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PostPosted: Fri Sep 21, 2007 2:13 pm 
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NOTAWOFTAM wrote:
swinter wrote:
RoadKill wrote:
. . . The panel said ignore all of these things that even we acknowledge to cause T/E to be thrown out, but we'll pick this particular isotope test as being good. There should be NO confidence in ANY of these tests. . . .


I said long ago in another one of these interminable debates that the carbon isotope test (which is different from and has nothing to do with the T/E ratios) showing exogenous testosterone was the smoking gun that Landis could never escape.

With that evidence he would have lost in an American court of law, even with the burden of proof on USADA/WADA. (But I'm just a humble professor of constitutional law with nearly 30 years of lawyering experience, so I do have to defer to those with greater expertise.)

End of an ugly story. (And, given the way he and his close advisors treated Lemond, it was in my view an exceedingly ugly story.)


The carbon isotope test was upheld by the majority dispite all that led up to the test, including CoC and possible/probable contamination of the sample(s). There was no explanation for the peaks acting in a way not known to science with regard to explaining why, if Landis used synthetic testosterone, were other hormones not registering as being surpressed?
In short, it doesn't add up.


I was interrupted and didn't have a chance to finish:

Mass spec data, called for by many knowledgable scientists on a variety of forums and asked for by the Landis legal team, would have settled the issue of contaminated samples with regard to the carbon isotope tests.

LNDD did not make the mass spec data available and claimed it was overwritten and is not retreivable. I wonder then what is the opinion of a professor with 30 years of experience, regarding what most courts in North America and Europe would do if a case they were hearing was missing that critical supporting data?

WRT Greg LeMond, Will G did a reprehensible thing in making the call. Will G was fired, apologized to LeMond, went to rehab, and his longterm friendship with Floyd was compromised. I'd argue that could be considered a fair punishment. Regardless, that was not an issue for the majority portion of the decision. McLaren and Brunet didn't find anything of substance in his testimony on direct and weren't pleased with LeMond's refusal to answer on cross. See Majority Award for details. Why is it an issue for you?

A humble professor with 30 years of lawyering experience should also know a kangeroo court when he/she sees one.


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Posted: Fri Sep 21, 2007 2:13 pm 


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PostPosted: Fri Sep 21, 2007 2:58 pm 
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teterider wrote:
It is truly amazing that under the same circumstances of evidence, a mass murderer would have been released, yet in the sporting world there is a distinct agenda for guilty at all costs.


I find this argument a bit distracting. Of course a murder trial requires a higher standard of evidence given the seriousness of the penalty - life imprisonment or death.

Likewise, a civil trial in the US doesn't require a unanimous jury as it does in a criminal trial.

And Flandis' trial wasn't even a real trial in the same sense.


The problem I have with the witch-hunt attitude is it seems to be finding the witches, which only encourages more of it.


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PostPosted: Fri Sep 21, 2007 7:55 pm 
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To say that Floyd was guilty until proven innocent is simply wrong, even a first year law student would be ridiculed for making a claim you made. This is because the 2 samples already showed his guilt and he has the burden to REBUT such evidence. Perfectly reasonable.

Needless to say that predicting results in all courts of law in North America is even more ridiculous.

As cyclists, we should know how hard it is for a marked man to go out and put 9 mins on the field. Even lance could NOT have done that. Even Eddy of old couldn't have done it in today's peleton. The truth is, Floyd paniced and overdosed on the drugs. Apparently this sh*t worked, and the rest is history.

We can bitch and moan all we want, but the guy cheated and got caught. Simple as that.


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PostPosted: Fri Sep 21, 2007 11:45 pm 
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elviento wrote:
To say that Floyd was guilty until proven innocent is simply wrong, even a first year law student would be ridiculed for making a claim you made. This is because the 2 samples already showed his guilt and he has the burden to REBUT such evidence. Perfectly reasonable.

Needless to say that predicting results in all courts of law in North America is even more ridiculous.

As cyclists, we should know how hard it is for a marked man to go out and put 9 mins on the field. Even lance could NOT have done that. Even Eddy of old couldn't have done it in today's peleton. The truth is, Floyd paniced and overdosed on the drugs. Apparently this sh*t worked, and the rest is history.

We can bitch and moan all we want, but the guy cheated and got caught. Simple as that.


WADA rules/code do in fact assume the the accused is guilty and it is up to the athlete to flip the burden or prove he/she is innocent.

The large number of early predictions of a 2-1 against Landis, predicted as early as the day after the final arb was named, came true. Predicting what might happen had the case been tried in a real court, given the lukewarm Majority Award from an arbitration hearing conducted with a stacked deck, shouldn't be any more difficult.

Floyd was a marked man. Some gigantic mistakes were made in the testing of his samples in question and are even mentioned in the Majority Award. Yet LNDD and USADA elected to persue the original claim. Floyd didn't panic. He didn't OD on anything. There is no scientific proof that the sh*t (synthetic testosterone) works for improving performances (as a ped) in endurance sports. What is history is that the Majority award was not at all flattering to the work done by LNDD. The Dissenting Award was even less so.

It's not as simple as your post attempts to indicate. Maybe reading the awards could help get you up to speed enough to intelligently comment. Here they are:

Majority Opinion:
http://ia341243.us.archive.org/0/items/ ... -09-07.pdf

Dissenting Opinion:
http://ia341243.us.archive.org/0/items/ ... -09-07.pdf


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PostPosted: Sat Sep 22, 2007 1:25 am 
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NOTAWOFTAM wrote:
elviento wrote:
To say that Floyd was guilty until proven innocent is simply wrong, even a first year law student would be ridiculed for making a claim you made. This is because the 2 samples already showed his guilt and he has the burden to REBUT such evidence. Perfectly reasonable. . . .


WADA rules/code do in fact assume the the accused is guilty and it is up to the athlete to flip the burden or prove he/she is innocent.


If you read the opinion closely, the majority stated clearly that "the member organization has the burden of establishing that an anti-doping rule violation has occurred." (p. 48 )

elviento is correct: WADA rule 3.2.1 provides that the laboratory findings are presumed correct and that the burden shifts to the athlete to rebut this presumption by showing that the procedures were not followed. If the athlete rebuts the presumption, as Landis did. then the burden is on USADA to prove that the departures from procedure did not cause the adverse finding.

In other words, the burden is in fact always on the prosecution. It's just that the laboratory results constitute sufficient evidence unless there is some reason to doubt them.

In this case, USADA failed to carry it's burden with respect to the original T/E tests. (Indeed, the majority indicated that they were not saying that Landis's T/E rations were in fact within legal limits, just that the procedures were sufficiently irregular that the otherwise valid results could not be relied on). With respect to the isotope test, the majority found that there was a departure with respect to the timing of one step in the procedure but that the scientific evidence was that the timing of that step would have had no effect on the reliability of the outcome. (p. 64) Accordingly, Landis failed to rebut the presumption with respect to the isotope test. Hence the ruling.

There is nothing unusual or "unAmerican" about this way of structuring the evidentiary burdens. Employment discrimination cases work on a similar model. For all those who are bitching and moaning about the unfairness of the procedures, I can say with confidence that virtually any constitutional law expert in the country would conclude that the procedures as written comport with due process. (Whether the behavior of WADA or USADA in their pre-hearing public pronouncements was appropriate is a separate question; and I am not defending the leaking of the story. But that is, in any event, irrelevant to the issue on the merits of the scientific findings.)

As for the claim that there is no scientific evidence that testosterone doping could have helped Landis, the majority found otherwise: There was expert testimony that it raises hemoglobin levels. (p. 53)

The majority found against Landis that there was any break in the chain of custody (pp. 72-75). In fact, the majority found that there was no factual showing of any break in the chain of custody (p. 75), just allegations of irregularity in the documentation which it rejected. It concluded that the available documentation and direct evidence made it possible to place the whereabouts of the samples at all relevant times and that at all relevant times the samples were within a controlled environment.

Having represented many men on death row, I do know a kangaroo court when I see one. Moreover, from representing plenty of guilty people, I also know obfuscations when I hear them. The majority opinion is quite meticulous and stands up well. Many of Landis's claims, on the other hand, (like the original one that maybe having a drink before stage 17 caused the abnormal T/E ratio) are just a lot of smoke. The majority was quite professional in its scrutiny of the arguments. This was not a kangaroo court.

As for the affair Lemond, I personally find Landis's version of the events incredible. The fact that he fired Will after the scandalous news broke, doesn't detract from the fact that on his own account he was present when the calls were made. The idea that his close friend and associate (and, essentially, employee) would make a "private" threatening call in the middle of dinner right in front of Landis without the latter being in on it is, shall we say, highly implausible. The claim that Landis didn't hear it is preposterous.

On the other hand, I admire Lemond's courage in testifying publicly about his childhood abuse. Victims of childhood sexual abuse -- and I know some -- are typically paralyzed by devastating shame, their lives in many ways ruined. To step forward as he did (even though in the end it had no impact on the decision) shows the character of a true champion.

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Last edited by swinter on Sat Sep 22, 2007 5:17 am, edited 2 times in total.

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PostPosted: Sat Sep 22, 2007 1:49 am 
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Notice how the panels decisions are called "opinions". Right there describes the HUGE fault with the system. These arbitrators are not qualified to make opinions, nor do "opinions" belong in such cases. The three arbitrators were there as the authoritative decision makers based on pure fact, not opinion.

-Were ALL the standards of WADA followed? - YES or NO
-Did the lab handle the samples according to ALL protocols? - YES or NO
-Did the techs perform the analyses according to the operating procedures of the instruments used? - YES or NO.
-were the instruments managed, used, and calibrated correctly?

If any of the answers are NO, then the case must be dismissed. There is no room for lots of fuzzy grey when you are dealing with destroying a person.

At this point I could care less if Floyd is really innocent or guilty. I'm not writing to support Floyd. But the injustice to athletes, and all future claims, just makes me mad. Its the principle of the matter.

If Floyd does appeal, he shouldn't spend lots of money to do so. He should walk into the court, simply say "Landaluze", hand over the undisputed documentation of his similar (and worse) lab errors, and rest his case. He can't go for being truly innocent, but we all thought his getting off on technicality was certainty.

One last thought - why did we go through all this in the first place. All B samples should go to a random other WADA lab mixed in with at least 2 other samples - one clean and one spiked with a known level of whatever the positive A was. All samples would be coded so the source is not known, and only the athlete and one other person would know their true code. Plus, they would be submitted through another sports governing body. This would be virtually indisputable except the truly stubborn and stupid.


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PostPosted: Sat Sep 22, 2007 2:05 am 
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teterider wrote:
Notice how the panels decisions are called "opinions". Right there describes the HUGE fault with the system.


The decisions of the United States Supreme Court (and all other courts, for that matter) are called "opinions." That has been the practice in Anglo-American law going back centuries.

The reason, in case you are interested, is that in Anglo-American common law the ruling of the court is embodied only in its judgment. The precedential value of the decision is a matter of the court's "holding" -- that is, the narrowest principle (or principles) that support the judgment for the winning party on the facts presented. The opinion merely represents the reasoning or explanation of the court justifying its conclusion. The original English practice (which was followed in the US until around 1800) was for each judge to state separately his reasons for reaching the majority's judgment. Often they disagreed on the reasons while nevertheless agreeing on the outcome. Hence, the term "opinion."

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PostPosted: Sat Sep 22, 2007 5:08 am 
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DocRay wrote:
The guy I feel sorry for is Oscar Pereiro.

This is what I've been saying all along. Pulling from the hands of Landis will never give Oscar the due he desrves, yet he has been suspiciously quiet about the issue...Maybe, Just maybe....Hmmmm


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PostPosted: Sat Sep 22, 2007 7:05 am 
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I think this thread exposes how cloudy this whole thing is. You can make a good case for both sides. I just would like to say that there is a witchhunt in professional cycling right now and there will be innocent people getting busted...hopefully the flawed system will change so these people can get off and not get their career ruined. Lets just say that this whole thing happened to Levi or Cadel. Even if they were innocent and the positive test was just bad lab work their careers would still be ended and they would be out $2 million.


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PostPosted: Sat Sep 22, 2007 7:35 pm 
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"fraud" landis never mentioned a credible defence for the following information that came out...


"In a pre-Tour blood screen from June 29, two days before the 2006 race began, Landis had a hematocrit level of 44.8 percent and hemoglobin level of 15.5. On July 11, 10 stages into the Tour, his hematocrit had increased to 48.2 and his hemoglobin to 16.1....

The more cynical explanation is that the July 11 test came the morning after the 2006 Tour's first rest day, and actual doping diaries seized in last year's Operation Puerto investigation in Spain indicate rest days are the preferred time for reinfusion of blood bags during the Tour.

“This would account for the unusual variations in (Landis' 2006) blood values,” says Ashenden, whose research group is currently pursuing a test for autologous blood doping, or when a person reinfuses his own blood. “And it's not detectable."


http://www.signonsandiego.com/sports/20 ... andis.html

+ someone offered landis 1million dollars if he was willing to take a lie detector test.... he refused...surprise surprise...


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PostPosted: Sat Sep 22, 2007 7:38 pm 
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lance famous quote "most tested athlete ever". look see at uci's data....

the facts are quite different....

http://cyclingfansanonymous.blogspot.co ... e-uci.html


the juicy bit....

Take a look at the new UCI anti-doping website, and prepare to be shocked. They list the numbers of tests they have done so far this year and last, and astonishingly there were only 4 out of competition blood tests done by the UCI in all of 2006. FOUR!!??


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PostPosted: Sun Sep 23, 2007 3:09 am 
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elviento wrote:
To say that Floyd was guilty until proven innocent is simply wrong, even a first year law student would be ridiculed for making a claim you made. This is because the 2 samples already showed his guilt and he has the burden to REBUT such evidence. Perfectly reasonable.

Needless to say that predicting results in all courts of law in North America is even more ridiculous.

As cyclists, we should know how hard it is for a marked man to go out and put 9 mins on the field. Even lance could NOT have done that. Even Eddy of old couldn't have done it in today's peleton. The truth is, Floyd paniced and overdosed on the drugs. Apparently this sh*t worked, and the rest is history.

We can bitch and moan all we want, but the guy cheated and got caught. Simple as that.


I got news for you. Testosterone will NOT turn you into superman. Test. is not going to win you the tour. EPO yes, Test. No.


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PostPosted: Sun Sep 23, 2007 7:53 am 
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Out of interest, how many times would Pereiro have been tested during the 06 tour?

I'd guess at not many :?

IMO it should be "no winner" like 97 makes more of a statement against doping too


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PostPosted: Mon Sep 24, 2007 1:14 am 
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swinter wrote:
Quote:
If you read the opinion closely, the majority stated clearly that "the member organization has the burden of establishing that an anti-doping rule violation has occurred." (p. 48 )

elviento is correct: WADA rule 3.2.1 provides that the laboratory findings are presumed correct and that the burden shifts to the athlete to rebut this presumption by showing that the procedures were not followed. If the athlete rebuts the presumption, as Landis did. then the burden is on USADA to prove that the departures from procedure did not cause the adverse finding.

In other words, the burden is in fact always on the prosecution. It's just that the laboratory results constitute sufficient evidence unless there is some reason to doubt them.


I’d say we are essentially saying the same thing from a different point of view. I look at the situation as being that a lab can easily declare an AAF. Right, wrong, use of sloppy lab work, lab work using the best practices, or just made the whole thing up for the hell of it – the resulting AAF constitutes proof of a doping violation under WADA rules. Ergo, the athlete is considered guilty until the case is dropped, he/she can shift the burden (and keep it shifted), or the athlete is eventually found innocent.

What is different about this than typical cases heard before a jury and/or judge? The difference is the burden of proof. McLaren and Brunet voice their concerns about LNDD’s sloppy lab work and they intimate that it cannot continue if such lab work is to be used to support evidence of a doping violation. I am wondering what the logic is behind McLaren’s and Brunet’s thinking that the quality of the lab work is okay to find against Landis in September of 2007, but similarly sloppy lab work will not be suitable for finding against other athletes in the future???

There is also the notion of “fruit from the poison tree” being used to find against Landis. The Majority Award did not uphold the T/E. Had the T/E not been an issue in the original testing, there would not have been testing done on the corresponding B-Sample. It was the testing on that corresponding B-Sample that was upheld by McLaren and Brunet.

Swinter wrote:
Quote:
There is nothing unusual or "unAmerican" about this way of structuring the evidentiary burdens. Employment discrimination cases work on a similar model. For all those who are bitching and moaning about the unfairness of the procedures, I can say with confidence that virtually any constitutional law expert in the country would conclude that the procedures as written comport with due process. (Whether the behavior of WADA or USADA in their pre-hearing public pronouncements was appropriate is a separate question; and I am not defending the leaking of the story. But that is, in any event, irrelevant to the issue on the merits of the scientific findings.)


My complaint was not intended to state the burden shifts are "unAmerican". What is "un-American" or "unDue Process" are the rules WADA has authored that result in a "stacked deck".

The LA Times Michael Hiltzik writes:
Quote:
"WADA should be writing rules that mandate the highest scientific standards rather than rules for a race to the bottom of scientific reliability so convictions can be easily obtained," he wrote.

The issue is critical because the core of Landis' defense was an attack on the integrity and performance of the Laboratoire National de Depistage du Dopage, or LNDD, the French government anti-doping lab that ruled Landis' urine sample from Stage 17 of the 2006 race positive for testosterone use.

and

When confronted by direct disagreements between expert witnesses for the defense and prosecution, the panel majority repeatedly accepted the judgment of the latter -- three of whom were directors of World Anti-Doping Agency-accredited labs and a fourth who had received a WADA grant.


swinter wrote:
Quote:
The majority found against Landis that there was any break in the chain of custody (pp. 72-75). In fact, the majority found that there was no factual showing of any break in the chain of custody (p. 75), just allegations of irregularity in the documentation which it rejected. It concluded that the available documentation and direct evidence made it possible to place the whereabouts of the samples at all relevant times and that at all relevant times the samples were within a controlled environment.


My emphasis.
You are too kind!

swinter wrote:
Quote:
Having represented many men on death row, I do know a kangaroo court when I see one. Moreover, from representing plenty of guilty people, I also know obfuscations when I hear them. The majority opinion is quite meticulous and stands up well. Many of Landis's claims, on the other hand, (like the original one that maybe having a drink before stage 17 caused the abnormal T/E ratio) are just a lot of smoke. The majority was quite professional in its scrutiny of the arguments. This was not a kangaroo court.



Death row / doping hearing? I don't understand your point.

How do you know a kangeroo court when you see one. There are a great many respected attorneys, some whom I know, that view the Landis hearing as a Kangeroo Court. Too much circumstantial evidence of a pre-ordained verdict.

Speaking of obfuscations, the drink before S17 was in no way part of the hearing. Smoke???

We may yet see how well the Majority Award holds up?

swinter wrote:
Quote:
As for the affair Lemond, I personally find Landis's version of the events incredible. The fact that he fired Will after the scandalous news broke, doesn't detract from the fact that on his own account he was present when the calls were made. The idea that his close friend and associate (and, essentially, employee) would make a "private" threatening call in the middle of dinner right in front of Landis without the latter being in on it is, shall we say, highly implausible. The claim that Landis didn't hear it is preposterous.

On the other hand, I admire Lemond's courage in testifying publicly about his childhood abuse. Victims of childhood sexual abuse -- and I know some -- are typically paralyzed by devastating shame, their lives in many ways ruined. To step forward as he did (even though in the end it had no impact on the decision) shows the character of a true champion.


McLaren' and Brunet's Majority Award discounted anything LeMond said on direct as he did not answer legitimate questions posed on cross.

The Majority Award accepted Landis' version of the event in question.

Will G did a stupid, ugly, and vile thing. He has been fired, accepted responsibility, apoogized to LeMond, checked himself in to rehab, and compromised a long term friendship with Floyd. He's taken a fair bit of punishment for his action.

LeMond may or may not be courageous for testifying and revealing child abuse. That depends a lot on his state of mind and motivation. There is a whole profession devoted to answering those sorts of questions.

LeMond rode as a Champion. Refusing to answer legitimate questions asked while he was under cross examination in the Landis hearing was not a champion moment.

He doesn't seem to play well with other U.S. riders that have worn the yellow jersey in Paris in the latter days of July. Seems curious to me.


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