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Bennett L. Gershman

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Why Hasn't Lance Armstrong Been Prosecuted?

Posted: 10/27/2012 1:54 pm

Lance Armstrong has been stripped of his seven Tour de France titles, numerous endorsements, and banned from cycling and Olympic competition for life. He has been exposed as a fake, a cheater, and a mean-spirited bully. Proof that Armstrong was the ringleader of the biggest sports doping conspiracy ever is overwhelming. But he has escaped one major pitfall -- he has not been criminally charged for obviously prosecutable crimes in what anti-doping officials have called "the most sophisticated doping program in history." Why has Armstrong escaped a criminal prosecution?

The U.S. Justice Department investigated Armstrong in 2010 after cyclist Floyd Landis, another Tour de France winner and former teammate of Armstrong's on the U.S. Postal Service team, blew the whistle on Armstrong's extensive drug use. Landis reported that Armstrong conspired with other teammates on how to use drugs and avoid detection, and his use of guile and threats to keep others silent. Dozens of witnesses, including many of the most famous riders on Armstrong's team, testified before a federal grand jury about the widespread fraudulent scheme and drug trafficking conspiracy. But the federal investigation was abruptly halted last winter by the U.S. Attorney in Los Angeles, Andre Birotte, Jr. without any explanation. Agents involved in the investigation reportedly were stunned and furious that the case was dropped. There appears to be no credible reason why the prosecutor decided to terminate the investigation.

The obvious question is whether a prosecutor can simply stop an ongoing investigation without giving any reason? Doesn't the public have a right to know why a famous athlete who appears to have committed serious crimes and where there appears to be abundant evidence to prove his wrongdoing is being let off? Can an individual force a prosecutor to act? Can a court? Can a grand jury?

The law is very clear: A prosecutor's power to bring criminal charges also includes the power to not bring charges. Indeed, a prosecutor's discretion to decline to bring charges is much more controversial than a prosecutor's discretion to affirmatively bring charges. This is because the basis for the decision not to charge is far more unknowable than the decision to bring charges. The prosecutor's decision to bring charges involves much more transparency because the basis for that decision may be illuminated by rules of discovery, motions to dismiss, and ultimately a criminal trial. But if a prosecutor decides not to prosecute a case, there is way to know why the prosecutor refused to act, unless the prosecutor publicly announces his or her reasons. An individual has no power to force a prosecutor to bring charges. Nor may a court compel a prosecutor to proceed in a case that a prosecutor believes does not warrant a prosecution.

Indeed, even a grand jury cannot compel a prosecutor to bring charges. In an important case occurring during the civil rights struggles of the 1960s, United States v. Cox, a federal district judge in Mississippi held the prosecutor in contempt for refusing to sign an indictment voted by a federal grand jury against two civil rights activists. The Fifth Circuit Court of Appeals reversed the citation, stating that a prosecutor's discretion not to sign or prosecute an indictment cannot be coerced or reviewed by the courts. This refusal to compel prosecution is based on the constitution's separation of powers, which means that courts are not allowed to micromanage the way prosecutors do their jobs.

One can only speculate on why U.S. Attorney Birotte declined to prosecute Armstrong despite what appears to be powerful evidence of conspiracy, fraud, doping, and obstruction of justice. Perhaps the acquittal of Roger Clemens of all charges that he lied to Congress about using steroids, and the ambiguous verdict in the Barry Bonds prosecution in which a jury convicted Bonds of the weakest count of obstruction of justice by giving evasive answers to a grand jury about whether he used performance enhancing drugs, persuaded the Justice Department that it had run its course on trying to prosecute elite athletes for using drugs. The Justice Department also may have been smarting over the recent acquittal of John Edwards for campaign finance violations in a prosecution that many commentators saw as an overreach. And the Justice Department also may have felt that Armstrong's iconic status as a cancer survivor who became a cycling champion and world-wide celebrity may have made a successful prosecution seem much more difficult.

But speculation is simply that. And the failure of a prosecutor such as Mr. Birotte to explain his reasons for non-prosecution likely will breed cynicism and make the public distrust the faurness and impartiality of the criminal justice system. To be sure, a prosecutor's decision not to prosecute may be the result of a good faith evaluation of the evidence, the need to conserve scarce resources, and the risks of losing an importanmt case. But the decision also may be made in bad faith, for corrupt or improper reasons. But the public will never know why because prosecutors are not required to give reasons. So while people may speculate and wonder why, the question of whether Lance Armstrong has escaped criminal prosecution for proper reasons or improper reasons may never be known.

 
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