Saturday, May 05, 2007

Judging Floyd, Part V -- the Form Sheet


By the Hon. William Hue and David Brower


Copyright 2007 by William Hue and David Brower. All rights reserved. Reproduction in whole or in part is allowed when accompanied with a clearly legible attribution before the reproduction using the words, “Courtesy of Trust But Verify, http://trustbut.com"

The long awaited CAS-AAA Landis Arbitration hearing will start on May 14, 2007. While we have a pretty good idea what to expect, anything can happen. We will report from the hearing as it occurs. In order to “keep score” during the proceedings, keep an eye out for the following things.

[MORE]


Everyone should like to see

From the arbitrators, please
  • Vote 3 to 0 throughout, concluding in a 3 to 0 decision, either way.
  • Show a genuine interest in the exploration of the science and scientific testing results, including weaknesses in protocols.
  • Weigh the evidence carefully and evaluating credibility of the experts in a way other than defaulting to the USADA position should experts be equally credible.
  • Preside over the hearing in a way in which all viewing the proceedings believe it to be fair.
  • Be fair in the evaluation of the evidence and credibility of witnesses when they discuss the case during and after hearing, privately.
  • Keep the entire hearing open and transparent.
  • Refuse a meeting with Mr. Pound who indicated he would seek to address Landis’ statements about him.
  • Issue sanctions for process failures during the pre-hearing phases.
From USADA,
  • Give Landis’ team adequate and fair opportunity to review and evaluate the witnesses and evidence to be presented before presenting their case.
  • Bring and submit the complete analysis of all samples tested whether favorable or unfavorable to Landis.
  • Be respectful of the defense and its case.
  • Call LNDD technicians so they might be examined on the issue of which technician did what analysis on both the “A” and “B” samples.
  • Bring the original hard drive of the CIR machine.
  • Admit or concede points favorable to the other side if there is no argument to make, otherwise.
  • Do not allow Mr. Pound to have the private meeting with the Panel he indicated he would seek to address Landis’ statements about him.
From Landis:
  • Address directly and exclusively the science of the case.
  • Do not bring up “white-out” kinds of issues unless immediately tied to scientific theory or practice or protocol directly relating to the scientific theory he wants the Panel to adopt.
  • Be respectful of the prosecution and its case.
  • Admit or concede points favorable to the other side if there is no argument to make, otherwise.
  • Refrain from histrionics.
  • Be honest and dignified in the face of adversity but refuse to be pushed over.

We at TBV expect to see

From the arbitrators;
  • 2 to 1 votes throughout, but not all one way.
The 2 to 1 vote going each way has to be on substantive issues. Arbitrators/Judges/ALJ's etc know "how to make it look good “‘ without it actually being good. They do if they are smart, anyway. If all the substantive 2 to 1 votes go one way but a request for extended lunch goes 2 to 1 the other way, it might look a little fairer but it really isn't.
  • Allowing any evidence USADA offers relating to the additional “B” sample testing.
  • Overruling all Landis objections relating to those samples.
  • Refusing to consider evidence of other WADA accredited laboratory interpretation of the metabolite(s) issue.
  • Refusing to consider “B” samples favorable to Landis’ case.
  • Finding a way to disregard evidence from Landis' experts.
  • Determining that Landis is not credible.
  • Skepticism if not hostility toward the violation of International Standards arguments.
  • Free pass given to USADA for failures to produce during discovery.
From USADA
  • Failing to permit Landis to view anything other than the WADA “packet” on any sample, including the additional “B”s.
  • Failing to call LNDD technicians as witnesses, depriving Landis of any opportunity to learn what technician performed analysis on the stage 17 “A” and “B” samples.
  • Presenting a strong “the results are foolproof” case from Jacques De Ceaurriz.
  • Objecting to any evidence offered by Landis on issues concerning deviations of International Standards.
  • Utilizing any and all means to prove the International Standards violations did not “cause” the Stage 17 adverse analytical findings.
  • Object to most if not all Landis requests to adjourn so that he can further analyze evidence he has never seen.
  • Attempts to make a longitudinal T/E case the Panel can use if the CIR fails.
  • Attempts to claim other B sample positives show that the S17 result was analytically valid, even if the S17 result is voided by a procedural flaw.
From Landis
  • Some technical surprises he has kept to himself despite his “open” Wiki defense strategy.
  • Attempting to establish breaches in LNDD testing protocols that are likely to affect the reported analytical result..
  • Attempting to establish those breaches of internal protocols as violations of the International Standards.
  • Attempting to establish that the definition of “metabolite(s)” used by LNDD is inappropriate under the WADA Code and as interpreted by other WADA accredited laboratories.
  • Attempting to directly establish the LNDD positivity criteria are either scientifically wrong, or incorrectly applied in this case.
  • A serious attempt to dismiss a longitudinal T/E case to ensure the Panel doesn't find guilt on that count because it wasn't addressed.
  • Attempting to establish International Standards deviations in execution.
  • Attempting to establish that such deviations “caused” the adverse analytical findings concerning the Stage 17 samples.
  • Attempting to demonstrate other B sample “positives” do not confirm the S17 analytic result, by showing them equally flawed for demonstrable reasons.


Meltdown

The panel can risk the appearance of legitimacy by
  • Exhibiting actual and open hostility toward Landis or his attorneys. The Interlocutory Order comes close, even though most reading it wouldn’t perceive a problem.
  • Forgiving and excusing the failure of its own “independent” expert to observe the entirety of additional “B” sample testing while permitting all such “B” samples into evidence.
  • Allowing positive test into evidence, but not negatives.
  • Issuing Summary denials and instructions to “move on” from the Panel following Landis requests to adjourn following admission of USADA evidence Landis had never seen before.

This may happen with increasing frequency, resulting in escalating emotions and possible outbursts. That would cause frequent adjournments of the proceedings. Similarly, if Landis asks the Panel to consider evidence and his requests are denied, the same emotional escalation will occur.

  • Having 2-1 votes throughout the hearing, permitting USADA evidence and denying Landis’ submissions.
  • McLaren leaving the proceedings in the same car as Brunet, staying in the same hotel or drinking/eating with him when Campbell is not present.
  • Campbell finally and actually “losing it” as he is outvoted each time.
  • Voting 2 to 1 to convict.
  • Mr. Pound showing up at the hearing, making a presentation at the hearing, meeting privately with any arbitrator or having any kind of press contact where he expresses his belief in the credibility of the lab or the guilt of Landis.

USADA can lose the contest for high moral ground by
  • Attempting to introduce completely new charges and evidence, such as one over intravenous hydration.
  • Attempting to introduce comments by Landis, all of which are irrelevant to the test results.
  • Mentioning Landis' defense financing in any way.
  • Mentioning Landis' public comments in any way.
  • Mentioning Armstrong or Phonak's other doping problems.

Team Landis can lose credibility by
  • Spending time complaining about procedural history.
  • Spending time complaining about comments by Mr. Pound (et. al) and leaks.
  • Spending time on trivialities unlikely to affect the analytical result. This includes lengthy lists of mistakes on forms that are likely to be ignored unless they are directly tied to a specific analytic error.
  • Grandstanding, playing to TV instead of the test facts.
  • “Losing it” in the belief they are being railroaded, unless it is obvious to all.
  • Making hyperbolic comments outside the hearing.

Outside events can make anything worse. It would be nice to avoid having
  • New “leaks” concerning this case or Lance Armstrong in L'Equipe.
  • OP “leaks”, results, adjudications during the Landis hearing.
  • Tyler Hamilton or Greg Lemond chiming in about anything.
  • “Results” of “independent” auditing of LNDD publicized during the hearing or as the hearing awaits decision.
  • WADA Appeals should Landis prevail.

We'll return to this after it's all over and see what happened, and what of our prognostications were correct.




Back to Part I, Part II, Part III and Part IV.

THE AUTHORS

William Hue is a Wisconsin State Circuit Court Judge (Branch 2 of the Jefferson County Circuit Court). His views are strictly his own.

David Brower is the publisher of Trust But Verify, http://trustbut.com

10 comments:

Anonymous said...

When did Pound say he wanted to address the panel?

MMan said...

More "Meltdown":

Any use by the prosecution of the terms "Nazi frogmen" or "violating virgins."

bill hue said...

Anon,
Last month.
Bill

Anonymous said...

ORG here ...

TBV or Bill, you have a link? miseed it as well.

hughw said...

Hey guys -- regarding TV: we don't need live coverage. Why don't one of you bring a DV camera and a bunch of tapes each day? At the end of the day, seed a torrent with raw (and edited if you have time) video, and the rest of us will help out on the torrents.

Thomas A. Fine said...

The way you phrase things with regard to landis, it almost sounds like you don't want him focusing on procedural "technicalities" (even though I think you dislike that word).

But my understanding of the whole burden turn thing is that his first opportunity to argue anything is to argue precisely such issues as sample identity and custody. And if he doesn't argue them up front, he can't go back and argue them later.

Am I misunderstanding your intent here?

tom

pfinjt said...

What possible reason can Pound have for addressing the panel directly? It wouldn't surprise me at all to find Pound involved in some ex parte discussions with the arbitrators, however.

Since WADA answers to no one, I wouldn't be at all surprised if the panel engages in everything TBV says will compromise their credibility. I don't think they care.

Anonymous said...

"We at TBV expect to see - From Landis...

Attempting to directly establish the LNDD positivist criteria are either scientifically wrong, or incorrectly applied in this case."


I thought this was just the kind of argument the inquisition does not allow. I suppose Landis should try anyway. It's only if he tries and is slapped down or ignored that he can show how unfair the system is in this regard.

It's going to be a little like the movie Inherit the Wind where Spencer Tracy was not allowed to introduce any arguments about evolution when defending the school teacher who was on trial.

I think Floyd may have a few highly respected scientists lined up ready to say that the science behind the IRMS test for exogenous testosterone is far too skimpy to be applied the way LNDD did. My opinion is that any scientist worth his NaCl would come to that conclusion.

~ Cub

tbv@trustbut.com said...

Cub, we're not talking about the CIR itself, but the criteria LNDD use to declare a positive, which are different than those used by other labs. We absolutely expect the LNDD criteria to be a significant point in the case.

TBV

Anonymous said...

TBV, yes that's what I'm talking about too - the positivity criteria not the measurement techniques.

I have often heard that Landis will not be allowd to argue the science behind the test. I don't know exactly what this means, but it gives me the impression that he may not be allowed to challenge the positivity criteria.

The fact that LNDD's positivity criteria is different from other labs is not meaningful in itself. Landis has to show why the difference matters. I don't see how he can do this unless he is allowed to discuss the scientific research (or lack of it) on which the positivity criteria is supposedly based.

~ Cub