Why You Shouldn't Believe Marion Jones: Vol. 50

Story by Eric.

This is the 50th submission in a long series about Marion Jones, a former elite sprinter who won (stole) honour and earned (stole) endorsements, fame and fortune by method of fraud.

This story is being told in its entirety, because Marion Jones is unable to do it herself. Though parts of this story may be historical in nature, they are of essense to the sum of the whole.

The CAS Panel convicted Tim Montgomery on 2005-December-13 of a doping offence in the absence of any “analytic adverse finding” – based on the testimony of a woman who was a known drug cheat. Montgomery and his attorneys had every opportunity granted and afforded them to cause doubt to the veracity of White’s claims, but failed to prove White was, indeed, misleading in – or lying about – her testimony. Montgomery had an opportunity to testify in the matter, but remained silent, conceding to White and her own testimony.

In a parallel congruent case, the CAS Panel also convicted Chryste Gaines of a doping violation in the absence of any “analytical adverse finding” – based on Kelli White’s testimony. Gaines, as had Montgomery, declined (by right) to testify in her case, and left the evidences presented by White unchallenged. The best Gaines’s attorneys could do was to attempt to discredit White as a witness, which, the CAS Panel stated, was done unsuccessfully.

Gaines would later disclose that she felt White sold her out, and they stopped being friends.

The main crux of the Montgomery and Gaines claims against USADA in the absence of their own testimonies were protests that USADA had no jurisdiction to seek prosecution for non-analytical positives.

CAS disagreed in its ruling, citing that both parties had been bound by USADA protocol as members of USATF – with USATF Regulation 10 clearly and unambiguously referencing USATF being bound by USADA’s doping and adjudication procedures established by WADA. Moreover, both Montgomery and Gaines had acknowledged that they were bound by USADA drug-testing protocol in situations involving adverse analytical findings, or “positive tests”. It was concluded that whether it was USATF or USADA which brought the charges against the athletes, it would have only changed the identity of the prosecuting body in non-analytical cases.

How did any of this affect Marion Jones?

Montgomery had testified under oath during the Grand Jury hearing that it was his understanding that Gaines was to have provided her approval to Conte for Marion Jones to begin the steroids program, as they were competing in the same event, the 100m dash. Marion Jones was introduced into the picture, Montgomery testified, when Graham – who has stated he had no knowledge of any of his athletes ever taking banned drugs – began a working relationship with Conte in 2000. Montgomery testified that Graham stated to Conte that Montgomery should not be the aim of the steroids push, rather, Marion Jones, who had an incredible opportunity to strike it big in Sydney – again, leading back to Gaines.

“... So Chryste, from my understanding, had told Mr. Conte that 'Whatever you charge her, if you give me a cut of it, then I don't mind,'” a transcript of his grand jury testimony shows him saying. “So, I don't know how much the check was for, I don't know if she ever got her cut, but that's how the agreement came for him to work with Marion.”[1]

Montgomery refused to testify in his CAS case, which, having done so, allowed his and White’s previous statements to render it unnecessary for the CAS Panel – composed of President L. Yves Fortier, CC, QC, Barrister in Montréal, Canada; Arbitrators Christopher L. Campbell, Esq., Attorney-at-law in Fairfax, Virginia; Peter Leaver, QC, Barrister in London, England; and Ad hoc Clerk Stephen L. Drymer, Attorney-at-law from Montréal – to consider if other evidences gathered from BALCO documents were conclusive enough to prosecute.

The only witnesses Montgomery’s legal counsel called were to provide expert opinion on the blood and urine tests USADA had produced as evidence; Montgomery provided no fact witness, nor did he, himself, provide any evidences to the Panel.

Gaines also refused to testify despite the fact that she, too, was given time to consider whether refusing to do so could draw adverse inferences upon her, and was provided an opportunity to reconsider her position.

The CAS Panel considered that all such other evidence by itself could not demonstrate that Montgomery was guilty of a doping offence, though they concluded doping offences could be proved by a variety of means.

USADA used documents and evidence (a schedule for using banned performance-enhancing drugs) from the investigation into BALCO in making its non-analytical positive (declaring an athlete guilty in the absence of a positive test) case against Montgomery. The US Attorney’s office provided those documents to the US Senate Commerce Committee, which, in turn, provided those to the USADA.

Again, how does their refusals to testify on their own behalf – along with that of Michelle Collins, who would also be banned for a non-analytical positive test – justify dragging Marion Jones’s name through this part of the BALCO scandal? Why bring up Marion Jones in relation to Gaines and Montgomery?

Gaines’s attorney, Cameron Myler, had rightly queried why Marion Jones was not one of the initial four athletes who were singled out by BALCO ties and not charged with a doping offense.

“I know U.S.A.D.A. has more documents on some athletes than others,” said Cameron Myler, the lawyer for Gaines. But, she added: “If U.S.A.D.A. doesn't bring a case against Marion, it brings into question the credibility and authenticity of the documents they intend to rely on. If this is not enough to bring charges against Marion, why should it be different for other athletes, given that the level of evidence is the same.”[2]

Gaines could have had a more immediate and direct impact on making an action item out of that question, rather than having her attorney pose it. What was the missing ingredient central to this theme? In its most rudimentary form, it simply boiled down to personal testimony.

In the Montgomery and Gaines cases, it meant not having to incriminate Marion Jones by introducing her name into the records either through testimony or by evidences which may have been cross-examined and opened up a direct firing line to her; it meant not having to connect the dots to the BALCO documents which, according to USADA, individually or, when linked together, established Montgomery’s doping.

Collins also refused to testify in her case, which helped the Arbitral Tribunal in her case to draw adverse inferences by that refusal. It did not draw conclusions on her refusal to testify, rather based their decisions on the preponderances of evidences provided – more than 62 exhibits to which Collins did not protest. Those evidences are similar to ones which have continued to bear very close similarities to what federal agents in the BALCO case state were collected on Marion Jones, namely memoranda of FBI interviews with Conte and Valente and documents collected from BALCO which included a calendar with the initials “MC” among other documentation named.

According to reports, initials “MJ” were are also found at the BALCO headquarters on what was widely believed to be a doping calendar for Marion Jones, with several designations provided for a range of drugs to be used on given days. Marion Jones’s attorneys, stating the “MJ” could stand for any number of people, casted doubt on the suggestion those belonged to Marion Jones by a reference to a 100m time much quicker than Marion Jones had ever run.

USADA had deciphered what it said was a complicated series of coded words and letters on the calendar which pointed to illicit performance-enhancing drugs, though the codes, themselves, changed on an individual athlete basis, and some of the products had more than one code association. However, without Conte’s testimony, those documents were not immediately available to prove guilt or to rule on a non-analytical positive, as they could not be obtained; Conte refused to give evidence on the ground of self-incrimination, and eventually refused to co-operate with authorities as part of his plea agreement.

However, in court documents released by the Federal government on 2007-December-21, the “M.J.” initials did, indeed, belong to Marion Jones – a fact which BALCO Vice President James Valente acknowledged to investigators, stating that he created the calendars, and knew specifically of the “Marion J” entries as being Marion Jones; the doping ledger, he stated, represented “the use of these drugs by these client-athletes, as well as the results of the tests for the presence of anabolic steroids conducted on these client-athletes' urine samples.”[3]

The Federal government’s document states that Marion Jones took EPO, human growth hormone and THG using drops and injections in 2000 and 2001.

Five years later, in 2006, Marion Jones had a test result demonstrate use of EPO – a drug she vehemently denied having ever heard of.

According to The New York Times, some of the coded letters and the documents described in a letter to USADA letter to Michelle Collins, also suspected of drugs use based on BALCO-related documents and testimony, were similar to initials and documents shown to them two weeks earlier by Marion Jones’s attorneys. Marion Jones’s attorneys questioned the authenticity of those documents, which were given to them by USADA.

The Collins letter also said there was evidence she used a blood-boosting agent known as EPO, known by the initial E. The same initial appeared on a calendar shown to The Times by Jones's lawyers.

But Jones's lawyers, and Montgomery's lawyer, both have said that there is no proof of who wrote such documents, where they originated and what they mean. Her representatives also said the coded letters could have benign explanations and refer to vitamins. Presumably, Collins can be expected to make a similar argument, if she does not seek to strike a deal with the anti-doping agency.[4]

Special Agent Novitzky, indicating recorded notes found in Conte’s e-mails, shed light on what Conte stated some of the coding represented:

Collins was also accused of having her blood and urine samples, found in BALCO records, analyzed for no apparent legitimate medical reason in what was thought to be an apparent attempt to gauge the impact of various steroids. The USADA wrote to Collins that there was no legitimate medical reason for her to have her urine samples analysed for epitestosterone.

Howard Jacobs had stated that short of any admission of guilt by an athlete, it would be really tough to have an athlete suspended without a positive drug test – a point also raised in the USADA vs. Tim Montgomery case, whereby it was contested that USADA’s sole authority to investigate and prosecute instances of alleged doping violations stemmed from its USOC contract, which was stated to merely confer USADA’s jurisdiction to investigate and seek adjudicate in matters related to USADA’s drug testing function, not non-analytical positive cases. The CAS ruled differently, stating that USADA – rather than USATF – had the right to prosecute, as USATF falls under the USADA protocol.

However, that did not stop the USADA from accusing Collins based on what they considered evidence they’d received which they believed proved her guilt beyond a reasonable doubt – though the “evidence” was purely non-analytical in the absence of a positive test – evidence which included Kelli White’s testimony.

White testified that when Collins beat her in a 2003-February indoor race, she thanked Conte on national television. White then is quoted as having approached Conte about starting a programme “similar to Collins’s. White made an observation to Conte that Collins had grown bigger in muscle size before that victory, upon which Conte is stated to have said that Collins was using “THG, EPO and “the Cream””.

The CAS determined that the blood and urine tests taken together demonstrated a pattern of doping whereby there were extreme variations in both the hematocrit levels and T/E ratios. CAS determined that all three of USADA’s experts provided credible witness testimony, and Collins’s provided no counter support in her defence; Collins’s attorney could provide no explanation of the extreme variances outside of the normal ranges. [5]

After a very reluctant surrender to USADA after her lengthy and stark denials, Collins finally came clean and began helping USADA in order to have a one-year reduction in her ban so that she might be eligible for a comeback in time for the Beijing Olympics.

“I wanted to clear my conscience,” she said. “I felt like it was time to come forward and be free of this.”[6]

Collins has been providing information about other coaches and athletes for the USADA and others in the anti-doping movement, and speaking to children about the undue harm that performance-enhancing drugs can do.

“Right now, I train as if I'm training for the Olympic trials and the Olympic Games," said Collins. “If it happens, great. If not, no big deal. But I am training.”

According to documents, Marion Jones – who has admitted to doping – had apparently also had her urine samples express delivered to a laboratory in San Diego, CA to test for testosterone and also for epitestosterone – used primarily to fraudulently defeat testosterone testing.

The laboratory, Quest Diagnostics, which was located at a Mission Valley office complex at the time prior to relocating to Las Vegas, was a witness in the BALCO hearings, but not a suspect. It also had an IOC-accreditation, and would not have risked its reputation to enable drug cheats, stated Dr. Barry Sample, the director of science and technology for the drug testing part of the laboratory.

“It is contrary to our policy to be involved in pretesting.”[7]

Dr. Werner Franke, who is a German anti-doping official, and is also a cell and molecular biologist of the University of Heidelberg and the department manager at the German Krebstforschungszentrum (DKFZ) in Heidelberg, wrote in a letter dated 2004-June-17 to Kevin V. Ryan, the United States Attorney for the Northern District of California prosecuting the BALCO case, that there was absolutely no conventional medical purpose for several urine samples, said to belong to Marion Jones, to have been sent to the San Diego lab to be analyzed for relative levels of the hormones testosterone and epitestosterone.

Franke wrote to Ryan that there “is no clinical test for the determination of the T/E ratio – and no need for it.”[8]

______________________

Sources:

[1] San Francisco Chronicle, “Sprinter admitted use of BALCO ‘magic potion’”, 2004-06-24 [2] The New York Times, “Facing Marion Jones And a Lack of Options”, 2004-06-10 [3] ESPN.com, “Court documents released in Jones’ doping case,” 2007-12-21[4] The New York Times, “Drug Accusations Outlined Against 4 Elite Athletes,” 2004-06-09 [5] AAA CAS Decision, Arbitral Award AAA No. 30 190 00658 04, 2004-12-10 [6] Canadian Press, “Doping days behind her, sprinter Michelle Collins…” 2007-05-20 [7] The New York Times, “German Expert Warns BALCO Investigators,” 2004-06-26 [8] The New York Times, “German Expert Warns BALCO Investigators,” 2004-06-26