All Things Legal - The Law for Non-Lawyers

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This is a great sticky. We could let the proceedings play out, but it is nice to have some factual background with law to compare.

 

[MacRoadie]

This is a great sticky. We could let the proceedings play out, but it is nice to have some factual background with law to compare.

If people will continue to contribute questions and answers from both sides of the table, it can become a hugely valuable resource. If people pop on here to complain about it, and start throwing out ad hominem attacks (calling me a troll for starting an entirely neutral thread), then things will dissolve quickly.

I really hope that doesn't happen. We'll see.

 

[Race Radio]

FYI, the Factual Corrections Service guy is just another BPC troll. Just ignore him and his posts, and this one, will be erased.

 

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If people will continue to contribute questions and answers from both sides of the table, it can become a hugely valuable resource. If people pop on here to complain about it, and start throwing out ad hominem attacks (calling me a troll for starting an entirely neutral thread), then things will dissolve quickly.

I really hope that doesn't happen. We'll see.

They've been deleting posts, which is good. Hoping this one, RR's latest Bull**** Public Cervice, and both of mine go away as well, even if the troll reference is accurate.

 

[MacRoadie]

edited by mod.

I am trying very hard to keep this thread alive. I have been asking the mods to delete posts and PM'ing the more productive posters asking them to be patient and continue contributing.

The others can help the cleaning process by self-moderating and going back and deleting any quotes form the offending posters.

Again, EVERYONE is welcome to contribute to the question and answer (with the caveat that the responders are qualified to do so). The dialog may appear biased towards the prosecution and grand jury process, but that's just where we are in the process.

I'm hoping that we can get meaningful dialog on the defense side of the coin as well. When that time comes, I'm sure we'll be trying to keep the zealots from taking pot-shots at proposed defense strategies as well.

If either "side" abuses the process, both sides lose when the thread gets closed.

 

[Barrus]

Grand Jury proceedings are completely secret (unless information is illegally leaked) until after indictment and the reading of the charges in open court. At that point the transcripts of the testimony become available.

A little question, as I am not really in the know about the US criminal system. Is the case likely to be anonimized (spelling?) before making it public. As this is the case in the Netherlands, and I believe quite a lot of Europe, with criminal law cases. If this is the case, would that not make it increasingly difficult to find the public records, without knowing the case number? This all concerns the real case and not the Grand Jury proceedings

 

[QuickStepper]

I'm hoping that we can get meaningful dialog on the defense side of the coin as well. When that time comes, I'm sure we'll be trying to keep the zealots from taking pot-shots at proposed defense strategies as well

Saul Wisenberg, a former federal prosecutor and white-collar defense attorney has published a very informative piece on federal grand juries, the process and also given some strategic observations about how defense attorneys approach the process. See this link: http://library.findlaw.com/2008/May/1/247197.html

Well worth the read.

 

[QuickStepper]

A little question, as I am not really in the know about the US criminal system. Is the case likely to be anonimized (spelling?) before making it public. As this is the case in the Netherlands, and I believe quite a lot of Europe, with criminal law cases. If this is the case, would that not make it increasingly difficult to find the public records, without knowing the case number? This all concerns the real case and not the Grand Jury proceedings

Again, grand juries in the U.S. are unlike anything you'll find in the Netherlands. They are an outgrowth of English law, but even in England and other Commonwealth nations (e.g., Australia) they are no longer used.

The proceedings are secret. If this is what you mean by "anonymized" then yes, nothing about what has transpired in the grand jury room (e.g., transcripts of testimony, comments by the U.S. Attorney, etc) are made public.

Witnesses can and often do disclose what they testify about before a grand jury. Prosecutors and the grand jurors though cannot and are prevented by federal law from revealing what takes place. So unless or until an indictment (which is a bill charging a defendant with having committed a crime for which the defendant will stand trial later) everything that is known is really pure speculation based on what a particular witness' characterization may be of what he or she perceived, or the press' conclusions based on inferences from what they can find out about what is happening based on how witnesses choose to portray what they think is happening.

There is a third potential source of information, and that relates to what a defense lawyer may choose to say based on whatever communications that defense lawyer has with prosecutors, be it related to witness subpoenas or a letter received from a U.S. Attorney identifying one's client as a "target" of the investigation.

Again, I would suggest you read the U.S. Attorney's manual and in particular the material in Title 9-11 pertaining to grand jury proceedings. Most if not all of your questions about how the process works and what you can and can't know will be answered there.

 

[Barrus]

Quickstepper, I meant when the case was brought before an actual court and not the Grand Jury proceedings. I mean when the actual adversarial proceedings start, after the issueing of the indictment

 

[Merckx index]

responding to missing posts

Thanks, Macroadie, for saying that you deleted certain posts. I wondered why this thread looked so different from yesterday and why I couldn't find certain posts. Though two posts I couldn't find seemed totally reasonable, definitely not the work of trolls, and I really don't understand why they were deleted. As it happens, I wanted to respond to both.

One of these posts, in response to why the GJ is in LA, pointed out that Novitzky began his investigation of Michael Ball and Rock Racing, which I believe are located in LA. That was back in Dec. 09, I think, before the Floyd confession. It was only following the latter that the investigation was broadened, and I assume that would be no reason for a change of venue. I think that is the answer to that question, not a matter of where Tailwind was incorporated, since Tailwind was not originally the focus of the investigation.

The other post was a suggestion, in response to my post about using the '99 EPO TDF samples, that LA's 2002-04 TDF samples be tested, particularly for CIR (carbon isotope ratio; the synthetic testosterone test that constituted Floyd's positive). I'm not sure when that test came online? The general method was published by Don Catlin and others I believe in 2001, and I know Landaluze tested positive for it in 2005, though it was overturned on appeal. In any case, I think a retest of LA's samples in this period would not help much. EPO would have been the major PES, it was being tested for since 2001, and by this time (2002-04) most riders had probably switched to blood doping. A test for the latter was first used in 2004, and it would be very interesting to have tests performed on samples from earlier years. But that would require blood samples, which would have to red blood cells separated for long-term frozen storage (failure to do this is why Tyler's Olympic B sample was messed up, and he gets to keep his Gold Medal), and I don't think that was done then. (I'm not even sure it's down now??) Also, the test would of course not detect autologous blood doping, withdrawing and re-infusing one's own blood.

 

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Thanks, Macroadie, for saying that you deleted certain posts. I wondered why this thread looked so different from yesterday and why I couldn't find certain posts. Though two posts I couldn't find seemed totally reasonable, definitely not the work of trolls, and I really don't understand why they were deleted. As it happens, I wanted to respond to both.

One of these posts, in response to why the GJ is in LA, pointed out that Novitzky began his investigation of Michael Ball and Rock Racing, which I believe are located in LA. That was back in Dec. 09, I think, before the Floyd confession. It was only following the latter that the investigation was broadened, and I assume that would be no reason for a change of venue. I think that is the answer to that question, not a matter of where Tailwind was incorporated, since Tailwind was not originally the focus of the investigation.

The other post was a suggestion, in response to my post about using the '99 EPO TDF samples, that LA's 2002-04 TDF samples be tested, particularly for CIR (carbon isotope ratio; the synthetic testosterone test that constituted Floyd's positive). I'm not sure when that test came online? The general method was published by Don Catlin and others I believe in 2001, and I know Landaluze tested positive for it in 2005, though it was overturned on appeal. In any case, I think a retest of LA's samples in this period would not help much. EPO would have been the major PES, it was being tested for since 2001, and by this time (2002-04) most riders had probably switched to blood doping. A test for the latter was first used in 2004, and it would be very interesting to have tests performed on samples from earlier years. But that would require blood samples, which would have to red blood cells separated for long-term frozen storage (failure to do this is why Tyler's Olympic B sample was messed up, and he gets to keep his Gold Medal), and I don't think that was done then. (I'm not even sure it's down now??) Also, the test would of course not detect autologous blood doping, withdrawing and re-infusing one's own blood.

Being as we don't actually know the charges, it seems silly to speculate on the veracity of re-testing some samples. All of which has nothing really to do with general legal proceedings.

The Rock racing thoughts seem more reasonable to the pointed discussion of why it's situated in Cali.

 

[Merckx index]

Being as we don't actually know the charges, it seems silly to speculate on the veracity of re-testing some samples. All of which has nothing really to do with general legal proceedings.

One of the defense lawyers in the BALCO case was quoted as saying that rather than try to get a fraud charge, Novitzky was more likely to go after perjury, get LA to lie before the GJ. Having positive samples would obviously be the best way to establish a lie.

 

[QuickStepper]

In going back and re-reading this thread, I see that no one really answered one of the first questions posed here:

Okay, first question from reading this: http://sportsillustrated.cnn.com/20.../2080.ap.cyc.armstrong.doping.0117/index.html

Could Armstrong be charged with perjury if he lied in his deposition in the SCA case?

That's a complex question and there may be no easy answer. First the Armstrong, Tailwinds vs. SCA matter was a private arbitration conducted before three neutrals who are all officed in California (Richard Chernick, a well known California attorney who was instrumental in helping to popularize ADR, or alternate dispute resolution while he was with Gibson, Dunn & Crutcher, a large Los Angeles-based national level law firm; and Richard Lyon and Ted Faulkner, also well-regarded arbitrators and mediators).

It was a civil dispute and while I've not see the contract at issue in that case, my best guess is that the dispute wound up in private arbitraiton because of a requirement in the contract that disputes be submitted to private arbitration.

The only testimony that Armstrong gave in that case that I'm aware of was at a deposition taken in Texas (see http://www.scribd.com/doc/31833754/Lance-Armstrong-Testimony).

The deposition recites that the deponent was first "sworn" i.e., given the oath administered to a witness by a court reporter that the witness will tell the truth. Typically, this oath also carries with it the penalties for perjury. "Perjury" is defined as a material misstatement (or a lie) regarding a matter of fact which is material to the matter at issue.

Not all statements that are untrue will result in perjury. If the statement does not relate to a "material" issue in the case, then even if it's later proven to be untrue, it would not result in a charge of perjury. Note that I'm addressing only the theoretical possibilities here, not the practical ramifications about whether a perjury prosecution might or might not actually take place.

Second, in a deposition taken in a civil case outside the presence of a judge, the deposition transcript and the testimony contained therein is largely only admissible or usable under two circumstances: 1) if the witness later appears before the notary and signs it, or if the parties stipulate, the original transcript is sent to the witness' attorney, reviewed for errors and corrected and then signed by the witness who executes a declaration which states that the witness acknowledges, again under penalty of perjury, that the testimony is his or her own and that the transcript is a true and correct record thereof. If the witness refuses to sign, most jurisdictions will still allow the testimony to be introduced, but some place restrictions on its use at a later trial.

The other problem with really answering your question is that the deposition transcript doesn't really state whether the oath administered was given under Texas state law or California law by the reporter who administered it.

It is hard to imagine that the federal government would have much jurisdiction to prosecute for possible perjury that may have occurred in a private arbitration conducted under a contractual mandate. It is possible that the contract provided that either California arbitration laws and rules would apply, or that the Federal Arbitration Act's rules would apply, or that the rules applied would be those of a private entity such as the American Arbitration Association, or some similar entity.

The fact that it was a private civil proceeding brought to redress and resolve a dispute involving a purely private contractual matter, and given that the deposition transcript itself is largely unclear about what oath and what law governed, would lead me to conclude that this is not a very realistic possibility.

Could the deposition transcript be used in questioning or to impeach any testimony that might be otherwise presented during either a grand jury proceeding or later, a trial? Possibly, and it might come into evidence as some sort of prior inconsistent statement. But as the basis for a perjury charge some four or five years after the fact in a criminal investigation? Not likely IMHO.

From a civil perspective, would SCA be able to re-open the arbitration to claim that the settlement was based on fraud or perjured testimony? Very, very unlikely. I've been practicing in California for 30 years, and every civil settlement agreement that I've written or been party to in representing a client typically contains a provision that the parties are voluntarily settling and that they knowingly and intellignetly assume the risk that the facts believed by them to be true at the time of settlement might later be discovered or claimed to be different, but that notwithstanding the later discovery of any new or different facts, the releases and settlement shall remain effective and binding. This generally prevents someone from re-opening the issue and gives finality to the settlement regardless of what later transpires or what a party learns it might have presented to the arbitrators or tribunal had the matter not settled.

So, from a criminal perspective, I doubt that Armstrong's former testimony could form the basis of a perjury charge brought by federal prosecutors many years later in an investigation that may or may not have anything to do with the facts that were litigated in the SCA arbitration, and it's also unlikely that SCA would have any grounds to set aside their settlement, but again, that would largely depend on what was contained in their settlement agreement.

 

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One of the defense lawyers in the BALCO case was quoted as saying that rather than try to get a fraud charge, Novitzky was more likely to go after perjury, get LA to lie before the GJ. Having positive samples would obviously be the best way to establish a lie.

But that is just a discussion of what you might hope would happen. Pundits have speculated in other threads and elsewhere what charges are possible.

 

[QuickStepper]

Quickstepper, I meant when the case was brought before an actual court and not the Grand Jury proceedings. I mean when the actual adversarial proceedings start, after the issueing of the indictment

If, as and when that were to happen, nothing about a trial will be secret. U.S. law provides that no trials can take place in secret. The Sixth Amendment to the U.S. Constitution requires that the accused be afforded a public trial.

You might not find transcripts of the proceedings online as the matter is taking place (because they aren't usually transcribed until much later when an appeal occurs) and it surely won't be televised because unlike some State court proceedings in various jurisdictions, the federal courts prohibit any photographic equipment or television cameras inside the courtroom.

But a criminal trial in U.S. federal certainly won't be "anonymous" or held in secret.

 

[Race Radio]

Does anyone know much about the FCP act? I have had some training on it (To protect my companies A$$) but I am unsure if the UCI would fall into this.

 

[CentralCaliBike]

A little question, as I am not really in the know about the US criminal system. Is the case likely to be anonimized (spelling?) before making it public. As this is the case in the Netherlands, and I believe quite a lot of Europe, with criminal law cases. If this is the case, would that not make it increasingly difficult to find the public records, without knowing the case number? This all concerns the real case and not the Grand Jury proceedings

Once a criminal case is filed in court as a general rule all court records are public knowledge. There are certain exceptions for witness safety and defense strategy at times, along with a few lesser used reason. often in local cases the police reports (minus identifying information such as telephone numbers, addresses, and SS numbers) are filed with the court and available for the public to read or even purchase. All proceedings that take place in court are on the record with a court reporter. Transcripts by the court reporter may also be purchased.

As for making the case anonymous, that is not part of the criminal law system in the US, which is why a lot of people here often have reservations about the grand jury process.

As a side note; the grand jury process is secret because it operates in part as an investigation. To have the hearing public would impede the ability to investigate. Also, a secret grand jury is supposed to allow investigations to take place without harming the reputations of the innocent who may be a focus of the investigation.

 

[CentralCaliBike]

The proceedings are secret. If this is what you mean by "anonymized" then yes, nothing about what has transpired in the grand jury room (e.g., transcripts of testimony, comments by the U.S. Attorney, etc) are made public.

I am not aware of the rules for the Federal Grand Jury, however, in State grand juries after an indictment a transcript of the witness testimony is prepared and made a part of the case. It is sealed, along with the indictment, until the defendants are arraigned on the indictment. At that point the testimony would become public record and can be used to cross exam witnesses should they deviate from their grand jury testimony at trial.

 

[Merckx index]

But that is just a discussion of what you might hope would happen. Pundits have speculated in other threads and elsewhere what charges are possible.

It's not a matter of what I hope will happen. It's what a defense lawyer who actually had to confront Novitzky day-to-day over a period of time predicts will happen. He might very well be wrong, of course, but that he would make such a prediction indicates to me that it's reasonably likely. Particularly when the approaches to fraud seem rife with problems.

 

[CentralCaliBike]

It's not a matter of what I hope will happen. It's what a defense lawyer who actually had to confront Novitzky day-to-day over a period of time predicts will happen. He might very well be wrong, of course, but that he would make such a prediction indicates to me that it's reasonably likely. Particularly when the approaches to fraud seem rife with problems.

With the caveat that this is coming from the perspective of a prosecutor, I have seen numerous situations with defense counsel where they have made statements to the press designed to divert or shape public opinion. I am sure that criminal defense attorneys would make the same claim against some prosecutors as well. Additionally, the media (newspapers, radio and television) exist for profit and may not be as concerned with accuracy as selling a good story, I have personally been misquoted by the press on more occasions than I care to remember.

 

[Realist]

Often conduct is not limited to a particular venue, but occurs in several or many different districts, or internationally. The real test is usually where the majority of the conduct occurred.

This is interesting. Thanks. In cross-border cases I've seen the test is not to do with where the majority of conduct occurred, and courts will assert jurisdiction with only flimsy reasons. Is this a solid test, in that courts will say they do not have jurisdiction if it is not met?

 

[Cal_Joe]

It's not a matter of what I hope will happen. It's what a defense lawyer who actually had to confront Novitzky day-to-day over a period of time predicts will happen. He might very well be wrong, of course, but that he would make such a prediction indicates to me that it's reasonably likely. Particularly when the approaches to fraud seem rife with problems.

Merckx - I think the point that Scribe is trying to get across (and that the mods have indicated) is that the apparent intent of this thread is to avoid predictions and speculations, and focus on applicable law with respect to the known facts.

 

[Anonymous]

I agree. The real question that remains unanswered for now is what precisely is being investigated and who the primary targets might be. There is much that has been inferred by the media, and frankly, unless and until the feds make a definitive public announcement, it's really all just a lot of speculation.

Not really a legal question, but one based on your experience: Could one infer from fact that Greg Lemond and Tyler Hamilton have been subpoenaed and Mr Armstrong has not, that it is most likely that Mr Armstrong is a target of the investigation?

 

[MacRoadie]

Not really a legal question, but one based on your experience: Could one infer from fact that Greg Lemond and Tyler Hamilton have been subpoenaed and Mr Armstrong has not, that it is most likely that Mr Armstrong is a target of the investigation?

Objection, calls for speculation. Beyond the scope of designation. I'll advise the witness not to answer that question as he is only here to answer questions on points of law and the legal process.

Sorry TFF.

 

[CentralCaliBike]

Objection, calls for speculation. Beyond the scope of designation. I'll advise the witness not to answer that question as he is only here to answer questions on points of law and the legal process.

Sorry TFF.

However PM'ing this request might give you what you want to know and not inflame the board.