Two of the three members of the FINA doping panel who heard Michelle de Bruin's case in Lausanne last month have disputed the significance of some claims her defence team made after the announcement of their decision last Thursday.
Mr Harm Beyer, the German judge who chaired the panel and Mr Bernard J. Favaro, a Californian lawyer who (along with an Algerian colleague, Mr Ben Farid, who could not be contacted by The Irish Times) listened to almost five hours of evidence in Lausanne.
1. On the issue of conspiracy against Michelle de Bruin:
Bernard Favaro was dismissive firstly of the notion of a FINA conspiracy against the Irish swimmer.
"I have no comment other than what you read. The FINA press release covers it all." Mr Favaro said in an interview with The Irish Times "I would say however that I do not suspect any conspiracy on behalf of the officials of FINA to punish Michelle Smith. There is no question in my mind about that."
2. On the issue of tampering:
As whether some party other than Michelle de Bruin could have done this, Bernard Favaro says the issue was relatively straightforward for the panel.
"Both samples were sealed. The seals were not broken by the time they got to Barcelona. Mr Lennon, well certainly not at the hearing, did not make any such accusations. They were sealed and they were still sealed when they got to Barcelona."
3. On the burden of proof:
Mr Peter Lennon claimed on Friday that he had persuaded the doping panel that the burden of proof was theirs alone.
"Yes, that's true. We acknowledged that the burden of proof was ours," Favaro said, "we acknowledged that in our decision and I think we acknowledged that in our press release as well. I suppose it was a process of elimination. A jury is faced in many cases with a problem of whom to believe and not to believe. In this case there is a wealth of circumstantial evidence. Somebody did manipulate that sample. There is no question about that and Mr Lennon doesn't dispute that, of course."
4. The altered doping control form:
On the question of the altered doping control form, to which much significance was attached in Friday's press conference, it now appears that only the time the test was taken was added. The de Bruin team had declined to reveal the nature of the alteration. Bernard Favaro said the addition was taken into account and deemed irrelevant:
"He [Peter Lennon] did say that, for whatever reason, Mr Guy wrote down the time at which the test was taken. I don't see how that leads to the conclusion that they manipulated the sample.
"There is no connection. Mr Lennon never outrightly accused the Guys of having altered the sample but he certainly implied it. Harm Beyer is more specific on this point.
"It was early, about eight o'clock. Michelle Smith got up. This is what she herself reported in the hearing. She got up herself, went to the toilet, brushed her teeth and went down to the kitchen. Then she got aware that Mr and Mrs Guy were waiting for her outside the house. She went back up the stairs to inform her husband. She estimates this was about one-and-a-half minutes. She was out of sight of Mr and Mrs Guy. She had an appointment at Dublin Airport at about nine o'clock. When the collectors appeared she was not able to deliver her urine and when the collectors appeared she could not just deliver it and then go. There was a waiting time.
"She reported that it took her three attempts to deliver a quantity which was sufficient. In all this time she was under time pressure for her appointment. In the waiting time the forms were filled in except the final time of the urine delivery. When she finally had done the delivery and went off she took one copy of the form with her but in this form the final time of the delivery was not filled in and in the forms which Mr and Mrs Guy sent to the laboratory the final time of delivery was filled in. A minimal point."
5. On previous tests:
On the issue of previous tests Peter Lennon and Michelle de Bruin attempted to show a pattern of special attention being paid to the Irish swimmer and suggested that rules were broken over how long negative tests were retained. The panel deemed this outside the remit of their considerations.
"The panel did not take any note of anything else outside this sample," said Harm Beyer.
6. Al and Kay Guy's Evidence
As to the assertion that the evidence of Al and Kay Guy was completely set aside by the panel. Bernard Favaro is slightly more circumspect than Harm Beyer.
"I'm not sure we saw it that way but I think you will find the conclusions we came to in the FINA release. I'm not sure I can add to that."
Harm Beyer stresses that the ultimate decision was made solely on the basis of evidence provided by Michelle de Bruin.
"Mr Lennon is still very much challenging the diligence of the work of Mr and Mrs Guy," said Harm Beyer. "The panel, when we considered and discussed this question, we decided not to make use of any information made by the collectors Mr and Mrs Guy. We only took the information which Mrs Smith herself gave us about the collecting procedure. We excluded everything which was in the report of Mr and Mrs Guy. This obviously Mr Lennon has still not understood. We did not take care of Mr and Mrs Guy of their diligence or otherwise."
7. On the Versa Pak testing kits:
It has been suggested that the plastic containers held within the bag could be opened. There are further seals inside the plastic containers. Harm Beyer states that the doping panel accepted the theoretical possibility.
"Yes that is right. In my profession I work as a judge in criminal cases. You are often confronted with theoretical possibilities and in finding a sentence you must consider also theoretical possibilities. If it is pure theory and there is no sensible reason to calculate that somebody has used a theoretical existing possibility than you exclude it, however.
"Even if it was acknowledged that there might be a possibility that Versa Pak could be opened and resealed, who would have done it and for what reason? In the decision of the panel there was no sensible reason to include such a theoretical possibility in the judgment.
"We did not discuss this theoretical possibility in detail. We acknowledged there might me such a possibility but we did not go into the details. When the sample arrived in Barcelona the seals were untouched. When the B sample was opened Mr Lennon himself was present and testified with his signature that the seal was not broken. There is perhaps, I say perhaps, a theoretical possibility that you may open the seal and reseal it but there was no sensible reason to follow that possibility up."
8. The issue of Harm Beyer's impartiality in chairing the panel:
"I am positive that Beyer is not prejudiced in any way against any particular athlete. Lennon pulled a little snippet, something pulled out of context from an interview given by Mr Beyer. Beyer was, in fact, attempting to protect and defend Michelle by saying that if there were suspicions you just cannot convict anybody on suspicions. He said there is no question that the fact was that everybody suspected that she might be using drugs and he said you can't convict anybody for that. There was no evidence whatsoever of prejudice."
Harm Beyer himself elaborates:
"In 1996 after the Olympic Games in Atlanta there was a lot of rumour running around about Michelle Smith and a lot of suspicion. At that time a group producing for Irish television (UTV) put together a feature and did a lot of interviews. They also came to my house. They asked me about the suspicions against Michelle Smith. I answered them.
"I said: I think that I think she has been tested many times and there is no evidence against her and it is her right to be treated innocent. That nobody should go on to announce in public his or the common suspicion. I felt that unfair. I added it maybe that I, in my home can say to my wife in the kitchen that I have a suspicion against Michelle Smith. I think nobody is allowed to do that outside of his private sphere. When the television feature was broadcast there was made a cut out of this interview just showing that sentence: In my kitchen I may tell my wife . . . All the other parts were left out. Mr Lennon during the hearing presented this TV feature which deliberately was cut.
"The two remaining panel members like me felt this was dubious to present this way at all, to present a cut deliberately made as a challenge for bias. We felt that only on consideration of the whole interview could any evaluation be made."
9. The difference in specific gravity readings:
The Guys, using a dipstick measure, attained a specific gravity reading in the de Bruins kitchen of 1.015. In the Barcelona laboratory, using far more precise machinery the reading was .983. The laboratory reading was taken as accurate.
"We got a report from the laboratory. Anything else was out of importance for us. We only took the report of the laboratory," Harm Beyer said.
10. On Dr Jordi Segura the head of the laboratory:
Bernard Favaro says the panel had no doubts about the scientists credibility or impartiality.
"He is one of the most highly respected individuals in any of the IOC laboratories," said Favaro. "Segura never sees names - all he sees are numbers. I'm not sure he knew who Michelle Smith was. As a matter of fact he says, `I don't know anything about swimming. Why should I? I just test athletes.' "
11. On whether the alcohol was designed to mask a substance or merely tamper with the test:
It was suggested to Favaro that the addition of alcohol was merely designed to tamper with the test, the substance not being known for masking qualities:
"I'm not a scientist but I've been told the same thing. Alcohol doesn't mask drugs." he said. "Specifically, in this case though, somebody made an attempt to tamper with the sample. So you look at it.
"The suggestion was that somewhere along the chain of custody somebody deliberately tried to sabotage Michelle Smith. You look at Dr Segura in the laboratory. Mr Lennon was present when they opened the B sample and inspected the seals. He made no allegations about that. So somewhere along the line up to Mr Segura and the IOC laboratory. We worked that way.
"You see enough movies, watch enough television and anything is possible. But I don't think so. There is nothing so unusual in these claims. If you were the athlete you would do the same though."