TbV (or am I the only one?). So while they may have given Landis's defense team more ammo on how poorly the tests were run, the damage had already been done in the court of public opinion.

Anonymous said...

I was thinking the same way as Randy 7:50 am. i)) USADA might be regretting requesting the retest in April and ii) maybe the Landis camp agreed to it so that they could get someone like Davis in there to really get a look at the set up and operation. Without the retest this would all be about the original test and that would be based on the Mongongu/Frelat testimony and expert opinion rather than fact.
USADA may have helped Landis more than they know (although I'm guessing by know they know how much and it's likely making them feel a little queasy).

the Dragon said...

Anon 7:25,

I think sometimes, with the brevity of posting, sometimes the person/position become fused.

I don't doubt that some/many/all of WADA Scientists believe what they are saying

I used to prepare Income Tax Returns for 20+ years. Argued more than 100 audits, only lost 3 on Tax Law Application.

I used to tell clients the following "There are a lot of nice people who work at the IRS, there is just NO intellegent life there". The problem wasn't necessarily the people, rather it is/was the system/process.

Regards,

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

Randy,

I'd say it would be the supreme irony if USADA's gambit over the April testing were the undoing of their case. Dr. Davis' testimony, based on his observations during those tests, appears to be sending the case in that direction.

But we have to remember, it aint over til it's over. We haven't seen USADA's cross of Dr. Davis. If he holds up well under that onslaught, then Team Landis will be in a very good position.

- Rant

Jeff said...

No, Cindy

You're not the only one....

Anonymous said...

Anyone hear what the suspension will be for Joe Papp? He was unwilling to discuss it on Thursday or Friday, but someone mentioned USADA had to publish it within 2 business days. There's still nothing on their website.

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

Anon 8:21,

You're right. They are supposed to publish within 2 business days, which would have been up at the end of business on Monday, at the latest.

Since they haven't published it, my guess is that Papp is getting a reduced suspension for his cooperation in the case. It will be interesting to see just how much of a reduction he gets.

And it will be interesting to see if USADA goes after him for the additional offenses he admitted to while testifying. Perhaps he had a good lawyer and the lawyer extracted a promise not to prosecute for anything he might say. If the lawyer wasn't that smart, then Papp may still be in a lot of trouble.

- Rant

the Dragon said...

Bill or any Attorney;

This may be slightly off topic, yet in your folks experience, is someone who is innocent (or believes they are innocent), more likely to do stupid things to convince others questioning their innocence, then someone who is quilty?

Not sure I expressed that quite correctly, hope you get my drift,

Thanks & Regards,

Anonymous said...

anon 7:49

Not sure, but they both were in China together recently (with Brunet, Verbruggen and McQuaid) for a Beijing Olympics conference.

It should be noted that Young serves as legal advisor/counsel to WADA as well, and ws at the Beijing conference on their behalf.

It should also be noted that McLaren, Pound and Brunet served on an ad-hoc arbitration panel for the Canadian team at the Pan-Am games in 2003...

And so the WADA Omerta extends, deeper and deeper.

roadkill said...

It's too bad that there is not an arbitration system with independent arbiters.

Anonymous said...

If the CAS (the next most probable step in this tale) is private does that mean no news until after the final verdict? Would there be a possibility of invited independent observers?

Anonymous said...

Anon 8:21,

I would wager anything that they don't announce it publicly until after the closing arguments in this case. If Papp wouldn't discuss it on the stand, I doubt that USADA would be dumb enough to announce it publicly in a way that Suh could include it in his closing statement as publicly available information.

Anonymous said...

Most of us assume there will be an appeal. Do you have any idea if that will occur before our during the Tour in July? I know there was talk of wanting to declare last year's winner before this year's race.

Will Floyd also be tried by that French agency, regardless of this trial and the CAS? I'm sorry I can't remember the acronym at the moment. And did I read correctly that with the Will G disaster that they will not try to appeal to the U.S. government?

[Brother]Mark said...

Justice Hue;

Given the stakes of this particular case- it has to be viewed as one of, if not the most important case USADA and WADA have ever prosecuted- will the arbitration panel risk their reputations on lowest common denominator science? Can/will they really tell the defense that "good enough" is good enough to convict?

Given the legitimate questions brought to light during recent testimony, and the malleable nature of LNDD's SOP, it seems to me that a "horse shoes and hand grenades" window of certainty is just too broad for a case this important. Can't USADA be expected to have this one clean?

[tx] Mark K

Jim T said...

If this goes to a CAS appeal, who prosecutes? USADA? What if they've had enough and don't want to prosecute? If UCI appeals do they have to prosecute?

andy said...

You mention "holes that need to be covered" by Landis' team....what are they?

I don't think that you can follow this trial and read the technical experts testimony and NOT distrust the existing system for doping detection. It is NOT foolproof and is far more subjective than any of us thought

gstead said...

Davis' testimony has ended and the evidence is mostly in. But I'm still confused -- and I've diligently followed the trial. Bill and TBV's comments have been extremely insightful (applause).

From Landis' perspective, demonstrating an IS violation would make a win quite likely. His team raised many doubts about LNDD but did not specifically stand up and say, "Here are the testing requirements, here is the violation, and (bonus) here is how the violation caused a false positive." Am I correct in saying this?

Assuming this is correct, we enter a muddier scenario. A reasonable person might conclude that LNDD has does a poor job compared to other labs. Unfortunately, it's not 100% clear that shoddy work led to the false positive(s). Did I miss something? Instead, reputable scientists have argued both sides, and the tests and machinery are so complex that there is no simple answer. So the arbitrators must individually reach a decision. Not knowing the three, their scientific backgrounds, and their understanding of the testimony, it's hard to predict a decision with any certainty. Perhaps 2:1 against Landis, for reasons discussed here in the past.

So my question is: has Landis fallen short by not making a clearer and more concise argument that testing procedures violated the standards and caused the false positive? His team is smart: if this argument could have been made, would they not have made it?

bill hue said...

NEW MAILBOX ABOVE