Can Lance Armstrong and Barry Scheck Coexist?

Written by Bruce S. Griffen

For more than 30 years, I have been an in-the-trenches criminal defense lawyer. For more than 30 years, I have also participated in triathlons. I guess the connection is that competing in athletics was a way of relieving the stress of being a trial lawyer. I am not much on heroes. But I have had one in each of my passions. In the criminal defense world, it was lawyer Barry Scheck.

It was Barry Scheck because of the Innocence Project.

As most, both within and without the law know, the Innocence Project was, when really distilled down, a marriage of law and technology. We took technological/scientific advancement, DNA, and retroactively applied it to certain criminal convictions. DNA testing was able to be conducted on old forensic samples and, in case after case, proof secured that the individual was falsely convicted. This was great cause for celebration. It demonstrates that new technology can go back and correct fundamental injustice. (The Innocence Project is alive and well in Flagstaff at the Northern Arizona University Department of Criminal Justice.)

In my triathlon world, my obvious hero choice was Lance Armstrong. His talent, his cancer, his comeback, and his dedication to curing cancer, certainly makes for hero worship.

And then Barry Scheck nailed him.

The Innocence Project worked in reverse when it comes to Lance Armstrong. We took new technology, applied it to old blood samples, and were able to prove not innocence, but rather guilt. Seems to me this is a first: technological advancements reaching back, not to clear, but rather to convict. I’m not sure there’s ever been a time when DNA testing was conducted on an old case where someone was cleared rather than convicted. How would we feel about that? Is it okay, both socially and legally, to employ technology in that way?

The Lance Armstrong situation could, and perhaps should, create some debate. Die hard Lance fans have cried foul. They assert there exists a “statute of limitations” and that more than enough time had passed to leave Lance alone. Essentially, they claim that the reverse innocence project, which brought Lance down, was unfair and untimely. (The statute of limitations, for example, in an Arizona felony case is 7 years, except for very serious crimes the statute of limitations does not exist.)

We have legal concepts that help analyze this debate. We have ex post facto laws. Those are laws unfairly applied retroactively. But in this case, it was not a law that was applied retroactively but a technical/scientific process. The law that was (that you can’t blood dope) still is. In Lance’s case, we were just able to prove a violation with new technology. Philosophically, perhaps there is debate that new technology should not be allowed to be used retroactively to establish guilt. Again, a legal concept (double jeopardy) could be considered.

Lance was tested (more than 500 times) and he always passed. Shouldn’t his case be res judicata? A final legal concept has commonly utilized a distinction between a procedural and a substantive change in the law to determine whether the same can be applied prospectively as opposed to retroactively. Again, Lance supporters would say that it is patently unfair to take new technology and apply it in anything other than prospectively. I would argue that whatever legal theory you try to apply to the Lance Armstrong downfall, the same all fall short. In the final analysis, there should be no other test than truth.

Whether science should be applied retroactively, to possibly undo our heroes, misses the point. Sport is not more important than science. Science and sport are not more important than the truth. There is a line here: I am totally okay with using any type of medicine, chemical, device or contraption to cure cancer and enable someone, especially with Lance Armstrong’s talent, to have another shot at life and sport. It is not alright, however, to use the same win at all costs mentality when it comes to competition. In that arena, you can’t take anything you want to make you better.

So Lance can’t be my hero anymore. No hero of mine can lie to me. To me, there is no legal theory, defense or procedure that can save Lance. He didn’t just engage in blood doping… he is a dope. But I’m no dupe.