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Defense continues to hammer on USADA’s Landis charges

By Jason Sumner, VeloNews.com

Landis spent another day in a lawyer's kit... an unwelcome and uncomfortable uniform for this time of year.

Landis spent another day in a lawyer’s kit… an unwelcome and uncomfortable uniform for this time of year.

Photo: Agence Presse Farance

Defense attorneys continued to attack the credibility of the U.S. Anti-Doping Agency’s case against Floyd Landis, as the Tour de France winner entered the second day of the arbitration hearing regarding his alleged synthetic testosterone positive doping test that could cost him a win in the world’s most prestigious bike race.

Tuesday’s hearing was punctuated by charges of questionable methods on the part of the French national anti-doping laboratory, and the very public dismissal of a French-English interpreter.

Following the conclusion of USADA witness J. Thomas Brenna’s testimony, the Landis hearing came to a standstill after both sides agreed to adjourn while awaiting the arrival of a replacement interpreter. The original interpreter, Pierre Debboudt of legal services provider National Court Reporters, was sent home after a painful hour of miscommunication where he struggled to understand and accurately translate the testimony of USADA witness Cynthia Mongongu, a French-speaking analytical chemist from the Laboratoire National du Dépistage du Dopage (LNDD).

The back breaker came when Debboudt confused the French word journée (day) for hour. That led to a sharp objection from the Landis side, which argued proceedings should be halted until a suitable replacement could be found. All parties agreed, and the hearing was stopped for an hour and 15 minutes, reconvening after new interpreter was rushed to the Pepperdine University campus in Malibu, California.

Before the unscheduled break, which all but guaranteed a previously optional Saturday session, the defense again took aim at the integrity of the French lab. Landis attorney Maurice Suh used most of the morning session to talk about deleted computer files, using LNDD produced logs that included the date, time and nature of events relating to recent testing of Landis B samples as evidence. Suh pointed out several instances in which previously saved data had been overwritten when newer files were saved using the same file name.

This apparent breach of protocol, Suh claimed, showed that lab technicians were trying to manipulate the calibration of the machine used to test the B samples Landis provided during last year’s Tour. Suh also claimed that Larry Bowers, a senior managing director at USADA, attempted to block the Landis side from accessing critical log files. Bowers was in the audience and raised his hand when Suh instructed Brenna to point him out.

Landis was tested eight times during the ’06 Tour, but only one of those tests resulted in a testosterone-to-epitestosterone ratio that exceeded the allowable 4-to-1 threshold. In April, USADA received permission to subject Landis’s other seven samples to a carbon-isotope ratio test that looks for the presence of synthetic testosterone. Four of those came back positive, putting the Landis team on the defensive coming into the hearing.

Sporting a yellow tie for the second day in a row (this time accented with thin blue stripes) Landis looked on from his seat to the left of his four-man legal team. The reigning Tour champ appeared amused at times, occasionally exchanging smiles with his parents Paul and Arlene, and wife Amber, who were seated in the front row of the Hugh and Hazel Darling Trial Courtroom.

The hearing audience was noticeably smaller on the second day, with about 70 people spread among the windowless, room’s red-fabric seats.

Landis, 31, and his legal team are trying to convince the three-member arbitration panel that he did not use synthetic testosterone to win last year’s Tour. If he wins the case he’ll avoid becoming the first Tour champion in 100 years to be stripped of his title. A loss would result in a likely two-year ban from competitive cycling, plus a further two-year exclusion from riding on a ProTour team.

If USADA loses, it would be its first defeat in a case of this kind since the agency was formed in 2000. The U.S. Anti-Doping Agency is 34-0 when going to arbitration. The Landis case is the first of its kind to be made public, drawing an international cast of media that includes representatives from the New York Times, Agence French-Presse, the (London) Guardian and National Public Radio.

Whatever the outcome in California, this hearing is likely just a step on the way to the Court of Arbitration for Sport, whose decision would be final.

Suh also brought up financial ties between Brenna and USADA. Under cross-examination the Cornell University professor revealed he’s being paid $125 an hour and has “probably worked about 100 hours” on the case so far. Much of that time stems from Brenna’s trip to Paris, where he acted as the USADA observer during the recent reprocessing of Landis’ B samples, which turned up the four positive results for the presence of exogenous testosterone.

On Monday, Suh brought out the fact that Brenna’s lab is in part funded by a $1.3 million grant from USADA.

Suh, who at times came across as smug and even sarcastic, applied the same aggressive tactics he used a day earlier on USADA witness Cedric Shackleton. In one exchange with Brenna where measurement of uncertainty and its effect on adverse analytical findings was at issue, Suh accused Brenna of “not ever disagreeing with anything USADA says.”

Following Brenna’s testimony, a lunch break and the unscheduled break, LNDD’s Mongongu stepped back up to the witness stand along with Martitia Palmer, a far more polished translator from the Federal District Court.

That cleared the path for USADA attorney Daniel Dunn, who started by questioning Mongongu about practices and procedures of the French lab. She explained that the lab is highly secure and that you must swipe an ID badge three times to get to the testing lab.

It was Mongongu who analyzed the Landis A sample that returned a positive result in the days after the Tour de France concluded last summer, and then verified the test results of Landis’s B sample, which were analyzed by another LNDD staffer.

That final point could be a blow to the Landis team, who were expected to call into question Mongongu’s role with both tests. It’s against WADA code for anyone to analyze A and B samples because of the potential conflict of interest.

Dunn then turned his attentions to the computer logs, asking Mongongu to outline why redundant file names had been used, in turn causing the overwriting. Mongongu explained that no significant or important data was lost, likening the process to priming the pump prior to relevant data collection.

“So you weren’t erasing previously obtained data that was intended to be used for analysis?” Dunn asked.

“No, no absolutely not,” Mongongu answered.

“So you are essentially priming the machine to prepare it for later analysis?” Dunn asked.

“Yes, that’s right,” Mongongu answered.

Because of the extenuating circumstances, Tuesday’s hearing was lengthened from 5 p.m. to 6. But the proceedings ended 10 minutes before that when the panel decided to defer Mongongu’s cross-examination.

The hearing continues at 9:30 a.m. Wednesday and you can expect a full-on assault from the Landis team. The day’s long delay might offer the Landis team a small tactical advantage, giving them the evening to prepare for Mongongu’s cross-examination.