Jury Nullification and Floyd Landis

A post over at the Daily Peloton Forums last night described the defense strategy of Team Landis as an attempt at “jury nullification.” I’ve heard about jury nullification for years, from an uncle who was heavily involved in Libertarian politics, and who was very involved in the jury nullification association known as the Fully Informed Jury Association.

To put the concept of jury nullification into layman’s terms, the idea is that when someone is brought to trial, the jury may refuse to convict based on the reasoning that the law, itself, is unjust. They would do so even though the accused is proven to have violated that law. The poster, weekendfred (a/k/a Andy) lists the OJ Simpson case as a modern example of jury nullification in action. I’m not sure I’d agree on that. Johnnie Cochran’s famous quip, “If the glove don’t fit, you must acquit.” might have given a few jurors a case of the reasonable doubts.

A better example, though less timely, would be juries refusing to convict people who harbored runaway slaves in violation of the Fugitive Slave Act in the pre-Civil War United States. In those cases, the refusal to convict was very clearly an act of defiance against a law the jury (rightly) felt was unjust.

Central to jury nullification, though, is that the person charged with a crime would normally be convicted were it not for the jury’s action.

Looking at the Landis defense and calling the strategy one of jury nullification is a fundamental misunderstanding of Team Landis’ arguments. And it’s a fundamental misunderstanding of the anti-doping process. Under the current rules, arbitration panels (they are both judges and juries) do not appear to have the power to exonerate someone because they think the rules are unjust.

Just the opposite, as Michael Hiltzik reported in several articles he wrote for the LA Times late last year and early this year. There have been cases where panels felt hamstrung by the rules. Cases where the accused athlete’s infraction was such that the arbitrators felt the punishment should be less than the rules require. But by those same rules, they could not give the accused a lesser punishment. And they couldn’t acquit the accused based on misgivings about the severity of the punishment. As it stands, the current system appears to have been designed to be jury-nullification-proof.

So to base a defense on the concept of jury nullification would be a bad way to go. But let’s look at what Team Landis argue. To start off, they argue that the test results for Stage 17 don’t merit the conclusion that LNDD reached. So, from the beginning, they’re arguing that Landis is innocent. Not because the rules are unjust, but because the data says so.

The question of what the data does or doesn’t show is complicated. Whether Team Landis’ arguments will be considered by the arbitration panel is hard to say. If the panel views the Landaluce case as a precedent, they could just as easily throw their hands up and say, “Well, the experts disagree. We’ll just go with whoever we happen to like better.”

Further complicating the arguments over the data is the question of just how many metabolites it takes to have a positive finding. In one part of the WADA code, the word “metabolites” is used, but in a technical document related to the test, WADA says “metabolite[s]”. In the first case, the reasonable interpretation is that all metabolites must be elevated. In the second case, the wording suggests one or more metabolites. Given the vagueness and apparent contradiction within the WADA code and their technical document, it’s probably going to fall to the arbitrators to determine which standard is correct.

And then there’s the differing standards between labs. WADA’s code is supposed to ensure the “harmonisation” of practices. The term harmonisation suggests that the rules should be the same everywhere. In a truly fair system, that would be the case. But in more than 7 years of existence, WADA has not yet been able to bring all the labs onto the same page as to what constitutes a positive test. Team Landis will certainly raise this in the hearing.

They do argue that the system is stacked against the athlete, but that’s more of a PR argument than one they’ll bring into arbitration, I suspect. Telling the arbitrators that the game is rigged probably won’t help win friends or influence people. And to win, Landis needs to convince at least 2 of the 3 arbitrators that he’s innocent. Probably best not to start off by saying, “Hey, you’ve rigged the outcome.”

But none of Team Landis’ arguments made to date suggest they are going to say to the board, “The rules are unjust, therefore you must acquit Floyd Landis, even though you should find him guilty under the rules.” They’re arguing that the rules are vague, inconsistent, and the data itself, correctly interpreted, doesn’t lead to the conclusion that Floyd doped.

One other thing that should be kept in mind: Landis is fighting two battles. The battle to decide his future as a professional cyclist will be the Pepperdine hearings, starting on the 14th. This is where all the legal and technical arguments on both sides will be laid out for everyone to see. Don’t expect jury nullification to be an argument that would seriously be entertained in these hearings.

The other battle is the ongoing public relations campaign to try and restore Floyd’s good name. One of the worst aspects of the Landis scandal has been how Landis was dragged through the mud before he even received the documentation or the official charges against him. That damage was done in the days immediately following the Tour, and it may take a lifetime before the damage can be undone. If it can be undone.

The PR battle includes the release of all the lab documentation. That’s a pretty gutsy move when you think about it. If Landis was truly guilty, laying the evidence out for all the public to see would be a pretty stupid move. Given how many people have looked through the data, someone would be bound to find the smoking gun and start jumping up and down, screaming at the top of his (or her) lungs, “See, here’s the proof! Doper! Doper! Doper!” Not a smart idea, if you’re guilty.

But again, if you consider the general public the jury, this isn’t a jury nullification strategy. They’re trying to demonstrate to the public why Floyd is innocent. You can choose to believe or not, or even choose to wait and see. But Team Landis isn’t saying, “Yeah, by the rules he’s guilty. But he shouldn’t be found guilty because the rules are unjust.”

Going back to the arguments made by Floyd’s camp that the system is flawed and that it needs change: This has, for better or worse, become the thing that Landis is associated with, much like Lance Armstrong is associated with cancer. Floyd Landis could have chosen just to fight his own battle and leave it to others to push for system change. But he chose to embrace the issue thrust upon him, just like Lance embraced cancer, and now he’s pushing to make the system better. This is a separate effort from his PR battle to clear his name, as well as separate from the anti-doping case. But in all the hullabaloo it’s easy to get things muddled.

Landis’ effort to change the system will go on, regardless of whatever happens in May. Give the man credit. Whatever you think of the anti-doping case, you have to admit that fighting to change a flawed system takes courage, character and conviction. Though, hopefully, not a conviction for doping.