Requiem for a Champion

Floyd Landis
2006-2008


“He’s in every aspect the toughest man, ever,” Amber says seriously. “Physically tough, mentally tough, he’s just one tough bitch.”
Amber Landis


Bill Hue*


I stopped having heroes sometime after I turned twelve and I figured out my parents weren’t gods. I grew up pretty quickly after that and soon set aside all childhood things. As an adult, I was trained in and entered the practice of the most cynical profession there is, the law, ultimately becoming a judge. Floyd Landis doesn’t want to be nor has he ever intended to be anyone’s hero. But he is my hero.


Floyd is not my hero because he is an American or because he won the Tour de France. Greg LeMond and/or Lance Armstrong are not my heroes and they won many more tours than Floyd has. Floyd is not my hero because of his epic ride on Stage 17 of the 2006 race. Without demeaning that ride, others in cycling have had similar epic single day rides throughout the years.


Floyd is my hero because in the face of the biggest travesties of “justice” I have ever seen, he stood proud, determined, true to himself and his family and did not bow to those who define “the game” by making its rules, prosecuting those deemed to violate those rules and then stack the deck with those responsible to judge those “violations”. He made them work for it and we are all the beneficiaries of his efforts even though he ultimately derived no benefit, whatsoever.


Today, the Court of Arbitration of Sport finally declared the winner of the 2006 Tour de France after 2273 miles and 708 days. Floyd Landis won the race on the road but lost it, inevitably, to WADA and its useful idiots at the Chatenay-Malabry laboratory, the international media and those who slavishly kneel at the alter of the anti-doping gods.


Landis beat the likes of Oscar Pierrero, Carlos Sastre and Levi Leipheimer on the road, fair and square but he could not overcome WADA’s minions, Travis Tygart and Richard Young in particular, Dick Pound, of course, the rubber stampers on both Panels who call themselves "neutrals" with smug straight faces and a host of others who act out of self preservation rather than justice because that playing field was in no way fair or even.


I’ll have more to say in the hours and days to come as I deconstruct the fable that was Landis’ anti-doping prosecution.


For now, I simply and humbly thank Floyd, Amber, Arnie, Maurice, Howard and Floyd’s family, many friends and supporters who fought a fight they could not win because it was the right thing to do.


I also wish to offer my sincere gratitude to Dave and Mrs. TBV and Paula and Mr. STRBUK for their dedication to truth, fairness and justice and to their daily sacrifices to keep this matter in the forefront of our attention.


This is a sad day for justice.


Bill



*Bill Hue is a Wisconsin Circuit Court Judge. His opinions here are strictly his own.

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Bock's House

In a comment, Bill Hue thought through the "John Doe" case against USADA ...


I agree with TBV's analysis. By a vote of 2 to 1, the Landis Panel majority gave the go ahead to all ADAs to test any "B" samples, telling the ADA that they owned the "B" sample and could do whatever they wanted to with it, including testing it but that such a test couldn't constitute an adverse analytical, in and of itself.

That ruling certainly would embolden USADA to start testing "B"'s with impunity, as I suggested they would do as I analyzed that determination.

In this case, Pell indicates they also have two sworn statements from "reliable sources" against the rider. Bill Bock then amplifies that the brave new world of non-analytical positives is still viable as a prosecution technique.

Further, while indicating that testing the "B"'s was something the ADAs could do, the Panel majority further embolden the ADA's by accepting the results of the "B" testing into evidence in Landis' case. That was virtually unheard of and dare I say preposterous given the WADA Code provisions, previously.


Obviously, gilding the lily, the newest member of USADA's brain trust, Bill Bock, took the ball and ran with it, trying to mix the "B"'s from a non-positive "A" with his sworn statements to make a non-analytical positive case.

[The "non-positive" above was originally "non-negative" that I think was a typo. -TBV]


We'll see how that turns out for him.

I hear him whistling in the dark with his comments. He is one scared dude, for good reason. Maurice suh has had enough of this and found a way to get it into a court USADA doesn't own. He also gets to depose those guys now.

Katy bar the door. These USADA guys have no individul immunity for shenanagans like this. Hopefully Bock et al have done some planning because if they are liable, Maurice might take their house

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Too Late For Landis...

Too Late For Landis:
Arbitration Landscape May Change In U.S.

Bill Hue

We missed this release from Wisconsin Senator Russ Feingold’s Office in July;

“Washington, D.C. – U.S. Senator Russ Feingold (D-WI) and U.S. Representative Hank Johnson (D-GA) today both introduced comprehensive legislation in the Senate and House, respectively, to ensure Americans are not forced into mandatory arbitration agreements to resolve employment, consumer, franchise or civil rights disputes. The bicameral Arbitration Fairness Act of 2007 amends the Federal Arbitration Act to make pre-dispute agreements to arbitrate employment, consumer, franchise, or civil rights disputes unenforceable.

[MORE]

“Arbitration can be a fair and efficient way to handle disputes, but only when it is entered into knowingly and voluntarily by both parties,” Feingold said. “People from all walks of life – employees, investors, homeowners, those enrolled in HMOs, credit card holders, and other consumers – often find themselves strong-armed into mandatory arbitration agreements. We need to make sure that all Americans can still have their day in court.”

"For consumers, mandatory arbitration is an albatross. And despite what companies may say, it' is not more affordable than going to court, should not require consumers to travel to an appointed location for arbitration, should not contain hidden costs, should not threaten complainants with a 'loser pays' proposition to discourage them, should not shorten the notification period, or block class action status, as some clauses do," said Congressman Hank Johnson.

"Consumers Union thanks Senator Feingold and Congressman Johnson for leading the charge to protect consumers from mandatory binding arbitration. In doing so, we will be restoring justice and fairness to the system and putting consumers on a more even playing field in disputes with far more powerful corporate interests," said Sally Greenberg, Senior Product Safety Counsel for Consumers Union.

"With mandatory pre-dispute arbitration privatizing our civil justice system - a system we fought a revolution for - fairness in the marketplace is undermined and consumers are denied any remedy for fraud and deception," said Public Citizen President Joan Claybrook.

Arbitration is billed as an inexpensive alternative to civil lawsuits. The opposite, however, is often the case. Filing fees and other expenses in arbitration can result in much higher costs for the parties than civil actions. Attorneys’ fees, whether hourly or based on a contingency, are similar regardless of forum.

The Feingold-Johnson bill is supported by a host of consumer advocate organizations including Consumers Union, Public Citizen, American Association for Justice, Center for Responsible Lending, Consumer Federation of America, Homeowners Against Deficient Dwellings, Home Owners for Better Building, National Association of Consumer Advocates, National Consumer Law Center (on behalf of its low income clients), National Consumer Coalition for Nursing Home Reform, the National Employment Lawyers Association and Public Justice.”

Feingold: "Consumers and employees have little bargaining power and are effectively forced to accept arbitration. This report (the result of an investigation into nearly 34,000 California cases conducted by the group's Congress Watch division, revealing that buried in the fine print of a billing insert, employee handbook, health insurance plan or dealership or franchise agreement are clauses that waive one's right to access the courts, diverting cases to a costly private legal system) sheds new light on problems, and it should come as no surprise that arbitration firms who get paid by companies rule in their favor. One CA arbitration company ruled in favor of credit card companies in 94% of cases, which shows what consumers are up against.”

Feingold said that because public courts can reverse decisions in only the most egregious cases, arbitrators feel free to ignore the law undermining the statutory protections that Congress has so carefully provided for American workers, investors and consumers. Congress can stop companies from using their unequal bargaining power to force consumers into pre-dispute arbitration clauses in contracts.

Feingold said his bill, which has Sen. Richard Durbin, a Democrat from Illinois as a co-sponsor and is sponsored in the House by Hank Johnson, a Democrat from Georgia, will allow an arbitration selection to made only after a dispute arises, not as a pre-condition to the original agreement, which a consumer cannot refuse if they want the credit card.

"The bill would make arbitration more fair and represents a chance to restore fairness into system," Feingold said.

Joan Claybrook, president of PC, and Laura MacCleery, PC's Congress Watch division director, provided narrative to the hard evidence they collected from California, the only state that mandates that data on mandatory binding arbitration be made available to the public showing that about 96 percent of such cases are won by companies who funnel millions of dollars to private arbitration firms who, not surprisingly, rule in their favor.

According to PC's Website, the report focuses particularly on predatory practices in California, the only state that requires arbitrators to publicly disclose information about their practices. The findings, nonetheless, provide a snapshot of how arbitration traps consumers throughout the country in unfair, secret proceedings where for-profit arbitrators make the rules.

MacCleery said Feingolds bill would not just apply to credit card companies but to all binding mandatory arbitration contracts. She closed her comments by saying that she considers the law as having gone astray, based on a ruling by the U.S. Supreme Court on the Federal Arbitration Act which said a consumer can waive the right to court when they sign a contract that provides for binding mandatory arbitration. "We think this is a miscarriage of justice and will be corrected by the bill," she said

USA Cycling and USADA will definitely have to look at the mandatory arbitration clause each cyclist agrees to in taking out a license to ride professionally. That unilateral arbitration requirement is same kind of clause the proposed Act would make unenforceable.

For those of you comfortable in the notion that the right to jury trial and access to justice was so simply “abandoned” by Floyd Landis in the pursuit of his chosen employment, perhaps the knowledge that lawmakers might soon find such a notion abhorrent in the United States of America might give you some pause as to whether that requirement was actually in any way, fair.


[BACK FROM MAIN BODY]

Here is a link to an online letter you can send to your Senator or Congressman if you support the Act:

Online letter here.

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Hue - The Judge and His Ethics

I want to bring a reader's questions regarding my own ethics to the forefront so that there is an answer that all can see.

[more]


The reader observes:

Lastly, the the Judge - I have to ask - is it ethical for you to be reporting with a bias on a case the whole while that the proceeding was going on? You judged Floyd innocent prior to the full arbitration? I hate to say this, but golly, I certainly hope I'm never in your court. Perhaps I'm just being naive.

And, later,

...same poster as above: I correct myself in saying 'you judged Floyd innocent before the full arbitration?' - I agree that we must assume a presumption of innocence, but this is different in the fact that he was tested and the results indicated doping. That was fact before any of the final analysis was complete. To make snide comments about the prosecution before they've even presented their full case is simply juvenile. Everyone talks about the science, and yet science that isn't in favor of the Landis camp is routinely avoided

.

Here is my reply:

Thanks for your question.

I, like you, hope never to see you in my court.

Your observations about my judging Landis innocent before hearing all the evidence was incorrect and ignored virtually every post I have ever made, in public, and I have posted everything under my own name. I'm glad you corrected yourself but I must also point out that I have also never judged him innocent, even now. I have stated that that job belongs to others and I will wait to read the decision before I come to any final conclusion. I will publish a detailed analysis once the decision is published.

As to your notion that I was juvenile and snide in my observations concerning the prosecution , others might disagree with you. I think you are incorrect, myself, but that is my opinion and you have yours. Everyone is free to have their own opinion. I proudly stand by the entirety of my work here and elsewhere.

You have asked a question about my own ethics as a Judge. I obtained an opinion of approval from the Executive Director of the Wisconsin Judicial Commission prior to engaging in any commentary concerning this matter and the authority granted contained no limitations.

Apparantly, according to parts of your observations I did not choose to publish here, you think this blog is "out of control" and "became more biased in the desperate hours". Finally, you state that FFF should prove they didn't pay any money to Geoghegan "as the fair thing to do for all those people who have donated so much."

Unfortunately, this blog isn't everybody's cup of tea. You probably should address your additional concerns directly to FFF as we have no authority to respond on its behalf.

Bill Hue

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Hue - End of Evidence

Parties are arguing over whether the athlete can go last, as required by UCI rule. AAA-CAS rule is USADA, Athlete/USADA.

Young proposes: USADA/Athlete/USADA?Athlete

Suh wants USADA/Athlete

Brunet reads order, and it says each gets an argument not to exceed 90 minutes.

Young says we did it my way in Tyler Hamilton plus they got to put in many "new" arguments.

Brunet invites post-hearing briefs but both parties decline.

McLaren makes the Young request the Order.

They will close today, then.

[more]


Young's closing is not real compelling so far. It is clear they don't like Landis and they are spending the first 5 minutes commenting on his character, reraising the issue of Will and trying to link that to a "win at all costs" theory. The Monkey is wearing a little pair of pants! Isn't he cleaver?

Now he discusses science and all the USADA witnesses have experience in urine testing for testosterone in athletic events but none of Landis' witness have similar experience. Of course, they are not allowed to have the best people testify for them by WADA rule. That seems gratuitous to me.

I'm also concerned about any WADA tech document that limits what material a l;ab is "required" to provide. In my reforms, I suggest the lab should be required to provide everything, including the athlete's own urine, for his/her own testing.

Now Young blames Landis' team for ruining the reputation of Mongongu and Chirpolini when he himself prevented discovery which would have ruled out whatever argument there was and wouldn't have wasted two full days of court time, struggling with on the spot discovery and interpretation. He calls the defense, the spaggheti defense; Throw it on the wall and see what sticks (although technically he mixed a metaphor and said see what sees the light of day). He talkjs of pulling rabbits out of hats and making USADA work. Frankly, I'm getting p/o'ed because this system REQUIRES the hearing to go like this. He's got to get the WADA rules changed or start agreeing to reasonable discoverty to avoid these problems. He's whining and it is unbecoming.

I need some science. Young is wasting my time. I'm stopping, here.

No I'm not, he just brought in the "Young Ruse" to discuss blood evidence and to speak of hemocrit levels-stuff never in this hearing and directed those comments to Botre, for sure.

He's done.

No! Wait! Like Columbo he springs up : One more thing and he discusses a document never brought into evidence to explain how LNDD techs knew it was Landis' "B"sample because Landis sent them a letter. Oh! The Young Gambit! Hoisted on their own petard. A double, Ruse plus Gambit, together..

I'm off my "man crush" because that was not good.

Campbell's on to him. The WADA Omerta.

I like Suh's emotion and presentation. Plus he isn't whining. He takes what he has and makes what he can of it. Young cried about those things but Suh soldiers on.

Interesting theories from Young in rebuttal.

Suh has no response.

Two to three weeks for transcripts.

Proposed Finding of Facts in 1 month?

Then decision? This will be AT LEAST 2 months, maybe more.

Thanks to all.

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Hue - Wednesday Afternoon Mailbox

New mailbox for any questions, here.
Bill

I'm wondering if Bill Hue could comment on any reforms that may begin to come from cases like these. Will new law need to be legislated? If so at a national or International level? or specifically through which organizations. Obviously sporting bodies are allowed to arbitrarily define what merits what they describe as fair play. Where is the line drawn? Is it time for outside public intervention into these closed systems. So both the extremes of Barry Bonds (if he's guilty) and Floyd Landis (if he's not guilty) do not happen? How would this intervention be done?

[more]


USADA might be reformed by political legislation or funding pressures. The WADA Code needs to be changed but that would have to be done within WADA and its international "congress". i personally believe this case is in large part related to an effort to bring intervention into the closed systems, through public outcry (better chance before the Will fiasco)or opening the eye's of athletes and fringe dwellers within the Olympic movement if not the "Powers that be" to do something.

Any sense as to how well Brenna has rehabilitated the faltering LNDD science?

He does a fine job of expressing USADA's point of view. At his point, even short debates between Brenna and Davis isn't going to definitively resolve anything. Here's the "wildcard", Botre. What will HE tell the Panel because if he says Landis' arguments are all wet, Landis won't win. If he says USADA's arguments are all wet, USADA will not win. Davis and Brenna aren't tripping his trigger one way or another today.

um, sorry, but i couldn't get in and that was *very* hard to follow (or maybe my brain has just said "enough")...in a nutshell -- what happened?

TBV is the science guy and he will summarize the testimony, later today.
Brenna testified today that mix-cal acetate was fine, has never been challenged and if it is fine, there is no problem with the machine. So, even though there "might" have been be problems theoretically, there were no problems and once there are no problems, you don't worry about things that might have gone wrong...... because nothing was wrong.

I thought it was interesting that all the individual reports that Brenna showed as proof that the retention times matched, didn't have a batch identifying number on them. There is no way to prove that they even match up to the summary sheets they are being compared to. wasn't this a major point of contention in Davis direct testimony?

Davis will cover that, or Suh will do it on cross.

I think this trial is a perfect example of how biased America is against Mennonites- maybe they have unnaturally high hormones. Look at the medical cases that exist regarding Mennonites:
http://news.aol.com/topnews/articles/_a/blue-lights-save-lives-in-stricken/20070520135709990001?ncid=NWS00010000000001 why is no one mentioning this?

Because that is the biggest DANCING MONKEY ever?

As a legal professional, are you seeing clear ISL violation(s)?

I can see them, but I don't count. Botre's opinion is the one that counts.

Botre has no obligation to be fair, though, has he? He could have mailed in his consultation if he had wanted to. Speculation - Can there be any fallout for WADA et al., other than a CAS arbitration that is still stacked with their own people? Is there any use in talking to the DoJ if after a week or two of digesting the findings and comparing it to the testimony?

I don't want to dampen anyone's expectations. I was a system critic and skeptic coming in. I wanted to see the entire case myself and compare what I saw to the written decision. I didn't expect the hearing panel to allow all Landis' testimony into evidense but they did. I didn't expect Brunet and McLaren to be inclusive of Campbell but I didn't see anything that warranted my concern. I HAVE to keep some faith in the honor of the arbitrators so I will wait and hope what I read in the decision is reasonably related to what I saw, even if I disagree with whatever conclusions are reached.

Beeble asks the $24,000 question for which I can't summarize here, other than to say that Suh will spend at least an hour of his closing or more on the issue;

What DOES constitute an ISL violation?

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Hue - Wednesday - Mailbox

NEW AFTERNOON MAILBOX ABOVE-12:53 a. m.

I can take questions again throughout the day, if you have them. However, you might have to find the Mailbox lower on the page and my answers will be more sporadic today, due to my Court Schedule.

I picked this one up from yesterday's mailbag. I saw To "Kill A Mockingbird" on tv when I was 6 years old. I told my mom I wanted to be a lawyer and she bought me the book, which I read when I got older. I know its a cliche by now but it is the truth and it is my life, and what ultimately became of it;

A reader wrote this in the Comments and I think it expresses one of the many reasonable points of view about this case, with a very beautiful illustration from a great American film, "To Kill A Mockingbird";

I'd like to see Suh channel Atticus Finch on his closing:

The witnesses for the USADA, with the exception of the former director of the UCLA lab, have presented themselves to you gentlemen, to this court, in the cynical confidence that their testimony would not be doubted.

Confident that you gentlemen would go along with them on the assumption, the evil assumption,
that all cyclists dope,
all cyclists are basically immoral beings .....

[more]

Some of the questions have expressed the hope for the equivalent of a directed verdict of acquital. I thought that you might want to discuss the advantages of a well argued acquital by the arbitrators. In particular, if the decision is sufficiently compelling, an appeal hearing before CAS might be avoided

.

The appeal isn't upon the record, as we normally think of, so whatever these Arbitrators write, may or may not be relevant to the appeal. Here is why: The Appeal is de novo, a brand new, all over again hearing, considered by the International Arbitration Board called CAS, under Swiss law, in the US and in private, not public. 3 brand new international arbitrators will be selected.

Question for the Judge - In my experience, AAA cases permit the panel to award attorney's fees and costs to the prevailing party, even if there is no contractual right to them in the underlying contract. What about this case? Thanks!

I see that attorney fee issue addressed in many of the USADA AAA-CAS Arbitration award decisions but i have yet to see the athlete having to pay USADA's attorney fees and that is all i can evaluate because USADA has won every single case. If USADA lost, would the Arbitrators award Landis attorney fees? We can only guess, because no athlete has ever won. You are right, though, they have the power to award them to the prevailing parties under AAA. There are supplimentary Proceedures for AAA-CAS Arbitration Hearings and if they vary from this answer, i'll post, later today.

You may decide to withhold any tip-off of your Final Judgement (I understand), but if you could just say if the Mon & Tues witness testimony had a MAJOR impact on your previous thoughts, that would be enough to tide me over. :)

It has. I have been waiting to see what they could do, as the evidence seemed overwhelming for awhile, with the WADA lab heads all saying everything in writing checked out. This evidence explains how the evidence could appear to check out and still be wrong. There are still some holes to fill and if left uncovered, Landis will not have done enough to turn the burden. he has smart lawyers and there are smart lawyers on the other side who are all aware of the stakes and what is left done or undone. pay attention to closings becuase if someone left something uncovered, the other side will jump on. that is why coming to an opinion before all the facts and arguments are in is a trap.

Who goes first in closing arguments?

USADA, then Landis, then USADA (rebuttal, because they have the burden of proof). If they get 90 mins each, Landis will use all 90 in his single turn. USADA would split up its time between the two presentations anyway the see fit.

It is amusing that Catlin's word is believe when it looks good for Floyd's case, but when he says things like: "Asked his opinion on whether Landis doped at last year's Tour, Catlin said, simply: "There's no question about it. My opinion is doping is going on." http://sports.espn.go.com/oly/cycling/news/story?id=2876110&name=FPT-2876110-051918&srvc=sz
His comments are conveniently overlooked. TBV accusing the USADA of throwing the search for truth overboard and just trying to win is one of those "speck in someone else's eye, log in your own" kind of dichotomies.

Amusing how you sythesize the case down to 1 sentence in one AP article. Did you see or hear anything else about Catlin's testimony on TBV? Did you read either of our on the spot commentaries or summaries? Did we "forget" to mention that part of Catlin's conclusion and it was only to be found at the bottom of a story about a dancing monkey in the mainstream media? Can you cite to anywhere TBV glossed over Catlin's conclusion in his summary or where TBV or I said Catlin favored Landis and mentioned nothing else? You can't because we didn't. We are accused of being biased many times by people who are themselves biased, and wish not to see the counter point to their world view developed or who pretend they can't go somewhere else to find exclusively their own view with no counter point, when in fact they can go anywhere (minstream media, DPF, other bulletin boards) to get that view reinforced.
We present both sides. We seek the truth. To accuse us of the contrary is unfair, diminishes what we do and is wrong. You are free to surf elsewhere if you disagree. It is a free world. What I want to make clear is that we are introspective enough and accusing us of hypocracy won't cause us to change our ways as clever as one thinks one's point is.
Bill Hue

I'm struck by the revelations and cell phone photos presented by Simon Davis. It feels like pivotal testimony to me - the rabbit perhaps. I'm also thinking that his testimony would be fractionally as valuable if the extra B samples had not been tested. Any comments on the irony of such damning relevations coming out of the April retesting which had been vigorously fought by the Landis team (understandably enough).

sometimes you get what you wish for but it was not what you hoped it was. sometimes you get what you wish for and it is exactly what you wanted/needed. sometimes you never get what you wish for. We'll see later because this case is not over.

Is someone who is innocent (or believes they are innocent), more likely to do stupid things to convince others questioning their innocence, then someone who is quilty?

In my experience I have never had a feel or empiricle proof for either option.
bill

Most of us assume there will be an appeal. Do you have any idea if that will occur before our during the Tour in July? I know there was talk of wanting to declare last year's winner before this year's race.

Will Floyd also be tried by that French agency, regardless of this trial and the CAS? I'm sorry I can't remember the acronym at the moment. And did I read correctly that with the Will G disaster that they will not try to appeal to the U.S. government?

No appeal can possibly take place before July. you are looking at the end of 2007/beginning 2008 at the earliest. AFLD has reserved ruling on its hearing. Some doubt its jurisdiction other than to keep a rider from riding in the country of France. a poster expressed some doubts about whether Landis could continue his PR efforts to cause change in the US sports anti-doping efforts, given Will's problems but that is that reader's point of view, only.

Someone asks who carries the water if USADA ;oses and doesn't appeal. either WDA or UCI can appeal independently or in conjunction with any party.

Given the stakes of this particular case- it has to be viewed as one of, if not the most important case USADA and WADA have ever prosecuted- will the arbitration panel risk their reputations on lowest common denominator science? Can/will they really tell the defense that "good enough" is good enough to convict?

Given the legitimate questions brought to light during recent testimony, and the malleable nature of LNDD's SOP, it seems to me that a "horse shoes and hand grenades" window of certainty is just too broad for a case this important. Can't USADA be expected to have this one clean?

The measue to be tested is the "comfortable certainty" of the Panel. Has Landis been able to prove Iternational Standards violations? If so, did those "cause" the adverse analytical findings? Sre, lots of things factor in but the easiest way to get rid of "background noise" in a legal decision is to just go back to what is simple and clean. Examine it carefully, weigh the evidense and almost always, the answer pops right out. it is only when you try to make the facts fit an answer you want that the decision becomes tortured.

You mention "holes that need to be covered" by Landis' team....what are they?

He has to cover every single adverse test and if the "additional" "B"'s come in, he has to cover every additional "B". Did you hear (see) McLaren's question about the Maslynx reprocessed data, "looking like" the original data? That is what i'm talking about. That was an arbitrator with a vote, asking whether any of the Davis testimony makes a difference if the data was reprocessed on a different machine with different software.

has Landis fallen short by not making a clearer and more concise argument that testing procedures violated the standards and caused the false positive? His team is smart: if this argument could have been made, would they not have made it?

You might get that in closing. The main arguments are lack of competance in running the machine and tests, a hint of potential for manipulation and very little on the false positive aspects, which i would have found more compelling, myself. If not persued, it wwasn't there to take, i think.

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Hue - Mailbox- Tuesday

Ok, I can take some questions if you have them.
Bill

Will Davis have a chance to do the software demo tomorrow?

That is worth watching. The Truth? Can we handle the truth? If the Panel doesn't allow it, something is fishy.

[more]

Any idea how much time Landis defense has left?

We'll get an exact count at the start, tomorrow. They are almost finished and Davis is their last witness. Redirect also seems short, but USADA has al ot of time left.
Time was always difficult to control when I was a lawyer and time preservation and expenditure by the Landis team was terrific in the trial. Plus, remember, Barnett gratuitously offered more time to them, so it should not be a problem.

I assume this arbritration has no direct effect on other's cases involving LNDD, but now that Landis's team has shown what appears to be gross incompetence by the lab's employees will the results be at least admissable in other cases if the panel sides with Landis?

It may be relevant in future cases as a template. I believe LNDD was the Landaluze lab, as well. They are not having a good year. The more interesting question is whether other cases can be reopened on this "new" evidence.

USADA offered 3-4 hours of their time to Landis yesterday. Can they back out of that now? I think Floyd's pretty much out of time without it.

I think Landis is ok on time. they would look very petty to withdraw the offer and I don't think the Panel will let them.

can you explain a bit more about the burden of proof issue and how it's changing?is it typical in arbitration for the burden to be on the defendent? what are the circumstances where it switches?

USADA has met the first burden; That Landis has has both his "A" and "B" samples from Stage 17 reported as an adverse analytical finding. Now it is Landis' burden to show any violations of International Standards. If they determine he did, USADA would have to prove that the violations didn't "cause" the adverse findings (he was a doper)

On a more qualitative note, what are the odds that the panel will care one way or the other? in other words, the totality of the evidence is what it is regardless of burden so even if the burden is on usada and they don't meet it but the panel still thinks he doped, would they rule against landis anyway?

They didn't do that in Landaluze. That Panel thought he was a doper (because there was good evidence he was) but he showed one LNDD technician analysed parts of both his "A" and "B" samples. It was established that that was an International Standards violation and the Spanish ADA failed to present any evidence to rebut the presumption.

What are the issues with regard to appeals? my understanding is that either side can appeal. to whom do they appeal, what is the (potential) bias of that body? do they have to grant every appeal? with they simply review evidence and briefs and rule or will there be a whole new trial?If, say, the landis wins 3-0, is the usada in so deep that they'll appeal no matter what or is there a chance that if they lose they'll "take it like a man" and let it go?

Both parties as well as WADA and UCI may appeal. The appeal is to CAS. The hearing would be in the US but will be in private and it will follow Swiss Law. The hearing is brand new. They will have to do it all over again.If USADA lets it go, UCI and or WADA can carry on an Appeal.

I know that I am biased in favor of Floyd, but I don't see how the panel could possibly rule against him based on what I have seen so far. Am I seeing this wrong?

If the Panel rejects his arguments that International Standards were violated. He will lose. I wouldn't make a call on it even tonight. Waqit until all the evidence is in and the arguments made. then, figure out what Botre's roll is because that is a wildcard.

About the manual/auto subtraction thing... If the code/methodology for the automatic process is now lost, shouldn't it be done manually, so that whatever process is used can be documented (even though they didn't)? If they had done it automatically, couldn't Landis claim that it's faulty because we don't know what the process is?

That is part of the argument, I think. Check TBV's summary later this evening as he will comment on that.

WHY wouldn't the panel compel LeMond to testify under cross examination? OR was this a miscalculation on the part of team Landis? I would thinks that since LeMond has a supposed history making false statements( the Lance Armstrong's threat against LeMond's wife) it seems that it would be pertinent. Now FL is posited as the only villain, which may not be so, and despite the media characterizations it's a "he said, he said" thing . Thank you.

I don't think the Panel understood the power it had to compel testimony under California law. Brunet said a number of times they couldn't make him but they could go to a Circuit court Judge (that is what i am) and ask him/her to order the witness to testify. If the witness wouldn't testify after that, contempt of court proceedings could be brought. Perhaps the value of the testiimony didn't warrant the investment of the time all that would take. You are welcome!

Assuming that Davis does as well on cross as we all expect (hope?), seems that would be ripe for a motion for a determination that the burden has shifted to USADA/WADA. Closest thin I can think of that is similar to a directed verdict in this system. Lack of procedural rules should make it possible to do, although they might refuse to address it. They can hide behind the timeline, but it would be interesting to have the water tested. A 2-1 or 3-0 on the issue shifting the burden to USADA/WADA would be instructive, diminish the impact of Botre and stagger USADA/WADA

We talked about this quite a bit when i was out there. I thought cases would just end on calls for votes such as you suggest at natural times during the testimony. I think that the Panel could do that (has the power to do it that way) but won't, choosing instead to hear everything and render a long and detailed decision.

One thing still bothers me; none of the defense testimony is that the tests show Landis did not dope. The USADA testimony is that the tests show he did dope. Also, since I've not been following closely, what about the issue of the additonal testing that was done, with the defense persons present; is the defense saying these tests are not accurate?

Landis said he didn't dope so there is evidence he didn't. It is very hard to prove a negative. The defense is systematically going through the tests to suggest that errors violating the International Standards rendered interpretation of any "positve" results impossible.

However, judges (sorry Bill) and juries have been known to base their decisions on biases and on improper "evidence," and simply not tell anyone about it. So . . . let us hope that the panel here does their job fairly and justly.

what goes on behind closed doors may be like watching sausage being made. sometimes, it is not pretty. Botre's role will be important. and i echo your hope everything here will be fairly considered.

I think I have you all covered, then. Everyone have agood night!!!!!

Do you think if Landis when he can sue USADA, WADA or LNND for defamation of character, lost wages or anything else?

That is a very interesting question. Let's let some of our legal eagles take a stab at that one. I'll Mongongu (cut and paste) any good answer and post it tomorrow.

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Hue - Remote Observations

Landis only has 7 hours left to present his case. He will need to conserve time on each witness and get to the nub pretty quick. Sand through the hour glass, literally

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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

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Hue - Landis Testifies

Landis testifies and is examined by Jacobs. The still photographers are going crazy with snapping their photos.

Jacobs takes him through his background.

The acoustics are not good and he is hard to hear in the room. In fact, his voice isn't being amplified at all in here.

[more]


Check out TBV's real time summaries below, but they aren't very good.

I'll check in on the legal stuff.

Didn't using any PED's with Phonak but had a TUE for his hip.

Had a prescription for thyroid deficiency. Said it's a little blue pill "does that help?" Campbell; "Not for me."

Stage 16, he didn't eat or drink enough and like a car, he ran out of gas. He didn't feel well from the beginning. He lost focus. He "bonked" going up the last hill. Last climb 8 to 10 miles up and he lost 8 mins to the winner and dropped from 1st to 11th.

He wanted to get away from the cameras. He had to get motivated but he laid down and ate food first. He took a hot shower-he was cold.

he talked to the press, had dinner across the parking lot. Sat with Axel Merxx and Robbie hunter, drank Jack Daniels and made a plan

Needed to get his time on the next day and in the time trial. he figured if he went tradfitional and attck the last climb and do well in the TT, he would get 3 mins-not enough. So let's surprise them and try to get away the next day. He figured he could do that. He would have taken any one from the top 10 with him.

He took off on the first climb like he would have on the last climb. He didn't use testosterone or banned substances the night of Stage 16.

First hour of Stage 16, there was a brak away and they guys weren't a threat. At the first climb they ramped it up using the team to split the peloton. They couldn't talk to wortk out a plan when they split apart. He then did a 4 hour time trial.

The other guys' team's miscalculated and didn't get him. They allowed him 9 mins but got 2 back on a 5 miles flat before the last climb. They didn't move fast enough and he won by 5 mins, moving to 2nd or 3rd, 1.5 mins back of the yellow jersey.

He didn't win the TT but he got the yellow. At the end he was tired. Didn't use PED's or testorone during or after the TDF

he found out from a Team Director that he had tested positive July 26th. he didn't know how it happened. He knew it was a disaster once it went public. He thought it was a TUE. talked to his wife and told her that is what he thought. no place to hide but later that afternnon he found it wasn't the TUE

Lelangue talked to Jean Marie, it was out that it was a top 10 finisher. press called all Federations, only US Federation didn't deny so it was him by deduction.

he met with Spanish lawyers and issued a statement. He said he had naturally high testosterone produced by his own "organism". He regretted saying that. He got no help from anyone nad relied on the lawyers, who aren't with him today.

Cortizone injections, Jack Daniels stuff he mentioned but he didn't know. he read about his "B" test on the internet through a UCI statement and he was fired.

TBV is up briefly, but loses the thread again.

He wrote the internet post about Lemond. He appologized.

About Will, Landis was in a hotel banquet hall. He told people about Lemond's childhood to prep for Lemond's testimony. He heard Will's call but didn't know he was making it. He didn't tell Will to do it and Lemond called back -Will didn't answer. Landis left and so did Will.

Will was his manager since August. He went to Will's room. He was visibly disturbed. Landis confirmed what happened and Landis told the lawyers the next day.

They fired Will and Landis helped him move his stuff out of the hotel and hasn't seen him since.

He wants to return to cycling. his hip is fine.

He read Dick Pound's statements and Pat McQuaid's.

his wife was offended by Pounds 100's of virgins comments.

his reputation has been effected.

He says he's not a cheater.

McLaren watches him carefully during his final statement.

Adjourned to Monday.

Folks, that is it for me. going back to WSconnie.

Landis cross will be later on monday as there are 2 Landis witnesses that must go Monday. USADA may have some witnesses too.

Odd they would wait until Monday after 3 witnesses to do cross? Interesting.

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Hue - Landis Testimony

It looks like FL will be the first witness this afternoon. I have secured a place in the hearing room , but the rest of the "TBV" crew must stay in the Press room. I appreciate the honor.

Don Catlin is first!!! Wow, who knew? We are elbow to elbow in here but not all the seats are taken. All the still photographers have left, nothing to see here, yet, I guess.

[more]


Check out TBV's summaries for content and I'll chime in on the legal stuff.

Young is doing direct. He is terrific!

WADA positivity criteria is met by the Landis LNDD results but Catlin's lab wrote a letter to USADA in the past defining its (UCLA WADA lab's) criteria and under the criteria in that letter, positivity would not exist. He would write a letter to USADA declaring a "positive" and also noting the previous letter sent on the positivity criteria issue. Nonetheless, he would be comfortable with testifying as to the "positive" status under the WADA code, under these (Landis') circumstances.

Catlin confirms scientically what Papp testified to by anectdote, that a low dose of testosterone can aid recovery. While not earth shattering (because it is well known), this form of evidence actually establishes the fact with the certainty of expert testimony. There was no reason to call Papp for the concept if USADA had Catlin but Papp pleased the USADA "base". Catlin's testimony will please the Panel.

Suh crosses. His cross lacks some effectiveness because Dr Catlin seems to be a very nice and honest man. So, far, of the USADA witnesses, he is the most impressive and gives a very good hearing room impression. He calls the LNDD work "excellent" and Suh, not Young elicited that opinion. Ouch!

Ok, I've been answering reader's questions as Suh continues. He is going through a series of letters Catlin sent declaring indeterminate (the same level Landis has had declared as positives here) with the reservation and reference to the 2001 letter rather than declaring posives as he had testified he would do. Very effective.

The issue of sloping peaks on chromotography is explored and Catlin seems guarded and uncomfortable now. He sees one and gives it a "C" and then there is some back and forth, with both Suh and Catlin showing humor and the veil Catlin had pulled before, is lifted. Maybe a lost opportunity? We'll see.

No, what Suh pulled off is to get the witness loose and willing to give the chromotography he just saw a C- , compared to the one he just was shown, a "true" C. Suh talks to him about the shoulder of a peak (coallusion) but it wouldn't be invalidated in Catlin's opinion. Suh says, yes, but only if the noise could be removed. Catlin doesn't know the instrument or software and he admires the French lab's ability to both tests GCMS and IRMS, that they can't do at UCLA. At UCLA, they don't delete data like Mongongu did.

We are back. the lawyers here but not the Panel, yet.

Suh started slowly, found his footing and scored some cross examination points consistantly. Barnett wasres more time on an authentication issue concerning a USADA document. the Panel shuts him down and they move on. Catlin likes the chromatogram on this document and the argument exceeded the presentation by 4 times. plus a twenty minute break.

Suh scores again by examining on the Zack Lund case. Catlin testified before CAS on behalf of USADA but said the hair loss product wasn't a masking agent but WADA was upset and concerned with his testimony. WADA said "this isn't getting to the truth", as though Catlin's testimony wasn't going to do that or didn't do that.

MAN CRUSH WARNING!!!!

Young redirects.

Leads him through another letter. It is cycling May 28, 2006. It is out of competition and the sample was tested for masking agents, diuretics, HCG and steroids. The IRMS was reported, the GCMS was reported and it was left to USADA to declare whether it was positive. USADA declared it positive and handed out an 8 year suspension by acceptance. Young implies this was the same sample Jacobs redacted and caused the big delay at the break. A combination of the Young Ruse plus Young Gambit, our first double!!!

He continues, establishing Catlin believes the Landis case is a positive case.

Campbell questions. He asks about the survey/study Catlin is doing about supression of natural testosterone by the synthetic ones. He hopes to establish new tests to detect the new designer steroids by identifying natural testosterone supression or drugs used to raise those levels to "normal".

Catlin can't say the longitudinal study shows a natural testosterone supression. Cambell does look like he's seeking truth, whether that truth disfavors Landis or not. That is refreshing.

Young jumps on it and establishes people use testosterone because it is easy to use and avoid sanction

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Hue - Observations Day 6

There is an interesting legal analysis concerning the Geoghegan phone call here:
http://opiniojuris.powerblogs.com/posts/1179457518.shtml

I agree that he may have a serious problem, as I have indicated previously.

I've got a spot inside the hearing room but it might be more difficult this afternoon when Floyd is expected to testify.

This is my last day here. It has been a pleasure working with TBV and I hope to add some comments from Wisconsin, remotely, next week.

Nothing is happening here. Perhaps that is why there is no camera feed yet. The parties may be meeting with the Panel in private but FL doesn't seem to be here yet as the hallway cameras have been waiting for a good shot at him. FL's parents are here and Amber is as well (Floyd has been riding with her in their VW SUV each day). We have started on time fairly regularly each day so the delay is puzzling.

[MORE]


Campbell has been in the hall and earlier Brunet was giving a tour to two women, speaking in french to them (He is a french speaker so they might be friends/family) and showing them the room and set up.

Looks like the conference is finished and we should start shortly.

Here we go: 10:25 am start.

I have been calling UCLA lab rep Caroline Hatten, "Hensen". My appologies.

Landis has only 10 hours left and USADA has 15.

Landis makes a motion to strike positivity critera from the cologn lab because they have not received material relevant to that subject. Young responds. USADA only cares about positivity criteria in Paris. They bring ther lab head from Cologne to counter a claim by Landis that the tests would not have been "positive" in Cologne. Young then goes to the "Young Gambit" which I have decribed as "hoisting the Landis team on their own petard" by recounting a conversation he had with Jacobs, claiming waiver. Both counsel are being questioned by Campbell. This goes to who asked who what and when that was asked. Cambell denies the motion.

The "Young Gambit" works. This is why I tell lawyers when confronted with similar issues, that I have to consider only what I have formally and they should not rely on informal discussions. If necessary, they should seek formal relief such as formal motions to compel.

Now it is clear the parties have not arranged to have Dr Schanzer see documents he is questioned on but Young says he sent the doctor all the exhibits. This is a difficulty, as is his telephone testimony over speaker, with his german accent.

Other than to note the problems taking time for translations in court and telephone testimony on a practical level, I yield to TBV's real time summaries and will chime in on law issues as necessary.

"Young Ruse" notice!!!! I have previously described the "Young Ruse" as the technique he uses to set forth "facts" by way of "summary" (the witness has generally not articulated anything he summarizes previously). The witness answers "yes" and the "summary" facts become evidence. It is a brilliant technique and has been done with perfection quite a few times previously.

Young establishes 3 levels of peer review and 2 levels have been "passed". the doctor says "yes". Young says he does this to clarify, summarize and then argue what he and not the witness establishes (the witness will say "yes" though). Understand this is fine in arbitration under the rules but not in any way allowable in Courts of Law, where similar conduct would be subject to sanction and censure. Ruse works!!!!! Young Rules!!!

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Saturday Mailbox

Good morning.

The "post your comments" section of this topic is where you can post any questions you have.

By and large, that is the only way we can locate them to answer.

TBV and Bill

Didn't Landis sucessfully move to strike the non-peer reviewed UCLA study and
this study from Young's opening statements? I seem to remember the UCLA study
was tossed and they were going to rule on this study and testimony right before
he speaks.Do I have this right? The Germany study was done in early 2007,
according to Young.I remember Campbell asking if it was before or after February
23 that USADA received it. I guess Campbell wanted to know if USADA was arguing
the single metobolite theory before they even knew of the studies existence. How
can they argue a standard using future studies as support?Again, how much do I
have correct here?

You are correct. the evidence was excluded brcause the study had not been peer reviewed and the study was not completed. USADA's argument on that point has been lost.

Did anyone else come away from Dr. Goldberger's testimony with the conclusion
that the LNDD documentation is not up to the WADA/ISL standards? The three ions needed versus the one ion analyzed in many of the graphs?

Maybe. That is the issue, isn't it. It depends on whether the Panel agrees with Ayotte (perhaps Catlin today) or Goldberger.

Do you expect Landis will testify in this morning's session, or will it be
after lunch (Calif time)?

This afternoon. We are still not in morning session and he is last on the list.

When you say "landis 10:00 / usada 15.1" does that mean time they've got
remaining?

Yes, that is their total time remaining to be used today, Monday, Tuesday and Wednesday. They will take evidence through Wednesday and then adjourn. At a time and place to be agreed upon and determined they will present closing argument. By Order, they will each have 1 hour to close.

Would you have time to comment before you leave on the WADA scientist
testimony. It seems that they all love each other and that all the WADA labs are
just perfect. The WADA scientists are not allowed to testify against another
WADA lab? Or someuch?

None of the WADA scientists criticize each other and it is disconcerning that the Rome WADA lab head is the Panel's "Independent Expert". The WADA Code does not allow them to testify "on behalf of an athlete"

Bill, do you judge criminal trials or other cases where lab work plays an
important part? If so, what's your opinion of the quality of LNDD's work
compared to what you are used to seeing?

Hey Cub, we see forentsic and medical lab work all thee time. the difference i see is that those labs do not see themselves as infallible.

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Hue - Landis Case Observations

Landis calls his first witness, Dr Goldberger. Jacobs examines him. They are using him to give expert opinion about the various lab practices at LNDD and their relationship to International Lab Standards. He directs forensic toxicology. He has helped to daft lab standards on a committee with Larry Bowers of USADA (who was the Chair). He was a certified lab inspector to make sure labs met the applicable standards in the United States.

He calls the chromatograph from the Montreal WADA lab "beautiful". Dr Ayotte smiles. she seems pleased with the compliment. Larry Bowers has moved up to counsel table to help the USADA lawyers. WADA lab head from UCLA Prof. Hensen moves up to the USADA lawyers table to speak to Bowers.

[more]


He has testified as an expert in hundreds of court proceedings and it shows. he jumps out of the witness box and goes right up to the big screen projection image and is pointing out difficulties he sees with the LNDD chromatogram. He thinks it is bad chromatography, conceeding that the way it was drawn may favor Landis. He likes the Montreal chromatograms much better and says those chromatograms show that it can be done correctly.

This is an attack on the epitestoterone and testosterone peaks as indentified byLNDD and thus the ratio they determined. He favors viewing 3 ions as opposed to the single ion used by LNDD. His view is that the conclusions reached by LNDD are not supported by the chemistry.
He says this is the only lab he has seen using a single ion to identify the testosterone and epitestosterone.

He also doesn't like the chain of custody or the cross outs. He would look closer at a lab if he saw documentation with such traits. He wants his labs to meet "forensic standards".

I'll yield to TBV on the science here and will chime in should legal matters be raised.

Dr Goldberger is a very professional witness. He has been around a hearing room before and his testimony doesn't need translation. all that is advantagious in terms of presentation.

Apparantly the parties were aware that Dr Goldberger had to leave this evening. Mr Brunet is tired and would like to stop. I don't blame him. Time was taken on the Papp examination including his consultation with his own attorney so we are rushing through this scientific testimony. Someone said my "bias" on the Papp issue was sad. What is sad is that time was spent sacrificing Papp for whatever reason while we hurry through this testimony.

The cross by Young (he's a great lawyer) establishes that Goldberger send his testosterone cases out of his lab because he doesn't do them. His doc pacs are 30 to 500 pages long. No one has ever asked him for electronic data files but he has them, going back 10 years. The vigorous Matthew Barnett jumps in but Young can handle this much more effectively and Barnett is over-ruled by the Panel, again.

He is not accredited by WADA or ISO. Only the WADA people are. They are here, the lab head at WADA UCLA at USADA counsel table, the Montreal WADA head as a USADA witness and the head of the WADA lab in Rome assisting the Panel as an "Independant expert".

Bower's committee put together a chain of custody rule set and Young suggests the chain of custody Goldberger does is merely suggested by the "guideline" and that document does not apply to LNDD because it is subject to the ISO requirement.

Jacobs is up, redirecting on "sloppiness" and confirming the "peak" testimony was not confused by Goldberger as suggested by young.

Watching Young and Jacobs or Young and Suh or Suh and Dunn or Dunn and Jacobs is a pleasure.

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Hue - Afternoon Observations

Brunet announces they will need until Wednesday to finish evidence and will close at a later date, to be chosen and announced. There will be work tomorrow as well.

Cyclist Joseph Papp appears. Because he is being examined by Barnett, we know his testimony will be marginally relevant but highly controversial. Apparantly, Barnett's 15 minutes aren't up.

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Papp came back to cycling after leaving in 1996, in 2001. The peloton speed was faster. his teamates told him to see a doctor to catch up to the speed of the peloton. the doctor told him to take EPO. I get it, cyclists need to dope and they do not just to get by but to win. Nebulous and time wasting, a Barnett feista.

He learned to use testosterone from a Spanish rider to aid recovery and improve performance. He got the testosterone from a doctor in California (BALCO connection? Oh, joy). He actually has some juice here. Maybe we CAN SEE IT. Yes, Barnett puts the Andro-Gel on the screen!!!!

You put the gel on your body and it lasts 4 hours, then it leaves. I certainly wish we could see it demonstrated on someone but I'm afraid that would scare the entire audience. He beat the T/E screen using this method.

A lawyer is here and Papp is looking at him for clues. Lawyer says it is ok for Papp to say the Whistle (?) team in Italy made him dope when he joined them in 2006. Unfortunately, he tested for exogenious testosterone in the Tour of Turkey. He knew he doped and still wanted to fight it. This is the culture of cycling. It is expected.Deny, fight, protect (the Omerta). I'll bet this is completely new to these experienced Arbitrators (not) and I'm getting pretty upset with this stuff. It is useless.

When Papp got nailed, he was abandoned by his team. Why is that a surprise, are they supposed to keep relations with him? Doesn't that violate the WADA Code? He was a cooperative witness in an ongoing federal investigation (which one might that be, I wonder?).

Barnett roles out the Landis brief concerning Power Output data and particularly the PowerTap. you canput out consistant power if you use the testosterone.

Papp doesn't know Landis and has no opinion about this case. Why is he here? Matthew Barnett continues, attempting to poke holes through the argument in the Landis briefs. Papp says testosterone is a substance you use in small quantities to beat the tests. Here's your science, racing fans. Here's your tax dollars at work.

Barnett leads now and tries to get Papp angry. He can't work. He's mad that Landis would deny Papp's reality. I would too. Poor guy. He's lost everything cheating.

Suh cross-examines. Papp is cooperating with the US Attorney in San Diego.Papp does not know if he is a subject of the US Attorney's investigation. Papp does not know Landis, hasn't raced with him, been his teamate or knows any of his teamates. Papp didn't ride in any Tour de France (Just Tour of Turkey). He has not raced in the Tour of California, Tour of Georgia, Paris-Nice and hold no championships. he has raced with the Pittsburgh Power, owned by Franco Harris and KHS prior to 1996.

Suh is examining Papp on EPO use. The clock is ticking down. Papp took EPO from 2001 to 2006 and had been using it until he tested positive. Poor guy, he now has to list all the performance enhancing drugs he took. USADA set him up for this. it is hard to watch. Papp's a pawn in this little power play. I feel bad for him. Suh is asking him to name names and Barnett's objection to that is over-ruled. WADA wants names. Barnett wants the lawyer to get away from an open mike. Barnett hardly cares. Papp has been been used. He's been served.

Landis may run into a roadblock here because Papp may refuse to "name names", probably as a result of attorney's advice and exposure to liable civil remedies. Should he stop, then once again the Panel cannot compel him to continue and then effective cross examination has been terminated. There will be another motion to strike the testimony.

Suh continues. Sando Biacci (?) the brother of the owner of the team gave him the drugs from his back-pack that had a cold pack. Another one bites the dust. He got HGH , insulin, anabolic steroid and cortizone, throid hormone. He got more drugs from South America. He brought them back without FDA authority. This may be drug trafficing. Good Lord! What has Barnett exposed this man to?

I forgot, he took amphetamines too. And other stuff, because it was in Italian. He is not an MD and is not a scientist.

He resolved one anti-doping case yesterday, prior to coming here. But he hasn't resolved any other potential doping case. He gave back no titles, he has none but he agreed to do so.

Barnett's back up. Gets him to admit EPO, cortisone and caffeine use. Barnett goes to his "feelings" from his testosterone use. Again, this could be established by a scientist but then a human being couldn't be sacrificed that way. What a shame. I'm sorry for Mr Papp. The bus is right there, Mr Papp, can you get under it, please?

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Hue-Morning Observations Day 5

Suh and Barnett are going at each other. Barnett tries the "Young Ruse" (which consists of coaching the witness by a lengthy speech tipping the witness off to the "correct" answer) but Suh will have none of it today. Barnett is clearly pleased with his big day yesterday, feeling his oats as it were.

Young, the consummate professional, brings Barnett's argumentative objection into focus using three words "asked and answered". I really like Mr Young.

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Young and Dunn seem to have turned over the "objection" duties to Barnett. They are working while he is listening. Is his work otherwise done?

Brunet is back at the helm today, making all rulings and controlling the proceedings. He is also trying to help the interpreter, as are many members of the audience. That is funny to everyone.

Mr Campell had to have a break (we ALL needed it) and we are back in session.

Mr Jacobs is establishing through Ms Ayotte, a number of other mistakes with the LNDD testing graphs. Not a single one nor their total mean anything negative about those procedures to her .

The lab experts are all saying that anything missing doesn't affect the results. But it clearly affects fairness. The machine is working and there is a test for the machine to see if it can identify a known positive.The results of that are not in the packet of information given to the athlete. But that is not neccessary because the machine works. Circular, n'est pas?

Similarly, Dr Ayotte doesn't need to see the controls, because she has the test results which appear to be reasonable and in the appropriate ratio. Thus the assumption seems to be that the controls upon which the testing was based must have been accurate without ever have having to see them for confirmation. The athlete need not see them either because they are not in the document pack.

At the end of the hearing, Mr Barnett raised the Will issue and suggested in open hearing that Suh was hiding the witness. Suh corrected the notion and all 3 Panel members independently, made staements that he had a right to counsel, that they adjourned to let him seek legal advise and that Barnett should take it up with counsel Will has retained. Barnett wanted the Panel to know Suh told him a "friend" of his would help will. Barnett got another 15 minutes of fame from that but the results, this time were not good for him.

UCLA WADA lab head Henson has been helping USADA lawyers with their examination of Montreal WADA lab head Ayotte and confers with her after lunch. Rome WADA lab head Botre is helping the Panel as their "Independent" expert, to evaluate Ayotte's testimony. Anyone see any problems? I thought not. The system views it as perfectly ok as well.

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Hue - Watch the Monkey

And the lawyer lets the monkey out of its cage and it begins to dance around. He turns to the jury and says: "Look at the monkey, look at him dance. Isn't he funny? Look at him go!"

The monkey dances and all are spellbound..... other evidence is quickly forgotten. The lawyer smiles.

This courtroom trick is known as the "dancing monkey" and USADA lawyer Matthew Barnett got to use it yesterday. USADA attorney Richard Young took advantage of it in a real and meaningful way.

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While the cycling world spins over the Lemond testimony, little of it having much relevance, our foreign correspondent Marc points out (with some editing and additions by me):

"The day began with an LNDD technician admitting to errors--but only to record keeping errors. Then we get the blockbuster LeMond testimony. USADA got lucky with Will's call, but I think they were ready to pull out all the stops with a view to an equivalent effect with Floyd's DPF threat to reveal Greg's secret. (At this moment we'd say, Well that wouldn't have had anywhere near the same effect. But that's because we're really shocked by Will's call. Without that, the Landis threat might have seemed almost as shocking, played with the appropriate indignation, and might have been quite emotionally powerful enough.)

Now, after LeMond's bombshell, surely an adjournment was appropriate. But Young saw an opportunity and that was perhaps correographed. Instead of adjourning, we storm ahead with Ayotte's testimony. She comes in and says: Record keeping doesn't matter.

Young first shows the arbitrators an admission that certain errors were made. After Lemond's testimony, they are thinking, "Still, it's the science we're here to focus on"; then while everyone is emotionally unsettled Young makes sure the last thing they hear before going home is an expert witness who says the errors in #1 don't matter--and that's science.

This is a way of getting maximum bang for the USADA rebuttal of the only admission LNDD will make of having committed any error, and the arbitrators will think they're just reacting to the scientific testimony, not realizing how their hearing of that testimony may have been manipulated by the soap opera that preceded it."

"Watch the monkey as he dances, look at him, isn't he funny????" Your tax dollars are paying for the monkey and 3 lawyers to unchain him. What was once about science has turned into spectacle.

"We are searching for the truth", Travis Tygart said at the beginning of this case.

Oh, really?

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Hue - Post Hearing Observations

Lost in the endless rehashing of todays events are the legal issues still remaining from the Lemond testimony.

Will the arbitrators strike Lemond's testimony?

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It is noteworthy that shortly after the Lemond testimony recess, Mr McLaren found his voice and began making rulings. It almost seemed Mr Brunet yielded the Chair to him and, in fact, McLaren took some immediate steps, including simply dismissing Lemond as a witness.

Mr McLaren took this step after inviting Mr Jacobs to continue his examination. Mr Jacobs wanted to call Lemond's credibility into question by asking him questions about the Armstrong arbitration case Lemond testified in. Without citation to legal reasoning, case law or other authority, Lemond's attorney told Lemond not to answer such questions. Lemond indicated he wouldn't answer them.

The Panel could not require him to answer because they have no authority over nonparties, the same rationale they used to deny Landis the opportunity to depose nonparty witnesses Mongongu, Ferlat and Chirpolini from LNDD prior to hearing.

This poses a problem for Landis because Jacobs yielded any opportunity to cross, even after McLaren invited him to continue. The Panel might decide that Jacobs made a tactical decision to terminate and deny his motion to strike the testimony, just as they have found reason at least three times before to deny a Landis request based on their determination that Landis' attorneys made tactical decisions and must live with them. I have called this "hoisting them on their own petards".

If the evidence is in, what does it mean? Right now, without cross, an inference exists that Landis admitted that he doped to Lemond by saying "What good would it do?" and "It would hurt my family and friends". Absent Landis's own version in evidence, that notion is viable, subject only to argument that those phrases mean a variety of other things, and they do.

Further, there is an inference that Landis threatened Lemond to try to keep him quiet about Landis' "admission" in the internet posting . Finally, yesterday's phone call can be construed to reestablish the threat previously made and it might be argued that by sharing confidence of the Lemond conversation with Will, Landis had to know Will would carry out the matter further. Of course, other arguments can be made; that Will was a loose cannon or there is no evidence that Landis had anything to do with it.

If the evidence is in, the Panel may simply assign whatever weight they want to give it and the in that regard, the evidence seems marginally relevant at best and pales in comparison to whatever or however the arguments on the science resolve themselves.

If the evidence is stricken and there are a few very good reasons why it might be: it is more prejudicial than probative and Landis didn't have an opportunity to cross on credibility, for example, the case can just move on.

But the rest of the cycling world probably will not move on. And whose fault is that? Landis', for demanding that the hearing be held in public, hoisted on his own petard again.

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Hue-Lemond Recap

A reader asks:

"Sorry for being an idiot, but given how everyone is going on and on about what a big deal this is, i have to ask:can someone please provide a narrative for what actually happened today? I've read your various posts from today's testimony but still don't quite have a handle on it all since so much seemed to have happened so quickly"

Here's what happened. Lemond testified that he confided in Landis after the Landis "A" sample came back positive, that coming clean would help Landis.Lemond testified that Landis said "what good would that do" and "that it would hurt his friends". USADA wanted that testimony in evidence to imply that Landis had "admitted" doping to Lemond. That is relevant and left at that ok.

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But Barnett, he of the pitbull role, went to the next concept, which is marginally relevant: that Landis is a bad guy, fully capable of doing whatever he needs to do to win (including doping) by trying to show Landis would threaten Lemond to keep him quiet. Your tax dollars at work.

Lemond told Landis that talking about his past sexual abuse helped him comquer the future. Later, Landis threatened to expose Lemonds secret (his sexual abuse) as blackmail if Lemond ever mentioned his name again. Landis did this publicly, under his own name, on an internet forum. Lemond further indicated that he was aware of that "threat".

The inference Barnett wanted was that Landis knew Lemond knew the truth and threatened him to shut him up. This is unseemly but not out of bounds.

Last night, Will Geoghegan, Landis' manager, apparantly using a telephone registered to himself, called Lemond and said he was Lemond's uncle and that they would play "hide the weenie" or words to that effect tomorrow (the day of Lemond's testimony). Lemond's wife was here today as was his lawyer. Lemond says he took the comment to be a further threat and that as a result of a previous call which was on speaker phone, his wife heard this call too. Lemond called the number back and got Will's message server, re-called and got Will who said he was Bill and that he didn't call Lemond. Then Lemond called the police.

Lemond's cell was put on an overhead projector and everyone could see the numbers.Witness threats or witness tampering is a felony in California. The entry of this evidence into the record is marginally relevant, as a link to Landis' prior "threat" but it is highly emotional and highly charged. It is the "stuff" though, for which Mr Barnett is here to do. Jacobs had a prepared cross examination because everyone knew about the Landis internet statements but the examination related to Lance Armstrong and threats Lemond said Armstrong made against him in the depositions taken in the Armstrong lawsuit against the insurance company.

Lemond's lawyer instructed him not to answer questions and he refused to answer questions.The matter stalemated and Lemond was dismissed.

Will was fired by Landis with suh making the announcement on the record. What he did, why he did it or if he did it at all, will be explored by others somewhere else.

The arbitrators have to decide whether to strike the testimony because Lemond's lawyer told him not to answer questions about the Armstrong matter or let it stand. Given what I have seen, I believe the Panel, perhaps 2 to 1. will not strike the testimony and will let it stand. They will say Jacobs waived the right to examine by not following McLaren's invitation to ask questions other than the Armstrong questions i.e Who were you talking to before the call came in (from the records)? Why was the phone on speaker? Or he could have asked other questions about the internet matters etc. He chose to take all or nothing because his questions were designed to attack Lemond's credibility. The Panel will give him the nothing and deal with whatever weight they want to assign to the testimony.

I feel they will give it little weight compared to the science issues if they don't strike the evidence. Even if the Panel strikes the evidence, the damage has been done. USADA took control of the PR war here. At worst, Landis wanted to win the PR battle even if he lost the hearing 2 to 1 or even 3 to 0 as the "victim" of a corrupt system. USADA turned Lemond into the victim and Landis directly and through his advisors, the "bad guy".

Anon 4:50 asks these questions:

"why is lemond refusing to answer certain questions? and why does landis' defense team care about those subjects or are they just going there knowing lemond won't answer in the hope that the arbitrators will throw out all the testimony?

I don't know why the lawyer instructed him not to answer and it wasn't clear there was a legal reason. that was frustrating to Jacobs. Landis hopes to have the testimony thrown out for that reason, the witness wouldn't answer questions.

and is my impression that this is just one big kangaroo court accurate or is this how arbitrations normally proceed?

This looks to be the norm for these kinds of proceedings CAS-AAA arbitrations.

last question: i understand that it's a 2-1 thing against landis and that the 1 is the guy the athletes always choose. but if he and the USADA guy have to agree on a third chairman, why wouldn't he insist that the third arbitrator not be a genuinely neutral person?

The math of the selection process favors the ADA. the athletes get 1/3 of the pool. the ADS get 1/3 and the National Federations 1/3. when you can't agree on a third, after the athlete names his and the ADA names there, each strikes the remaining names until a common name is chosem. Matmatixcally, after 15 strikes, only people in the pool named bt an ADA or a National federation will be left. so that is how it gets to be 2 to 1.

More tomorrow. Bill is tired and needs a bike ride to clear his head and heart.

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