Back around the time of Jesus, a great rabbi named Hillel lived in Jerusalem. One day, a person came to him and challenged the rabbi to summarize the whole of the Torah (the five books of Moses) in one sentence while standing on one foot.
So the rabbi obliged. “That which is hateful to you, do not do unto others,” he told the person. “The rest is commentary. Now go and study.”
That one sentence — a slightly different wording of what is known as “The Golden Rule” — is the core of two great religions: Judaism and Christianity. Strip away the theology and the ritual, and this is what it’s all about. Of course, I’m thinking about this because today is Yom Kippur, and it’s part of my heritage.
But I’m also thinking about this story after having read the majority opinion which found Floyd Landis guilty of doping in the 2006 Tour de France.
I have a lot to say about the majority’s opinion, though I won’t burden you all with everything right now. Even so, this does run a bit long.
Four Months? For This?
My first impression on reading the opinion (which I started Thursday night, but then sat down last night and re-read from the beginning) is this: We waited four months for this?! The overall opinion looks to me as if the majority took USADA’s proposed finding of fact, threw in a few concessions to the Landis side to make them feel they’d scored some valid points, and mixed in just a little bit of their own work to tie it all up in a neat little bow.
The Papp and LeMond testimony, though surely featured in USADA’s proposal as being evidence of guilty, was summarily tossed aside. No disrespect to either cyclist, but neither of their testimony was really germane to the central issue of the case — whether the lab work showed a positive result for Stage 17. I’ll give the majority credit for recognizing what was clearly not related to the central issue.
I’ll give them some points, too, for stating what had become obvious by the time the hearings closed — there was some sloppy lab work going on in this particular case. Sloppy in terms of documentation and sloppy in terms of proper lab practice.
Standards? Which Standards?
One other thing that strikes me as sloppy in this verdict is the majority’s logic regarding lab standards. Part of WADA’s certification process requires that these labs be ISO certified. ISO 17025 and ISO 9001, I believe. Having worked for a company that sought ISO 9001 certification (and automotive engineering company, not a lab), I can tell you that ISO certification requires careful documentation of processes and procedures.
The labs from which the Landis defense team assembled their experts are likely also ISO certified. Any company doing lab work for legal cases would almost have to be. A good lawyer for the other side could make a lot of hay out of a lab not certified properly, and ISO certification (while not the only certification out there) is pretty standard stuff.
The level of detail that ISO standards required for our company to be certified makes me believe that for labs to be certified their documentation would include a detailed chain of custody, as well as detailed records of all lab work performed.
That the WADA standards may not require careful chain of custody and thorough documentation could very easily come from the fact that ISO certification is a requirement for WADA certification. Therefore, all of the requirements for ISO certification — like for proper chain of custody records and proper documentation of each and every piece of work performed within the lab — are a part of the WADA standard.
If the WADA standard truly is a lesser standard than forensic labs, then this is a problem that must be rectified — and the November WADA conference would be a good time to do so. The results from WADA-certified labs have an impact on a person’s ability to earn his or her living. If someone’s job is on the line, they deserve to know that the labs performing their drug screenings are held to the highest standards. To discount the testimony of Landis’ experts on the grounds that their labs are held to a higher standard, and thus their input has no bearing on a WADA lab, is disingenuous at best.
The Curious Case Of A Witness Ignored
Chris Campbell, in discussing the credibility of all of the witnesses, notes that in his view Dr. John Amory was the most credible of the lot. Let’s take a look at his reasoning:
47. The one witness that stood out in my mind, really stood out, was Dr. John K. Amory. He has the experience, background and independence to assign great weight to his testimony. Dr. Amory is widely recognized as an expert in the field of Andrology. He has received the Young Andrologist Award from the American Society of Andrology.58 His work requires him to review the scientific research and articles in the area of endocrinology and andrology.59 Significantly, Dr. Amory is a member of USADA’s independent anti-doping review board.60 That fact is jaw dropping. He is one of USADA’s experts when it comes to viewing document packages related to doping offenses.
48. Dr. Amory was not a paid witness.61 He was testifying because he felt something was wrong. Dr. Amory testified the IRMS test results for the stages 11, 15, 19, 20 (the additional B samples tested) and stage 17, the stage in question in this case, are inconsistent with known science.
So, what did the majority think of Dr. Amory and his testimony? Apparently, not much. He’s only mentioned twice in the majority opinion, once in the list of witnesses, and once very briefly when some of his testimony (mentioned in paragraph 171, page 53 of the majority opinion) agreed with Dr. Brenna’s testimony. For the rest of the 84-page decision, no other mention of Dr. Amory or his testimony appears. This is quite a disconnect between Patrice Brunet and Richard McLaren on the one side, and Campbell on the other.
What was the main thrust of Dr. Amory’s testimony? As Campbell notes in his dissent, the IRMS data results were inconsistent with the known science. In other words: There is something wrong with the data, and it should not be used to convict Landis of a doping offense.
Was Dr. Amory the most credible witness? That’s a judgment call. I thought the other defense witnesses were credible, too. And what I heard in the testimony (and refreshed by reading the transcripts), as a whole, was that there are myriad problems with the data, with the lab’s conduct of the tests and with their understanding of even the basics of how to use their own equipment. Because of this the results cannot possibly be relied on to find against Landis.
To completely ignore testimony that calls into question the quality of the data and whether it’s been interpreted correctly without even addressing the testimony and saying why they discount its meaning and value, well, there’s a special term for that. Chutzpah.
Math? Who Needs That?
Paragraphs 182 through 188 of the majority opinion are interesting reading. Most of what’s said there addresses some technical specifications and what they mean and how they’re interpreted. I’ll leave that discussion for someone who’s better qualified than myself. What’s said there, however, gets to the heart of how the Landis decision was made. It’s not a pretty picture. There’s a paragraph in the middle of that, however, where the panel has clearly failed to understand the concepts they are trying to elucidate. Whether purposeful or not, by doing so, they are negating one of the defense witness’ testimony.
184. Dr. Brenna explained that in the case of the MS, the GC is connected directly to the MS and it detects the substance almost instantaneously. The RTs [retention times] from the MS therefore correspond essentially to the time that the analytes are emerging from the GC. This is not however, the case with the IRMS. The GC/IRMS as elaborated upon by Dr. Brenna is an entirely different system than the GC/MS. With GC/C/IRMS, the sample is processed first through the GC, as with GC/MS. The times therefore at the end of the GC should be the same as with the MS, as long as the same instrument is being used, but after that there is no instantaneous detection of the retention time. After the sample passes through the GC portion of the GC/C/IRMS system there is an additional length of plumbing in the GC/C/IRMS machine adding a significant amount of time to the total RT of the substance. This additional “plumbing” is where the combustion of the substance is taking place. From the earlier discussion of how the instruments work, the reader may recall that combustion involves turning the compounds into CO2 so that the IRMS can measure the amount of carbon 13 and carbon 12 in the CO2.
185. The additional time added to the RT of the analyte or standard in the IRMS will always be a constant time, regardless of the individual substances or compounds being measured. Consequently, the retention times of the compounds emerging from the GC/MS system cannot be the same as those coming from the GC/C/IRMS. Likewise, the RRTs will also be different. Taking the example used above, if the RT from the GC/MS is 10 min for the target analyte and 5 min for the internal standard, in the case of IRMS, we may be adding an additional 1 minute for the combustion of those compounds to take place. The reason that the additional time is the same for each substance/compound is that the substance or compound is no longer in its original form; they have been combusted completely to form CO2. As such, the RT for the target analyte at the end of the IRMS would be 11 min and the RT for the internal standard is 6 min. This results in a RRT of 11/6. Arithmetically speaking it is not possible for the RTs and the RRTs to be identical in the GC/MS and GC/IRMS systems nor can it be ensured that it will be within TD2003IDCR.
So, what are they saying? First, in paragraph 184, they’re describing how the instruments used to for gas chromatography/mass spectrometry (GC/MS) and gas chromatography/carbon isotope ratio mass spectrometry (GC/C/IRMS) differ.
In the next paragraph, they talk about comparing the retention times (how long it takes for a compound to pass through the apparatus) between the two systems. What they tell us is that the amount of time it takes for a compound to run through the GC/C/IRMS system differs from the GC/MS system. Not only that, it differs by a constant amount. So if compound X takes 10 minutes in the GC/MS system, it will take 11 minutes in a GC/C/IRMS system if the difference between the systems is 1 minute. If an internal standard takes 5 minutes in one, then it takes 6 minutes in the other.
Relative retention time, not explained in these paragraphs is the ratio of the time a sample compound takes to run through the system (X) to the time an internal standard takes to run through the system (S), or X/S. Got it?
Where the majority go astray is in talking about being unable to compare the results from the two systems because the relative retention times don’t match. Yes, as they’ve put the example, 10/5 is not the same as 11/6. But to adequately compare the systems, you need to subtract out the known constant time difference, in this case 1 minute. If you do that, you’ll find that the second system has a ratio of (11-1)/(6-1) or — magically — 10/5.
Apparently, the person who wrote this paragraph wasn’t very good at math or logic.
What’s extremely bothersome to me is that this is not simply a math error, it’s being used to impeach the testimony of Dr. Wolfram Meier-Augenstein, so as to cast doubt on his credibility and on the accuracy of his testimony. The error here is in the panel’s understanding of how to compare the two systems.
Fruit Of The Poisoned Tree
In law, I believe, there is a concept that says that if the authorities do something that is in violation of the law (for example, breaking into your home without a warrant, conducting a search and then using evidence gathered in this manner to charge you with a crime), whatever comes from that violation must be thrown out.
So, using the above example, say the police bust into your house in the middle of the night without a search warrant, search everywhere and find a small amount of a controlled substance for which you don’t have a prescription. Following this midnight raid, prosecutor charges you with drug possession. By not having a search warrant (and thus not having shown probable cause), the evidence against you should be thrown out, as it is “fruit of the poisoned tree.” Even if the evidence is correct — you had something you shouldn’t — under the law, you can’t be convicted. That’s because those who enforce the laws are also required to live within them.
From the majority opinion, we find out that no such protection exists in the anti-doping world. How so? In the ruling, the panel throws out the test results for the initial testosterone screening of Landis’ A sample from Stage 17. However, they tell us, that doesn’t matter, as the isotope ratio test, which is said to be more accurate, shows a violation occurred.
Generally speaking, the isotope ratio test is only performed if the screening test comes out with T/E ratio above 4:1. But the panel argues that the lab could just do the isotope ratio test without the screening, so the data has to stay in. This is a novel argument. According to the panel’s ruling, this argument has been used successfully in the past, so they accept it as valid.
The technical document that describes the WADA procedure for testosterone testing states that first the screening test shall be done, and it shall be confirmed by three other runs of the screening test if the result exceeds an established threshold (currently a T/E ratio of 4:1). If the T/E ratio exceeds the threshold, then the isotope ratio method is used to determine whether or not the testosterone is natural or synthetic.
So, taking WADA’s procedure at its word, if the panel finds that the screening test was faulty, then the reason for running the isotope ratio test was faulty. If we adhere to the “fruit of the poisoned tree” standard, shouldn’t the results of the isotope ratio test be thrown out? They were achieved through questionable means, therefore the results themselves are questionable.
More to the point, Chris Campbell asks in his dissent, if the lab can’t get a simpler test like the T/E screening test right, how can we have confidence that they can perform the more complicated isotope ratio tests? How, indeed.
You’re Not An Expert If You Aren’t A Member Of Our Club
While the panel does grant some points to Landis and his experts, on the points which are crucial to their decision, they consistently discount the testimony by the defense team’s expert witnesses. My impression from reading the majority’s opinion hews to the belief, often very carefully stated, that no scientist can understand the biology and chemistry behind the tests unless they’re a member of the anti-doping fraternity. But, of course, members of the anti-doping fraternity aren’t allowed to publicly question each other’s work. That might be holding the other person up to disrepute, and that’s not allowed.
What’s underlying this, however, is an element of unfairness in the system. If the only people who will be believed on the main points come from the anti-doping community, and if those people are prevented from testifying for the defense, then no athlete will ever be able to successfully challenge a lab’s findings unless he or she can prove such a radical departure (think Landaluze) that it can’t be ignored. Which leads me to my last point (for tonight) …
Just How High Is That Bar, Anyway?
One thing that kept sticking out in my mind while reading the majority opinion was this: Just how can an athlete rebut a charge against him/herself? Or even: Can an athlete ever rebut a charge? The evidence in the Landis case seemed strong enough to call into question the lab’s procedures, documentation and staff training, leaking of information to the media (even if not the original results, there’s no question that the results of the additional tests in April were leaked by the lab) and so on. The majority even cites such problems at points within their opinion, but rather than hold anyone’s feet to the fire, they simply slap LNDD on the wrist and say, “Next time, you might not be so lucky. Next time, we might throw out the case. So clean up your act.”
I’m left wondering if any athlete can ever get a fair hearing, and if any athlete can ever overturn an adverse analytical finding. Floyd Landis had a very strong case, but apparently not strong enough to win. It’s cost him 14 months and an unbelievable sum of money to try and defend himself. The message here from this panel seems to me to be, “If you’ve been accused, don’t bother to fight. Look what we did to Floyd Landis. We’ll do that to you, too.”
And that brings me back to where I started. Given the result, I wonder: At any point in these proceedings, did Floyd Landis ever really have a chance?
Was there ever a point in the hearings or the deliberations where the arbitrators were guided by what Rabbi Hillel said 2,000 years ago? Clearly, for Chris Campbell (who started his dissent with a quote from the New Testament), the answer is yes. But for Mssrs. Brunet and McLaren?