That's my point, this is being reported as mounds of evidence, insurmountable, etc...and since its 200+ pages everyone is relying on the reports.
I think sometime in the next few weeks I'll read the entire thing myself. Something doesn't add up, U.S. Attorney's offices prosecute on evidence like this all the time, especially when gobs of federal money was involved.
I'm curious about the Department of Justice's decision as well. I speed-read/skimmed the report again in more detail. I'm going to assume that the report represents about 80% of the evidence that could be mustered at a trial. The DOJ may have had more potential evidence via the grand jury, and you never know when a co-defendant might roll. My conclusion was that even so, it's a defendable case, but the weight of the evidence is *strongly* in favor of the prosecution. Probably 90-10. Or 95-5. Thus, at the preponderance standard, I'd much rather have the USADA side then the LA side. (Putting it a slightly different way, if it was (somehow) a civil case paid on contingency, I'd take the USADA side but wouldn't take the LA side.)
A quick breakdown (apologies to attorneys reading this, as it's drafted primarily for the non-lawyers among us):
All that being said, I could see the DOJ mistrying these facts as a criminal case. To win a criminal case, all the jurors must agree that they have no reasonable doubt as to the charges. Therefore, even in a case that's 90% likely to favor the prosecution, a defense attorney would only need to plant one hardcore, stick-to-your-guns, do-what's-right, person on the jury to get a mistrial or force the rest of the jury to accept an acquittal. The caveat being that such a person would be pre-disposed to acquitting L.A., or favoring your arguments. Finding that person in the jury selection process is quite possible and thus the case is quite "winnable" from L.A.'s point of view.
**Note: The USADA hearing would NOT be done under this standard. If I remember correctly, the hearing would be in front of three arbitrators, two of three would have to agree that there's roughly a 60-80% chance USADA was right. The following arguments could be used (approximately) in any type of proceeding on this issue, civil, sports arbitration, or criminal.**
The best defense facts (as far as I can tell - I may be mistaken about 2) are that:
- Armstrong never failed a test.
- None of the witnesses ever failed a test when racing with Armstrong.
- No one came forward *while* the supposed doping was going on.
So basically you have a bunch of old blood, some recent scientific guessworks about what the blood levels mean, riders who have never won anything like the TDF on their own (unless disqualified for post-Postal PED use), and disgruntled former employees. The prosecution's witnesses are angry at/jealous of a man who won millions and who is stiff-necked.
Best argument would be: this is an after-the-fact witch hunt, there's no true scientific evidence, LA played by the rules and you should too - acquit him.
I could win a criminal case like that. I could also lose it. Much would depend of if I could sucker-punch the prosecution's expert witnesses. My best strategy would be to attack the "relative" results of the scientific tests - small sample sizes, the possibility of LA being a freak of nature, the newness of the tests, the possibility that other future tests/techniques might disprove these results, etc., etc. And/or just bore the jury to tears while hammering the character issues (Clemens being an excellent example).
I suspect that the DOJ, after the Bonds/Clemens cases, made a call not to go after L.A. and potentially get a third black eye over what's perceived to be a "marginal" crime in the U.S. (which is surprising to a degree, but not astoundingly so.) The economy/election year may have played a role in this decision as well.
***
On the flip side, the prosecution's best facts are:
- we have 25 people who will testify to the same thing.
- there's a range of credibility here, but it's far fetched to think all 25 made up the same story.
- it's too complicated a story to make up and get right.
- (it's also unlikely that such a perfect way to cheat is imagined so completely but the witnesses but never actually used, despite the millions at stake.)
- the pattern of behavior/movements we can document for LA (at the time) fits perfectly with the story.
- the financial transactions we have for LA fits perfectly with the story.
- the racing results (7 TDFs against dopers) fit perfectly with the story.
- LA lied about portions of what was going on (Ferrari) lending credence to the story.
- what scientific tests we have confirm the *type* of doping alleged (EPO/Blood Doping), and thus fit perfectly with the story.
- "the story" also accounts for classic means, motive and opportunity, however you style them.
- lastly, the other co-defendants are implicated in similar crimes with other riders.
So, ladies and gentlemen, what are the odds that 25 people, whatever you think of 2 or 3 or 4 of them, make up the same complicated story, a story which is backed up by all of this other corroborating evidence? Keep in mind this is evidence they simply did not know about when they came forward.
Maybe L.A. is the luckiest person in the world, winning 7 clean TDF titles, but became the unluckiest person in the world when 25 folks randomly accused him and the corroborating evidence of the denials, finances, and blood tests just "somehow," "randomly," match the random 25 accusations. Or Maybe LA simply doped and now his wall of silence and intimidation and guilt has finally crumbled.
I like the second one much better as a criminal case (and I'm a defense attorney). Under a clear and convincing standard, or the lesser preponderance of evidence standard, it's a winner. The major issue would be streamlining the case to keep it moving in front of the fact finder.
If anyone wants to chip in please do. These are my sunday morning, over coffee, speculations. I may have missed something.