"Cross examination elicits the truth in innumerable ways--by forcing the witness to abandon his prepared positions and improvise under circumstances of stress, by inducing the witness to elaborate his inventions, by striking down the inventions and leaving the witness exposed, so that the truth is his only available alternative. . . . Cross-examination is the only scalpel that can enter the hidden recesses of a man's mind and root out a fraudulent resolve."
Nizer, Louis, My Life in Court.
Much of the NCAA's case relied on the testimony of attempted sports marketer Lloyd Lake. Given this, central to USC's (and McNair's) defense should have been a thorough cross-examination of Lake.
But the NCAA in 2007, nervous that several prior interviews had been cancelled and it had no case without Lake, decided to interview Lake without USC present. On the morning of the interview, NCAA enforcement staffer Ameen Najjar told USC via email, "When the enforcement staff raised the possibility of USC's participation early on, it created a number of complications, coupled with the highly tenuous nature of the possible interview and the number of previously cancelled interviews, we thought it prudent at the time to simply attempt to get the interview."
Thus, USC and McNair were denied one of the most basic rights of the accused: to cross-examine the accuser. Other interviews in which USC was not permitted to attend or participate were the interviews of Lake's sister, Lake's mother, Lake's girlfriend, Lake's former brother-in-law, and Percy Harvin.
Ironically, Nebraska law professor Jo Potuto, who sat on the Committee on Infractions for the USC case, misled Congress about this very issue.
Lake's story was therefore never critically tested. Indeed, so kid-glove was the NCAA's questioning of Lake that they didn't even get enough detail for their purposes and had to inject their own details into his testimony. Here is Lake's testimony about a January 2006 call between he and McNair:
"I think that was like, that was like him trying to resolve it, you know, and like [Bush]'s wrong, he should make it right and basically don't implement [sic] the school. . . . Uh, just telling about [Bush] and all, he knew about the money he took, he knew that he had an agreement."
And here is what the NCAA turned that into:
"At least by January 8, 2006, [McNair] had knowledge that [Bush] and [Lake and Michaels] likely were engaged in NCAA violations. At 1:34 a.m. he had a telephone conversation for two minutes and 23 seconds with [Lake] during which [Lake] attempted to get the assistant football coach to convince [Bush] either to adhere to the agency agreement or reimburse [Lake and Michaels] for money provided to [Bush] and his family."
To add insult to injury, the enforcement staff then attempted to deny that it excluded USC from the interviews. While Najjar's email attributes USC's exclusion to the NCAA's desire to just "get the interview," at the hearing he told the Committee on Infractions that it was Lake who excluded USC:
"If I could briefly respond, I don't disagree that the institution and the Pac-10 were excluded [from the Lake interview], but I want to make it clear that it was not the enforcement staff that excluded them. It took us months and months and months of wrangling to get Lloyd Lake's interview in the first place. As you know, he is certainly not under the jurisdiction of the NCAA. He did not have to interview with us at all, and he and his legal counsel excluded the University and the Pac-10. So, I want to make that clear. Again it was not the enforcement staff. Every interview we attempted or conducted, we always requested that the University of Southern California and the Pac-10 be allowed to participate, and in many of those instances were successful."
USC's counsel refuted Najjar's representation:
"I would like to clarify a few of those points. In fact, I have an e-mail here dated November 6, 2007, which is the date of the Lake interview. We were informed the morning of the Lake interview that the interview was to move forward. We had been trying to involve ourselves in this interview for six weeks before the day of the interview after hearing from press reports that the interview was being discussed between the NCAA and Lloyd Lake's attorney.
When we finally found out from Mr. Najjar [about the interview], our outside counsel, Mark Jones, had an e-mail exchange with him asking why we were banned and what had happened? [Najjar's] e-mail back to Mark says, [quoting from email] 'Let me clarify one thing. It is not my understanding that Lake banned USC from today's possible interview. When the enforcement staff raised the possibility of USC's participation early on, it created a number of complications, coupled with the highly tenuous nature of the possible interview and the number of previously cancelled interviews, we thought it prudent at the time to simply attempt to get the interview.' [end of email quotation]
So it is clear that Lake did not say that he would not give the interview without USC present. It was the NCAA's staff's conclusion and decision to move forward without us . . . [W]e were not allowed to read the testimony of Lloyd Lake for more than three months after the interview was held. During that three-month period, we finally were able to review it in the NCAA offices. We were not given a copy. It was after three months. During that three-month period, the staff had moved forward to interview [Lake's] family members without USC present."
Najjar's improper conduct was not isolated to the USC case, as he was also at the center of wrongdoings by the enforcement staff in the Miami investigation.