Tag Archives: evidence chain of custody

Baseball in February: The Freedom Classic and an MVP Beats a Drug Charge

I was able to go to a baseball game today. It is hard to believe that there are ball games going on outside of Spring Training but NCAA College Baseball has been underway for over a week. Today drove up to Kinston to take in a game between the Naval Academy and the Air Force Academy. The occasion was the Second Annual Freedom Classic.

It was a cold day with temps in the low 50s and winds blowing 15-25 miles an hour but I was able to get together with my friends in Kinston to watch a game for the first time since the Kinston Indians final season ended with a loss to Frederick in the Carolina League Championship series on September 15th.  Though the weather was cold it was good to be back with my friends watching a game at a wonderful baseball venue.  I hate the fact that the Indians owner sold them without a replacement team and did not offer the city a chance to find an owner that would keep the team in Kinston. But at least there was baseball in Kinston this weekend.

Of course spring training is underway and all of the teams are working out.  Lots of moves were made in the post season following one of the most dramatic seasons in baseball history. Big names moved, Albert Pujols and C.J. Wilson to the Angels, Prince Fielder to the Tigers, Ozzie Guillen taking over the Marlins and a host of other situations.

But despite all the positives there was a cloud during the post season involving the National League MVP, Milwaukee Brewers Left Fielder Ryan Braun reportedly failed a drug test for Performance Enhancement Drugs (PEDs).  Braun appealed the results of the test and Friday it was announced that Braun won his appeal based on issues with the chain of custody of the sample. Evidently the collector of the sample who was required to immediately send the sample to the testing lab via FedEx held onto the sample.

Braun was out proclaiming his innocence today. He was articulate and appeared humble but at the same time there are still questions in many people’s minds about the test and if he was clean or not.  Having been in the military for over 30 years I have been repeatedly drug tested and as a Company Commander had to oversee a unit drug testing program.  When I heard about the process used and the actions of the collector I was appalled. Chain of custody does matter in any type of drug test that can impact someone’s career no matter what line of work they are in.  Failure to safeguard samples undermines the integrity of any drug testing program and there are cases every year where positive results are thrown out because of a chain of custody violation.

I learned about the importance of chain of custody as a Company Commander back in 1986. I had a soldier test positive for THC, the active ingredient in marijuana. We were sticklers about maintaining a solid chain of custody and based on the test results and the un-impeachability of the chain of custody I offered non-judicial punishment under Article 15 and reduced the soldier in rank. Since the soldier was otherwise a good soldier and back then a commander did not have to separate a soldier under pay grade E4 for a first drug related offense I elected to keep the soldier in the Army. The soldier appealed the sentence as is his right and to my surprise I was called to my higher headquarters and had my ass chewed by the group commander and Sergeant Major for not maintaining the chain of custody. I knew that was not the case but the Platoon Sergeant who had accompanied the soldier to the headquarters for the appeal inadvertently left the chain of custody documentation on his desk. When the group commander reviewed the paperwork he thought that the chain of custody had not been maintained. Within 5 minutes I produced the original documents which changed the nature of the conversation, the sentence was upheld and the ass chewing stopped. But I learned that the chain of custody for a drug test or paperwork regarding a failed drug test needs to be airtight to maintain the integrity of the system.

In the case of Ryan Braun I have my doubts, I but the incompetence of the collector who did not adhere to established rules of shipping a sample brought the chain of custody into question. If Braun was indeed innocent as he maintains then he will always have a cloud that follows him. If he lied and the test was really positive then justice was not done because chain of custody was called into question.

The little things do matter.

Since I got home I have had the MLB Channel on all night, that is so much more relaxing than almost anything else on television. Only about a week until the first Spring Training games begin. It may be cold but spring is in the air.

Peace

Padre Steve+

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Manny, A-Rod and Barry: How the Media and Government Selectively Target Ballplayers or Don’t

I love baseball as a game.  The Deity herself speaks to me through baseball.  While baseball to use the words of George Will is “Heaven’s gift to mortals” it is played, managed and judged by fallen humanity…thanks so much Adam and Eve, you should have gone to the concession stand in the Garden of Eden and got a hot dog and beer and left that that tree that you were told not to touch alone. As  the New Baseball Edition of the Bible says: “And God spoke to Adam and Eve saying “Thou mayest eat and drink freely from any concession stand, vendor or restaurant in the park, but thou shalt not eat from the Tree of the Knowlege of Good and Evil, lest you die or otherwise blow the game.”    It is my opinion that baseball’s problems can be traced to the failure of the first couple to get this one little thing right.

As a result of the fall we can be assured that while baseball is the chosen sport of the Deity who “in the Big Inning created the heavens and the earth” it will not be perfect in this world.  This is readily apparent in the past 7 or 8 years or so of the baseball steroid scandal.  There is much blame to go around in this whole sordid affair from the commissioner’s office, to owners, the MLB Players union President Donald Fehr and the players themselves who blocked efforts to initiate tough and fair drug testing managed by them and the league.

Because of the league and players inability to police themselves they opened themselves to machinations of congressional committees led often by congressmen who have to assert their dominance in every aspect of American life.  I actually found the inquisitional hearings led by Representative Henry Waxman to be a disgusting overreach of government power directed by people who couldn’t get picked to play on a little league team. The unbridled jealousy of career politicians who haven’t worked a real job in years toward the highly successful athletes was displayed as they dragged player after player before their committee.  Congressmen asked them leading questions about the use of substances that were not always illegal setting them up for eventual prosecution of lying to Congress because like in the case of Bonds they gave ambiguous answers to the questions.  Now I am not saying that the players were without blame, many set themselves up for this by blatantly looking guilty if they were not guilty of anything.  The league and player’s union policies and response did nothing to help the matter and now we sit with what seems to be a never ending circus which harms the game.

My beef with many of those involved is that they do not respect the game.  This goes for players, owners, union officials, media, politicians and investigators.  This disrespect for the game has reached epic proportions as the hubris of all concerned reached incredible heights.  While I could go on and on about this I am going for now focus on the inequitable treatment of the accused players by the media and government which I believe is glaringly apparent in the treatment given to Barry Bonds as opposed to players such as Alex Rodriguez and Manny Ramirez.

Baseball purists are perhaps the most religious of fans.  We don’t like it when people mess with the game.  The game itself is sacred, thus when players, owners, union people, media or the government do things that we perceive to hurt the game we get just a tad bit upset.  Football, Basketball and Hockey players, owners and officials can just about get away with murder and not only remain in the game but become or remain stars who eventually reach their respective Hall of Fame.  Baseball on the other hand will take the person who has committed an infraction and like the ancient Israelites cast heavy stones upon their reputation and memory to the seventh generation.  Baseball can be a very unforgiving game.  The diamond is “holy ground” and the game is to be respected by players, owners, media, government and fans alike.   This has not been the case in regard to steroids and other performance enhancing substances including their use by players, toleration by owners and “fishing expedition” investigations by Federal agents and Congress.

This being said in the past six years there has been an inequitable treatment of players accused or proven to have taken banned or illegal performance enhancing drugs or supplements.  When Congress, the media and a then relatively unknown IRS investigator named Jeff Novitzky.  One of the best commentators on the way that the Bonds investigation and prosecution has been handled, Jonathon Littman notes that the “Clear” that Bonds was accused of using was not illegal at the time that he allegedly used it, but also was not classified as a steroid.  Littman notes that

“Experts say prosecutors might have intentionally asked Bonds what they knew to be ambiguous questions – never defining steroids or making a distinction between drugs that were illegal or merely banned by many major sports.”

“This case has been presented as Barry Bonds lying about steroids,” said Christopher Cannon, a San Francisco defense attorney with extensive experience in federal perjury cases. “The government’s theory is that he was taking the Clear. If the government knows the Clear wasn’t a steroid – then when Barry said he wasn’t taking a steroid, he was telling the truth.”

Likewise the manner in which Novitzky has led the government investigation leads on to wonder what the motivation is for the prosecution.  There was very little money involved in the BALCO case, those accused or convicted have received very minor penalties, but the investigation which has spanned years has cost the government 55 million dollars.  As Littman writes:

“The paucity of illegal profits and drugs raises the question whether prosecutors realized that the only potential for criminalizing the behavior of athletes who took banned substances was to set perjury traps or bait athletes into lying to the grand jury or to a federal agent.

“It sounds like a misuse of the grand jury,” said John Bartko, a former assistant U.S. Attorney in San Francisco who has tried perjury cases. “They go and try to trip the guy into lying.””

Now Bonds may not be the most sympathetic character, but he does deserve to be treated as innocent until proven guilty.  Instead the prosecutors and some in the media have gone out of their way to destroy any chance of Bonds either playing again ever reaching the Hall of Fame.  He is called a cheater in an era when it is likely that that a large number of players were doing the same thing, without penalty.  It seems to me that Bonds has been singled out while others are left alone.

This is nowhere nearly apparent than with the recent admission by Alex Rodriguez that he took steroids, after having previously denied it and the positive test and 50 game suspension of Manny Ramirez for the use of a banned substance, a suspension that Ramirez just completed.  A-Rod seems to have weathered his admission and I see no one coming after him while Ramirez’s return punctuated every other game during the day.  Neither man received the abuse heaped upon Bonds and they have admitted or actually tested positive for the use of steroids or banned substances.

Having had to administer drug tests as a Army Company Commander I know that the burden of proof is on the prosecutor.  The manner of testing and the chain of custody must be impeccable, otherwise allegations are just that and you cannot, unless you want to look like a fool and attempt to prosecute under Article 15 proceedings or Courts-Martial without unimpeachable evidence that a person took a substance known to be illegal at the time it was used, not something that was made illegal after the fact.  The Bonds prosecution looks to me like a gross misuse of the Grand-Jury system and government power to make an example of Barry Bonds.  If Bonds had been a mediocre player or not hold the records for the all time home runs and single season home runs he would not be a target.

Having said all of this the entire steroid era, especially the actions of the baseball owners, commissioner and players union sullied the game and opened the door to political opportunists like Waxman and investigators who use questionable and likely unethical and maybe even illegal means in order to trip up as suspect, as Novitzky appears to me to have done.  Baseball must police itself and both players and owners must subscribe to a fair and clearly defined drug policy that leaves no room for misinterpretation.  Maybe they should look to military rules of evidence for such a program which apply to all players equally with both random tests throughout the season which would ensure that every player was tested as well as periodic sweeps of the entire league.

In the case of Bonds and those whose real or alleged crimes now date back six or more years it is time to stop the madness.  It is a waste of taxpayer money to continue this sham puritanical inquisition against Bonds while so many others are given a pass.  Bonds name and reputation have been destroyed and he has never been convicted of a crime by prosecutors who continually have their evidence thrown out and indictments overturned by judges.

If you want to read more by Littman and his reporting of this go to: http://sports.yahoo.com/mlb/news?slug=li-novitzkythomas031909&prov=yhoo&type=lgns

As far as A-Rod and Manny, they are not going to the All-Star game this year as baseball fans are tired of this kind of behavior.  If owners and players will not police themselves those of us who love and respect the game will ensure that they are accorded no honors.

Peace, Steve+

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