Story by Eric.
(This is the 28th part of a long series titled, "Why You Shouldn't Believe Marion Jones". This series depicts the life and times of a (former) woman sprinter whose lies and cover-ups about doping in sport continue even through this day.)
The last entry focussed on the EPO test, USADA's function as well as the pros and cons associated with the EPO test. I also provided you statements from both sides of the fence regarding the arbitration process and the actual test, itself.
Marion Jones’s attorneys built up their case against the initial “A”-sample test by stating the analysis demonstrated the results as “borderline” – that is to state that Marion Jones “A”-sample landed in an indefinite area intermediate between positive and negative, and infer, with that word, that Marion Jones exhibited typical - but not completely conclusive - symptoms of drugs usage.
Oddly enough, however, her other attorney in the case, Rich Nichols, released a statement made by Marion Jones which didn’t touch on the subject of the test being borderline, rather, in actuality, being “positive”.
Jacobs, who boasts on his website (athleteslawyer.com) that he has an approximate 75% success rate of attaining reduced sentences for his clients who have been sentenced for drugs, said he could think of only three reasons for the “B”-sample could demonstrate an opposite result than that from the “A”-sample: an error conducted at the laboratory, degradation of Marion Jones’s urine samples or a problem with the EPO test, itself.
Jacobs said he believed the test for EPO was flawed (“There have been a lot of people saying the test has been flawed for a while, I've been one of those people”), and in fashionable legal speak, called for an immediate explanation as to exactly what happened and to provide the answers to the public – a reaction in line with her counsel’s appeal for the public’s backing of Marion Jones when it had been favourable to her. Jacobs wanted exact answers to specific questions regarding the test, but her counsel had a very peculiar way of avoiding specific, challenging questions posed to them when it would have served the public’s best interest to have done so.
“I believe there are issues with that test,” said Jacobs, who has defended several athletes on doping charges. “It’s a difficult test. From what I saw on the ‘A’ sample, it was questionable as to whether it should’ve been called a positive. I can’t say I was shocked that the ‘B’ came back negative based on what the ‘A’ looked like.”
I’ve given consideration to the first test being “negative”. However, that was a fleeting moment which disappeared as quickly as I could begin spelling c...o...n...s..., having stopped after the first “n” – suggesting, in my mind, that one was trying to pull a con job on the public in suggestions by some die-hard fans that some slipshod work was done at the height of the season – when batches from the United States of America Track & Field Championships began streaming in – and some simpleton drinking coffee over-valued the results provided from the three-day test corresponding to Marion Jones’s name.
As a matter of fact, Marion Jones did pull a con job on the sport for a number of years, and the “borderline” test result is not to be interpreted as being anything else than her having rid the body of most of its prohibitive contaminants prior to being tested; she had been a crook since the beginning, and she did not find it in her heart to one day lay aside her goals – achieved by method of fraud and deception – for the good of the sport.
To have her attorney team further suggest that another bigger nincompoop cross-checked that adverse finding, and is also stupid and incompetent for using a combination of wisdom + logic + understanding + history + cross-checks to make his decision – an “A”-positive – on the matter, is tomfoolery.
Dr. Catlin’s laboratory was even par on every occasion when it was challenged in CAS hearings – each and every CAS trial where it was being challenged by attorneys defending positive-test clients down to the very last of details. This test was verified by an independent source with no relation to the lab, or anything to win/lose with the UCLA laboratory by divulging their findings.
Here’s the catch with the faulty test hypothesis: Jacobs was making an argument from authority, stating that we should have taken his word on the matter of the EPO drugs testing and the UCLA laboratory, because he had seen “evidence” that we hadn’t. Marion Jones’s “A”-sample was taken at the UCLA laboratory, and it was the testing results at the laboratory to which Jacobs took issue.
However, Jacobs – who, as stated earlier, also served as Floyd Landis’s attorney – said that he had asked that any testing of Landis’s urines be conducted at the UCLA accredited laboratory when Landis believed his samples were mishandled at Châtenay-Malabry in France. If Landis’s athletics lifeline was in play, and Jacobs had previous issues with the UCLA laboratory, why would he send his high-profile international star who was accused of doping and cheating at the Tour de France to a laboratory which, he stated, had problems with any one, single, solitary test?
Dr. Werner Franke, a prominent anti-doping expert based in Germany, believed the UCLA laboratory conducts its testing to the highest of standards – a fact which he stated he based on the procedural accounts and descriptions listed in the book Game of Shadows.
Dr. Franke is a practised professional in his field, doping measures, which correctly implies that he has received exceptional training followed by extensive testing of that theoretical knowledge he has learned from qualified instructors. Jacobs is an authoritative specialist in his field, which means he is a learned person who and has passed a series of tests administered by experts in his field which demonstrate that he is capable of understanding and administering law.
Let’s look back on what Jacobs stated about the “B”-sample analysis and the EPO testing following discovery that it differed from Marion Jones’s “A”-sample.
· “From what I saw on the ‘A’ sample, it was questionable as to whether it should’ve been called a positive. I can’t say I was shocked that the ‘B’ came back negative based on what the ‘A’ looked like.”
One is parsing words here when considering the specific quote mentioned above in relation to Howard’s profession, but it will bode well for you, the reader, to allow for this flexibility as it relates to Howard’s credibility as a key witness of the accounts of the quality of the testing module in place.
Is Howard L. Jacobs a qualified, credentialed medical professional who is trained in the art and science of interpreting medical documents? Would Jacobs, an attorney whose expertise falls into a category of defending people and not the specific, dedicated study of medicine, be close to infallible in making determinations of samples provided in the absence of professional opinion? Whose opinion was provided regarding the reliability of the “A”-sample? What did Jacobs “see” on the “A”-sample, and would his examination – his sole, personal analysis – coincide with – or refute – that of a majority of peers qualified to make such opinions qualified as “expert” – colleagues whose own testimony had to rely on principles that were generally accepted by the scientific community and able to meet the standards of their own peer review?
Would Jacobs, taking the stand in a court of law, consider his statement strong enough to withstand the cross-examination from a prosecuting team if Marion Jones had earlier come to trial? Would he consider himself then qualified as an “expert” to speak on her behalf?
Jacobs is an attorney who specialises in – and has experience with – defending rights of his attorneys. However, does that make him legally competent to declare the validity of a testing procedure and its result in a field in which he has no specialty training, rather experience with cases in that field? Was his opinion of the “A”-sample and “B”-sample based upon sufficient facts or data from which he, himself, as the expert, was conclusively able to draw opinion? Was his testimony based on the product of reliable principles and methods he employed in order to draw his professional conclusions? Did Jacobs apply the principles and methods reliably to the facts in the testing case?
The answer to all of the above questions is a precise, indisputable, “no”.
Howard L. Jacobs did not personally review the “B”-sample when it was made available to Marion Jones’s legal team for assessment and examination in accordance with WADA testing protocol listed in WADA code §7. He qualified himself by stating that according to him, and “to the experts who I talked to that it [her “A”-sample] was questionable”. When, therefore, did Jacobs form his professional opinion?
Let’s look ahead in time to what Jacobs stated in another case involving a prominent athlete who was mired in a drugs controversy at the same time as Marion Jones.
Jacobs defended Landis against an elevated testosterone doping failure and had this to say to the press in defence of Landis:
“While there is an allegation that the CIR is positive, they don't provide documentation that backs that up,” he said. “To say I agree with that conclusion, I can't do that, because I haven't seen the documents.”
Likewise, for Mr. Jacobs, whilst there was an allegation that the doping test was “borderline”, he failed to provide the public at large any documentation that backed that up. To have us agree with his conclusion without seeing the documents would have been to deny one the right to question and use critical judgment.
Murray, of Irvine, CA, whose professional major scientific accomplishments include the in-progress development of a method for the specific detection of r-EPO in samples from athletes – which has not been given much funding by the International Olympic Committee, is the biochemist who witnessed the “B”-sample testing confirmation procedures on behalf of Marion Jones. He has a vested interest in EPO testing, and could have had a conflict of interest in stating that the test – which has been granted considerable USOC funding over his own – can at times prove to be unreliable.
“I have very serious questions about the ‘A’ result,” he said, arguing that the quantity of the sample in the “A” test was too low to give a clear reading and that the lab interpreted the relatively faint image too aggressively.
One item which has been called into question is Murray’s response in the matter in which he stated there was a “night and day” difference between the two tests, in which he continued on by stating that the “A”-sample showed “obvious loss of [analyzable] EPO material when compared to the “B”-sample test. Murray is stated to have provided a newspaper with evidence of the significant changes between the “A”-sample and the “B”-sample, yet no peer counsel was ever called to promote or counter his claims made through the media – the same resource Marion Jones’s attorneys used to discourage “evidence” they stated USADA had provided them in their investigation of Marion Jones.
Eight years before Marion Jones’s EPO test was called into question, Murray had stated that the “USOC won't get worked up unless a big-name athlete gets beaten by an athlete strongly rumored to be on EPO.”
Could it be mere coincidence that Murray was cast into the spotlight when America’s biggest-named track and field athlete – once winner of five Olympic medals in a single Games later known to have been accomplished by method of deceit and fraud – was embattled in a struggle of interpretation over a test which he has long since sought funding, but had been unsuccessful at lobbying?
What is indisputable in this matter is that the results of Marion Jones’s “B”-sample test exonerated her, and was the first such incident to occur at the UCLA laboratory.
Murray stated the results were invalid, because the testing was so complex “it’s possible something could go wrong, as it did in this case”. Jacobs stated that he’d considered the “B”-sample demonstrating an opposite result than the “A”-sample was heavily likely due to three factors, namely an error conducted at the laboratory, degradation of Marion Jones’s urine samples or a problem with the EPO test, itself. As you previously read, he, too, stated that the test had issues.
I’m a fairly bright person, but I’m unsure I understand Mr. Murray correctly.
Is he stating that, according to his professional opinion – one which provided a no-doubt-about-it conviction that there was something which went wrong in the Marion Jones case, but stood unsteadily on one leg when the “A”-sample was reviewed (“I have very serious questions about the ‘A’ result...”) – that certainly he’d have staked his career and reputation on the line to withstand the proposition that the tests may have varied due to any number of reasons, of which degradation of sample specimen analysis headed the top of that list?
May there be, in his qualified, expert and trained opinion – one which he’s qualified to state to the world at large due to his factual assumptions he’s made to reach those conclusions based on the long, expertise he has gained as an expert witness – absolutely no likelihood the resulting variance between the two sample results from the same urine sample provided by Marion Jones could have been anything else than an error made on the part of the UCLA laboratory?
The expert opinion Mr. Murray imparted to you to begin with is that he had doubts – uncertainties – about the “A”-sample test. Murray believed that the quantity of the sample in the “A”-sample was too low to give a clear reading. Did a counsel of his peers equally skilled in viewing EPO test results have an opportunity to confer? Make a counter claim?
Review again, if you will, the statistics Olivier Rabin, WADA’s science director, made regarding three of the total four (!) “B”-sample tests failing to verify the finding of the adverse “A”-tests in 3.909 positive samples taken in 2005: two purportedly involved urine samples that had naturally degraded, making it difficult to determine if EPO had been present; and the third analysis which failed to confirm the initial “A”-sample result could have been related to whether or not the samples were frozen quickly enough to work toward enabling substances to not break down.
Associated Press, “Jones pulls out of World Cup, finished for season”, 2006-09-14
The New York Times, ”In Wake of Jones’ Result, Testing Will Be Analyzed”, 2006-09-08
Washington Post, “Jones is Cleared of Drug Violation”, 2006-09-06
 USA Today, “Jones passes second drug test, is cleared of doping”, 2006-09-06
The Washington Post, “Cyclist’s Attorney ‘Troubled’ by Leaks”, 2006-08-03
 Los Angeles Times, “Athletes’ unbeatable foe,” 2006-12-10
 Outside online, “These Guys May Be on EPO, Does Anyone Care?” Dispatches, 1998-April