Choices, Choices …

In the discussion going on the last couple of days, one of the things that stood out was a comment by Larry, a lawyer, to the post Tick, Toc, Tick, Toc. We all want justice to be both fast and fair.

[W]hen it comes to legal process, the sad truth is that faster processes are inherently less fair. The things we talk about to make drug testing a more fair process – discovery, juries, appeals – are all time consuming. They’re also expensive.

Unfortunately, when looking at fast results versus just results, the two are almost mutually exclusive. Want fast results? Then we’ll need to take a few shortcuts. Want justice to be fair, it could take a while before the process is done.

Which would you choose, if you had to have one or the other, but not both? Me, I’d choose fair over fast. This is pretty much the dichotomy that’s really under discussion when people talk about how long it’s taking for the arbitrators to make their decision since the Floyd Landis hearings finished just over three months ago.

Landis’ fate rests in the hands of three men, who are deliberating on whatever schedule they are following. When they will make their decision, no one appears to know. By the amount of time it’s taking, I’m hoping that they are carefully weighing the evidence. But again, no one really knows what’s going on behind closed doors. Floyd Landis lives in a strange space right now (very well chronicled by Sara Corbett in her article, The Outcast), not knowing when a decision will come or what it will be. His entire future depends on what these three men decide.

If they decide in his favor, he can begin to think about returning to racing. Sure, someone on the other side may appeal to the CAS. And yes, with that appeal, it’s a whole new case. Literally. The case that will be heard on appeal starts at square one. It is not an appeal on the decision made by the arbitrators, limited to the facts presented in the original case, the way the hearings were conducted, or any of what’s gone on before. It’s entirely new.

And that means it will be another expensive go `round. But, if the panel clears Landis, he would be free to race during the appeal period. And there’s probably one or two or three teams out there who might be interested in taking him, even with the uncertainty of the appeals process. If I were in Floyd’s shoes, the uncertainty would be driving me nuts.

Truth be told, the whole system is nuts. Floyd Landis is effectively barred from pursuing his career while he awaits a decision. Scooter Libby, on the other hand, wasn’t barred from working while on trial. Whether he actually worked or not is another matter. But if he wanted to, he could have worked in his chosen profession — just not at the White House. Once he became too big a political football, he was “encouraged” to leave his job there. What kind of system punishes people before they’re found guilty?

I’ve had some email from someone who asks, why haven’t the mainstream media been shining a light on what’s taking the arbitrators so long. Why haven’t bloggers spoken up more forcefully about what appears to be foot-dragging by the panel? Why, indeed? Well, I can’t answer for all of the mainstream media, I can answer only for myself. I think getting people discussing the topic is one way of raising awareness, and perhaps putting some indirect pressure on the arbitrators to do something. But I’m not sure that the pressure should be too forceful.

I think Jellotrip, who’s had experience in this sort of thing, pretty well sums it up by saying that if the arbitrators tell you they’re going to take longer, it’s not in your interest to argue with them.

[Richard] McLaren was the arbitrator in my anti-doping arbitration schemozzle, and requested from us an unlimited time to make his decision instead of the deadline that the rules gave him. We allowed it to him of course, because what the hell else are you going to say to the guy deciding on your life?

It turns out that McLaren was deliberating on Jellotrip’s case while he was also sitting on the Landis panel in Malibu. So, I think it’s safe to assume that whatever the reasons for the delay, one of them is that the arbitrators aren’t working exclusively on the Landis deliberations. At least part of the delay can be accounted for by those other obligations. As a side note, in Jellotrip’s case it took McLaren 45 days to make his decision, which seems lightning-fast compared to how fast the Landis case is taking.

My uncle once told me a story from his youth. He and another boy were interested in the same girl, and neither one of the boys could stand the idea that she liked both of them. One day, one of the boys (my uncle), told the girl that she had to make a choice right then and there. He was hoping she’d choose him. Turns out, she chose the other boy.

Sometimes, forcing a decision isn’t in one’s best interest. Although, I think things worked out for the best because some time later my uncle met my aunt (my mother’s sister), and they eventually married. My uncle was like a second father to me, but he might not have been a part of my life had that girl made a different choice way back when. Every day since he passed away three years ago, I miss him.

Anyway, back to the emailer’s question: Why not raise a ruckus, shine a light on the arbitrators and see if turning up the heat might speed up the process. Well, I would certainly like to see the process come to a quicker end than not. But at the same time, I wonder if demanding a faster answer would be a good idea. Larry makes a good point when he says:

Yes, we’re all impatient for a decision. But if waiting is required to get to the RIGHT decision … then presumably we’d all be willing to wait. To be sure, if the panel (natually inclined as are most panels to side with the prosecution) is wavering, if the pro-Landis arguments are slowly working their way through their brains, creating growing doubts … would you really want to force their hands at this point, announce “TIME’S UP!” and force them to decide?

No, I don’t think it would be a good idea to call time at that point. And I don’t think we’re likely to find out much about the inner workings of the deliberations before the decision is announced. The panel is both judge and jury, or perhaps better likened to a panel of judges, like the Supreme Court. While a jury is deliberating, or a panel of judges is deciding a case, we aren’t able to peer into the proceedings and demand to see what they’re doing.

Perhaps, when all is said and done, one or more of the panel might speak publicly about what went on. If any of the panel speaks, it would probably be Chris Campbell. I don’t imagine either McLaren or Patrice Brunet giving many interviews on how they decided the case. Still, once it’s over, I’d like to see some stories address why it took so long, with whatever comments can be gotten from the arbitrators, themselves. Before the decision is announced, however, I’m not so sure it’s a good idea to light too big a fire under the panel’s feet.

I don’t want to see a case where the panel feels rushed and they finally say, “You know what? We’re tired of all this pressure. We don’t care what the evidence says. He’s guilty.” This is not the kind of result that would be fair or just. So, while we all grow more curious about why it’s taking so long, we’re all stuck waiting until such time as the arbitrators are ready to announce their decision.

The timing of that announcement will be interesting to see. Will it be done to ensure maximum impact, or minimal exposure? That could say a lot about how the arbitrators want us to view the case. Or will this panel even think about, or care about, such things? We’ll just have to wait and see.