Malibu Views

BILL HUE *


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.


THE PANEL


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.

CONCLUSION


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