swinter wrote:
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:
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:
"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:
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:
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:
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.
