Second Witness

After breaking for lunch, and more questions for Dr. Shackleton, USADA brought out their second witness, Dr. J. Thomas Brenna, from Cornell. Brenna seemed more composed and relaxed on the witness stand for the 45 minutes or so that I watched, after finally figuring out how to get into courtroomview.com.

Brenna is, by all accounts, an expert in gas chromatography and mass spectrometry, and has worked with IRMS for other applications. So he seems comfortable talking about the subject and how IRMS works. What he’s not an expert in is the actual application and use of IRMS for anti-doping tests, but much of what he says sounds credible. So he may be a good witness for the prosecution.

During his testimony, Richard Young asked Brenna some questions regarding the B sample tests conducted in April at LNDD. What’s interesting about this, is that earlier, Maurice Suh had raised some objections to the introduction of this material. I hadn’t heard a decision announced about whether that evidence would or would not be allowed in, so I emailed Judge Hue, and he responded that the panel still has that issue under advisement.

So it’s worth noting that, while the panel hasn’t issued a final determination on this (at least, as of when Bill Hue responded) they’re allowing testimony based on those tests and the results of the tests. I find that odd. To my layperson’s logic, it seems as though this issue should be decided before any testimony based on that evidence is allowed. But then, this isn’t a court case, this is arbitration. Clearly, for this panel, the rules of evidence are different.

Allowing testimony based on these results makes me concerned for the overall fairness of the hearings. Once the horse has escaped from the barn, it’s gone. Same here. Once the testimony is given, can we seriously believe that it won’t have some impact on the deliberations?

TBV has some interesting notations to his post on the second half of Brenna’s testimony. First, part of Brenna’s testimony is to try and explain away why several of the urine blanks run during the course of the April testing came up as positive for doping.

TBV also notes that one of Landis’ attorneys objected part way through, stating that the subject under discussion at that point was subject to a motion to strike. I take that to mean he’s objecting to the discussion of results from the April tests. And then, not much later, some of Brenna’s testimony comes from a part of the lab pack we haven’t seen yet. This could be either from the AFLD lab pack or from the LNDD lab pack from April, I’m not sure which. But TBV asks the question as to whether this might be a gotcha that Team Landis missed.

Under cross examination, Landis lawyer Maurice Suh got Brenna to admit that he received a large grant ($1 million or more) from USADA in early 2006 that will cover a period of three years. Meaning, Brenna is currently doing research for USADA. It’s perhaps worth noting that Brenna’s lab is not WADA-certified. Not sure whether this is a good or bad thing. 😉

So Suh has managed to show that Brenna has a conflict of interest in his testimony. He’s beholden to USADA for his funding. It’s pretty easy to imagine that he’s going to dance to their tune if they ask him to. But as Bill Hue points out in his own commentary on the second witness’ testimony, while that might impeach Brenna’s testimony in a real court case, it’s hard to know how the arbitrators will interpret his testimony.

Under cross examination, Suh was able to get Brenna to admit that the results weren’t quite as good as he painted them in earlier parts of his testimony, when he was being questioned by USADA’s lawyer.

All told, from this layperson’s perspective, the lawyers on both sides may have scored some points.

On an entirely different note, it’s early days yet, but TBV has been doing a heckuva job transcribing the testimony, Bill Hue has cranked out some good analysis, and strbuk is holding down the Trust But Verify fort with the news and blogs. We’d be much the poorer without their hard efforts at getting all the information out.