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.