Due Process? We Don’t Need Any Stinkin’ Due Process

by James Broder

Lance Armstrong, wallpapersshop.net

 

“Democracy is the worst form of government. It is the most inefficient, the most clumsy, the most unpractical … It reduces wisdom to impotence and secures the triumph of folly, ignorance, clap-trap, and demagogy … Yet democracy is the only form of social order that is admissible, because it is the only one consistent with justice.”

Robert Briffault, Rational Evolution (1930)

 

Lance Armstrong, vanityfair.com

 

 

 

 

 

 

Heard any good Lance Armstrong jokes lately?

 

 

 

This month,Armstrong has been tried, convicted, and executed by the United States Anti-Doping Agency (USADA) for doping. Dominoes continue to fall; he was sacked by Nike, he resigned from the LiveStrong cancer charity he started. Yet of those responsible for the 2008 world financial crisis, nobody has even been indicted, much less convicted. Armstrong has disappointed a lot of people, and the evidence against him appears to be thoroughly damning. But hundreds of executives at Goldman Sachs, Barclay’s Bank, Merrill Lynch, AEG, and JP Morgan bankrupted millions, robbed countless people of their homes, retirement savings and their jobs. THOSE guys are still being awarded million-dollar bonuses. Hank Paulson, former CEO of Goldman and architect of the biggest giveaway to rich white guys in the history of the planet, is sitting in a mansion somewhere with tax breaks nobody else in the entire country receives.

A little disclosure here. I’m no Lance Armstrong fan. I’ve met him a couple of times, the first of which occurred in 1990 when he was a teenage triathlete punk. I don’t know him well, and I don’t think much of the man. But there’s a little thing called Due Process which has been grossly violated by USADA. Due Process is the difference between Armstrong being summarily convicted (by one man, USADA chief Travis Tygart) and stripped of his 7 Tour de France titles.

 

Lance Armstrong, blog.artscyclery.com

 

Why does not USADA operate under the same basic rules as our justice system? An athlete accused of doping by USADA has no right to a fair trial, no right to confront his accusers, no right to a jury of his peers. Travis Tygart could have made the whole thing up. All of the witness testimony released to the press could have been coerced. There has been no discovery, no cross-examination, and most importantly, the defendant must have the opportunity to face his accuser. Tygart is prosecutor, investigator, judge, jury, and executioner. Armstrong’s lawyers have stated that USADA is a “kangaroo court.” And you know what…they have a very strong point.

During the Salem Witch Trials, speedy trials without representation were followed by conviction and execution (usually on the same day). Defendants who refused to participate in the process were tortured to death, often by having boulders piled on them until they suffocated. Others were thrown in a lake; if they floated, they were deemed witches and were summarily burned at the stake. Those who sank were acquitted, with the minor inconvenience of being dead. In other words, if you could find a handful of people who didn’t like somebody, you could get rid of the person under the guise of the law.

The USADA process works pretty much the same way as the Salem Witch Trials, except USADA does not even bother to conduct actual trials. USADA has its own special set of arbitration rules. For athletes, if the coin comes up heads, USADA wins. If tails, the athlete loses.

 

Lance Armstrong, wired.com

 

Initially, Armstrong was presented with USADA’s “case”. Under USADA rules, no dates, no details of the evidence, no specific acts were named. Armstrong had 10 days to respond. In other words, USADA sent Armstrong a notice saying “Lance, you are a witch”. Armstrong refused to respond, ironically calling USADA’s case “a witch hunt”.

Stories flew around the internet about possible evidence and  testimony against Armstrong. Did his buddy George Hincapie fink on him? Did former girlfriend Cheryl Crow drop the hammer? Nobody knew, because Tygart didn’t have to reveal anything to anybody.

 

Lance Armstrong & fan

 

If Armstrong had chosen to participate in the USADA process, his chances weren’t much better. In a USADA arbitration there is no “discovery” allowed. In other words, Tygart did not have to turn any of his evidence over to Armstrong for examination nor verification prior to the hearing. Secondly, Armstrong would be given no right to confront accusers. In the case of an incriminating lab test or accusatory testimony, Armstrong’s legal team would neither have the opportunity to cross-examine the lab technician, nor the accuser. Maybe the lab technician is a proven incompetent, a demonstrable liar.  Maybe the accuser had a bone to pick. Who knows? USADA’s evidence would all have been in the form of affadavits, with no cross-examination allowed.

Last and perhaps the most germaine, is the issue of witness coersion. Tygart can offer any deal he wants to any rider or former rider, or in fact any competitor in any sport adhering to USADA’s code. Plea bargains do not have to be approved by a judge or, in fact, anybody but Tygart himself.

 

 

 

 

 

 

 

When examining and interpreting some of the witness testimony against Armstrong, it is important to know that professional bicycle riders are very poorly paid. As of about 5 years ago, the average salary of a Tour de France rider was less than $20,000 a year. There are a handful of stars who make around a million dollars a year, and a few superstars, like Tom Boonen and Fabian Cancellara, who make roughly $5 million a year. In other words, a genuine cycling international superstar makes less than a 3rd-string point guard on a bad NBA team, and most earn less than the guy dispensing Slurpees at your local 7-11. It is customary, for example, that the winner of the Tour de France gives all of his prize money to his teammates, because they work like dogs for him and get paid almost nothing, whereas the winner will make good money for the ensuing year from endorsements and appearance fees.

George Hincapie had a 20-year career as a “domestique”. In other words, he rarely won a race. In a good year Hincapie cleared around $750k . He raced for 20 years. He recently retired, presumably with around $10 million in the bank, which he has to make last for the rest of his life. He has a wife and two kids. Hincapie’s testimony against Armstrong was very damaging. But here’s the thing – Hincapie did not have the right to remain silent. Tygart could have threatened (and many opine did threaten) to go after Hincapie in the same way he did Armstrong. Now that he’s retired, Hincapie’s one means of making a living is his small, eponymous sportswear company, which depends largely on Hincapie’s name. USADA could dispose of Hincapie’s good name in a heartbeat, and Hincapie does not have sufficient money to fight USADA in its kangaroo court.

Current riders Levi Leipheimer and Christian Vande Velde also gave damning testimony against Armstrong. For their own admitted doping transgressions, they were given meaningless off-season suspensions (i.e October – February, when nobody races anyway). In other words, Tygart gave both Leipheimer and Vande Velde a “Get Out Of Jail Free” card. The two riders were given a choice – turn State’s Evidence, or be banned for life, their means of making a living taken away. But for their testimony, they would be heavily fined, disgraced, and would be out of cycling forever.

 

Lance Armstrong, magazine.foxnews.com

 

Before USADA came into the picture, the US Attorney’s office investigated Armstrong for two years on charges of fraud. The logic was as such: one of Armstrong’s main sponsors for most of his career was the United States Postal Service, a quasi-government agency. Doping costs a lot of money. Did Armstrong divert some of US Postal’s money to buy drugs? Considerable money and talent was brought to bear on the case, including naming Jeff Novitsky as lead investigator. Novitsky was the investigative swingin’ dick who brought down the BALCO lab involved in the Marion Jones / Barry Bonds case on behalf of the IRS. Novitsky, who has been deemed a modern-day Elliot Ness, was brought into the Armstrong investigation acting on behalf of the FDA. But here’s the thing-the government’s case was ultimately dropped. Even Novitsky couldn’t get enough on Armstrong to win in a real court of law. In other words, under the rules of US Law, Armstrong – like Blankfein or Paulson – might be guilty as hell, but the government didn’t think it could get a conviction. But in its failure, the FDA ultimately won, as it turned its files over to Travis Tygart and USADA. USADA did what the average 8-year-old does on the playground: if you can’t win by the rules, find yourself a new set of rules.

If Armstrong had fought in USADA’s “arbitration” process and had lost, his recourse would have an appeal to the Court of Arbitration for Sport In Switzerland. Again, arbitration. In Switzerland, that paragon of justice where bribery is explicitly legal under Swiss law, where former Nazis are permitted to run the International Olympic Committee for 20 years, where Swiss Timing is caught laundering money through the Commonwealth Games but ignores arrest warrants issued for its executives, where Sepp Blatter runs FIFA by dispensing aluminum briefcases full of cash. THAT Switzerland.

The World Anti Doping Agency (WADA) “code” USADA operates under specifies an 8-year statute of limitations on violations. It is now 2012. Eight years ago was 2004. Lance Armstrong won the Tour de France 7 times, starting in 1999. Do the math. If USADA adheres to its own rules, Armstrong cannot be stripped of his first 5 Tour de France titles. USADA has already violated its own code by stripping Armstrong of all 7 titles, most of which occurred outside its statute of limitations.

Lance Armstrong, photograph by Reuters, ibtimes.com

Let me know how that works out for you?

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