Sunday, May 20, 2007

Malibu Views


If have to go to trial, there probably isn’t a more scenic place for hearing than the Law School at Pepperdine University. From the deer freely roaming the sloping grasses to the panoramic views of the Pacific Ocean from the Law School decks, Pepperdine takes your breath away, as those who walk or climb its sharply graded hills can attest. Contrast that serenity with that of a solitary figure walking the Law School path alone with his thoughts, ten minutes before the hearing starts. Professional cyclist Floyd Landis is fighting to save his career and reputation in Malibu, California.

Landis isn’t the only one on trial, though; he just has the most to lose. The United States Anti-doping Association (USADA) and the entire World Anti-Doping Association (WADA) disciplinary system are also on trial as is the science behind the system as executed by the WADA accredited laboratory at Chatenay-Malabry (LNDD). This is the first time an athlete has requested his or her hearing to be held in public. Given the expense both sides have incurred and the public battering each has received thus far, it may also be the last time the public will be able to witness these heretofore private and mysterious proceedings.

The entertainment industry makes its home in this area of California. True to form, the hearing has been both entertaining and dramatic. I have spent the last six days watching the spectacle unfold. These are my impressions.

The Evidence

Character: It Takes One To Know One

I expect government to above reproach in exercising power over its citizens.
Prosecutors should never put their personal ambitions and desire to win over a dispassionate, even handed and fair consideration of the facts before them. Justice administered in such fashion contains a component of morality and its results, if moral and fair, will be accepted, perhaps begrudgingly, but accepted nonetheless.

USADA is a government-funded entity. The taxpayers foot the bill for 2/3 of its operating expenses. USADA choose to hire outside counsel. Holme Roberts and Owen rather than prosecute the case itself through in-house counsel.. That law firm does not act as Independent Prosecutors. They have not investigated the case and made an independent determination to proceed, they act in representing the best interests of their client, USADA. Every day, Mr. Brunet asks for appearances and Mr. Young stands and says; “Holme Roberts and Owen, by Richard Young, Daniel Dunn and Matthew Barnett, representing USADA”. When USADA hired outside counsel, it further skewed this case away from dispassionate prosecution and toward advocacy in representation, in significant part, unbounded.

I offer two examples in the trial thus far in support of that contention. The first is the completely sordid matter concerning cycling legend Greg Lemond and the subject of alleged “threats” he had received from Landis’ manager Will Geoghegan as presented by Holme Roberts and Owen associate, Matthew Barnett. Barnett had to know that Lemond was not going to answer certain questions pertaining to Lemond’s claim that Lance Armstrong had also “threatened” him and Lemond’s subjective impressions of being “threatened” previously, topics highly relevant in cross examination once Barnett chose to elicit testimony that Geoghegan had taunted Lemond in the most juvenile and perhaps criminal way about that incident the evening before Lemond was scheduled to testify in this matter. Lemond had even brought an attorney with him to instruct him not to answer certain questions in cross-examination and he had no intention of answering them.

What good did this do? It definitely succeeded in placing Landis in the position of “bad guy”, something UCI President Pat McQuaid and WADA Chairman Dick Pound had previously succeeded in doing through their public statements. But those men aren’t our government and our government should not be seeking to make that point, at the expense of the dignity of the proceedings.

As unfortunate collateral damage of this ill-considered advocacy, Geoghegan was fired in a publicly humiliating way, Lemond’s “secret”, that he had been sexually assaulted as a child was revealed, Lemond’s disputes with Armstrong were resurrected and Lemond was forced back into a spotlight that he had purposefully backed away from because the controversial nature of his views had caused him to lose popularity among some cycling fans and observers.

The extreem advocacy created a spectacle that might not possibly have been further removed from relevance as to the issues at hand under the WADA Code which are well defined as follows;

Was there an adverse analytical finding on Landis’ “A” sample confirmed by his “B” sample(s)?

Were there violations of International Laboratory Standards?

If so, did the violations “cause” the adverse analytical findings?

As of now, the testimony is in evidence but it might end up being stricken or considered in a most marginal increment by the arbitrators on the last of the three relevant issues. This incident is nothing short of throwing a cycling legend to the wolves and vanquishing a vocal opponent in a public and humiliating way for little or no practical gain within the case itself. It may have advocated on behalf of the client, USADA, but two thirds of that client is you and me. I wasn’t served, I had to take a shower to wash the stench of it away.

The second incident also served little purpose within the case but made a much broader public splash through unbounded advocacy. Attorney Barnett also called a journeyman cyclist named Joseph Papp to testify in the matter. Papp had submitted to a two-year sanction for using testosterone the day before testifying. Mr. Young had a medical pharmacologist and world-renowned doping expert, Don Catlin lined up to testify as well (and he did, on Saturday), remarkably on the same subject; whether testosterone could be effective on a single race day and whether its use could go undetected by anti-doping controls administered on the date of use.

Papp, in direct by Barnett, not only admitted to the incident for which he was sanctioned the previous day but he also admitted to other anti-doping violations in remarkable numbers. Such admissions subject Papp to further mandatory sanctions under the WADA code. Admissions are as sufficient as doping control “positives” under the Code. David Miller received a two- year ban under the Code resulting from his admitted use of EPO, for example.

Under the WADA Code, multiple violations result in a life long ban. Further, in cross, Papp admitted to receiving steroids and other medications for non-medical uses by prescription in South America and bringing those products into the United States, perhaps constituting an admission of Drug Trafficking under the Federal Criminal Law. Finally, Papp revealed that he was a cooperative witness in an ongoing investigation into violations of the Federal Law through the Office of the United States Attorney in San Diego.

Now, we don’t know who the “bad guys” are in that investigation, but the “bad guys” sure know who a witness is in that matter and his name is Joseph Papp.

What did Matthew Barnett achieve in the case against Landis in exposing Joseph Papp that way? He solicited and received anecdotal proof that; a person can use steroids undetected to cheat (Catlin established that by expert testimony), the peloton Papp competed in, different from the peloton Landis competed with, is rife with cheaters, (without naming names), marginally relevant and substances used to cheat could be obtained in Europe and South America, legally and easily, again, marginally relevant to the Landis case.

That is what happens in the exercise of unbound advocacy. People are sacrificed for the good of the “client”. I didn’t need Joseph Papp to risk his life, literally, for that. Holme Roberts and Owen apparently disagree.

Science: Even A Blind Squirrel Occasionally Finds A Nut

Cynthia Mongongu and Claire Frelat flat out scare me. Their work is what it is and every expert testifying for WADA believes their results to be correct, although Don Catlin would only give their chromatograms C’s or C-‘s. Their laboratory paper work is in order (Landis’ expert Goldberger has big problems and more experts will comment in the coming days) according to WADA experts Brenna, Ayotte, Schanzer and Catlin. But, you have people come into Court to assess the credibility of their written results; otherwise their paper results would be all that is necessary.

I saw these two women in Court. Mongongu is not credible. Her work must exceed her live testimony because it is endorsed by some very intelligent and credible witnesses. She played dumb or she is dumb. I’m not trying to be mean because she seems like a nice person who you would like to have as a friend. She trained Frelat and did so in half the time other WADA accredited labs take to similarly train technicians.

Unlike Mongongu, Frelat isn’t the kind of person you would like to hang out with. She seems bratty and immature. She doesn’t seem to care much about her work. I don’t believe a word she says. Moreover, by the time she is involved in the testing, she knows exactly whose urine she is analyzing. That sort of makes me queasy. But her results have been endorsed by some very credible people. Therein lies the dilemma and the next three days will tell the tale. God forbid these two have been behind the 300% greater rate LNDD “catches” testosterone cheats because I wouldn’t trust them to do any lab work competently.

What we are seeing is something I had not anticipated coming in and that is that the science is as political as anything else in the case. USADA could pick any independent person in the world to evaluate the work of the LNDD in this case, yet they chose J. Thomas Brenna, a man who has 1.3 million reasons (that is the dollar amount of his USADA grants over the last 4 years) to make them happy. Don Catlin until very recently the head of the WADA accredited lab at UCLA, testified that the work wasn’t the best, that it wouldn’t pass muster at his lab because of procedural difficulties but that he has no doubt about the ultimate results and conclusions establishing the adverse analytical finding in the Landis case. Christiane Ayotte of the Montreal WADA accredited lab is more enthusiastic than Catlin about the quality of the work as is Wilhelm Schanzer, a person appearing by telephone who frankly, was difficult to understand as a result of the technology and his strong accent.

I’m not denying the testimony of these competent scientists but undoubtedly Landis will present experts horrified at the lapses in forensic protocol, and thus will opine that the results are suspect as well. We have to wait for all the evidence to come in before we decide. I particularly want to see how Landis attacks the IRMS, because he has quite a few “results” above the 3.85 threshold for exogenous testosterone and two of them are over 6, so that will be an issue.

Finally, I’m shocked at how it looks when the current WADA head of the UCLA lab sits at USADA counsel table and helps USADA patch up the holes in LNDD’s work, while the head of the WADA lab in Montreal testifies for USADA and the head of the WADA lab in Rome serves as the Panel’s “independent expert”, especially in light of Catlin’s testimony that WADA officials were very angry with him for disagreeing with their conclusion as to the “truth” in the Zack Lund case and the fact that no WADA lab employee by specific provision in the WADA Code may testify on behalf of an athlete.

No WADA employee so far, other than Catlin has offered any criticism of the LNDD work. If deficiencies are pointed out, the testimony is that they are unimportant. That is the party line and thus far, no one has crossed it. That is why former USADA lab (UCLA) employee Paul Scott’s testimony will be extremely interesting.

The Players

You Get What You Pay For

I can’t say enough about the quality and skill of the lawyering in the hearing room. Even Matthew Barnett, who has been the subject of my many barbs through out the 6 days of hearing is probably better than the vast majority of lawyers I have ever seen work.

Someone said I have a “man crush” on Richard Young, and maybe so. Seriously, he may be the best lawyer I have ever seen. Maurice Suh is darn close to Young and Howard Jacobs and Daniel Dunn are not at all very far behind. The quality and skill of these guys is nothing short of amazing. Their talent is on display, worthy of the case and its import.


They Are On Top Of The Game

So far, the only criticism I have of the Panel is their timidity to compel witnesses who appear before them to answer questions. Under the California law, consistent with the law in other States, private arbitration panels can seek both Contempt Orders and subpoena powers from the State Circuit Court by request. Perhaps the Panel doesn’t want to involve itself in that procedure but the threat, to an attorney such as Greg Lemond’s counsel, who could articulate no good reason for instructing Lemond not to answer Jacob’s questions, might have been effective in causing him to withdraw his instructions.

The Panel has been professional, courteous and has approached the hearing with appropriate decorum. They are interested, open-minded and have asked very interesting questions, especially Christopher Campbell. The rulings from the Chair have been very appropriate.


I’ll continue to update and comment from Wisconsin and withhold any final opinion until all the evidence is in.

* Bill Hue is a recreational cyclist and is a Wisconsin Circuit Court Judge, Branch 2, Jefferson County


Anonymous said...

Mr. Hue,

I understand you will withold your "final" opinion until all the evidence is in, but, at this point, can you tell us do you think Landis doped or not?

bill hue said...

On the basis of Mongongu and Frelat's presentation, no way.

But on the many experts looking at those two 6's and the multiple 4's and 5's for exogenous testosterone, yes.

Unless Landis' experts explain those, despite my rejection of Mongongu and Frelat, I will have to conclude he did.

I still detest the sytem and believe it is not fair, though.

Anonymous said...

Judge Hue,
Your summary/viewpoint expressed here is super helpful, because of the perspective you bring as a legal professional. A question: Irrespective of whether Floyd doped, having an open hearing has exposed this process as patently unfair. If the U.S. cycling community wanted to change this, what would you suggest they do?


bill hue said...

Hi Bob,
I wrote a guest editorial at the Daily Peloton where I both critisized this system and suggested changes

You can find it here:


randy said...

I just hope that Paul Scott, formerly of the UCLA lab, is able to testify for the Landis team. I thought that I had read here at TBV that he was serving as an advisor and had consequently stepped back (by necessity) from his ability to testify. I hope I am wrong in this.
Again, thanks to the whole TBV crew who really brought this event to life for me. I have not yet been able to catch a courtview hookup and haven't found an archived version of any of the proceedings. Any ideas?

Anonymous said...

Bravo Your Honor!

Your insight and perspective have been nothing short of amazing. I have appreciated your expertise and your candor.

I echo your remarks about the politicization of science. As a social scientist that focuses on issues of power in sporting contexts, this is often our starting point for analysis - maddening as it is.

Again, a great debt of thanks for your participation in this electronic community.

Anonymous said...

Good commentary on the proceedings to date and a great article above, Bill Hue.

To see any athlete go through this process, innocent or guilty, is to witness a tragedy.

Regardless of whether Floyd is innocent or guilty, this case has exposed and proven significant flaws with WADA, etc – as Bill and others have outlined. For that reason, I’ve felt for some time that this is a landmark case for sports. It goes well beyond cycling. We can only hope that this exposure will lead to improvements so that some good will come out of this tragedy.

For that, the sporting community in general owes a real debt of gratitude for the great broad and detailed coverage of this case that TBV has provided. Innocent or guilty, Floyd Landis and the FFF deserve some credit for this as well by having open proceedings. TBV has been so outstanding that it strikes me as remarkable. When you combine the video and briefs of the case with the linked media articles, blogs, transcripts and commentary of this blog, you have everything one needs to extract as much truth as one can get out of this process.

What more could one ask than something that helps all of us get closer to the truth ? I’ve never seen anything quite like it in both detail and quality. Thank you so much for that TBV.


bill hue said...

I'm honored to be able to participate and humbled by your praise.
Bill Hue

Carlton Reid said...

I echo cleduc and others. dBrower and Bill Hue,and Marc and Strbuk, have combined to produce the sort of resource impossible to imagine before the advent of the internet.

Krytponite v Bic is said to be the poster child of blogs v corporations. Well, Trust But Verify is the poster child for blogs v witch-hunts.

But is TBV still a blog? It's morphed into something much, much bigger.

Whether or not Floyd is exhonerated, TBV has shone a none too flattering light on the work of WADA and USADA and the labs. Things will change. Things MUST change.

Craig said...

I completely agree with anonymous 10:08, cleduc and carlton reid. The work and dedication of everyone at TbV has been impressive and much appreciated. I've been thankful for Judge Hue's even, respectful and patient tone.

If any changes come about in USADA, we'll all owe a debt to Floyd for asking for an open hearing. But TbV is what allowed most of us to see what was going on at that hearing.

A hearty thank you to the whole TbV gang!!!

Anonymous said...

USADA choose to hire outside counsel. Holme Roberts and Owen rather than prosecute the case itself through in-house counsel.

Ahh, so its all about billable hours. No wonder there has been no backing down on the USADA side.

Anonymous said...

Judge Hue,
Will post hearing briefs be presented for the panel to consider prior to making a decision?
Jeff from Newark, DE

pedalista said...


Thank you and TBV for your amazing coverage of this very important proceding. I have been glued to it all week and have had to work twice as hard at work splitting time between work and following TBV. I realize this is after the fact reactive thinking, but going forward is there a reason any athlete would not engage the services of a testing company so that when they are pulled for a drug test they would provide samples to WADA and to a company of their choosing who would process them in the same manner that WADA did? Or would just store the sample in case of a positive return from WADA and then you could have them tested at a seperate accredited lab? I realize this is added expense, but it would provide a backup to a somewhat questionable system.

Anonymous said...

TBV has become such a part of my daily life that I am wondering what will happen once this particular case is fully played out, i.e., CAS, any possible case in civil or even criminal court. I would suggest that you all consider keeping up with perhaps a more generalized review of issues surrounding doping in cycling or even sports in general and the system(s) used to combat doping. The efforrt here has been outstanding. I compliment all involved.

Anonymous said...

I respectfully disagree with the suggestion that Mr. Hue’s commentary has been biased.

In my humble opinion he has been continually trying to engage everyone in the bigger picture. Unfortunately very little of what we have seen is about Mr. Landis it is about the process by which the governing bodies operate and draw conclusions. The WADA, USADA, and the WADA accredited labs recognized this threat once the Landis team started going public, those in power tend to notice these kinds of things.

Ultimately how we, the public, respond to this case will impact future proceedings for innocent and guilty athletes alike. The notion that each labs work to this point has been perfect and without error is ridiculous, even a rudimentary knowledge of statistics tells us that is impossible

Will the debate continue after these proceedings have ended? If it does not then we have given USADA unchecked power, are we comfortable with that?

Thank you Mr. Hue for your excellent work and insights.


Anonymous said...

To has a link to all the archived videos on its home page, the last sentence in the middle of the page.

Anonymous said...

Judge Hue and TBV: Your first-person accounts of this proceeding are invaluable. For better or worse, this case has evolved into something much more than the (apparently not so simple) question of whether Landis is guilty or not. As members of the jury of public opinion, all of us cycling fans benefit significantly from your perceptions on both the merits of the strictly evidentiary aspects of the process as well as all the back-story and drama -- all of which helps me learn and form opinions about this important issue.

I don't think the panel should give much weight to LeMond and Papp, but I strongly feel their testimony is an important part of the larger question here -- about what's going wrong with cycling. The fact that lots of other top riders have now gone down in flames for doping is not "proof" of Landis's behavior, but neither can you separate the Landis case from the overall morass created by Ullrich/Basso/Heras/Hamilton/Puerto/etc. It is what it is, and the Landis case is not occuring in a vacuum but is part of that universe, and the inevitable, ugly, but unstoppable evolution of the sport.

There are clearly lots of problems being exposed with respect to doping enforcement. Like Democracy and Capitalism, it aint perfect, but its the best we've come up with so far and will hopefully get better (much better!) based on this public exposure. But we should remember that we wouldn't need WADA, LNDD and USADA if our athlete/heroes would simply play by the rules in the first place.

the Dragon said...

Bill Hue,

I am STILL confused. In your 8:38PM post you make your analysis in 2 parts. If bases of the practitioners NO, based on EXPERTS yes.

What confuses me is that is Mongangu & Frelat's work is questionable, HOW does the EXPERTS opinion matter? Can they really make a Silk Purse from a sows ear?

You have done excellent work, thanks for your effort.


bill hue said...

The parties will have 1 hour each for closing arguments. if they agree to briefing post-hearing or if the Panel requests them to submitt aditional written arguments, then that will occur. There is no current agreement or Order in that regard, though.

Keeping consistant medical samples is something T-Mobile, CSC and Slipstreem are doing now. It is a good idea and makes sense to me.

Someone asked if the matter would proceed to some kind of US court. I don't think so because the losing side probably will not have the money or stomach to continue. however, should FL win, look for UCI and/or WADA, along with USADA to appeal to CAS. They are in it for the long haul.


Did you notice that my article starts my analysis of the testimony of Mongongu and Ferlat with the quotation:

"Even a blind squirrel occasionally finds a nut"?

If those "blind squirrels" found a "nut" (exogenous testosterone), then FL will be found "guilty".

FL still gets to present his case that they didn't. so we have to watch and see.

Bill Hue

Steve Balow said...

Judge Hue:
First of all, thank you for both the effort and the spectacular coverage. To me, one of the more amazing things about the Landis case is the way interested citizens have reshaped the media. You and the TBV team have gone well beyond the depth and breadth of any information available through traditional media and I, like many others, are both grateful to you and impressed by you. Thanks!
I have two questions. First, it seems that Landis has established that there were custody issues with both LNDD technicians. We know that somewhere inside LNDD there is a rule-breaker. While there is no way to prove the combination of facts caused Floyd’s positive, how could USADA ever prove the contrary (that it did not)? Said another way, there seems both opportunity and motive for sample tampering at LNDD. Second, your coverage of the Landis case has included many observations (from Suh’s ride to Landis’s parents). Are the arbitrators encouraged to factor their observations into their eventual decision?

Vance said...


1. Running these lab machines is not so easy. I have seen many doctors unable to get squat from them. Then a lab tech comes along and poof the thing works.

2. WADA and the USADA look like bad guys. The Chicago police department looks like bad guys half the time too, but thank god they do their job most of the time.

The point is that the criminals/cheaters induce this sort of behavior. If everyone were honest we could race clean, and have church services in Floyd's birthplace and all.

WADA and the USADA attract crusaders, who prolly do bully people. Who else would want to chase clever cheats using urine samples?

WADA and the USADA behave the same way other large regulatory agencies behave: the NCAA, MLB, the NBA, the NFL, the IRS etc. etc. They bully people. They are concerned with their own mission and their own existence. If there is no issue, they makes issues to justify their existence.

However, these agencies were founded on principles of fairness. While it is true they often lose sight of fairness, it was the cheaters and crooks who precipitated these monsters in the first place.

Such is human nature.

bill hue said...

The arbitrators are limited to considering only facts in evidence. anything they see or hear outside the hearing room is not evidence.

Their final decision, should they determine that violations of the International standards occured (Landis will have been the first athlete against USADA to have successfully "turned" the burden, in that event) then they only have to be comfortably satisfied that the adverse analytical was "caused" by a doping violation and not by a break in the chain of custody. that is where the rubber will hit the road.

I don't think anyone is against the goals of the system. why not change it to include due process and fairness? WADA will tell you due process and fairness obscures the "truth". that is also what they told Catlin when he failed to toe the party line in the Zach lund case.

Anonymous said...

David and Bill both rock. Give them both a yellow jersey! DB's got the facts and WH's got the legal insight.

The USADA Reminds me of the search for WMD.

I am waiting for the Johnnie Cochran momment "the the glove don't fit...

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

Bill - You have been outstanding all along with your reports, comments and observations. But your last comment does it! I almost choked on my coffee laughing.. I just may have to start A Bill Hue Fan Club.
Cheers from Velogal...

Anonymous said...

Thank you for this summation and your on going efforts to educate both laymen and lawyers on this arcane system.

You have been part of a team that illustrates a major change in "modern" media: the potential power and influence of private parties with diverse expertise who make it possible for further rings of members of the public who have particular expertise to analyze scientific matters and alleged facts. DPF has been another example of this, particularly with regard to the science. The same thing occurred when the White House/Dept of Justice dumped large packets on the public. Review and analysis by a few paid persons would be virtually impossible, but thousnds of eyes can find the inconsistencies, errors, etc. It requires a central point to bring this all together and, to an extent, to weigh the information and organize it. The TBV team has done a dynamite job doing this in a manner which I feel is even handed and unbiased, while not hiding its own feelings. Until recently this forum has been flame free and it is unfortunate that a commitment to open discourse means that they should be let in.

Hopefully someone will take up the challenge of being a clearing house for efforts to bring about change.

bill hue said...

Thanks pc and velogal.
We actually don't mind people who disagree and have not censured many but the "roid floyd" guy is all over this site and he is getting on my nerves a bit. Still we keep his stuff up.

This is what the "new media" can accomplish and our goals track your description very well. we just have to try to execute them as best we can.

Ken said...

Of the blog entries and comments on TBV, I think this page has summed up the entire issue best of any I have read thus far. Regardless of the outcome for Floyd, I sincerely hope that this case and the microscope it, TBV, DPF and FFF have placed WADA under will force real reform that put a priority on due process, testing procedures based sound science, robust protocols that prevent conflicts of interest, and complete transparency that everyone can trust.

Ever since the first leaks about the positive test results, I have been distressed by this case and the more time has gone by, the more I have wanted to do something to help affect change. Thanks to the efforts by everyone here at TBV (especially over the course of these hearings) I finally feel that I have become educated enough on this issue to articulate my opinion.

Tomorrow (TUE) morning I will post my full thoughts on this matter on my blog (I'm putting the finishing touches on my comments right now) and then once I have fully refined what I believe must be done I will pursue this issue with my congressional delegation here in Maine.

Again, thank you for all your efforts.

Ken said...

This morning I did post my comments: When science, peer review & independent experts are anything but