Defense Lawyer: Bonds’ Trial a Road Map for Lance Armstrong’s Future

Lee Davis

When an athlete or coach is facing criminal charges, they call one of the most seasoned criminal defense attorneys in the nation — Lee Davis. Davis, a Boston University Law School alum and professor at the University of Tennessee at Chattanooga, has more than 25 years of experience as a trial lawyer. The former prosecutor is now a defense attorney with partner Bryan Hoss at Davis & Hoss, PC. The duo also run Athletes In Court, a blog devoted to court developments and legal news about athletes, coaches and teams. Fortunately we here at The Legal Blitz were not in any hot water when we caught up with Davis.

This is probably something you get asked a lot, but when representing a high-profile athlete or coach, do you find that they are treated differently in court? If a bias exists, how do you effectively combat it?

I have found that prosecutors are actually harsher towards athletes than other defendant’s we represent. Court officers are more considerate. Judges on the whole are fair and I have not experienced bias against athletes from the bench. In one high profile federal trial we had there were a host of Olympic athletes that testified…some for the government and some for the defense. I was disappointed to see the hostility on the side of the prosecution toward all of them — including threatening some of of our witnesses with prosecution, while we were in the courthouse.

How did you end up where you are now and how did you build a clientele of athletes and coaches?

In the late 1980′s I opened a practice in Boston with Mark Wetmore. Mark is now the principal agent and owner of Global Athletics in Boston. Together we represented a young D-1 runner at Villanova on an issue related to out-of-season PED testing. We got her reinstated, eventually. Mark went on to start Global Athletics in Boston. I moved south after getting married and worked as a prosecutor. Years later I opened a private practice and from time to time I would represent some of Mark’s clients. From those and other experiences (like representing a MLB pitcher on DUI charges) other attorneys heard that Bryan and I represented athletes and coaches. We have tried federal jury trials from NY to Kansas.

When did you start Athletes In Court?

Athletes in Court was just started this year. We have been talking about this kind thing for awhile. We often field questions from lawyers on these issues and we have an interest in writing about legal developments about athletes and what happens in the courts.

There was big news recently that the government will get another crack at the Roger Clemens trial despite drawing the judge’s wrath last time. Have you ever faced prosecutors who made such a bad blunder as these ones seemingly did?

It is hard for me to believe that the government made such a mistake but it is equally bad that Clemens’ attorneys allowed it to happen. The defense team says that they did not review the video with Laura Pettite’s hearsay testimony before trial. I find that to be unbelievable. Look at the transcript from the trial. The prosecutors failed to redact the video and the attorneys are sitting in their chairs as the video plays. Judge Walton has to intevene and ask counsel if they are allowing this to happen for a strategic reason. To be rescued by the Judge is not my idea of a first rate defense. Now, Clemens has a top defense team but that was a bad blunder. It had to be someone’s job to review ALL exhibits for accuracy and compliace prior to trial. And, if I were Roger Clemens I would want to know why my defense team was taken by surprise. That ties into your question. Since the defense asked for the mistrial the government will be allowed to go again. Sure the government blundered but it really has not hurt their case just their PR. They look incompetent, but they are not and the proof looks strong. A retrial favors the prosecution, in my opinion. Any tactical advantage Clemens had at the first trial is now gone.

Now that the prosecutors have dropped perjury charges against Barry Bonds, do you think his obstruction of justice charge will survive on appeal?

Yes, obstruction is easier to defend on appeal. I never liked the perjury counts as the government forced him to testify and that goes against basic fairness and the belief in our 5th amendment rights against self incrimination. Obstruction is a fact driven charge and the jury’s decision will not be overturned by a court of appeals without some glaring error of law. I don’t see any such problem with the Bonds case. I am sure Lance Armstrong’s attorneys are watching every move in this case as the prosecution and current appeal for Bonds are a road map of the future for Armstrong, in my opinion.

Everyone is cracking down on sports agents, runners and other types of misconduct with amateur athletes. Texas even went so far as to criminalize agent misconduct with up to 10 years in prison. Tennessee recently changed their laws too. Is a sports agent giving gifts to an athlete really a crime? Is this just a scare tactic or do you think states will actually begin to seek criminal punishment for this type of behavior?

As our home base is in Tennessee I am aware of the Tennessee change and we reported on it in out TN blog, Tennessee criminal law review. To address the problems of Performance Enhancement Drugs in sports, laws need to target Agents, Team Doctors, and Team owners. To punish the athletes only is a horse and barn problem. By that I mean there will always be more athletes coming along and if the path to fame, Olympic Glory and endorsements means record setting performances there will always be many athletes who cheat.

But when the athlete is caught the others act like they didn’t know. If owners, athletes, coaches and doctors faced a lifetime ban if one of their athletes teasted positive then they would seriously implement an oversight process, because their own livelihood would require it. Think about it, who really can control what an athlete does secretly in their training? I could go on for a long time about this.

I think the whole issue involving gifts, cash, incentives ot whatever you want to call it has to be rethought. Division 1 athletes in major revenue sports are professional athletes and I think it is time that they are paid fairly for their services. Division II and III should be for amateur athletes but with all the money that is flowing through D I schools in the revenue sports it is ridiculous to punish a young athlete for accepting $100 today but then expect them to appreciate and understand how to handle $1 million upon graduation. College sports need to be seen in the light of day for the professional sport they have become. I know that is sports heracy but that is relality.

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