Due Process? Not For Track Stars
By Sally Jenkins
Saturday, June 26, 2004; Page D01
It's finally happened: The run-amok investigation of U.S. track and field athletes has become a bigger crime than the original offense. The real scandal isn't the Bay Area Laboratory Co-Operative anymore, or athletes taking steroids, it's the abuse of due process. Thanks to the sloppy-nasty tactics of prosecutors and the U.S. Anti-Doping Agency, the cheaters now look like victims, and the innocent like potential martyrs.
Let's see if we can sum up the conduct of this investigation so far:
Sprinter Marion Jones has been dragged through the accusatory mud without a formal charge. A purported, damning version of Tim Montgomery's grand jury testimony, which was by law secret, has been illegally leaked and he now faces total ruin and a lifetime ban from his sport. The twenty-some other athletes who testified before the BALCO grand jury must also worry if their testimony will be aired and used against them, too.
Here's the supreme irony: Taking performance enhancers is not actually a crime. It's a violation of morals, and of the rules of sport, but it's not illegal. Violating grand jury secrecy, however, is indeed a crime, and a felony at that. Congrats to the honchos at the Justice Department and USADA: You've finally got a bona fide federal offense on your hands, guys.
While there's no evidence that USADA was responsible for the grand jury leak debacle, there's no question it created the legal free-for-all that led to it. This is what comes from turning over evidence in an ongoing criminal investigation to a civilian body of careerist headline-seekers who don't particularly believe that athletes are entitled to due process, and who don't appear to entirely know what they're doing. USADA CEO Terry Madden has held news conferences practically declaring BALCO and its so-called designer steroid, THG, the sports crime of the century. On the basis of sending a "pure" team to the Olympics, he persuaded the Justice Department and the Senate Commerce Committee to turn over the BALCO files.
Since when does the Justice Department hand over evidence in an ongoing federal investigation to anybody, much less amateur sleuths?
Legal scholars were scandalized, and with good reason. When you violate investigative secrecy, the process becomes vulnerable to pressure and politics, and USADA is beginning to look vulnerable to both. The bitterly ambitious head of the World Anti-Doping Agency, Canada's Dick Pound (who is famous for his anti-American sentiments) has made it plain that he wants USADA to find Jones guilty. If they do nothing to her, "they risk a big credibility loss. . . . " he said. "It's almost better for them to proceed. It's almost better for an independent arbitrator to look at it and say, 'there's no case here,' than for USADA to resolve not to do anything."
Pound's appalling remarks exposed the entire process as tainted, and it also revealed the level of callousness toward athletes' rights. What's going on here is prairie justice before a bunch of hanging judges. I don't care who's guilty of doping, it's outrageous.
In mid-investigation, USADA changed its definition of proof from "beyond a reasonable doubt" to a vague standard of "comfortable satisfaction." As Jones's attorney, Joseph Burton, who is a former U.S. attorney, says, that's a term that should be applied to the way a pair of sneakers fit, not a serious matter in which lives and careers are at stake.
USADA counsel Travis T. Tygart counters that the investigation is independent and won't bow to pressure or coercion. "We're not going to be influenced by any outside pressures," he says. But when he is asked why the USADA suddenly shifted away the "beyond a reasonable doubt" standard of proof, he said it is following the "protocol" set down by WADA and the IAAF. What's troubling about that is, if USADA is so independent, why can't it follow its own definition of proof? Furthermore, the IAAF's "comfortable satisfaction" standard took effect on March 4. For months, USADA continued to assure the public, the athletes, and their lawyers, that it would follow the beyond-a-reasonable doubt standard. Until it abruptly changed its mind earlier this month.
"It appears to me that it is not an impartial evaluation of evidence, but an effort to 'get' Marion Jones," says Burton.
Tygart also maintains that USADA is just a cog in the wheel of sports justice, and that athletes who feel they are wronged can appeal its findings through an arbitration and appeals system.
But arbitration is not going to restore Montgomery's violated civil rights. And how or what is Jones supposed to appeal? She has been damaged without a formal process, and we all know it.
I'll say it straight out: I believe Marion Jones when she says she's innocent, based on what is a persuasive piece of evidence in her favor. In the last four years, Jones has not gotten faster. She's gotten slower. Whatever Jones may be taking, it isn't performance enhancing.
Here is an example of the kind of job USADA is doing in its inquiry into Jones's ties to BALCO. Several weeks ago, Jones met with a trio of USADA officials, including Madden. They presented her with a calendar that purported to be her BALCO doping schedule. It bore several notations and the initials MJ.
"That's not my calendar," she said.
"Then why does it have your sprint times on it?"
Jones replied evenly, "If those are my sprint times, then I just shattered the world record by a second."
The sprint times on the calendar could not have been those of Jones, or of any woman. They were too fast. The USADA representatives didn't even recognize the difference between the sprint times of a male and a female.
You get an uneasy feeling from watching USADA's bumbling zealots. You get the feeling they'd waive the U.S. Constitution if they could -- which is a pretty unsettling thing to feel about an organization that is funded by U.S. taxpayer dollars and a grant from the White House.
I'll make a prediction: The BALCO evidence and USADA's handling of it is going to be under legal challenge for years. It may even be an open legal question whether BALCO's so-called "designer" steroid THG is actually a steroid at all. The headhunters looking to catch big-name athletes and command headlines are having their day. But there will be many days in court to come.
© 2004 The Washington Post Company