Legal Q&A - Lance Armstrong Edition

My Face Book feed was exploding with Lance Armstrong comments over the past two days.  Usually I try to ignore a lot of comments, recognizing that the comments are people's opinions.  A few comments, however, are begging for answers.  I pulled together my favorites below.  Let me, however, preface all of this with the comment that I do not have an opinion as to whether or not Armstrong doped.  Like the vast majority of people commenting on this topic I have not seen and heard all of the evidence and I cannot make a determination without knowing all of the facts. 

"Kelly Burns Gallagher may know the law (which only means she's received the secret decoder ring; they make the language obtuse for a reason), but she's an historical dunce. There is no point in professing your innocence at a Stalinist show trial. All you can do is give your judge/jury/executioner the single-finger-salute and maintain your dignity."

This is my absolute favorite and was written in response to my article on slowtwitch.com.   Let's start with "Stalinist show trial."  Stalinist show trials (also known as the Moscow trials), took place in 1936 and 1937 and were precursors to the Great Purge where hundreds of thousands of people were killed in Soviet Russia.  I get that the commenter is using hyperbole to try to compare the USADA process to the atrocities of Stalinist Russia, however the comparison is a poor and distasteful one.  USADA conducts its arbitrations pursuant to the AAA rules for arbitration.  These are the same rules and processes that govern 80,000 cases each year. While Judge Sparks recognized that the allegations against Armstrong in the charging letters were ambiguous, he also determined that the procedures met due process requirements.  Just because the process is not ideal does not mean that its a "show trial."  Comparing the dispute between Armstrong (with the assistance of his very qualified, competent and incredibly high paid lawyers) and USADA over whether he doped to a totalitarian regime that killed over 3 million people does nothing to further the conversation and is trolling at its worst. 

"So the case is mostly based on hearsay coming from competitors that finished behind Lance in several races over their careers, right?"
"It's a good thing I never win at world championships. I'd hate to have my titles stripped because of hearsay . Haters gonna hate. Ain't no body got time for that!"

These two comments should be considered together because they both raise the hearsay issue.  The legal definition of hearsay is:

1. An assertive statement
2. Made by an out-of-court declarant
3. That is offered to prove the truth of the matter asserted

What does this mean? Hearsay is second hand knowledge.  If the issue in question was whether Lance rode his bike through town on Tuesday the statement "George told me that Lance rode his bike through town on Tuesday" is a hearsay statement.  The statement "I saw Lance ride by on his bike through town on Tuesday," however is not a hearsay statement.

Even if a statement is hearsay, there are about 38 exemptions and exceptions that allow for the admissibility of hearsay statements in federal courts (and in arbitration proceedings that have adopted the Federal Rules of Civil Procedure).  These include admissions by a party opponent ("Lance told me he rode his bike through town on Tuesday"), excited utterances ("While we were on the phone I heard Frankie scream 'Oh my god Lance Armstrong just rode past me on his way through town'") and business records (the log of a toll operator that records everyone who rode through town recorded that Lance rode through town on Tuesday).  In the Armstrong case statements made by individuals who claim to have seen Lance dope (e.g. "I saw Lance inject himself with EPO") or who claim that Lance encouraged them to dope (e.g. "Lance gave me several vials of EPO") are not hearsay statements.  There may be an issue of witness credibility (which I'll discuss below) but there is not a hearsay issue and these statements are not hearsay.


"What's the point of all this testing if they are going to throw the physical evidence out and listen to the testimony of proven liars. Floyd Landis' testimony trumps physical evidence? Ridiculous."

Herein lies the issue of witness credibility.  In a judicial or arbitration proceeding, its the duty of the finder of fact (who can be a judge, jury or panel of arbitrators) to examine the evidence, to determine the credibility of the witnesses and to afford the appropriate weight to the testimony based on the credibility of the witnesses.  In Armstrong's case, USADA has stated that it has ten witnesses who would testify against Armstrong.  Many of these witnesses such as Floyd Landis and Tyler Hamilton would have credibility problems.  During cross-examination of the witnesses (which happens even in arbitration), attorneys for Armstrong would elicit testimony from the witnesses concerning prior lies, motives for testifying against Armstrong, promises made by USADA and other information that could destroy the witness' credibility and impeach (prove false) his testimony. At the close of evidence, the finder of fact weighs all the evidence but it doesn't mean all the evidence is given the same weight.  The arguments about crediting Floyd Landis and Tyler Hamilton's testimony are red herrings, its very likely their credibility would be easily questioned, the real concern would be the testimony of someone such as George Hincapie (if he testified), whose credibility would be harder to impeach. 

 
"Real proof is science... not an Outlook inbox. It looks like a grudge rather than professionalism."
"It really sucks - such a huge witch hunt. Still can't believe they took his titles away with no solid proof. Devastating :-("

These two comments should be considered together as well as they both bring up the issue of "real proof" or "solid proof."  I am assuming that when the commenters use the word "proof" they mean evidence.  Evidence can take many different forms including testimony, documentary evidence, physical evidence, scientific evidence, exculpatory evidence and demonstrative evidence.  In courts (and arbitrations) there are rules governing what types of evidence are admissible and once the evidence is admitted, it is up to the finder of fact to determine the weight that should be given to the evidence.  Both of these commenters seem to argue that scientific evidence in the form of test results is the only evidence that could possibly prove that Armstrong doped. 

This argument is flawed for at least two reasons.  First, scientific evidence (or test results) are not the only the type of evidence that is admissible and relevant is a case concerning doping allegations.  We live in a CSI dominated world where we think that there's a test for everything and that lab results are the only "real" evidence.  Step back almost 20 years to the trial of O.J. Simpson when Johnie Cochran persuaded jurors that there was reasonable doubt about DNA evidence and blood samples.  In 1995, "solid proof" and "real proof" in the form of DNA evidence was not enough to convict O.J. Simpson because the case was lacking direct witness testimony.  If convincing and credible (two ifs discussed above), witness testimony can used to prove that an individual violated an anti-doping policy.  Second, testing for doping is not perfect.  Dopers are able to create new forms of doping faster than testers can create accurate tests.  EPO became prevalent in the 1990s because improved testing for other drugs such as steroids and amphetamines made those drugs easier to detect.  In the 2000s, better tests for EPO were developed and dopers turned to micro blood transfusions, which eventually led to the creation of the biological passport system.  A negative test only shows that there was no indication of the substances the test was looking for.  The fact that Armstrong has never had a confirmed positive test is evidence that he did not dope.  If Armstrong elected to have an arbitration hearing, that evidence would be weighed by the finder of fact.  


"Agreed this is like DOUBLE JEOPARDY in our judicial system!!!! You cant say he was doing something years later that he tested clean for over 500 times!!! Damn can't these scientists just admit either a.) he was clean or b) he freaking got away with it !!! YOU CAN'T PROVE IT --ALL YOU CAN DO IS ASSUME AND TAKE THE WORD of little cry babies that DID get caught!!! LEAVE LANCE ALONE!! "

There's a lot in this statement.  I've already addressed several of the points (hearsay, credibility and scientific evidence) so I'm just going to address the new one -- double jeopardy.  Double jeopardy is a procedural defense that prohibits a prosecutor from trying a defendant on the same charges following an acquittal of conviction.  This only applies to criminal matters, not civil matters (to use O.J. Simpson again, he was acquitted of murder charges in criminal court but was found liable for wrongful death in civil court for the same Nicole Brown Simpson incident).  Armstrong has never faced criminal charges.  He was investigated by a federal grand jury for potential violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO") but at some point federal prosecutors realized that they didn't have the evidence for an indictment on federal charges and dismissed the grand jury.  Because charges were never brought, the grand jury never "cleared" anyone of any specific crime. USADA's case against Armstrong is also not a criminal case (in fact the statute of limitations on any criminal drug related charges likely ran long ago).  As the USADA case is not a criminal case and Armstrong was never cleared or convicted of any criminal charges, double jeopardy does not apply.

"I don't doubt he doped. I'd be more shocked when a cyclist doesn't. But they need to "convict" him first, not just allow allegations to convict."

This is an interesting comment.  USADA issued two charging letters against Armstrong with allegations of doping and conspiracy to dope.  After having his case in the Western District of Texas dismissed, Armstrong declined to enter into arbitration with USADA and USADA issued sanctions.  USADA never convicted Armstrong of anything.  Armstrong's decision to decline arbitration with USADA just meant he didn't want to fight the allegations through USADA's process.  To use a criminal law analogy, Armstrong essentially pled nolo contendre (Latin for "I do not wish to contend") to USADA's charges.  What it doesn't mean is that Armstrong is giving up possible avenue to contest the sanctions imposed by USADA at later time in a different venue. 

"Because: he started LIVESTRONG before he ever won the Tour, Because: he could have retired a zillionaire and never looked back, Because: he has been an inspiration and a hero to millions, Because: he has created a Foundation that has helped countless frightened and needy people, Because: he supports Planned Parenthood, Because: he never abandoned those who needed his name, his energy and his charisma, I will always stand strong for Lance Armstrong. I don't care about his politics. I care about his heart."

"Screw the USADA...what matters right now is that Lance is working to help fund cancer research. Perhaps the morons at USADA could better spend their investigative monies helping eradicate cancer than chase a horse's tail over testimony from less than credible witnesses."

I've seen these argument come up a lot, essentially that Armstrong is above reproach because has done so much with the LiveStrong Foundation and for individuals who have cancer.  Just as the bad cannot wipe out the good, the good cannot wipe out the bad.  Whether or not Armstrong doped has nothing to do with what Armstrong has done for cancer survivors.  I find this argument really interesting, especially in light of the recent issues with Penn State University.  Joe Paterno did wonderful things for Penn State, including raising $13.5 million for a library expansion.  That being said, Paterno also protected Jerry Sandusky and Paterno's actions allowed Sandusky to commit horrible crimes against children.  Like Armstrong, Paterno's good acts during the course of his life, do not wipe out what happened with regard to Sandusky.  While this isn't a legal point, I think that we need to understand that same people who are capable of incredible acts of compassion, generosity and kindness are also capable of misjudgments.  It is possible that Armstrong is both a hero for his work as an advocate for cancer survivors and a professional cyclist who doped.   

"I say give the titles to a non-cyclist. Say....Tim Tebow. He is the greatest athlete EVER. :)"

This is a question, I do not have an answer to.  Many of the riders on the podium with Armstrong are convicted dopers.  I think that cycling may want to institute the asterisk and simply asterisk Armstrong's victories (unless and until Armstrong fights USADA's sanctions through different legal avenues).  For the time being, however, awarding them to Tim Tebow may not be a bad idea.