Tuesday, April 13, 2010

Presumption of Guilt

I thought a good point was raised in a few of the comments in response to my last post. In one, the commenter basically stated “Only you know if you deliberately doped or not.” That is true. Only I truly know if I intentionally cheated or not. Everyone else has to use the evidence at their disposal and they then choose to believe me or not. That evidence could be anything from living with me day in and day out and knowing me for years to having read a few articles about my case and having an opinion on previous doping cases. But, this is no different than in a criminal case in that we usually don't actually know if a person committed a crime or not with 100% certainty. That's why defendants go before a “jury of our peers” to present both sides of the argument and the jury members are given the often difficult task of deciding one way or the other. That is the best we can do. And without a doubt, mistakes are made in this system. Innocent people go to prison and guilty people walk. Even in this advanced technological age, we do not possess the ability to look into the brain and know a person's thoughts.
So I guess my beef with this anti-doping policy is that it does not afford athletes the same rights and presumption of innocence that we afford defendants in a criminal court of law. Athlete's have the option to take their case to an arbitration panel of 3 people who will hear their case, but I encourage you to look at the track record of this. If you come before the arbitration panel with a positive test, you will lose. True, in some instances the suspensions have been reduced due to exceptional circumstances, but what about the people who didn't dope? I'm not even talking about those who've ingested something contaminated unknowingly, I'm talking here about false-positives. I know it's happened. I spoke to someone on the phone last week who was a victim of a false-positive. He spent a fortune defending himself in arbitration to no avail, quit the sport, became successful in his subsequent career, and never looked back. And yes, I am choosing to believe him and I could be wrong but he has some very strong characters vouching for him and that combined with our conversation on the phone was enough to convince me. So why wasn't the 1.2% false-positive rate of the test used to convict him taken into account with this 'impartial' panel? And further, how many people have been falsely convicted just like him, who I/we have no idea about? Is this just the collateral damage of the best system possible?
I guess we have to ask ourselves if we'd rather have innocent people booted out of the sport or have dirty cheaters beat the system. I understand that both are going to happen in any anti-doping code, but the way the code is enforced will determine which of the two is more prevalent. Meaning, maybe our need to catch dopers causes us to rely on analytical instruments and methods that aren't meant to be used as a stand-alone tests but only in conjunction with other confirming tests. Or maybe we lower a particular threshold that makes the rate of false-positives higher. For example, if we believe that many dopers are sophisticated in their cheating, they will manipulate their levels up to the threshold of a banned substance but not go over it (the joke was that a few years ago it was amazing how many European pros had a hematocrit of 49.5). So in response to this we decide to lower the threshold for that substance, and maybe we catch more cheaters but maybe we also catch a few people whose bodies have naturally produced those levels. Is it worth it? I don't think it is. In my opinion, convicting an innocent athlete damages the integrity of the sport more than a cheater getting away with it does. I think that the most sophisticated cheaters are going to get away with it until they are caught in the act or slip up somehow (be it a paper trail or a screwed up dosage). That being said, I really believe that the dopers are in the minority today. The sport is cleaning up. As a fan, I choose to believe that, and I hope you do too.
My point is this: let's stop pretending that there is no such thing as a false-positive in analytical chemistry, be it from an instrumental error or a technician screw up, or even a natural fluctuation in the athlete's body. Why don't we take all of the evidence into consideration: maybe a jump (or not) in performance at the time of the test, character witnesses, motive, and testing history to name a few. Expensive and drawn-out? Probably. Are the athletes' careers and reputations worth the extra effort? I think so.
And just to be clear, I'm talking about the anti-doping system in place and not my particular situation. At this point, I don't think mine is a case of false-positive. I invite any well thought out responses or ideas to my little venting session. Thanks.


Anonymous said...

I think the problem really is that there is a presumption of guilt. Criminal cases in the US must be proven beyond a reasonable doubt. Civil cases only must meet the standard of having a preponderance of the evidence. But all these cases start with a presumption of innocence rather than the presumption of guilt in the anti-doping world. We've seen many cases where an athlete has actually come up with enough evidence to meet at least the preponderance of evidence test and he is still found guilty. I'm not sure it is possible for an athlete to meet the standard of beyond a reasonable doubt...but that is why it is a standard that goes along with a presumption of innocence. The standards have to be different when you are trying to prove a negative.

Anonymous said...

Everyone wants to trust the system... but sounds like there is a need to also verify the system. And honestly, WADA, for all its good intetions, needs to be watched. High time someone goes and rants their head off as a result of this mess.. You can't really fight it, or it will drain all you funds, really no fairness to it..

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

Rant your head off ... about in inequities in the current system. Hmm. Sounds like a blog I know of.

Anonymous said...


trust but verify
wada watch
Floyd Fairness Fund

ant1 said...

regarding the inequalities between a court of law and the anti-doping system, a court of law can take your life, freedom, or impose fines, anti-doping courts cannot take your life or put you in prison. not to say that there aren't many problems with either system, or that either are fair, but the different stakes call for different methods.

rickdaley said...

The probability of false positives is a well-known phenomenon. It becomes even more questionable when dealing with relativley obscure tests for odd substances that might only be used for performance enhancement among people who are by definition "not average" to begin with.

Beyond uncertainty in the accuracy of "perfectly run" tests, there is the additional risk of gross mishandling of samples, as in the Landis case.

For a pro cyclist, a positive test can ruin your career. The presumption of innocence and the requirement for "beyond reasonable doubt" evidence should apply.

It all adds up to a complete loss of credibility of both cycling and anti-doping efforts. The religious zeal to rid cycling of doping has become a withch-hunt and Inquistion that has hurt cycling far more than dopers ever did. Remember that dopers DIE quite frequently, and news of that is an effective deterrent in itself.

Anonymous said...

You alluded that people who've known you for years would find the idea you cheated unlikely. I consider that a massive understatement. As someone who falls in the category of those who've known you all your life, I can tell you we find the idea f#*king preposterous.. You have a competetive streak and work ethic that boggles the mind, mixed with an overabundance of stubborness. This is hardly something that spontaneously manifested when you hopped on a bike for the first time, it's been there in plain sight your entire life. The idea that you would cheat or even take so much as a shortcut is so counter-character to everything you've ever exhibited, it's absurd enough to be laughable. (were the circumstances less heartbreaking) Honestly, it's like trying to imagine Bill O'Reilly getting a gangland facial-tattoo and entering a beat-boxing contest. I love you and you are my hero. I agree with all the rest of your friends and family in saying I support you in whatever you do.....(Unless it involves you growing a bushy beard, beer gut and playing cowbell for Nickleback.) Oh no, here comes Christopher Walken..

Anonymous said...

Great comment Mitch. You're so right when you say the whole notion that Tom doped is preposterous. As someone who knows him well can attest, it would be totally out of character for him to do anything that could possibly jeopardize this career that he loved. He excelled in the sport through nothing more than hard work, dedication, and (you were right Mitchell), a generous amount of stubbornness. Although I don't worry that Tom won't do well in whatever path he chooses to pursue, I know that in the sport of bike racing, he was a first class act. He'll miss it I'm sure, but I have no doubt that he will still be a first class act in whatever happens next. Love you...
Aunt Margaret

Anonymous said...

Interesting post. My apologies for commenting so late in the game, but I just saw this post, and thought I might add my two cents.

As a previous poster indicated, in the American legal system, a criminal case has the reasonable doubt requirement and civil cases have the proponderance of the evidence requirement. While these two principles are the backbone of our legal system, legislatures and courts have recognized that there are circumstances which "shift" the burden to the defending party. These are found in the form of "rebuttable presumptions."

For example: in Ohio, if an employee has an accident on the job and a drug test reveals that they were under the influence of a drug, then the employer is NOT responsible for the claim UNLESS the employee can prove that the drug use was not the cause of the accident (Subject to other requirements which I am avoiding for simplicitiy's sake). Of course, in a typical case arising from those facts, the employer would likely be the defendant, so there is no real "shift" of the burden of proof.

However, other rebuttable presumptions may effectively shift the burden of proof. Children born during marriage are presumed to be the child of the father UNLESS evidence is presented otherwise. if a motor vehicle accident occurs with a drug impaired driver, the driver's drug use is presumed to be the cause of the accident UNLESS evidence is presented otherwise. In both of these cases, the presumption typically shifts the burden of proof to the defendant.

Why do courts impose this presumption instead of requiring the plaintiff/the government to prove the entire fact? typically it is done because of several factors including the liklihood that the presumption can be rebutted, the nature of the circumstances, the frequency of challenge, etc.

So, how does that apply here? I am not sure. Perhaps in the face of such a rampant doping problem, strict liability and rebbutable presumptions are the way to go. Or, in light of the ramifications that the athletes face, we should place the burden on the doping agency. Unfortunately, we simply do not have the technology or the money to really know what happened. I think in either case, whomever recieves the burden will lose.