More on Bosch as Braun “consultant”

Like most baseball writer types, I am not a lawyer. Unlike writers with big time column space, however, I don’t think having a platform from which to write things about baseball makes me an expert on the law or common practices employed by real life attorneys. There are lots of real lawyers out there, though, one of whom actually does double as a great baseball writer. That would be Wendy Thurm, and she has a piece up at Fangraphs on Ryan Braun’s claim that Anthony Bosch served as a consultant to his defense during his appeal of a positive drug test. Her verdict: There are still questions worth asking, but it’s definitely plausible.

More importantly, she addresses why a defense team would consul a “bad guy” like Bosch:

Why Bosch? Why use someone who’d already been linked to banned substances? I don’t know for sure, but it makes sense to me to his lawyers would consult with someone who had experience with a player (Manny Ramirez) who had tested positive and had been given a 50-game suspension. If you’re a lawyer defending a client accused of participating in a drug cartel conspiracy, you want to consult with people who knows how drug cartels work. Sure, there are law enforcement experts that you’ll want to testify for the client, but you also would like to consult with former drug cartel members. It’s entirely possible that Bosch had information from Ramirez’s situation that was useful to Braun’s lawyers in preparing their appeal.

In other words, it’s not so much naive to think that a defense team should only talk to angels, it’s just not really practical. To mount a vigorous defense, you need to know what you’re talking about, and that includes getting information from people who actually do what you’ve been accused of sometimes.

Meanwhile, back in the realm of serious journamalism, Tom Haudricourt thinks this can all be put to be promptly if Braun’s attorneys just do the right thing and throw away their careers/violate Braun’s basic legal rights. Hey, we’ve already established that a collective bargaining contract ceases to carry force of law when it conflicts with baseball writers’ collective sense of outrage, why not toss attorney-client privilege into the garbage as well?

About Brien Jackson

Born in Southwestern Ohio and currently residing on the Chesapeake Bay, Brien is a former editor-in-chief of IIATMS who now spends most of his time sitting on his deck watching his tomatoes ripen and consuming far more MLB Network programming than is safe for one's health or sanity.

41 thoughts on “More on Bosch as Braun “consultant”

  1. Braun's comments do not ring true. If the contact with Bosch was after the positive and in preparation of his defense the lawyer and not the client would be who the consultant dealt with and his name not the client's would be the person who owed the money and who was in the consultants notes. No attorney would have Braun contact this guy directly in preparation of the defense- and any attorney would specifically request the client's name NOT appear in Boschs notes. Braun was a client of Bosch – and he is lying about why his name is in the notes. Yet, interestingly, Braun's comments do seem to add credibility to the notes themselves.

    • And I'd note, by the way, that you're making (bizarre) assumptions about Bosch's personal behavior in lieu of facts (i.e. BSing) here.

      • "(bizarre) assumptions about Bosch's personal behavior in lieu of facts" can't get my head around what this is in reference to – lawyer calls Bosch "negligible" Bosch is at least suspected of providing players, no record of him being an expert in anything but illegally providing athletes with banned substances- – (there you go) — if lawyer representing client facing accusation of PED use had allowed client to contact Bosch directly that would be against client's interest– bad lawyering or not true- no other possible conclusion I can see

        • Sure, having Braun contact Bosch would be bad lawyering, but that doesn’t mean much. Nor that it wasn’t a friend of a friend thing. As for expertise, as Larry noted on the other th4ead, the problem for Braun et al is that experts in testing are hard to come by, since anyone who aided an accused doper would be blackballed by the zealots at WADA.

          • Being blackballed has nothing to do with the issue, as Ms. Thurm's piece addresses- sources of information may not be pretty or even acceptable to all involved for various reasons but if they have relevant info and can help – then you take the crunchy with the smooth– but Braun did not beat the test- he did not appeal on the validity of the test or the testing procedure but on the handling of the specimen — also in his statement Braun's lawyer indicated he has a qualified expert to address testing and would have relied on him NOT Bosch if it was the testing not the handling he was challenging. It appears that Braun is throwing his lawyer under the bus to save himself here —

          • 1. You’re missing the point, which is that anyone who ever wanted to associate with WADA in any fashion would not agree to aid Braun’s appeal.

            2. If you don’t think handling of a specimen is part of the testing process you’ve merely undone your own argument before I’ve even touched it.

          • Look I have no argument– having practiced criminal defense for 15 years and employed or crossed experts in almost every vein I can tell you that Braun's attorney's victory was brilliant and focused, it was not about the science- he uses Aegis which started as anti-doping but is now a full spectrum forensic lab – I would be willing to bet his experts at Aegis could not testify that the actual test done to Braun's sample was flawed or showed any signs of tampering, what they attacked is chain of custody to ensure the samples are handled in a particular manner – this is NOT the testing but the handling- completely different- Braun's attorneys were not able to argue that the results of the test should not be considered "scientifically" valid but that the handling of the specimen was not proper so the results should not be excepted– that is a very different thing. In my opinion any lawyer able to succeed in such a defense of his client would never allow his client's name to be associated directly with some one of Bosch's reputation– just ask this question – if the records of Braun's name in Bosch's writing in records that also contained records of athletes Bosch provided PED to were to have been presented to the three judge panel during Braun's appeal would that have been good, bad, or neutral for Braun? No attorney would allow such evidence to be created against their client under the circumstances Braun claims it was- now Braun could have contacted Bosch him,self (most likely) and then informed his attorney of what he learned– but why would he do that- To believe that Braun's name is in those records only because his legal team consulted with Bosch after the positive test came to light simply defies common sense.

          • With all due respect, I don’t think you know as much about the nature of testing as you seem to think. And, to wit, Bosch’s consultation is privileged and only came out b/c the media doesn’t have to respect that, so the PR angle really makes no matter.

          • The privilege is not necessarily as broad when the expert is consulted and/or hired by the client rather than by counsel and retention by the client rather than the attorney can result in a waiver under certain circumstances, but we really don't know what happened here. The better practice — and I'm pretty confident in the competence of Braun's attorneys — is to have any expert retained directly by counsel with the retention immediately memorialized in an attorney's letter to ensure the preservation of the privilege in all respects.

          • James, from what we know the assumptions you're making are simply wrong. If Braun's attorneys argued "chain of custody", it was never reported, and it's a terrible argument. The argument compared the handling of the sample to the validated test procedure approved by all sides for drug testing, and the handling didn't match the procedure. That's the meaning of what is "scientifically" valid in the world of drug testing — follow the validated procedure, or else toss the results as having no scientific meaning. Even under WADA procedures (which are much less athlete-friendly than those adopted by MLB), MLB's failure to follow its validated procedure would shift the burden to MLB to prove that its deviation from procedure did NOT affect the test results. The plain truth is that urine is chemically active stuff, that the chemistry of urine does change over time, and that these changes can affect test results.

            As for Braun's name in the Bosch records … if your argument is that Braun's name is there because he purchased PEDs from Bosch, then why is Braun's name listed along with his defense attorney? What sense does that make? Are you saying that after Braun was accused by MLB, he and his defense attorney went on a PED shopping spree together? Or that Braun went to his attorney and said, "so long as you're representing me in the MLB PED arbitration, would you mind buying some illegal drugs for me?" And that his attorney agreed? If you're arguing that Braun's explanation defies common sense, that's fine, but then you have to come up with an alternate explanation that DOES make sense.

          • Never reported? are you kidding?….

            "While MLB officials considered Braun's exoneration to be based strictly on a technicality, the player's side did not see it that way. Because of the delay in shipping, they considered the chain of custody broken and therefore the test itself to be invalid. They argued that Braun's sample could have been tainted by the time lapse and also questioned if the positive test actually was his sample.

            The test result showed an unusually high level of synthetic testosterone, though the substance that triggered it has not been revealed. Braun's lawyer, David Cornwell, argued at the hearing that his client never had tested positive in five years in the majors and that the high testosterone level itself was suspicious.

            Still, it came down to the delayed shipment and chain of custody, points that will be debated throughout baseball for some time to come while also raising questions about the integrity of the drug-testing program itself."

            Also – Braun's name appears on lists with other players, not his attorney-

            Braun's team local paper on the revesal of his pending suspension:

            May I suggest you read up on t a bit- as for urine degradation- microbial infestation of a sample can alter testosterone (or its metabolites) levels- presence of microbes can then be shown– which is why I suggested the Aegis folks could probably not testify to a bad sample had they been able to show microbial infestation or any other sign of a problem with the urine
            –all I am saying is Braun's name is on client's of the clinic list NOT as a client of an attorney who Bosch has been retained to consult with list–

            Here is some more reading to consider:

            Which reads in part as follows:

            "Delays in delivering the samples to the laboratory and improper refrigeration during transportation and storage may offer good conditions for microbial growth; the effects on the urinary steroids are easily detectable and consist mainly in the hydrolysis of the steroid conjugates and in oxidoreductive reactions leading to the abnormal presence of steroids in the free form and the accumulation of 5aand 5b-androstan-3,17-dione, the b-isomers being more rapidly altered. Signs of microbial degradation should obviously be absent to ensure the accurate measure of the steroid profile (Ayotte et al. 1996, 1997; Hemmersbach et al. 1997)."

            And again I am not arguing anything- he was one of the athletes listed, he tested positive, he admits to knowing Bosch, his attorney dismissed Bosch as being worth while– Stay in denial if you want but at least read if you want to understand what this all means- peace, I gone –

          • OK, James. Good reply. You caught me using shortcuts, because the complete explanation takes a long time to put together. This will take at least two comments.

            When I said chain of custody was never reported, what I should have said was that chain of custody was never really the issue. In PED parlance, “chain of custody” means knowing where the athlete sample was at all times. Technically speaking, the chain of custody for a sample is preserved when a sample is either in the possession or within view of an authorized person, or stored in a secured location. You are correct, there was an issue in the case regarding whether the collection agent stored the sample in a secured location. However, according to the report you cited, the arbitrator sided for Braun because he “thought there was room for error in the process”. The process included both storage in a secure location, which is chain of title, and storage in a “cool” location, which is not chain of title.

            The bigger issue, though, was in the delay in shipment. MLB policy was clear that “absent unusual circumstances”, specimens were supposed to be sent to the lab on the same day they were collected. There was no “unusual circumstance” here. Collection of a sample on a weekend day is not unusual. Moreover, the rules governing when a sample is supposed to be shipped is not a chain of custody issue. It is a substantive issue of how a sample is required to be handled, just as is the issue of storage in a “cool” location. So, I stand corrected: chain of custody was an issue in the case, but there’s no indication that this was the issue that swung the arbitration in Braun’s favor, and there are clear and obvious substantive issues that went into the arbitrator’s decision.
            Regarding who is listed in Bosch’s records, Braun has stated that “There was a dispute over compensation for Bosch's work, which is why my lawyer and I are listed under 'moneys owed' and not on any other list."’s report indicates that Braun’s attorney is mentioned multiple times in Bosch’s records, and that Braun is not listed next to any specific PEDs (unlike the players named in the Miami New Times report). One of Braun’s attorneys (not the same one listed) has confirmed that they consulted with Bosch on the Braun case. Yes, it is possible that Braun purchased PEDs from Bosch, and that his attorneys later consulted with Bosch, but it’s also possible that Braun is listed in the records based solely on the attorney consultation.

            I know quite a bit about testosterone. I have written here and on on the subject of testosterone and drug testing. As for the importance of handling urine for drug testing, see for example “Stabilization of human urine doping control samples: II. Microbial degredation of steroids” in Analytical Biochemistry 388 (2009) 146-154, which concluded among other things that:

            “The transportation of urine samples, collected for doping control analysis, does not always meet ideal conditions of storage and prompt delivery to the World Anti-Doping Agency (WADA) accredited laboratories. Because sample collection is not conducted under sterile conditions, microbial activity may cause changes to the endogenous steroid profiles of samples.”

            “Even if small numbers of contaminating microorganisms are present in the warm medium of freshly voided urine, they may multiply rapidly … especially during summer months when temperatures exceed 15 degrees C.”

            “Microbial formation of testosterone has been demonstrated under aerobic or anaerobic conditions in the presence of a wide variety of microorganisms, common in human urine samples …”

          • The purpose of the study I mentioned above was to come up with something that could be added to urine samples at the time they are given that would slow down the potential degradation of samples during shipment. There really IS no dispute that such degradation is possible. The dispute focuses on whether the labs can detect that such degradation has taken place, and as a result toss a sample out as being untestable. For certain, the labs DO employ tests to try and detect such degradation; the open question is how effective these tests might be.

            On this latter point, you might enjoy reading “Urine stability and steroid profile: Towards a screening index of urine sample degradation for anti-doping purpose”, Analytica Chimica Acta 683 (2011) 221-226. This study cites WADA technical document TD2004 EAAS for the standard used by testing labs to look for urine degradation, and indicates that this testing must be performed in the “deconjugated fraction” of a urine sample. The study goes on to note that this “would require an additional quantitative analysis”, since the actual testing is done on the total (free + conjugated) fraction. The study goes on to propose a test method that could be performed on the total fraction. I think that the purpose of this new test is to allow for degradation testing at an earlier phase in the PED test, as I gather that the WADA standard degradation test IS performed during a later phase of testing, when the deconjugated fraction is available to the testers. Nevertheless, the study IS interesting, because it is recent and indicates the continuing importance of and scientific focus on the problem of urine degradation and its detection.

            Finally: we have reporting done by Will Carroll for According to Carroll, the defense did focus on chain of custody (as I admitted above), but also on “the science of how this mishandled sample caused such a result to occur at all.” Carroll reported that, according to his sources, “the [Braun defense] team was able to re-create the results.” To my knowledge, Carroll has never stated exactly what the defense team did, and what it showed. On Twitter, in response to the question “the delay in processing the urine was repeated, and shown to be the cause of the high levels of T?”, Carroll responded “More or less.” On WEEI, Carroll told Dennis & Callahan that (1) the Braun case was not decided on a technicality but by the science, (2) the defense team was “able to replicate the results” and (3) the arbitrator was convinced that the sample was “bad at the time it was tested.” FWIW, but Carroll is about the smartest reporter in the room when it comes to this stuff.

          • See, that's the thing I was referring to in the other thread — most everyone missed yours and my discussion on this very subject (chain of custody vs. science). Thanks for the repost. :)

          • You're welcome. But it's not that anyone is missing anything. I've made these same points over and over, as has Brien, as has Craig Calcaterra. People are going to believe what they want to believe, and when it comes to PED, people want to believe a simple story involving infallible science, crafty lawyers, cheating players, bumbling MLB drug cops and a corrupt player's union. It is profoundly depressing: people think the decision to sacrifice bunt is complicated, but the detection of the endogenous/exogenous source of a natural biochemical is easy.

          • Ok so back to this question- if the panel was presented with Braun's name in Bosch's records during the appeal would that be good, bad or neutral for Braun? Chain of custody is a legal term of art- the $ on the line plus the potential for a second + test plus the taint of PED all would lead me to think that chain of custody in the attorney arguments was the legal term of art and not the MLB guidelines- also from what I have read it is pretty clear this is the crux of the reason for the decision- –I would ask you that if Braun could demonstrate how his sample was clearly tainted by replication of the process of taint we would have seen that so until it is shown I would say that a report saying "it has been replicated" is pretty worthless- this was both a legal and a PR matter for Braun- see press conference– the point being that absent the issue re" chain of custody" it is a jump ball and the rules favor MLB- so the break wins it for Braun AND if the panel was handed his name in Boschs records it is neutral – because they have no test= absent a chain of custody in tact it is not an invalid + but it is that the test never happened- BUT multiple theories were presented- none from what i have read except your last post suggest that there was any evidence that the test was bad- just that the chain of custody made it unreliable on legal not scientific grounds so poof no test – MLB was not prepared to take their science to court- also my guess is that there was little secondary testing of the actual specimen by either Braun or MLB to check for reason that the sample might be compromised. Urine degradation produces more than metabolites of steroids so it would not be difficult to cast scientific doubt on a urine specimen- since that was not done one must think that was not possible given the ramifications– I have on many occasions dealt with scientist type witnesses on urine/blood degradation issues it is far from exact but there are clear indicators of age and decomp that corrollate so the impact of poor handling can be supported if not proven- all of this leads me to think if not done here at best unclear more likely the chain of custody which at times is referred to as a "scoundrels best friend and last resort"- none of this is germain to the previous point – NO WAY brauns name is in those records because Bosch consulted with his attorney – NO WAY– Braun knew Bosch on a different level – also the 20-30 K would come from atty not Braun for book keeping, insurance and tax purposes – i have eaten fish and i know the smell – (by the way Mr. Braun the earth is round and global warming is real )

          • James, a word of advice: investigate the use of paragraphs. They’ll make your work easier to read. Breaking up your thoughts into sentences, rather than stringing them together with combinations of hyphens and dashes, would also be appreciated.

            If MLB had offered evidence in the 2012 arbitration that Braun’s name was found in Bosch’s records, and Braun had offered no explanation, then I’d say that would have been bad for Braun, in a “guilt by association” kind of way. Naturally, that was never going to happen, and the possible harm would turn on whether Braun’s team could have explained the Bosch records to the satisfaction of the arbitrators. I don't know what your question has to do with anything of importance, but you've asked and I've answered.

            Yes, “chain of custody” can be a legal term of art, but here I’m confident that “chain of custody” is being used in a more specific way, with reference to the requirements for lab testing. These requirements are found in sources like ISO 17025 and the WADA rules. I’ve shown you why I don’t think this is the basis for the arbitrator’s decision, but you can believe whatever you want to believe.

            Will Carroll is a trusted reporter with great expertise in this area, but you’re free to ignore what he’s written.

            As for what you have read in the media, sorry, but 99% of what has been written about the Braun case is garbage. If Braun’s case is to be decided on the weight of public opinion or what people say in the mainstream media, then Braun is guilty. Luckily, Braun’s case was decided on the basis of the actual evidence by people who understand the law and the science.

            I don’t know if you’ve made any other points I can respond to. Once I reached your argument about how fish smell, I lost interest in trying to mine your stream of consciousness for anything cogent.

          • Excuse but one more point the study you mention support exactly what i have suggested- they easily could have tested the sample to support a degradation based theory of Braun's positive- this study is not suggesting a "new test' but explaining that their research can help move toward an index by which testosterone leves, age of sample and degradation can possibly be placed on a comparable index so as to explain and potentially remove invalid samples based upon suspect degradation-

          • James, of course the labs run tests to check for sample degradation. Of course these tests were run on the Braun sample. The question is, how good are those tests? Evidently they're not perfect, which is why MLB and WADA impose standards on sample collection and shipment, and why the scientists continue to search for better ways to test for degradation.

            This is what we know. The labs all incorporate precautions against sample degradation, which include standards on sample collection and shipment, and tests performed on the sample after it is received at the lab. What we can say is, if the validated process is followed from beginning to end, so that precautions against degradation are followed to the letter, and all the other steps in the validated process are similarly followed, then the chance of lab error is low enough so that the process is "fit for purpose". If the process is not so followed, then we don't know what the test results mean. Honestly, this is lab test science 101. Close isn't good enough.

          • "The question is, how good are those tests? "
            Actually this is comparatively irrelevant-

            They cannot test for cause- meaning that if there is a particular molecule in the sample there is no test that can determine how that molecule was formed in the sample (shy of radioactive isotope pre-creation placement) that is what the study you cited earlier was discussing, can there be a method of determining the volume of a substance that correlates with time and condition to reflect potential rate of degradation. All literature I have reviewed does not support a rate of degradation to volume method or scale. Braun's ph did change- per reports of lab personal testimony at his appeal– this is demonstrative of some level of degradation of sample- but again there does not seem to be any standard. Some literature would also show a "cart and horse" relationship between ph change and presence of substances [ie:certain cold medications can effect post void ph change rates, that said the greatest noted element in ph change is condition of storage, most important being temp). Also – it is not "lab error" the mass spec test showing testosterone is not an error the question is how did it get there- it is not a "false positive" the issue is ingestion or post void creation due to degradation-

            ¶ [just for you Larry}

            The reason the Bosch doc would be neutral is that once the chain of custody was determined to not meet the proper standard the bottles of urine legally cease to exist, he could not be suspended for a positive w/o the sample –

    • I am highly skeptical of anything Braun says on account of his failed test last year and his connections to U Miami, but we know way too little about his and/or his attorneys' dealings with Bosch to reach any conclusions at this time. We don't know anything regarding the circumstances surrounding Bosch's retention. We don't know what services Bosch performed. We don't know how many hours Bosch invoiced, if at all. We don''t know the total amount billed by Bosch. All we know is that there is a dispute between Braun and Bosch over 20-30k which Braun's claims was an expert consultation fee and that Bosch's contributions to Braun's defense were deemed "negligible" by Braun's attorneys. Nothing Braun has said is laughable on its face, but many questions have been raised which he will eventually have to answer when questioned by MLB investigators.

      The real story at this time — as others have pointed out — is that Braun has confirmed that the names on Bosch's logs were not pulled out of thin air and that Bosch is considered an expert on testing procedures. In that respect, it was a worse night for the original six than it was for Mr. Braun.

      • Great points Sherm. Regardless of the level of Braun's involvement here, he has come out, as have his attorney(s) (1) validating the list to some extent–a serious blow to those in the media and baseball acting as if this list is just some fairy tale; and (2) giving weight to Bosch's role as an expert in how drug testing works (and by extension how to avoid a positive test). The rest of players can swear denials of any connection, but MLB is unlikely to let this go (and maybe even the feds) now that at least one player has given validation to involvement.

  2. Why the mention of the "Braun advantage?"

    Regardless of the plausibility of him/his legal team consulting Bosch, doesn't the "Braun advantage" indicate that Braun was a patient?

      • The logical conclusion is that Braun was a client. Thus rendering the feasibility of the lawyer explanation moot.

        • Maybe. Not really, but maybe. Much more compelling, however, is why Bosch would have detailed records of some clients, including A-Rod using banned substances while having no such account of say, Braun or Gio doping if indeed they were all doping. Certainly the logical conclusion there is that Bosch wasn’t supplying those players with banned substances, right?

      • I would think the question should be: "What is the 'Braun advantage' such that other people have requested the same treatment?"

        There is a definite bias on how people read that statement, but that doesn't mean the bias is accurate. Could it have been the newspaper trying to sway the readers based on their interpretation of the evidence?

        With that said, I for one think that even without this newest PR problem, Braun is going to carry suspicion on himself for PEDs throughout the remainder of his career and beyond. If he is innocent, that is a shame. If …

    • That's not an unreasonable inference to draw, but the only person who can answer that question for certain aint talking right now.

  3. Brien- I'm a regular reader of IIATMS and a huge yankees fan. When I'm not reading about the yanks, I am pursuing a JD at Hofstra University.

    I am often a bit annoyed at journalists when they opine on a subject in which they cannot possibly understand the jurisprudence, let alone the trial techniques employed by the attorneys.

    Your post here ( and many other former posts) are truly refreshing. The world needs more writers such as yourself. Keep up the good work!


      • Well, for starters, this:

        "It's pretty likely there are more records than just the ones exposed so far. "

        speaks for itself.

        "The point is that the records DO seem to indicate that Braun was a patient. This contradicts Braun's statement from last night. "

        1. No it doesn't.

        2. No they don't. This is total conjecture.

        3. These two sentences are a huge leap from one to the next on their own terms. You go from saying that something "seems" one way to flatly declaring it to be so.

        • Of course there might be more records than what have been given to the media, or more revelations from the currently obtained ones. Even if they aren't exclusively documents pertaining to the business, things like Bosch's cell phone records could substantiate/disprove many facets of this whole story. I would be completely shocked if yesterday's Yahoo report was the last "revelation" in terms of records.

          Pardon my lack of qualifiers in that second sentence. I am not stating flatly that Ryan Braun was a patient. Maybe the "Braun advantage" was that Melky started using a different razor.

  4. "The point is that the records DO seem to indicate that Braun was a patient."

    In what respect?

    • From the Yahoo article:


      The third record(of Braun's name) is a letter from Bosch that appears to be to Juan Nunez, a former runner for the ACES sports agency that represents Cabrera, Cruz and Gonzalez. Though undated, it congratulates "Juan" on "the MVP award" – a possible reference to Cabrera's All-Star Game MVP – and continues: "This smells like the 'Braun' advantage."


      Of course, that in no way is evidence that Braun took anything illegal. But to me, it does indicate that he was Bosch's patient.

      If someone could provide a logical explanation for what the "Braun advantage" could be, I'd honestly welcome it.

      • That does not indicate that Braun was a patient. Its an ambiguous statement open to many interpretations.

        • I agree that the statement itself is ambiguous. But, most likely, what is it that the "doctor" is referring to?

          It's a duck salesman talking to a duck enthusiast about another alleged duck enthusiast. It's not crazy to think he's talking about ducks.

  5. Yesterday was Trunk Day in Bah'sten . Pitchers and catchers is in like a week . Enuf already , Let's play two .