Questions of guilt or innocence hang over the Texan heads of Lance Armstrong and Roger Clemens.
One is facing his day in a court of law. The other has just been charged by the U.S. Anti-Doping Agency with engaging in a lengthy conspiracy to conceal his use of performance-enhancing drugs while competing as a cyclist. The USADA, which has no criminal enforcement powers, acted after the U.S. Attorney’s office in Los Angeles decided not to seek an indictment of Armstrong; the federal prosecutors had investigated the cyclist for nearly two years.
One is lucky. The other is not. The lucky one is in the courtroom.
Clemens is charged with lying to Congress about his alleged use of performance-enhancing drugs. Much hot air has been vented regarding the appropriateness of this particular use of federal funds.
It must be remembered that Clemens did not testify as part of the earlier committee hearings on the Mitchell Report, the ones in which Mark McGwire was not there to talk about the past, Rafael Palmeiro shook his finger, and Sammy Sosa lost his command of English.
Clemens and his attorney, Rusty Hardin, made a special appeal to Congress later, to let Clemens have a similar public forum in which to declare his innocence. Unfortunately for them, by the time Andy Pettitte and Brian McNamee were done testifying, few believed his protestations. Congress and the feds understand that a guy might lie a little, but when you specifically demand that a committee hold hearings so you can do so, they get a mite testy.
So the Rocket faces criminal charges, and here is where his luck comes in: A jury of his peers will not be asked to decide if he is guilty or innocent, it will merely choose between guilty and not proven guilty beyond a reasonable doubt.
In the trial, Clemens’ close friend Pettitte – with the benefit of a couple more years’ reflection and discussion – allowed as how he might just have misunderstood Roger when he thought Roger was telling him he’d used PEDs. Andy’s own PED use then was presumably just a further unfortunate consequence of this misunderstanding.
And McNamee couldn’t help but come off as kinda weaselly, because, well, he’s a bit of a weasel. He and the prosecutors were disappointed if they thought his ex-wife’s testimony would help bolster his image.
I’m not saying the case is a slam-dunk for the defense, but if you can’t get a jury to find reasonable doubt in a syringe stored for years in a beer can, you’d better go back to law school.
While the jury started its deliberations in the Clemens trial, the USADA was dropping its bombshell on Armstrong and his attorneys.
If Armstrong chooses not to contest the charges, he will be banned from competing in his current sport, triathlon, and could be stripped of his Tour de France victories and other titles. If he does contest it – his attorney Robert D. Luskin told the Washington Post on Wednesday, “These charges are a product of malice and spite and not evidence,” so I’m going to assume he will – USADA will submit its evidence to an independent review panel, which would decide whether or not to proceed to a trial stage.
According to the USADA’s policies and procedures, the panel must determine whether the organization has proved a violation of its anti-doping rules “to the comfortable satisfaction of the hearing panel bearing in mind the seriousness of the allegation being made.” That standard is stated to be “greater than a mere balance of probability but less than proof beyond a reasonable doubt.”
Two of Armstrong’s former teammates – Floyd Landis and Tyler Hamilton - have confessed to violations and been stripped of victories because of them, and have also alleged that Armstrong used PEDs as well. Their testimony likely constitutes part of the evidence against Armstrong; the USADA’s letter to Armstrong, obtained by Associated Press, further states that blood samples taken from Armstrong during 2009 and 2010 are “fully consistent with blood manipulation including EPO use and/or blood transfusions,” both of which would be violations.
Armstrong has vehemently proclaimed his innocence. “I have never doped, and, unlike many of my accusers, I have competed as an endurance athlete for 25 years with no spike in performance, passed more than 500 drug tests and never failed one,” he said in a statement posted on his website. “That USADA ignores this fundamental distinction and charges me instead of the admitted dopers says far more about USADA, its lack of fairness and this vendetta than it does about my guilt or innocence.”
The problem for Armstrong is that through its procedures, USADA will only have to demonstrate through evidence that the charges against him are true. Clemens’ attorneys had the much easier task of demonstrating that the charges could have been untrue.
We, the people, can be grateful that this is how our legal system operates. And we remain free to make up our own minds about whom to believe or not, notwithstanding the judgments of juries.