All Things Legal - The Law for Non-Lawyers

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Questions:
1. Lance can continue to lie on the stand, and not be found guilty of perjury unless proven? Which will require physical evidence. I think that's how I understood the above.
2. How does this Grand Jury process work? The investigators and prosecutor basically have something that is smoldering, but it requires a Grand Jury to hand out an indictment? If Tyler Hamilton takes the stand in the Grand Jury review, he could conceivably refuse to testify on the basis of the 5th Amendment?

 

[MacRoadie]

I believe Tailwind was incorporated in Maryland.

Edited when I discovered there is a link: http://nbcsports.msnbc.com/id/38261133/

Yes, entities incorporated in both California AND Maryland, which would make sense since many of the money men were in San Francisco.

 

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It could be that Novitsky is simply based in that area. You know, go to the office shakedown BALCO witness, and then go home to the family at night.

 

[CentralCaliBike]

Questions:
1. Lance can continue to lie on the stand, and not be found guilty of perjury unless proven? Which will require physical evidence. I think that's how I understood the above.
2. How does this Grand Jury process work? The investigators and prosecutor basically have something that is smoldering, but it requires a Grand Jury to hand out an indictment? If Tyler Hamilton takes the stand in the Grand Jury review, he could conceivably refuse to testify on the basis of the 5th Amendment?

In order to prove perjury you have to have evidence of sworn testimony - then you must have proof that the testimony was intentionally false. The jury has to believe that it was intentionally false beyond a reasonable doubt, meaning that there can be no reasonable interpretation of the evidence other than the testimony was intentionally false (as opposed to a faulty memory, mistaken facts, etc).

The grand jury is a closed proceeding, attorneys are not allowed in the grand jury room, a prosecutor asks questions (the jurors can as well through the prosecutor), all witnesses brought into the grand jury retain their Fifth Amendment rights. If a prosecutor really wants the information from a witness who is claiming the Fifth Amendment he or she can give immunity and then force testimony (the sanction at that point would be to stay in jail until the investigation is closed or the witness agrees to testify).

 

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How is the purpose of the Grand Jury 'sold' to the jury? Do they tell them the list of charges, or are they just fishing for stuff?

 

[CentralCaliBike]

How is the purpose of the Grand Jury 'sold' to the jury? Do they tell them the list of charges, or are they just fishing for stuff?

There are at least three different types of grand juries. A blue ribbon grand jury exits to investigate public and political matters and has no criminal powers. An investigative grand jury will be called to investigate a potential criminal action and will take evidence that can later be brought to a criminal grand jury. A criminal grand jury will hear evidence as well and if they believe there is probable cause to believe that a crime has been committed will sign off on an indictment allowing the case to be taken to a criminal court where it will potentially end up in trial with a criminal jury and a reasonable doubt standard.

 

[Housed]

How would spousal privilege apply to Armstrong's x-wife? Specifically:

1. My understanding is that any action statement made in the presence of people besides the spouse is not privileged. When Landis says he received drugs in front of his x-wife, this is not protected, and she is obligated to testify or invoke her 5th Amendment rights unless given immunity. Is this correct?

2. Since they are divorced, are any actions or statements protected by spousal privilege at this point? I've read differing opinions on this.

Thanks for your time CentralCaliBike. One of the best threads going and finally got me to post after lurking for a long time.

 

[CentralCaliBike]

How would spousal privilege apply to Armstrong's x-wife? Specifically:

1. My understanding is that any action statement made in the presence of people besides the spouse is not privileged. When Landis says he received drugs in front of his x-wife, this is not protected, and she is obligated to testify or invoke her 5th Amendment rights unless given immunity. Is this correct?

2. Since they are divorced, are any actions or statements protected by spousal privilege at this point? I've read differing opinions on this.

Thanks for your time CentralCaliBike. One of the best threads going and finally got me to post after lurking for a long time.

There actually are two privileges; a communication privilege that is held by both spouses (or ex-spouses) which means either can assert the privilege. Example: the ex-wife might want to testify against her ex-husband but he might not want her to. In addition there is a testimonial privilege that applies to married couples alone which would mean that the spouse called to testify could refuse even if about a subject that is not confidential.

You are correct - a statement to a spouse or ex-spouse that are not confidential (not stated privately) are not privileged.

 

[Realist]

It could be that Novitsky is simply based in that area. You know, go to the office shakedown BALCO witness, and then go home to the family at night.

Also there are a number of experts in doping and exercise phys around LA and in the bay area, so if scientific facts are in dispute it may be logistical. Less costs to cover for expert witnesses is definitely a consideration in a complicated or long trial. Also, I don't know on this, but possibility that the jury will be interested in sport and have certain opinions? Someone local would know better than me. I knew someone whose qualification was psychology and whose job was profiling potential jurors and advising on pitching to them. She worked with big time prosecutors and on civil trials. Don't know how common that sort of thing is in these kinds of trials but could be a possibility Novitsky is playing that sort of game.

Quals: I finished law school but then decided I was more interested in being a scientist, which I'm very happy about. Most of my work and my degree is outside the US but I've spent time here and studied some US law. As my sparring partner Spartacus Rox said, a lot of issues are handled similarly in western jurisdictions. I would limit that to western jurisdictions with strong ties to the English legal system - Europe can be quite different.

 

[Merckx index]

relevance of '99 samples

In a court of law, can an acceptable proof of doping be different from that under UCI regulations? The '99 EPO-tainted samples could not be used to sanction LA, maybe because of some statute of limitations, and because of questions of chain of custody, but in the final analysis mostly because they were only B samples. But would any of these considerations necessarily prevent these samples being used as evidence that LA doped?

Michael Ashenden, who developed the homologous blood doping test, has discussed in detail why these samples could not have been tampered with (even assuming anyone who handled them could have known they were Armstrong's). Briefly, his reasoning is that if someone had attempted to spike them with EPO, far more of this substance would have been found in them than was actually the case. The amount of EPO they contain is typical of the urine of someone using EPO for PE, and it would require a great deal of effort to spike the sample with such a relatively small amount of the substance. Other scientists have testified that it is extremely unlikely that long-term storage could have converted a negative sample to a positive (the reverse is far more likely).

There is also the question of whether the court could compel, or at least request, that the samples be re-tested, with LA now being allowed to be present as in conventional B sample testing. How much weight would be placed on a positive under these conditions? Could it be a strong case for perjury if LA continued to maintain he never took EPO (while racing, as he very likely did during his cancer therapy)? I wonder if the prospect of such a re-test might even make LA have second thoughts about confessing?

 

[Housed]

There actually are two privileges; a communication privilege that is held by both spouses (or ex-spouses) which means either can assert the privilege. Example: the ex-wife might want to testify against her ex-husband but he might not want her to. In addition there is a testimonial privilege that applies to married couples alone which would mean that the spouse called to testify could refuse even if about a subject that is not confidential.

You are correct - a statement to a spouse or ex-spouse that are not confidential (not stated privately) are not privileged.

From your statement I take it that the communication privilege still applies even after divorce but only over statements that occurred while married. Correct?

What about witnessed events, not communication? Say the x-wife saw something transpire in their home or knew of illicit materials in their home. Would that be privileged?

It seems odd that a former spouse could prevent the other from testifying even if they willingly volunteer. Suppose it was a spousal abuse case. Could the accused prevent the accuser from testifying due to spousal privilege?

 

[CentralCaliBike]

From your statement I take it that the communication privilege still applies even after divorce but only over statements that occurred while married. Correct?

What about witnessed events, not communication? Say the x-wife saw something transpire in their home or knew of illicit materials in their home. Would that be privileged?

It seems odd that a former spouse could prevent the other from testifying even if they willingly volunteer. Suppose it was a spousal abuse case. Could the accused prevent the accuser from testifying due to spousal privilege?

For every rule there is an exception, or so the saying goes. That is the case with the marital privilege. If a spouse is a victim of the other, or if there is a lawsuit between spouses (divorce is the most common). Then the marital communication privilege is not enforceable.

Witnessed events are not covered by the communication privilege but rather by the marital privilege which requires a current marriage.

The idea behind the privilege is that marriage in general works best if the spouses can trust each other with private information. So, the communication privilege is not necessarily for the benefit of the now ex-couple but for those out there who might be less open with their spouse because they might worry about it coming back to haunt them at some point in the future.

 

[Colm.Murphy]

In a court of law, can an acceptable proof of doping be different from that under UCI regulations? The '99 EPO-tainted samples could not be used to sanction LA, maybe because of some statute of limitations, and because of questions of chain of custody, but in the final analysis mostly because they were only B samples. But would any of these considerations necessarily prevent these samples being used as evidence that LA doped?

Michael Ashenden, who developed the homologous blood doping test, has discussed in detail why these samples could not have been tampered with (even assuming anyone who handled them could have known they were Armstrong's). Briefly, his reasoning is that if someone had attempted to spike them with EPO, far more of this substance would have been found in them than was actually the case. The amount of EPO they contain is typical of the urine of someone using EPO for PE, and it would require a great deal of effort to spike the sample with such a relatively small amount of the substance. Other scientists have testified that it is extremely unlikely that long-term storage could have converted a negative sample to a positive (the reverse is far more likely).

There is also the question of whether the court could compel, or at least request, that the samples be re-tested, with LA now being allowed to be present as in conventional B sample testing. How much weight would be placed on a positive under these conditions? Could it be a strong case for perjury if LA continued to maintain he never took EPO (while racing, as he very likely did during his cancer therapy)? I wonder if the prospect of such a re-test might even make LA have second thoughts about confessing?

I think the concept of re-testing samples from 2002-2004 (that pesky 8 year SOL) would be the way to go, should the urine and blood samples be available. I think the USADA would be the ones with the authority to order such an inquiry.

I think it would be HIGHLY interesting if the urine and blood were subjected to the full battery of tests, including a CIR for his urine.

BUT before anything were done, I would test the samples to assure they were, in fact, his. That, also, might produce some lively findings.

I do not think that the 1999 B samples, even if anything remained, could be used as de facto proof. If anything, it would simply be as corroboration of the claim that a doping program were in employ.

 

[Realist]

In a court of law, can an acceptable proof of doping be different from that under UCI regulations? The '99 EPO-tainted samples could not be used to sanction LA, maybe because of some statute of limitations, and because of questions of chain of custody, but in the final analysis mostly because they were only B samples. But would any of these considerations necessarily prevent these samples being used as evidence that LA doped?

Absolutely I think they could be admitted for a range of reasons. There's been a bit of debate about this on the forums. But it would be easy to imagine a situation in which they were considered relevant and therefore the presumption would be to admit them (or expert testimony regarding them). I don't see how any of the relevant exclusions apply. The SOL doesn't bar admission of conduct prior to the SOL, just bars charges based thereon.

The particular UCI regulations are technical regulations of an incorporated entity and would have no relevance regarding proving a fact in a US court. A court must use the relevant standard of proof and follow its own law on admissibility, etc, but it certainly would not be bound by UCI or WADA regs.

 

[sars1981]

How transparent is this process going to be? To what extent are we going to know what is going on in the court room during the trial?

 

[editedbymod]

I think the concept of re-testing samples from 2002-2004 (that pesky 8 year SOL) would be the way to go, should the urine and blood samples be available. I think the USADA would be the ones with the authority to order such an inquiry.

I think it would be HIGHLY interesting if the urine and blood were subjected to the full battery of tests, including a CIR for his urine.

BUT before anything were done, I would test the samples to assure they were, in fact, his. That, also, might produce some lively findings.

I do not think that the 1999 B samples, even if anything remained, could be used as de facto proof. If anything, it would simply be as corroboration of the claim that a doping program were in employ.

Are you OK with blood being stored for future testing?

Absolutely

Are you in favour of retroactive testing?

Yes. They give you the option when you are tested – can we use your specimen in the future for experiments? I always check ‘yes’.

http://www.cyclingweekly.co.uk/news/latest/345599/lance-armstrong-exclusive-interview.html

 

[Cal_Joe]

I'll sticky it for now, as long as it remains within the boundaries of a Q&A thread that contains relevant information on all things legal.

@Mac, can you re-edit your original post and include certain guidelines:

ie

No bickering, off topic discussions, trolling, baiting, or even attempts at being humorous. Keep it pragmatic, concise and to the point. Otherwise the thread will soon lose its significance

When it digresses in long back and forths, because someone wants to be right or can't let the debate go, I'll have to do a whole lot of cleaning
up.

[edited by mod - off topic]

Nice to see a thread so quickly derailed in spite of the moderators guidelines. Lots of other threads where those comments would be appreciated - maybe not this one? Call me slow, but I cannot seem to find anything phrased as a question or an answer regarding applicable law in the two posts that are quoted following the mods guidelines.

 

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Nice to see a thread so quickly derailed in spite of the moderators guidelines. Lots of other threads where those comments would be appreciated - maybe not this one? Call me slow, but I cannot seem to find anything phrased as a question or an answer regarding applicable law in the two posts that are quoted following the mods guidelines.

Thanks. There is definitely a difference between a discussion of what might happen legally, and what guys really fantasize should happen in a television court room sort of way.

 

[QuickStepper]

Does the distinction between circumstantial and direct evidence actually have any real legal significance? Obviously in some cases circumstantial evidence can be nearly conclusive (say a video of Armstrong accepting some blood bags from a courier), while direct evidence can be quite weak (like Landis sworn testimony, due to his credibility issues).

The question of direct vs. circumstantial bears on the weight to be given or accorded to the evidence by the jury or finder of fact. Eyewitness testimony ("I saw the the defendant murder the victim") is generally accorded more weight than circumstantial evidence (e.g., "The defendant's footprints were found near the scene of the murder.") Both are a type of evidence which may be used to prove a fact, and assuming the testimony is otherwise admissible (i.e., a proper foundation is laid for testimony, the witness has personal knowledge, the matters are not based on hearsay, the witness is competent to testify, and finally, the testimony is relevant), both types of evidence can be used to prove facts.

And as someone else noted above, evidence can be both direct and circumstantial, depending on what the testimony or documentary (or demonstrative) evidence is being used to establish.

Also, keep in mind though that in a Grand Jury proceeding, the usual rules of evidence which would otherwise apply during either a civil or criminal trial are greatly relaxed. Essentially, this is so because there are no opposing defense counsel to object to what might otherwise be inadmissible, and only the prosecutor is soliciting testimony and introducing documents.

And yes, I'm a practicing trial lawyer with more than 30 years experience.

 

[MacRoadie]

Nice to see a thread so quickly derailed in spite of the moderators guidelines. Lots of other threads where those comments would be appreciated - maybe not this one? Call me slow, but I cannot seem to find anything phrased as a question or an answer regarding applicable law in the two posts that are quoted following the mods guidelines.

Agree,

Hopefully we can have a mod delete those and the idea will get out that we are trying to keep this restricted to the legal Q&A only.

Plenty of threads to discuss the what-ifs elsewhere (or just create a new one, it's real easy).

 

[QuickStepper]

I believe Tailwind was incorporated in Maryland.

Edited when I discovered there is a link: http://nbcsports.msnbc.com/id/38261133/

There were two different Tailwinds entities. One was "Tailwind Sports Corp" which was a Delaware corporation, which was authorized to do business in California. This is the entity that used an address in Austin, TX, as it's principal place of business. The agent for service of process for that entity was Janet Ross, whose address was in San Francisco, and I would assume that's because it was managed from there. That corporate entity is no longer doing business and surrendered it's corporate privileges (at least in California) some time ago, but it's unclear when this surrender occurred based on the info at the CA Secretary of State's website. The entity wasn't actually registered with the CA Sec. of State until 2002. Given the Austin, TX address, many believe this is the entity which was running the USPS team.

There is another "Tailwind Sports" which is also a Delaware entity, a Limited Liability Company (LLC) not a corporation. This LLC was formed and registered in California in 1999, and it remains an active entity, and registered to do business in California currently. The agent for service of process was CSC Corporation, which is an entity that acts in that capacity for literally hundreds of thousands of corporate and LLC entities.

It's really not possible to tell which entity was the "Tailwind(s)" that was actually involved with USPS, but my best guess is that it was the former corporate entity.

Hope that helps... or maybe it just confuses things even more.

 

[QuickStepper]

There are at least three different types of grand juries. A blue ribbon grand jury exits to investigate public and political matters and has no criminal powers. An investigative grand jury will be called to investigate a potential criminal action and will take evidence that can later be brought to a criminal grand jury. A criminal grand jury will hear evidence as well and if they believe there is probable cause to believe that a crime has been committed will sign off on an indictment allowing the case to be taken to a criminal court where it will potentially end up in trial with a criminal jury and a reasonable doubt standard.

I believe that distinction may be historically and practically correct in terms of state court jurisdiction, i.e., it is how grand juries in California State courts have traditionally been organized.

I do not believe that same distinction applies to Federal grand juries, since Federal Courts are unique courts of original jurisdiction only with respect to such matters as are granted to them in the U.S. Constitution.

Put more simply, assuming that a grand jury has actually been impaneled in Los Angeles and tasked with investigating doping in cylcing, the scope would have to relate to matters which would come within Federal criminal jurisdiction. I say that because some of the posts in this thread have seemed to confuse civil proceedings maintained for the benefit of private parties (e.g., "delayed discovery of fraud in the context of contractual representations, potential breach of contract or claims that, for example SCA might have been "defrauded") and none of such private matters would really provide any basis for any action by a grand jury, nor would federal prosecutors waste their time on that sort of thing. They are instead looking, it would seem to me, for violations of tax laws, money laundering, wire fraud, drug import and export violations, racketeering, and the like, and perhaps even perjury charges although I think that's a stretch because even assuming either Landis or Armstrong wilfully lied about a material fact in some prior proceeding, none of those proceedings involved any federal courts, bur rather private arbitration matters, e.g., in the case of Landis his arbitration before WADA and in the case of the SCA adv. Tailwinds matter, it was a privately maintained arbitration.

 

[Colm.Murphy]

Agree,

Hopefully we can have a mod delete those and the idea will get out that we are trying to keep this restricted to the legal Q&A only.

Plenty of threads to discuss the what-ifs elsewhere (or just create a new one, it's real easy).

Agree, and apologies.

 

[QuickStepper]

Yes, entities incorporated in both California AND Maryland, which would make sense since many of the money men were in San Francisco.

No, a corporation can only be incorporated in a single State where it is domiciled. A corporation, however can be qualified and registered to do business in many States, but it can only be incorporated under the laws of a single state, and in the case of Tailwinds Sports, it was incorporated in Delaware, with its principal place of business in Austin, TX, but it was registered and qualified to do (and was likely actually doing) business in California.

 

[MacRoadie]

No, a corporation can only be incorporated in a single State where it is domiciled. A corporation, however can be qualified and registered to do business in many States, but it can only be incorporated under the laws of a single state, and in the case of Tailwinds Sports, it was incorporated in Delaware, with its principal place of business in Austin, TX, but it was registered and qualified to do (and was likely actually doing) business in California.

The original post was poorly written (by me). I meant two entities using the same name, were incorporated (or registered) in those states, not the same entity incorporated in both states simultaneously. Thanks for the clarification on the Inc. versus the LLC though, there has been much dialog as to what type of entities the various companies were and where they were incorporated/registered and when.

Apologies for a poorly-worded previous post.