The Going’s Getting Weird, Part 1

“When the going gets weird, the weird turn pro.”

– Dr. Hunter S. Thompson

What a difference a day makes. Yesterday afternoon, the arbitrators rulings in the Landis case, regarding testing of additional B samples and whether the Landis defense team could take depositions from LNDD lab personnel, was released. TBV posted an initial summary of the document, and later in the evening, I took the time to read the whole thing from beginning to end.

All things considered, this ruling is not good news for the Landis defense, although in part of the ruling there is a glimmer of hope. In case you haven’t already heard, the arbitrators, by a vote of 2-1, found that they could not prevent USADA’s request to test Landis’ additional B samples from last year’s Tour de France. Chris Campbell, the arbitrator chosen by Landis, issued a strongly worded dissent on some of the issues the panel addressed.

According to an article by Michael Hiltzik of the LA Times:

Campbell objected that allowing the U.S. Anti-Doping Agency to retest the samples at the same Paris lab, which has an incentive to validate its original charge against Landis, “strips this adjudication of the appearance of fairness.”

In allowing the tests to go forward, the panel did put some stipulations on what the results could not be used for, such as additional anti-doping charges, and added that they would have an independent expert observe the proceedings to determine whether the lab’s processes and procedures were flawed. And, while they made a preliminary ruling that the evidence obtained might be admissible, they put off making a final determination on that issue until the hearing in May.

And that’s where the faint glimmer of hope comes in. Although it’s unlikely, given how the panel ruled on these issues, if the panel did vote to deny the evidence obtained from the B sample testing when the hearing is held, then USADA’s gambit would be for nought. I wouldn’t bet on it. And in the meantime, Landis has to endure the added costs of having his own expert there to observe the testing, and his defense team will need time to analyze the results.

There’s been no word, yet, on if or when those tests will take place. But if they haven’t already begun, there’s precious little time between now and May 14th to get the tests completed, the data analyzed and the lab documentation delivered. I expect Landis’ defense team is going to have to pull a few all-nighters to get through all the material these tests could generate.

The other major decision was to deny the request to depose LNDD staff before the hearing, because USADA apparently plans to call some or all of the technicians as witnesses in the case.

But going back to the B sample testing, I’m not sure what USADA hopes to accomplish by doing this. They can’t generate any new anti-doping charges from this fishing expedition. And the lab, according to the WADA rules cited by Chris Campbell, would have to declare the results negative for the other seven samples.

Do they wish to demonstrate LNDD’s competence? Whether or not LNDD can properly analyze these samples, the only issue of competence that matters is whether they properly analyzed the samples from Stage 17. As Campbell points out in his dissent, LNDD is facing some potentially serious consequences if the case is decided in Landis’ favor, which creates an incentive for them to validate their results from Stage 17. (I wonder, however, if any of those consequences would come about. Given LNDD’s performance in past cases, and given that they haven’t been sanctioned before, would WADA sanction them this time? I doubt it.)

It appears that they wish to establish a pattern of doping and masking the doping throughout the rest of the tour. But there’s a double-standard operating here. If Landis had requested the testing, in an effort to prove his innocence, USADA would have screamed bloody murder. They would have objected that the only finding being contested was the finding on Stage 17, and would have sought to deny Landis access to those very same samples and tests.

The arbitrators took the Landis defense team to task for seeking to block the testing of the B samples, by saying, “That is not a search for the truth or to understand all the facts involved in the matter.”

Let’s be honest here. USADA is not seeking the truth or to understand all the facts involved in the case. Do you think they would drop the charges against Landis if, on retesting, it was clear LNDD had procedural or equipment problems? No. (Although one would hope the arbitration panel would throw the case out at that point. But if the current ruling is any indication, that is unlikely, too.)

Do you think for one minute that if all of the B samples that will undergo testing come back negative Travis Tygart will present that evidence to the panel? Of course not.

The only evidence Tygart’s going to use will be evidence that helps him win, because he and USADA have shown from the start that this is not about truth, it’s about winning. If it had been about truth, they would have pursued this matter entirely differently. USADA can just ask the Australians how it’s done, if they need any pointers.

But things get weirder, still. About 9 days ago, it turns out, USADA’s lawyers submitted a request to the arbitration panel for access to Landis’ medical records and bills dating back to January 2005, a list of all the contributors to the Floyd Fairness Fund who’ve given more than $250, and documents of all Landis’ comments related to the case, whether on Internet discussion boards, or to lawmakers on Capitol Hill.

According to an article by Bonnie DeSimone on ESPN.com:

In a letter dated April 3, attorney Matthew Barnett also asked for “documents submitted” by the Landis camp “to any government official in connection with Mr. Landis’ efforts to influence, pressure or coerce governmental officials to instigate investigations of USADA or otherwise interfere in this adjudication process.”

Apparently, the Landis defense has struck a nerve. So who’s going on the fishing expeditions now? And exactly what does any of this material have to do with the case being decided?

Here’s how I see it: Floyd Landis is being railroaded. Doesn’t he have a right to speak out? Doesn’t he have a right to lobby Congress, if he pleases? Exactly how is asking for help in ensuring a fair trial an interference in the case? Our tax dollars support USADA, shouldn’t they be accountable to Congress and the taxpayers?

If they want to run their own little private quasi-judicial organization that contravenes US judicial procedures, I’ve got a suggestion: Do it with private money. If you want my tax dollars to support your organization, then you’re bloody well accountable to me and all the other taxpayers who help write your paycheck, Mr. Barnett.

Perhaps the best description of USADA’s new requests can be found in Bonnie DeSimone’s article (linked above):

Wednesday night, Henson called USADA’s most recent requests “modern-day McCarthyism at its best.”

Take it from someone whose family has direct (negative) experience with the real McCarthyism back in the 1950s, Michael Henson aint just whistlin’ Dixie.