Thursday, May 24, 2007

Trust But Verify

Trust But Verify is grassroots journalism at its finest. TBV tracks the status of the doping allegations against 2006 Tour de France Champion Floyd Landis. The arbitration hearing last week at Pepperdine University involving Floyd and the USADA was covered first hand by the bloggers, and the play-by-play and color commentary was *exemplary.*

Writing for TBV is Judge William Hue. His articles (co-authored by the blog owner David Brower) on TBV "Judging Floyd" are outstanding. So far posted in 5 parts, this is the kind of coverage that is sorely lacking in mainstream media. *Thank you* for all you did in covering this proceeding. We owe all of you at TBV a debt of gratitude.

Courtrooms often resemble theater more than a search for truth, justice or fairness. While the instant proceeding was an *arbitration* with significantly different rules that one would encounter in the American system of justice, there are some common elements. The basic "adversarial system" is used; the premise being that if both sides are dedicated to forwarding their clients interests, then "the truth will out." This is an interesting and oft debated proposition in our system of justice, and the Landis/USADA arbitration gives us a prime example to examine it not in the abstract, but in actual application.

Did the truth out?

This is a tough question. Philosophers have debated what "truth" is for millennia. But when following the progress of the hearings at Pepperdine, I was struck again by the awesome power of the State. USADA is funded largely by public funds; US taxpayer dollars. When they decide they have a case, they don't need to go to a Grand Jury, nor do they need permission of a neutral magistrate. As an administrative body (and just who they work for is a little hazy in my mind at this point) they get to make make the rules, decide what they mean, and then enforce them. Interestingly, you come to their power (or popularly, their "jurisdiction") by contract, voluntarily. Still, our US constitutional notions of equal protection and due process are so deeply ingrained that we expect it even when we seemingly have waived these basic civil rights.

So when we do that, can the "truth out?" Hmmm...

The analysis can proceed from a very different prospective. What if both parties are telling the truth? Or, what if both are not forwarding truthful information? How can we know what truth is more important? Ugh. Unsavory considerations.

Our instinct in these situations is to rely on our notions of fairness. The US Constitution requires exclusion of tainted evidence - the familiar "exclusionary rule." When evidence is seized in violation of Constitution protections of due process or equal protection (or any other protection recognized by the constituion or other law) that evidence (and all evidence gathered using these "fruits of the poisonous tree") *must* be excluded from use. And therein lies a contradiction - we have to ignore what would seem to be The Truth(tm) in favor of protecting the innocent, vulnerable and powerless. To keep the State from overreaching their authority, we have to put in place what would seem to be a draconian rule: where The Truth is discovered wrongfully, we must ignore it.

Is this a good or desirable system? Perhaps not. But it is superior to any other justice system I have studied. I am more afraid of what the State can do that I am of letting a liar, chaet, or yes, even a murderer, off the hook. "Good enough for government work" is not good enough, as the power I have granted to my government is powerful indeed. If those with that power demonstrate any level of unreliability, I expect and demand instant withdrawal of that grant.

So it boils down to this: when I cannot tell what The Truth is, I have to rely on knowing what truth is more important to me. Could Landis have doped and deceived us all? Maybe. But I see no evidence that is certain enough for me to conclude that. The powerful state entities did not carry their burden sufficiently. Could LNDD have used their "power of the state" to act incompetently or with careless disregard for evidentiary standards? I think so. Could the USADA have acted to demand the highest standards of proof to wield their power of state with judicious wisdom? They could have, but to me it appears they did not.

Floyd should win. I believe the champion. I distrust LNDD, USADA and WADA.

1 comment:

daniel m (a/k/a Rant) said...


Good analysis. The power of the state is awesome and overwhelming, which is why we need protections like those you've discussed.

Also, you've got an interesting site. I like the No Pound logo. Might have to print up a jersey with that. ;-)

- Rant