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Saturday, February 25, 2012



Sophist: Those CBA procedures are pretty excruciatingly detailed, but the key phrase would seem to be: "Absent unusual circumstances, the specimens should be sent by FedEx to the laboratory on the same day they were collected." In Braun's case, they weren't and I'll assume there were no unusual circumstances.

It still seems REALLY nit-picky. Just because there are rules and protocol for testing and collecting, it does not follow that any time some minor rule is broken, the remedy is to dismiss the entire test result. I again analogize to criminal law, where police departments have very strict rules & procedures for testing blood specimens in DUI cases. Invariably, some minor rule is botched and, invariably, the courts say that the violation goes to the weight, not the admissibility, of the evidence.

If the seal had been broken, that would be different. But if the specimen is just sitting there in the guy's house, and there's no evidence of tampering, it seems incredibly technical to just discount a test result which showed, supposedly, the highest testosterone level of any athlete ever tested.

If Braun's troubles started with a urine test, can we please stop repeating that the real problem was the "initial leak."

I complained that people on this message board, except for Raul's Grandpa, are pretty uniformly unfunny, and repetition of unfunny jokes is simply excruciating. But I have to admit that I can't tell if people are trying to be funny here, or if it's unintentional.

Health is going to be the biggest issue this team has to contend with bar none. I don't think there is another team that is capable of winning 90+ games in the NL East again this year either.

No sense to get that worked up about Lee's injury at this point but there are several players who I really want to see how they perform in camp including Polanco, Utley, Pence, Contreras, and Blanton.

BAP: It seems that a large part of your argument is based on your real-world experience that "chain of custody" defenses are rarely ever successful in real life and thus shouldn't be here.

But that seems illogical. Of course in the real world of criminal justice the law doesn't always work the way it should (and I certainly defer to your professional knowledge on this topic). But it strikes me that the system was designed, in theory, to work precisely the way that it did here in Braun's case. Our Constitution and Federal Rules of Evidence were both designed to have stringent protections for processes like these. The fact that those often fail is an indictment of the state of our criminal justice system, not necessarily evidence that it was wrongly designed. If you were designing a system from scratch, as MLB did (and as our country did a long time ago), you would strive for the best possible system, not necessarily accept a system that has been eroded away by extrinsic factors.

Interesting recent read over at FanGr where it's argued that the Braun camp had much more to gain by the "initial leak" than MLB.

February 25, 1356 hours and MiniMart is still the best option for backup SS.

Jack: The take-home lesson that I draw from my work in criminal law is: the law has to tolerate some degree of error, as few trials are perfect and there is a strong public interest in convicting those who commit crimes (and the same logic would apply to cheaters in baseball). I do criminal appeals, and, in most cases, showing that a legal error occurred is pretty easy. The much tougher part is convincing the Court of Appeal that there is a reasonable chance the particular legal error actually made a difference.

No doubt, my own experience in the field informs my opinion about the Ryan Braun situation. And my opinion is: if I ever tried to make this same type of chain of custody argument in one of my appeals, it is 100% certain that it would be deemed "harmless error" -- and, correctly so, since it seems highly unlikely that these minor imperfections in the chain of custody resulted in a false positive.

As an aside . . . I will note one oddity about this case that may have been significant: Braun's testosterone level was apparently historically high. I can't help wondering if that entered into the arbitrators' reasoning. If it was so high as to be implausible, I suppose one might infer the possibility of tampering.

BAP: I don't disagree with your claim that the law, as whole, must tolerate some degree of error, even if I think the "harmless error" standard is often too broadly applied. That said, the factors that caution in favor of allowing some error in our normal legal system are significantly different than those that exist in the MLB situation at issue.

First, one main reason that "trials aren't perfect" is because the system is simply huge--there are so many trials and the system is so crowded that we simply have to account for some error--and there's an argument that it is efficient to allow for some errors. But of course that isn't the case at the MLB level--the amount of drug tests being taken is limited to a few hundred to a thousand a year, and on any given day with a given tester (such as Braun's), it should only be a few individual tests. We should expect and require something much closer to perfection here.

Second, you are ignoring the presence of the collective bargaining agreement. No such thing exists between citizens and the state (other than the Constitution). We're talking here about an agreement on the process itself between sides with equal bargaining power. If they wanted a "harmless error" standard, it would have been included in the CBA.

Finally, I don't necessarily agree that the interest that MLB has in suspending steroid users is analogous to the interest the state has in convicting those who commit crimes. But that is probably a personal belief that isn't shared by a lot of other posters, and I respect that. Basically, MLB survived pretty well (and arguably profited excessively from) with basically legal PED usage for decades. The current regime is a reaction to negative PR. It is a pure choice by MLB--that strikes me as far different than the state's interest in criminal enforcement, which is arguably it's raison d'etre.

BAP - Yes, it is very nit-picky if that was the ground for reversal since it isn't even *mandatory* by the agreement's terms ("should"). And the agreement has details on what the courier should do in the event that unusual circumstances exist.

I guess you could just say that not being aware of the FedEx Saturday night hours aren't unusual circumstances, or you could realize that the courier followed SOP in the drug testing world and sent the sample -- with no evidence of tampering -- the following business day.

Howard down again let's get d young!!!!!
Minor set back with dissolvable stitches. Heading to
Baltimore. More of seeing how healing and what can he
Start doing more of.

I was reading the article linked below about that which the hook posted, and this was easily the best part:

"Howard took batting practice Saturday with his teammates and launched a few bombs, one of which hit Jose Contreras' big truck."

Here's the best strategy: Have Thome start all games at 1st until he has two at bats or hits a homer. Then pull him for Howard. Presto 140+ win season.

My thoughts on the last thread, sorry I'm so late but I'm just catching up on BL required reading :

Then from 5,000 throats and more there rose a lusty yell;
It rumbled through the valley, it rattled in the dell;
It knocked upon the mountain and recoiled upon the flat,
For Ryno, mighty Ryno, was advancing to the bat.

There was ease in Ryan's manner as he stepped into his place;
There was pride in Ryan's bearing and a smile on Ryan's face.
And when, responding to the cheers, he lightly doffed his hat,
No stranger in the crowd could doubt 'twas Ryno at the bat.

Ten thousand eyes were on him as he rubbed his hands with dirt;
Five thousand tongues applauded when he wiped them on his shirt.
Then while the writhing pitcher ground the ball into his hip,
Defiance gleamed in Ryan's eye, Jim Thome had pinch hit.

Re: Braun. I understand the arbitrator, Das, will issue his opinion in the next couple of weeks. Until then, it's very hard to say what really influenced his decision. Perhaps it wasn't only the "harmless error," but other factors as well. Given his precedent of never having overturned a suspension prior to this leads me to believe he is not easily swayed. I can't believe minor procedural errors have never ever been raised before now, but who knows.

Those with strong feelings on this will definitely be eager to read that opinion, once issued.

Mick O - I'd be interested to read that. Really seems a matter of MLB's written protocol. WADA director said that Braun's test is positive by WADA's more stringent requirements. From what I've read WADA has a higher standard on collection, and this is really about the poor way in which MLB worded the agreement.

"“He’s won on a very thin legal technicality that has no substantive value at all,” said Dick Pound, a Montreal-based lawyer and the former head of the World Anti-Doping Agency. “Anybody who’s at all neutral in this is going to say, ‘Well, he dodged a bullet with that.’


The World Anti-Doping Agency said it is “disappointing” the panel based their decision on a “technical breach” and “avoided the obvious substance of the case.”

“The very experienced Laboratory Director in Montreal gave evidence that the sample had not been compromised nor tampered with,” said director-general David Howman in a statement. “Accordingly, no damage occurred to the sample before analysis.”

In sports governed by the World Anti-Doping Code — the Olympic Games, for instance — the athlete would have to prove not only a breach of protocol, but that the breach caused the positive result, Howman said. “This is not the situation in this case.”

Pound said Major League Baseball should review its contract with its players regarding performance-enhancing drugs in order to close any loopholes that may be there.

He said the delay in getting the sample to the lab would not have resulted in a false positive test. “The sample is not sitting there in the (tester’s) fridge generating false testosterone.”

Process matters, but less so when the process lacks sound justification.

The gist of what I'm taking from all this is that most of us are in agreement that Braun was most likely doping and he got lucky here.

Is that accurate?

The Braun case is kinda like the O.J. case. Both defendants were guilty, but following the letter of the law (in O.J.'s case the jury discounting obvious perjury by the cops and bungled evidence handling) the end result was the correct result.

There was a radio interview I heard earlier today in which a doctor said it was not humanly possible to create Braun's testosterone level without ingesting an outside substance. It was also noted that the samples are kept in a locked box that cannot be tampered with without setting off a marker that proves the seal was opened. There was no evidence of tampering.

I would agree with anyone who also believes he is not very good at lying. One is more likely to arrive at the truth of the matter by taking the exact opposite of his quotes from yesterday. I pity him. Tainted Love for Braun.

On Hyatt: He'll play in the big leagues within the next 2 seasons. Not much ceiling, though, 5th starter or middle relief. Has a great changeup.

NEPP: Yes.

clout - I see a Kendrick-like role for Hyatt.

At least that changeup will make him effective against there's that.

Arbitration cases are rarely "won" on "very thin legal technicalit[ies]" -- the arbitrator is charged with weighing the preponderance of the evidence. All we know about what was argued in the hearing comes from "sources" via ESPN and other media outlets -- outlets which I consider generally abysmal at getting things accurate, especially in legal cases.

My answer to NEPP's question is that I have no idea if Braun was doping. I do know that an arbitrator who had the authority to disregard "harmless errors" in procedure chose not to. There is speculation that it was a technicality, but none of us knows. We are acting like we saw it on CourTV but we didn't. We're getting third-hand reports of what went on in the hearing. As far as I'm concerned, any opinion one way or the other on Braun's actual did-he-or-didnt-he guilt is premature at best. All we have is third-hand access to evidence. No thanks.

I do find it fascinating that so many fans of baseball would be outraged if it were just a technicality. This is a sport where 2 inches foul is just as foul as if it went straight back. To me it's like arguing that a ball hit just outside the foul pole should count as a home run because "C'mon he obviously crushed it, the ball went a mile. I can't believe he was robbed on a technicality."

I like Hyatt as well. Everyone gets (justifiably) seduced by young arms with power stuff, but guys who get outs through guile and command can contribute as well. And though he is significantly older for levels, Hyatt has much better peripheral stats in the minors than Kendrick ever did.

Yo, new thread

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