Panel and WADA "experts" bend truth to convict Landis
The decisive part of the Landis arbitration was the reliability of the IRMS tests. In the critical seven paragraphs of the award, the majority contradicted itself and presented outright lies as their justification for conviction. In saying the arguments of the Landis experts were "unsound and without any reasonable scientific basis", they have shown the dishonesty and duplicity that the WADA/CAS community will go to to protect their own interests to convict an athlete.
We will refer to paragraphs 182-189 of the Panel's majority award.
The lies begin in the second sentence, "However, it must be noted, that TD2003IDCR does not apply to RRTs between two different and separate instruments that are not of the same type."
Nowhere is that qualification present in TD2003IDCR. The matching of RTs and RRT is the very purpose of the identification being described by the document. This claim by the panel is both legally and scientifically absurd. It is also contradicted by the testimony of all the WADA witnesses, who said the match between the GCMS and IRMS peaks was done by retention time or relative retention time.
Nowhere in the testimony or briefs was there a claim that TD2003IDCR did not apply between the GCMS and the IRMS. This idea could only have come in deliberation from an attempt by the Majority to find a legal loophole, or via Dr. Botre's "independant" and unreviewable expert advice to the Panel.
Notably absent from the Panel's award is the actual text of TD2003IDCR, an omission striking because so much other fluff (chromatograms from irrelevant fractions) was included. We can see why, because it doesn't admit the interpretation the Panel has tried to apply:
For capillary gas chromatography, the retention time (RT) of the analyte shall not differ by more than one (1) percent or Â±0.2 minutes (whichever is smaller) from that of the same substance in a spiked urine sample, Reference Collection sample, or Reference Material analyzed contemporaneously.
In absence of the use of identification per TD2003IDCR's use of retention times and relative retention times, there is no way to identify the peaks. But let us proceed with the deception.
This was Brenna's testimony in rebuttal, after he'd heard the problems with the retention time matching -- which he had testified earlier was the method for identifying peaks. Then Brenna contradicted himself in testimony, and the panel chose cite only the version that let them accept the test result. This is duplicitous by the panel, which should have taken the contradiction as an impeachment of Brenna's testimony on the subject. This was, in fact, clearly identified in the cross-examination of the rebuttal testimony. On page 1964, Suh is asking Brenna about earlier testimony, where he said the matches between the GCMS and the GC IRMS were done based on retention times. Suh is reading the earlier testimony:
18 of interest here?"
19 Answer: "Same three."
20 Question: "And how would I know?"
21 Answer: "5-alpha, 5-beta."
22 Question: "How would I know which
23 is -- which is because they just have numbers at
24 the top?"
25 Answer: "Well, they have retention
1 times that match on previous -- with the
2 previous GC/MS and the GC/MS delivers structural
3 information, like aliquots, and so forth, which
4 tell us which is which."
5 Question: "By the numbers at the
6 top, can you identify those for us, like which
7 is the 5 beta."
8 Answer: "This one. 5-beta,
9 5-alpha, pdiol. Is that what you are asking
15 the importance of the retention time, you were
16 describing it in relation to the peak
17 identification between the GC/MS phase and the
18 GC IRMS phase; is that right?
19 A. Yes.
20 Q. But you didn't talk about that
21 today, did you?
22 A. I talked about whether retention
23 times should coincide between the two, and
24 relative retention times --
25 Q. Between the two what?
1 MR. BARNETT: Let him finish.
2 A. I talked about whether relative
3 retention times should coincide between rel- --
4 retention times and relative retention times
5 should coincide between the two techniques.
Later, realizing that use of retention times is fatal to the USADA case, Brenna gives the panel what it wants to hear, contradicting both versions of his earlier testimony:
15 A. Let me clarify my comments. It is
16 not the case that one would see identical
17 retention times or relative retention times
18 between GC/MS and GC combustion IRMS. I think
19 you are asking me whether the interface between
20 the GC and the IRMS could cause a four-minute
21 delay, and the answer is no. It wouldn't cause
22 a four-minute delay. If everything was matched,
23 it wouldn't cause a four-minute delay.
24 But it also would not be expected
25 that the retention times would match within some
1 sort of predetermined specification, and so I
2 would not use a matching of retention times from
3 a predetermined specification to match up peaks.
4 Q. That's why you use relative
5 retention time, correct?
6 A. You can't use relative retention
7 times. I explained why this morning. Would you
8 like to know what to use? I can explain it. We
9 have the chromatograms up there.
10 Q. No, that's all right.
11 A. Okay.
12 Q. Actually, no, why don't you go ahead
13 and explain it. Go ahead.
14 A. Well, on the GC/MS side, we see a
15 pattern, so we can see peak heights. And so --
16 and we want to look at the overall pattern is
17 what -- an intermediate-sized peak; a small
18 peak; this is one of the strong peaks; and then
19 a large one. And then we move over a bit, and
20 we find a large peak, an intermediate peak, a
21 smaller peak. And then we move to the end, and
22 we see a large peak.
23 And if you look, you see the same
24 pattern here. In fact, I would -- I would say,
25 you see a number of peaks here, a number of
1 peaks here, a number of peaks here, and they
2 have approximately the same -- same look from
3 this distance.
Let us proceed.
True enough, and not in dispute, but here in the next paragraph, we either have a profound misunderstanding, lies, or misrepresentation by an expert.
This is mathematically incorrect, incoherent, and completely misses the scientific purpose of the use of relative retention time, which should have been explained by the panel's expert. The relative retention time is used because the absolute times will not match; that is its very purpose! The constant factor of the one minute delay should have been subtracted, and then one would indeed have matching relative retention times, exactly as described by Meier-Augenstein. To be specific, the correct computation is (11 - 1) / (6 - 1), which is 10/5, which is 2. After locating the "anchor" in each chromatogram, the relative retention time for each peak in the GCMS should be completely comparable to those in the IRMS.
Which was not a concesssion, but a statement of the obvious about the absolute retention times. The use of "concession" and "claim" above are reflective of the biased shading present in the majority opinion.
This conclusion turns the plain language of TD2003IDCR on its head. What is scientifically, legally, and morally unacceptable is turning a reviewed, published, numerically quantitative requirement into a "approximate visual identification" at the last minute to salvage a conviction.
Let's be clear. The panel says there are two machines with retention times of 25, and 45 minutes so you can't use absolute numbers. Correct. So under WADA TD2003IDCR then relative retention times need to be within 1% difference. Now the Panel is inventing a distinction that when there are two machines you can't use relative retention times either, leaving no quantitative method for identification . There is nothing in TD2003IDCR that says it applies only to one machine.
Now, the question naturally arises, "was it possible for LNDD to have achieved unimpeachably correct peak identification with the equipment at their disposal?"
Why yes, in fact, it was, if LNDD knew how to use what they had.
As Dr. Meier-Augenstein explained, if they had run the in-stock calibration mixture with all the analytes in question, they would have unequivocally identified the peaks in question as seen on the GC IRMS. But LNDD did not do this, and their relative retention times don't match, and their temperature programs were different and their flow rates were different, so really, they can't show they've done much of anything correctly.
The LNDD had at least three methods available to make the identification of the peaks in the IRMS compliant with the TD2003IDCR, and chose to do none of them:
- It could have used a cal mix in the IRMS that had all the analytes of interest, and matched RT and/or RRTs on the same instrument. The LNDD chose not to do this.
- It could have used nearly identical chromatographic conditions between the two instruments to make comparisons easier. The LNDD chose not to do this.
- It could have used cal mixes on each instrument with a known peak after the last peak of interest, and computed Kovat's indexes for all the peaks in between the anchors at each end. The LNDD chose not to do this.
The reasons why conformant identifications were not provided are excuses for not doing objective laboratory work. This is a "no liability" reading of the ISL compared to the strict liability of the Code as applied to athletes. If an athlete doesn't know what is in a supplement and tests positive for a banned substance, no excuse is good enough. If a lab doesn't know how to meet the ISL for peak identification, any excuse is accepted, and the athlete is still "deemed" to be guilty.
These seven paragraphs of the award do not present reasoned conclusions based on science or law, and are the heart of the ruling against Landis. Without them, there is no case.
They are a desperate attempt to prevent the finding of a legal conclusion there was an ISL violation that would lead to a burden flip. The burden flip that should have occured would have obliged the Panel to consider evidence that was dismissed off-handedly in absence of the flip. The arguments made by Amory the values were contradictory to known patterns, and the arguments of integration and linearity were blown off because there was no burden flip to require their refutation by USADA.
We see here all we need to know about the legitimacy of the inbred, unaccountable WADA apparatus.