Sherk's frustration mounts after delay
LOS ANGELES – Any idea that Ultimate Fighting Championship lightweight champion Sean Sherk's appeal would be an easily executed line item in the California State Athletic Commission’s agenda was dispelled Tuesday in a Los Angeles hearing room.
On July 19, the CSAC suspended Sherk for one year and fined him $2,500 after he tested positive for Nandrolone Metabolite, an anabolic agent.
Sherk had been slated to appear in front of the commission after filing an extension with the CSAC in early August. He enlisted Los Angeles-based lawyer Howard Jacobs, who has been the defense attorney in several high-profile doping cases, to defend him.
Jacobs wasted no time in attacking the foundation of the claims made against Sherk. First on his list was the “chain of custody” for the urine sample taken by the CSAC after the July 7 fight. Deputy Attorney General Karen Chappelle had established the commission’s procedural diligence in dealing with the sample as a primary piece of evidence against Sherk.
It wasn’t long before Jacobs found a missing link in the commission’s procedures, revealing a paperwork gap in custody between CSAC officials and Quest Diagnostics, Inc., the laboratory in charge of testing.
Furthermore, Jacobs contested the absence of a brief he had drafted to support his arguments – one he claimed was sent last Friday – that was conspicuously absent from the commission members at the hearing. Commission members had received Chappelle’s supporting paperwork; without his, he argued, the hearing could not continue fairly.
“Why don’t we have it?” a commission member pondered aloud, prompting snickers from the audience.
Despite the presentation and testimony of Quest scientific chief Barry Sample, detailing the procedures for receiving and testing samples like Sherk’s, the objection sucked the air out of the prosecution’s momentum.
Commission adjudicator Spencer Walker moved to “recess” the hearing and administer a decision by a mail vote, but the commission quickly decided the only way to proceed properly was to postpone the hearing.
The final bone of contention was over the admissibility of a polygraph test administered to Sherk. Jacobs had presented the tester as a possible witness for the defense. Chappelle objected – California bars polygraphs as evidence in criminal proceedings – but it left a major question hanging in the air.
Is Sherk’s case a hearing, or a trial?
Upon settling on a return date of Nov. 13, Walker informed both sides that a decision on the polygraph would be reached in private within two weeks.
In an exclusive interview with MMAWeekly.com, Jacobs expressed his disbelief at the postponement.
“We would have finished it today,” Jacobs said. “I did send [the brief] to the head of the commission. In California law, polygraphs are not admissible for criminal proceedings, but they are admissible in other types of cases. So it’s our position that it is admissible here. I mean, this is quasi-judicial at best. They should have worked it out beforehand.”
The lightweight champion was fairly reserved about his opinion on the hearing, but only because he felt he had to be.
“I can’t give you my true opinion,” Sherk said gruffly. “I’m ready to fight, to get this behind me, and now it’s a longer process.”
Sherk said he had spent over $20,000 in his defense, not including money he would have made with another fight this year.
“I was confident coming in here that the facts would speak for themselves, but after today, I’m not so sure.”
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