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Phil Baroni's Defense

He's claiming a number of different defense angles to acquit himself, but this one deserves a tad more attention:

Only hours earlier, Barry Sample, Chief Scientist of Quest Diagnostics, Inc., the testing firm for the CSAC, had given a presentation where he stated that a lab couldn't get a false positive for an over-the-counter supplement because supplements which carried steroid precursors had been taken off the market.

Yet when pressed to explain the warning on Baroni's supplement, or entertain the possibility of tainted supplements on the market, he was hesitant to give a definitive answer.

"It's possible that the warning is related to a lower threshold level, but even then one would not expect products that are legally available ... to cause such an elevation in the T/E ratio," Dr. Sample told a committee member.

"So when you say one would not expect, it could happen?" the committee member responded.

After a labored pause, the doctor spoke up. "It is difficult for me to say what manufacturers may do."

Ken Pavia is working off of the Johnny Cochran play book. Insofar as this argument is concerned, he's literally lording possibility over probability.

To suggest that it's "possible" Baroni's daily regimen of OTC supplements caused the false positive test results for two different types of steroids is essentially the same type of argument Johnny Cochran used to defend O.J. Simpson. That is, while the overwhelming evidence points in one direction, you can introduce an alternative hypothesis whose foundations are birthed from the tiny space left by the "possibility" the evidence isn't perfect.

In other words, Cochran didn't really have an answer for the evidence against O.J. per se, so he cast doubt on the scientific mechanisms of gathering and evaluating standard measures of evidence. He then introduced an alternative hypothesis - drug lords killed Nicole - which is highly improbable, but not altogether impossible. Between the two efforts, he convinced the moronic jurors that even the slightest bit of possibility that O.J. didn't commit murder was tantamount or equal to the high probability he did according to what is normally considered credible evidence.

In Baroni's case, the doctor who testified Baroni's levels were consistently with a doping athlete couldn't say FOR CERTAIN that the 67 OTC supplements Baroni ingested DIDN'T cause the false positive results, even though he DID say that the false positive results - given how high and metabolite specific they were - were VERY LIKELY an indication Baroni used two different types of steroids.

Scientifically, almost nothing has 100% degree of probability. DNA evidence is accepted in court because of the chances of the matches being incorrect is microcosmically small. Our justice system understands our DNA testing system is not perfect but allows for that errant chance of being wrong because the odds or so infinitesimally small.

As for the label? It's likely just a warning the manufacturer places on the label as a precautionary warning. Boilerplate language and not much more.

I haven't followed Pavia's arguments about the "chain of custody", so maybe there's something more substantive there. But it seems to me it's yet another take out of Cochran's play book. Namely, when the system - which works properly with a high degree of regularity - slams your client, demonstrate what we already know but add a twist: the system is imperfect, those handling the evidence are incompetent (read: imperfect) and that imperfection is just enough proof that my client's not guilty...the evidence to the contrary be damned.

I remain unconvinced.