Sunday, December 28, 2008

The Winnowing: John Gilliland

US Air Force Major (for identification only, yada, yada) John Gilliland wrote an overlooked piece for us dealing with prosecutorial discretion. He is an Air Force judge advocate, involved in numerous drug prosecutions involving urinalysis testing.

[Back to the Introduction]

In a cover letter, he writes:

A bit of context for my piece: my office, which is the prosecution function for my Air Force base, just finished some litigation in which there were some defense shenanigans involving discovery material. This coming week we have a court-martial that entails a controversial discovery request. I made the decision to provide that information knowing that it isn't admissible but that the defense may work that information into the court anyway. We're still smarting from last week's fiasco, but the case this week is an apples to oranges comparison.

It's irritating when other folks don't play fair, but there's a big difference between playing unfair and playing in ways you're not used to seeing. I've seen both in the last couple of weeks, and I keenly understand the importance of understanding that difference. Justice, someone's career & freedom, and our reputation depends on the prosecutor's ability to make that distinction. You call foul against the former; you just do your job (and don't whine or mischaracterize it, a la Mr. Tygart) when confronted with the latter.

I think the best word to describe both sides in the Floyd Landis case is intransigence. So I thought it a bit odd that they actually reached a settlement concerning Landis’ recent federal court lawsuit. While the two sides will likely never kiss and make up, at least now there may be a d├ętente as Landis regains his freedom to race at the end of January.


The real question is whether USADA’s agreement to the settlement reflects a change in attitude, however slight. Based on what we’ve seen and heard from USADA throughout the proceeding, including this settlement, I think not.

As the governing/enforcing authority, USADA is essentially has a prosecutorial role. A prosecutor’s obligation is to seek the truth, regardless of what we see on television. Part of that obligation entails supporting an accused’s right to relevant documents, information, and to access experts. Yet USADA was consistently uncooperative on this issue, yielding on significant points only when it believed it had no choice. And the WADA rules it must follow concerning use of expert witnesses is patently contrary to the concept of fairness.

Another prosecution responsibility is to always act in a way that’s above board, both in reality and in perception. USADA’s strident attempts to prohibit Landis from publicizing information and the process - even though USADA’s rules explicitly allowed for it - clearly suggest a steadfast unwillingness by USADA to be open. This attitude points to a philosophy that is inherently contrary to fair play.

Admittedly it’s hard for a prosecutor to keep these obligations in mind when he has a perfect record to protect and when he hires private attorneys to fight this fight for him, but it’s still his obligation. In my opinion, USADA wanted to win at all costs and unhesitatingly abandoned its obligation to the truth.

Floyd Landis’ defense team, on the other hand, had every right to be unyielding. Their job, just as with every defense attorney, was to zealously represent their client. Only this defense team had to try to overcome something criminal defendants doesn’t: the presumption of guilt. So when Landis’ defense team dug in its heels and didn’t back down, it was because it was their right to do so, and they had no choice if they wanted to clear Floyd.

No reasonable person can take them to task for standing their ground.

After all the problems with the testing process that this case brought to light, we could at least hope to see a slight leveling of the playing field. Unfortunately, we haven’t. When CAS announced its decision, USADA could have sent a positive message by publicly waiving the $100,000 award, citing any number of reasons that would’ve been good for its image. But it didn’t.

It also could’ve gone public with the settlement agreement in order to demonstrate a (newfound?) dedication to fairness and openness. But it didn’t. Therefore, regardless of the settlement terms, the perception of USADA as an unyielding, unfair organization remains.

On a different note, please take the time to thank TBV, Judge Hue, and all the others for all the work they’ve done with this case over the last couple of years. The quality of work, analyses, and their dedication to a fair fight are all commendable, and are also exceedingly rare.

Best of luck to you all!