“We do not know!” When a jury utters these words at the end of a trial, it is a verdict that also implies that the accused is not guilty and he is set free.
Last weekend, a jury of thousands in a stadium in England jeered Justin Gatlin before and after he defeated Usain Bolt in the 100 metres final at the World Championships.
That action was tantamount to a guilty verdict against a man who previously served two separate bans for violations of the anti-doping laws in athletics.
I am moved to write this article after watching the post-race press conference and having researched the matter of Gatlin’s two bans.
In victory, Gatlin displayed a grace and humility that contradicted the image that had been portrayed by the English media of this young American who has spent his entire adult life running races, while the rest of us have gone about doing jobs that we will probably do to support ourselves well into our advanced years. Gatlin is very close to retirement at the young age of 35 years.
Justin Gatlin has spent the final phase of a long athletics career, having been demonised for the two previous violations and bans. It is a demonisation of which the public may have felt justified when contrasted against Usain Bolt’s record of integrity and genius. The Jamaican has rescued a sport, the image of which had fallen into an abyss of widespread cheating.
In 2001, an American anti-doping tribunal ruled that Gatlin had violated the the anti-doping code and imposed the mandatory 2-year ban. Two months into the ban, the IAAF Council lifted the expulsion due to the peculiar mitigating circumstances.
Gatlin had been receiving treatment with a particular medication for attention deficit disorder since the age of 9 years. The IAAF Council stated in its judgment as follows.
“It was agreed that Gatlin had a genuine medical explanation for his positive test: prescription medicine for the condition ‘Attention Deficient Disorder’ which was first diagnosed when Gatlin was 9 years old.”
Four years later in 2006, Gatlin’s urine tested positive for the presence of testosterone. In what I consider to be a less compelling case on his behalf, he pleaded the tenuous defence of sabotage. Before a three-person panel, one member dissented in his favour and Gatlin was convicted by a majority verdict of two to one.
It is extremely important for the public to know that a trial in doping cases departs from ordinary cases in that the accused must prove his innocence. In ordinary trials, the accuser must prove the guilt of the accused.
Secondly, doping cases are founded upon a principle of strict liability. That is to say, that the case is just about established and proven as long as the banned substance is detected in the athlete’s body. Unless the person can prove, for instance, that he was held down against his will and had the substance injected into his body, then the case is all but proved. This is why Gatlin’s lawyers would have argued that he was sabotaged by an assistant with whom he had an employment dispute.
As to the latter argument, I, myself, would raise two questions:
1) Why would an athlete expose himself to the risk of sabotage in receiving treatment from a disgruntled employee who knows that his dismissal is pending?
2) Was a report made to the police or to any authority as to the suspicion that this criminal assault took place?
The reversal from ordinary trials in relation to the burden of proof and the standard of proof that normally rests with the accuser, places a heavy burden on the accused to prove his own innocence. This reversed principle is understandable since many guilty athletes would otherwise escape on technicalities.
The constitutional lawyer may argue that it is more important in the interest of justice to avoid the dangerous prospect that even one innocent person may be convicted by this system. However, this matter rests within the purview of the law of contract and not within constitutional law. Could Gatlin possibly have been that one innocent person in a system of very strict rules?
It is Gatlin’s legal redemption that in the 2001 case, the AAA Panel stated that, “Mr. Gatlin neither cheated nor did he intend to cheat” and that he was “certainly not a doper”.
Also, with regard to the 2006 case, neither the AAA nor the Court of Arbitration for Sport found that Gatlin had cheated or knowingly or deliberately taken testosterone. The sprinter was convicted for being unable to prove his lack of knowledge as to how the testosterone entered his body.
In an erudite legal treatise, Mike Morgan in London opines persuasively that Gatlin may sue the British media for libellously describing the athlete as a cheat.
Gatlin failed to meet his legal obligations in relation to the burden of proof and the standard of proof and was banned for 4 years. At the end of the case, no tribunal was able to make a positive finding that Gatlin had cheated. The rules of evidence, however, were against him.
Those of us who love and follow sports addictively, often also love the fairytale. It is as if we wish to migrate from the drudgery or stresses of our daily lives and escape into a world of fantasy to enjoy moments of wholesome pleasure.
It is our athletes who take us to the pleasures of temporary exile. It is a necessary expedition in which life must imitate art. Enter Usain Bolt and Justin Gatlin, the hero and the villain.
These two images have been implanted into our very receptive minds that crave for myth and drama more than for truth. Is not our earliest introduction to literature, and therefore to life, done by way of the fairy tale? And do we perhaps spend much of our lives, in spite of a consciousness of reality, longing for the pleasures of yet another fairy tale?
Bolt and Gatlin fit the story perfectly and the tale would only properly have been told with a Bolt victory. Do we now feel that we lost more than even Bolt lost? Aren’t we then a little self-centred for lamenting the loss of our fairy tale although Bolt kept his legacy?
By all rules of logic and the law, Gatlin won that race. As to his innocence or guilt upon past allegations, we can do no more than the tribunals did and also admit that, by ordinary principles of judgment, we do not know and we must now set Justin Gatlin free. Congratulations to the new World Champion. Free at last, free at last! Thank God Almighty, he’s free at last!
Ralph Thorne is an attorney-at-law and keen sports observer and commentator.