In yesterday’s blog I beconed for the help of Bill Harris, my favorite DA to help decipher what is going on with Floyd and the doping. He took time out of his tragically busy day (go for a ride, Bill) to write this for me. He is DEFINATELY in the BK Fan Club. Actually, I think his family founded the whole thing when they adopted me in March. By the way, gotta get a shout out to my little brother who is apparently 6 inches taller than me now.

HAPPY 15th BIRTHDAY CAMERON!

Hope it’s super duper. Wish I could be snarfing cake with you today.

Love, Your Cheesy Sister in Wisconsin

Ok . . .here goes. . . .

Well, BK honey, you know where the hell I am: Deep in the heart of Texas trying to be the best father/husband, prosecutor, cyclist I can be (and not necessarily in that order!)First some ground rules: 1. My comments are my own and do not represent the opinions or views of my employer or the home office in Washington, D.C. (as Letterman might say), this website, or anyone else. 2. I am not rendering legal advise to anyone, and no one has any right or recourse based on my comments. 3. Finally, my comments are purely an interpretation of Bob Mionske’s two columns on this subject – put another way: Yours truly did not do any independent research.

OK, here goes: The first thing one has to understand is that none of this is a body of law that is imposed on people, as is the case with the laws of the land. Rather, the whole regulatory scheme (WADA, the UCI’s anti-doping rules, the procedures to be followed, the agreement to have the Court of Arbitration for Sport to be the last word, etc.) is part of a contractual agreement which in its bare essence is pretty simple: In exchange for my being allowed to race professionally, I the pro cyclist agree to follow the rules & regulations the UCI & U.S. Cycling have adopted. This is no different than the employment contracts many of us have. For example in exchange for my salary, benefits etc., I will perform my job in accordance with the specifications in the job description and will follow the rules & regulations (for example set hours, dress codes, office security and the like) that my employer sets forth.

One of the contractual terms for the pro cyclist is the acceptance of the “strict liability rule”, which as noted does not require fault by the rider. It can, but doesn’t necessarily have to, lead to the “game over” outcome which is causing BK such distress and resulted in her call out for me. In this sense, the word “fault” appears to be used to mean “intent”.

The easiest way I can explain how on the one hand strict liability (or lack of intent to violate) can be the standard, but not yet proof that a violation has taken place is to use the easiest parallel I can find. That would be the traffic code. Unlike the laws against tax evasion where the prosecution has to prove a defendant specifically intended to cheat on his/her taxes before the defendant can be found guilty, labeled a felon and exposed to being sent to prison (stated another way, a mistake on one’s taxes is not a crime), convicting someone of speeding does not require proof that a driver intended to go over the speed limit. So buckle up, here we go with our parallel:

A driver, call him Floyd, is zipping along in his Porsche Carrera. Maybe he’s paying attention to his speedometer, and maybe he ain’t. (That is, maybe he intended to violate, and maybe he didn’t.) The only one who will ever know is Floyd. The posted speed limit is 70 miles per hour (maximum accepted T/E ratio is 4:1; must be endogenous). Around a curve in the road up ahead is a cop, call him Dick, with a RADAR gun (urinalysis). Dick clocks Floyd as going 90mph (had a T/E ratio of 11:1 & exogenous). Dick pulls Floyd over and gives him a ticket for speeding, doing 90 in a 70 zone. The law says Floyd didn’t have to intend to speed – speeding is a strict liability violation. At this point has a violation been proven? Is it “game over”? No. We go onto the next step of the proceedings.

Floyd has a choice. He can mail in the fine, which is an admission of guilt (I did it), or he can contest it by going to court. In court, the prosecution calls Dick as its witness. Dick testifies he pointed his RADAR gun at Floyd’s car, and it read 90 (11:1 T/E, and exogenous). Dick testifies the posted speed limit is 70 (4:1, and endogenous). Floyd then gets to cross examine Dick. He can ask Dick whether the RADAR gun was operating properly. He can ask Dick when it was last calibrated. He can ask Dick who calibrated it and how. He can ask Dick how the RADAR gun was stored and handled and whether that could have put the calibration off. He can ask Dick about his training to operate the gun. He can ask Dick whether the curve in the road could throw the reading off, and so forth. (Challenge all the procedures, methods, handling, etc.) To try to further convince the judge that the test is unreliable, Floyd may testify that he is a safe driver who always obeys the traffic laws, etc., but he has no obligation to do so. He may also try to get the court to throw out the case if he can show that Dick violated police procedures in where he positioned himself, etc. (Releasing Floyd’s name publicly based only on the A sample; the French lab’s tendency to leak info to l’Equipe, etc.) You see where I’m going with this. If Floyd can convince the judge that there is some doubt as to whether the RADAR gun was correct when it said 90, then the prosecution has failed in proving Floyd went 90, and he’ll be found not guilty of speeding (gets to keep the Yellow Jersey). On the other hand, if Dick answers Floyd’s questions in a way which satisfies the judge, the judge will find that the violation has been proven, the judge will find Floyd guilty of speeding, and Floyd will have to pay the price.

Bottom line: a speeding citation is defendable, but it’s a hard road to hoe. I think the same applies to a positive doping test.

Sorry to be so wordy, but after all, I do belong to a profession which has the audacity to write a 300 page document and call it a “brief”.

Bill Harris

Well Bill, you’ve outdone yourself on this one. Thanks again!

bk