Wednesday, July 11, 2007

Judging Floyd - Part VI - The Report Card

By the Hon. William Hue and David Brower

In Part V, we gave a grading chart and some predictions about what would happen at the hearing. Here in Part VI, we review that rubric and our predictions. Except for the monkeys, things turned out better than we'd imagined.

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 was held on May 14-21, 2007. To “keep score” during the proceedings, we advised keeping an eye out for the following things.

[MORE]


In the sections below, plain Roman text is what we wrote in Part V, and the italicised comments are our reflections on what actually happened.




Everyone should like to see,

From the arbitrators, please

  • Vote 3 to 0 throughout, concluding in a 3 to 0 decision, either way.
The Panel was unanimous in its rulings throughout, except their formal (final) decision concerning admissibility of the additional “B” samples, unfinished from a prior pre-hearing decision.
  • Show a genuine interest in the exploration of the science and scientific testing results, including weaknesses in protocols.
The Panel showed great interest in the science and appointed Dr. Botre as its special adviser in that regard. It will be interesting to see what his input was as the adviser.
  • 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.
The decision will need to be made to evaluate this.
  • Preside over the hearing in a way in which all viewing the proceedings believe it to be fair.
We were impressed by the Panel’s fairness in conducting the proceedings.
  • Be fair in the evaluation of the evidence and credibility of witnesses when they discuss the case during and after hearing, privately.
This remains to be seen.
  • Keep the entire hearing open and transparent.
The “Gag” order served to prevent hallway press conferences, an acceptable goal. However, the “Gag” order impeded transparency before and after the hearing for no discernible reason.
  • Refuse a meeting with Mr. Pound who indicated he would seek to address Landis’ statements about him.
Mr. Pound, thankfully, never appeared.
  • Issue sanctions for process failures during the pre-hearing phases.
Mr. Brunet wrongfully assumed the Panel did not have power to compel testimony except as to the parties, seriously misinterpreting California Law. That was a big mistake.

From USADA,

  • Give Landis’ team adequate and fair opportunity to review and evaluate the witnesses and evidence to be presented before presenting their case.
Unfortunately, USADA was not remotely interested in that. There was no reason for Landis not to have a CD copy of the IRMS data files. To be fair, Landis "got even" with the blood screening data.
  • Bring and submit the complete analysis of all samples tested whether favorable or unfavorable to Landis.
As a matter of policy and litigation strategy, this also did not occur. We did not see the IRMS results of the UCLA out-of-competition tests that were negative.
  • Be respectful of the defense and its case.
A C- grade in that regard (with a nod to Dr Catlin).
  • Call LNDD technicians so they might be examined on the issue of which technician did what analysis on both the “A” and “B” samples.
The technicians were produced, however the failure to depose them added 2 days to the hearing, and probably prevented any examination of Dr. Ceaurriz -- which USADA will probably complain about.
  • Bring the original hard drive of the CIR machine.
LNDD erased the data, so bringing the machine’s hard drive to hearing was useless. There seems no reason for that drive to have been erased and not produced.

  • Admit or concede points favorable to the other side if there is no argument to make, otherwise.
Look at the monkey. Isn’t he pretty? What a shiny coat he has!!!!

  • Do not allow Mr. Pound to have the private meeting with the Panel he indicated he would seek to address Landis’ statements about him.
Thankfully, Mr. Pound did not appear.


From Landis:

  • Address directly and exclusively the science of the case.
By and large, Landis’ team stuck to the science.

  • 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.
Landis’ team seemed successful in tying the “technicalities” to International Standards Violations.

  • Be respectful of the prosecution and its case.
Landis’ legal team was respectful throughout.

  • Admit or concede points favorable to the other side if there is no argument to make, otherwise.
Again, Landis’ legal team was successful.
  • Refrain from histrionics.
There were no histrionics.
  • Be honest and dignified in the face of adversity but refuse to be pushed over.
Unfortunately, the Geoghegen incident overshadowed what otherwise was a professional and dignified presentation by the legal team.



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.

We missed the boat on this prediction as the arbitrators by and large, acted with a single voice.

  • Allowing any evidence USADA offers relating to the additional “B” sample testing.
We got this one right.
  • Overruling all Landis objections relating to those samples.
Landis did not seem to object too much to the admissibility of the additional samples as a matter of strategy. So, it isn’t surprising that the samples came in. The Panel did allow the Cologne workshop report in, though a good case can be made that it is not meaningful, peer-reviewed data, and did not exclude Lemond's testimony when he refused to answer questions on cross-examination.

  • Refusing to consider evidence of other WADA accredited laboratory interpretation of the metabolite(s) issue.
No WADA lab bucked the party line on this issue and Catlin testified that although UCLA adopts a dual metabolite standard in house, WADA adopts a single metabolite standard. The Australian lab was proffered by USADA, but not called on their behalf.
  • Refusing to consider “B” samples favorable to Landis’ case.
“B” samples favorable to Landis came into evidence.
  • Finding a way to disregard evidence from Landis' experts.
All Landis experts were permitted to testify. Whether they are disregarded will show in the decision.
  • Determining that Landis is not credible.
The dancing monkey may have won this round in the media and it remains to be seen what the Panel will do, if anything, with such issues.

  • Skepticism if not hostility toward the violation of International Standards arguments.
Their minds seemed open at hearing so the decision will tell the tale, here.
  • Free pass given to USADA for failures to produce during discovery.
We got this one right, and for fairness note that Landis got a free pass for blowing off USADA's requests.

From USADA


  • Failing to permit Landis to view anything other than the WADA “packet” on any sample, including the additional “B”s.
We got this one right, too.

  • 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.
Fortunately for all, we got this one wrong.

  • Presenting a strong “the results are foolproof” case from Jacques De Ceaurriz.
He didn’t get anywhere close to the stand and he would have been asked about lab leaks, under oath, had USADA called him. Landis did not call him before the Doctor left town, possibly caused by the time pressure resulting from inability to depose the other LNDD witnesses beforehand.
  • Objecting to any evidence offered by Landis on issues concerning deviations of International Standards.
This did not happen and the science was fully explored.

  • Utilizing any and all means to prove the International Standards violations did not “cause” the Stage 17 adverse analytical findings.
We hit this one on the nose, especially any and all evidence elicited by and through Matt Barnett.
  • Object to most if not all Landis requests to adjourn so that he can further analyze evidence he has never seen.
This was much less an issue than we had thought it might become.
  • Attempts to make a longitudinal T/E case the Panel can use if the CIR fails.
We got this one correct.

  • 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.
We were correct on this one as well.

From Landis

  • Some technical surprises he has kept to himself despite his “open” Wiki defense strategy.
We saw a lot of defenses present in pre-trial briefing and presentation at hearing that we didn’t know about as a result of the “Gag” order.

  • Attempting to establish breaches in LNDD testing protocols that are likely to affect the reported analytical result.
We saw that this was an area the Landis team particularly emphasized.

  • Attempting to establish those breaches of internal protocols as violations of the International Standards.
This was also an area the Landis team emphasized.

  • 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.
We saw this attempted, and Ayotte's attempt to refute. Its import or lack thereof by the Panel.
  • Attempting to directly establish the LNDD positivity criteria are either scientifically wrong, or incorrectly applied in this case.
This was a huge area of attack by the Landis team.
  • 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.

Bingo, Landis’ team explained the longitudinal case as being one based on mutually exclusive criteria, improperly combined by USADA in a single study.

  • Attempting to establish International Standards deviations in execution.
This was a big time contention.

  • Attempting to establish that such deviations “caused” the adverse analytical findings concerning the Stage 17 samples.
Again, this was one of the Landis team’s main points.

  • Attempting to demonstrate other B sample “positives” do not confirm the S17 analytic result, by showing them equally flawed for demonstrable reasons.
We were correct in predicting that there would be a great deal of evidence demonstrated to establish that point.


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.
This was not 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.
We will wait for the written decision to evaluate this. The order admitting the B's managed to torture circumstances to suggest Landis experts had agreed not to appear without USADA experts present, which makes no sense at all.
  • Allowing positive test into evidence, but not negatives.
This did not occur.
  • 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.
Fortunately, this did not occur with scientific evidence. It did essentially happen in the cross-examination of Lemond.

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.

This did not happen, to the credit of everyone involved.
  • Having 2-1 votes throughout the hearing, permitting USADA evidence and denying Landis’ submissions.
This did not occur.
  • 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.
We have no way of evaluating this.
  • Campbell finally and actually “losing it” as he is outvoted each time.
Mr. Campbell was never put into a public position of being frustrated.
  • Voting 2 to 1 to convict.
We have to wait to see.
  • 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.
This didn’t happen, to the relief of most.

USADA can lose the contest for high moral ground by

  • Attempting to introduce completely new charges and evidence, such as one over intravenous hydration.
That specific allegation didn’t occur although Barnett elicited that fact from FL in cross examination. USADA’s fallback position seems to be an non-noticed nonanalytical admission to Lemond as supported by Papp’s testimony that such cheating was “doable”
  • Attempting to introduce comments by Landis, all of which are irrelevant to the test results.
This became an emphasized component of USADA’s presentation, through Lemond, cross of Landis, and closing arguments.
  • Mentioning Landis' defense financing in any way.
Matthew Barnett attempted to get information on this subject but apparently the Panel did not compel this information.
  • Mentioning Landis' public comments in any way.
Again, the Daily Peloton postings, the conversation with Lemond and the activities of will Geohagen took center stage in USADA’s presentation.
  • Mentioning Armstrong or Phonak's other doping problems.
This was a collateral strategy at best, attempted but not successful.

Team Landis can lose credibility by

  • Spending time complaining about procedural history.
They did not complain much except as to their inability to cross examine Lemond, and some swipes at discovery issues. USADA in turn complained about failure to produce blood/HCT records.
  • Spending time complaining about comments by Mr. Pound (et. al) and leaks.
They tried to find out the source of leaks but USADA was smart enough not to put anyone with knowledge of leaking on the stand. Pound was mentioned in direct by Floyd Landis but otherwise played no role in the hearing.

  • 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.
The Landis team did not waste time in that way, though the time spent marching through the inconsistent log files seemed excessive and bit them later.

  • Grandstanding, playing to TV instead of the test facts.
Didn't happen.
  • “Losing it” in the belief they are being railroaded, unless it is obvious to all.
They had no reason to do this, nor did they at hearing although the results are not in.

  • Making hyperbolic comments outside the hearing.
The “Gag” order prevented this.


Outside events can make anything worse. It would be nice to avoid having

  • New “leaks” concerning this case or Lance Armstrong in L'Equipe.
This didn’t happen during the hearing but it has prior to the decision publication, with the bonus of Walsh's book.
  • OP “leaks”, results, adjudications during the Landis hearing.
This didn’t happen during the hearing but has occurred prior to the decision publication.
  • Tyler Hamilton or Greg Lemond chiming in about anything.
Whoops!
  • “Results” of “independent” auditing of LNDD publicized during the hearing or as the hearing awaits decision.
Whoops!!!
  • WADA Appeals should Landis prevail.
Remains to be seen.


Final predictions:

Hue - Landis wins 3-0. The process isn't fair but after all is said and done, it must be just here, thanks to FL's request that it be open. If it isn't just, see below:

TBV - Landis loses 2 - 1 with some tortured logic in the decision.


Back to Part V.

12 comments:

strbuk said...
This comment has been removed by the author.
strbuk said...

Thank you Judge Hue and TBV for your continuing efforts in discussing and making understandable the varied aspects of the Landis case. Many MANY people I have come in contact with have expressed their appreciation for all of the hard work you two gentlemen have done on the "Judging Floyd" series as well as at the hearings themselves.

str

Carlton said...

Re Final predictions.

Hue = heart

TBV = mind

?

PEM said...

TBV, why so pessimistic? As much as I believe Landis’ claim of innocence, I also believe the arbiters will be professional in their judgement. My prediction is 3-0 in favour of Landis.

I also think the prosecuting lawyers think he is innocent, but they had a job to do.

Peter.

Michael said...

PEM,

What would be interesting would be to hear Jacobs take of Hamilton's case vs. Floyd's case. My gut feeling is they were very similar.

And reading past Arbs decisions, they didn't act professionally IMO. Finding athletes guilty when they KNOW the athlete wasn't trying to gain an advantage is PLAIN WRONG.

Mike

jbro said...

Mike,

My observation is somewhat different. I find the problem, to "KNOW the athlete wasn't trying to gain an advantage", requires (I believe) a subjectivity that is best left out of the process. The cost to prosecute cases that allow for excuses could be enormous. I can side with WADA on the attempt to make the athlete 100% responsible. It provides some objectivity, although NOT a perfect system. It could be an attempt to be cheap I suppose. What I don't find acceptable is the lack of quality in the tests. In this case, it seems, we will not ever know if FL had dope in his system, regardless of intent. The process, in the least, should provide that much. Then we can argue over intent.

Jason

Michael said...

Jason,

Agreed. I was referring to the Zach Lund case and the fact that the ARBs admitted that they knew the athlete wasn't trying to gain an advantage.

I'm not sure I agree with the athlete being 100% responsible. What about tainted supplements? I think one Pro rider proved his samples were tainted and it didn't help much.

As for my Hamilton comment, is the blood test that found him guilty even being used by WADA? I've heard/read they stopped using it after his case although I've never been able to confirm it. If this is true, how could he have been found guilty for a faulty or no longer used test?

jrf said...

Excellent work... very thoughtful and thorough. I really enjoyed reading this post.

PEM said...

In my earlier comment, my reason for suggesting the prosecuting lawyers may believe Landis is innocent is the fact that they themselves did not focus on the scientific evidence in the closing remarks, but on character issues. I perceive this as an indirect admission that they concede to not having a strong scientifically based case. Perhaps this is a clouded way for them to let the arbiters find Landis innocent, without actually dropping the case.

With this train of thought, I have some questions for the lawyers:

If you are prosecuting, must you have a predisposition believing the defendant is guilty of the crime? If you believe he is innocent, do you still prosecute as best you can and leave it up to the judge and jury? Are you expected to be impartial enough to be able to prosecute or defend any case?

In civil cases, must you try to get as much as possible for your client? For example, consider a divorcing couple. You start out trying to get as much as you can for your client. During the hearing, you realize your client is the knave. Do you still try to get as much as you can or do you stop and say this person deserves nothing?

Did Landis have to go shopping for a lawyer that believed him and USADA do the same? Or are lawyers just guns for hire?

Lots of questions. Thanks to anyone who answers.

Peter.

Mike Solberg said...

Just for the record before the ruling is released (maybe today, although I doubt it): I join Judge Bill and think the ruling will be 3-0 in favor of Floyd.

syi

bi_anne2001 said...

I think Floyd can lose 2-1 without any tortured logic. The way I see it the panel is deciding between three things. 1) The testing is not flawed, Floyd is guilty. 2) The testing is flawed, but not enough to give the adverse result, Floyd is guilty. 2) The testing is flawed, and enough to give the adverse results. Floyd is not guilty. I think everyong agrees that case 1 is out here!, so we're looking at 2 and 3, and although I agree the testing is flawed, I don't know wether it's flawed enough to rule out number 2. this is what I think the panel is deciding, and if they decide on 2 then we have to accept he was guilty and the repurcussions are quite big. If they go for 3 then the repurcussions are enormous. Let's just hope if the outcome is 3 that they are strong enough to deliver that verdict. The problem I have is that if they deliver outcome 2 there will be uproar here due to the biased nature of most posters!! I think I'm one of the few who will accept the panels decision either way!

Cheryl from Maryland said...

2-1 for Floyd depending on Mr. Brunet. I think all the arbitrators are concerned about cycling and doping, and their perspective on this issue will color their interpretation of the evidence.

Mr. Campbell - the system is flawed and seen as prejudicial to athletes. This is not good for clean sports in the long term as athletes and fans will discount doping enforcement. Vote for Floyd

Mr. McLaren - any deviation from a strict interpretation of the rules is condoning doping. Vote for USADA

Mr. Brunet (I hope based on watching him at the hearings) - We could be facing this over and over again with every positive test. The evidence is clear that the LNDD violated international standards in Floyd's case, and it is public. WADA, USADA, the other ADAs and the Labs need to get themselves in order. Vote for Floyd