Analysis of Tammy Thomas Verdict

The jury verdict in cyclist Tammy Thomas’ perjury trial is factually and legally inconsistent. Most reports suggest the case was a “slam dunk” by the government with anywhere from strong to overwhelming evidence against Thomas.

The fact that Thomas was acquitted on two perjury charges is very significant. It may not be significant for Thomas, but it is significant in showing that the jury did not understand the law.

Basically, the jury determined that Tammy Thomas did NOT receive “banned or illegal performance-enhancing drugs” (i.e. legally-defined anabolic steroids) from Patrick Arnold. (Count 2)

They also determined that Tammy Thomas did NOT “ever get an anabolic steroid from anybody” (at least “up to the time of March 2002″). (Count 5)

But then they believed she was GUILTY of TAKING STEROIDS. (Count 4)

How did Tammy Thomas take steroids if she didn’t EVER get them from ANYBODY?!

The only other evidence of steorid use provided by the government was the medical testimony of virilization experienced by Thomas and the positive steroid test on March 14, 2002.

Concluding Thomas used anabolic steroids based on a positive steroid test for norbolethone is inconsistent with their verdict on other counts. The jury agreed that Thomas was GUILTY of receiving products from Patrick Arnold (which must refer THG and norobolethone since Arnold was the only person to have synthesized these substances at the time) but agreed with the defense that these were not “illegal or performance-enhancing” (i.e. NOT legally classified as anabolic steroids at the time). So how could the jury (theoretically and/or legally) use this as proof of steroid use if they determined that substances received from Patrick Arnold were not “illegal or performance-enhancing”?

Using evidence of virilization as proof of steroid use is also problematic due to the fact that there is and has been a legal definition of anabolic steroids and a pharmacological definition of anabolic steroids. (Much to the chagrin of prosecutors, their star witness Patrick Arnold offered testimony to this distinction in court.) There were dozens of “dietary supplements” that could legally be purchased at many sports nutrition stores prior to 2005 that could have caused significant virilization in women using significant dosages of these supplements. Certainly they were pharmacological androgens but they were not classified as anabolic steroids until the Anabolic Steroid Control Act of 2004 was enacted.

So, for the jury to accept the virilization as proof of steroid use (while at the same time accepting defense’s distinction between legal and pharmaceutical definition of anabolic steroids) is inconsistent.

The bottom line is that the jury was confused; they did not know or understand the law and rendered a factually and legally inconsistent verdict.

Is this good news for Tammy Thomas? No necessarily. Defense attorney Philip Sweitzer tells me California permits legally and factually inconsistent verdicts unlike many other states.

“Nor need a verdict be legally consistent. The jury’s prerogative to render a legally inconsistent verdict is unquestioned by any authority. Jury unanimity, not consistency of theory, is the touchstone of a valid verdict. [Citations.] . . . Once it is clear that the jury’s intent is to acquit, the form of the verdict is not important; it is the intention to acquit that triggers the mandatory duty to receive and record the verdict and acquit the prisoner.” (Bigelow, supra, 208 Cal. App. 3d at pp. 1134-1135.)

Now that perjury trial of Tammy Thomas has concluded, it will be interesting to see how the government’s “new anti-doping weapon” is used against Barry Bonds and other athletes.

I want to thank attorney Philip Sweitzer for sharing his legal knowledge on this case as well as many others.

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