Monday, December 29, 2008

The Winnowing: Maurice Suh and Daniel Weiss

Maurice Suh and Daniel Weiss represented Landis at both the AAA hearing and the CAS appeal. Rather than write anew, they pointed us to a piece in the Los Angeles Daily Journal in January 2008, from before the CAS hearing. We hadn't seen it before.

[Back to the Introduction]

by Maurice Suh and Daniel Weiss

Some extracts:
The phrase ``presumed innocent until proven guilty'' is not just a tag line for le­gal dramas such as ``Law and Order'' --- it is a core principle of our legal and societal fabric. The practical effect of this principle is remarkable, but one that is largely lost in doping cases. Presuming that an athlete is guilty based on the test result alone assumes that the anti­doping tests are infallible. This is not true. As seen in recent months, ac­credited laboratories do conduct tests improperly. For instance, the two European World Anti­Doping Agency­accredited laboratories that tested American sprinter LaTasha Jenkins were found to have vio­lated a clearly established test­ing standard. Anti­doping systems must take into account the fact that the laboratory results and methods are not always correct, and should place the onus, in each and every case, on the testing authority to es­tablish not only that a valid test for performance ­enhancing drugs was positive, but also that the test was performed in a scientifically reli­able manner.

What has been lost among the scandals, admissions and deni­als of the last several weeks [Jan 2008] is the great oppor­tunity that all sports have to craft a compre­hensive system that achieves clean com­petition without sacrificing the rights of the athlete.


blogger said...

Interesting that Suh uses the Latasha Jenkins case as an example of how the "innocent until proven guilty" principle isn't applied in the anti-doping process when in fact she was cleared by that same process due to the standards not being followed. This would show that the system does work, not that it doesn't work as Suh suggests. Only if her appeal failed despite the standards violations could we conclude that the process doesn't work, and this wasn't the case.

Although it is only right that Latasha Jenkins was cleared, it doesn't mean that she was unfairly charged. There is still the possibility that she took doping substances, but according to the procedures she is considered not to have done so.

On the other hand, Suh was unable to demonstrate that the testing standards were not followed in the Landis case, this is why the Landis positive was confirmed. This is a totally different situation than the Jenkins case.

Mike Solberg said...

I think you didn't read Suh's piece too carefully. He didn't use Jenkins case to directly support his argument about "innocent until proven guilty." He used it to support his argument that the tests are not infallible. His point is that the presumption of guilt based on fallible tests creates an unfair system.

Also, if you don't think Suh was able to demonstate that the testing standards were not followed in the Landis case, you need to go back and read the AAA majority decision. There are lots of ways the standards were not followed, although the majority ruled that they didn't affect the outcome of the tests.


blogger said...

SYI, the Jenkins example was directly prefaced by Suh's comments about how presumption of innocence is not maintained in the anti-doping process, so I think my comment is legitimate.

I don't know how you can argue that the system is unfair in the case of testing error when there are numerous examples of how athletes have indeed been cleared when error is proven: therefore no presumption of guilt. Presumption of guilt would only be confirmed when the athlete isn't cleared in the case of testing error.

Your interpretation of the Landis case is not the same as that of the two arbitration panels that worked in a "fair" system, at least fair in the context that Jenkins was cleared by the same system thus "proving" it's fairness. That is your right to have a different interpretation, but that doesn't necessarily mean the system is unfair or that the arbitrator's conclusions in the Landis case were wrong. It just means that you don't agree.

Russ said...


If I may express the balance of the situation in Southern redneck english:

less say fair process is fair somma de time.

Wrapped up in that, to translate, is that if the system is not bending over backwards to make sure of fairness, it is a poor system that claims to be just
or fair.

Also there is some slight indication that Floyd's case has partially achieved its objective of improving the system. Perhaps Latasha has been the beneficiary of Floyd's efforts.