Tom Jicha

Tom Jicha grew up in New York City and worked with John Pricci at the short-lived revival of the New York Daily Mirror. Tom moved to Miami in 1972 for a position in the sports department at the now defunct Miami News.

Tom became the TV critic in 1980 and moved to the South Florida Sun Sentinel in 1988. All the while he has kept his hand in sports, including horse racing. He has covered two Super Bowls, a World Series and the Breeders Cup at Gulfstream Park.

He's been the Sun Sentinels horse racing writer since 2007 as a staff member, and continues to this day as a free-lancer.

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Friday, May 29, 2015


RICK DUTROW REVISITED: How a Deeply Flawed Process and Politics Leads to Kangaroo Court






NEW YORK, May 28, 2015--Like many Thoroughbred racing fans, the word that most often leapt to mind whenever I saw Rick Dutrow Jr.’s name in print was “juice.” Unlike many of those who still cling to the notion, I know now that I was wrong.

Seven years ago, an undefeated, seemingly invincible three year old returned to New York seeking to achieve the kind of immortality that only a Triple Crown sweep can bestow, what American Pharoah will try to accomplish June 6.

Instead of becoming the sport’s 12th Triple Crown winner and only the second to run the Thoroughbred gauntlet while undefeated, Big Brown was eased before he could reach the Belmont Park homestretch.

For Big Brown, the troubles he encountered in the 2008 Belmont Stakes began at the start of the race. It ended with a performance that was a pivotal factor leading to the suspension of his trainer for 10 years.

Rick Dutrow had his livelihood taken away in a hearing governed by New York State’s Administrative Procedure Act. This type of hearing is conducted as any trial would, with two notable exceptions: There is no presumption of innocence and no due process.

Big Brown’s star-crossed Belmont likely began as a 2007 juvenile when he suffered a foot abscess, one in each hoof albeit not concurrently, resulting in wall separations. Dutrow’s problems began Monday of Belmont week the following year when he told the national media his colt would run without the anabolic steroid Winstrol.

The steroid revelation shocked almost everyone in attendance, racing and non-racing media alike. I know, I was there.
Winstrol was legal at that time and anabolic steroids do have therapeutic uses; they can help brighten a dull coat, stimulate appetite, and increase awareness. This puts a Thoroughbred more in sync with its life’s purpose.

But Dutrow had a dilemma: Either aggressively pursue the Triple Crown or do the right thing by Big Brown. Ultimately he decided that his colt’s present and future health was the priority.

Big Brown won the second leg of the series with one of the more dominating performances in Preakness history--after Winstrol was withdrawn from his treatment program, a little known fact.

Unfortunately his foot issues resurfaced. He came out of the race fine but after his first post-Preakness gallop, following four days of walking and jogging, Dutrow discovered a quarter-crack.

Noted hoof specialist Ian MacKinlay, who along with Tom Curl does all the foot work on Dutrow’s horses, was called in to patch the quarter crack. Both men insist that any horse they work on must have all medication withdrawn, including Winstrol, during that process.

image
Big Brown's feet always got the best of care.
AP Photo: Rob Carr


While not as painful as wall separations--a condition Dutrow carefully managed from the time Big Brown entered his barn in September, 2007 up to his three year old debut the following winter—the quarter crack required the same cautious approach. After five or six days of treatment, Big Brown was good to go.

Midway of the far turn over a sun-parched track on a very hot spring day, Hall of Fame jockey Kent Desormeaux stopped urging his mount, fearing something was amiss. Big Brown’s quest ended ignominiously and his performance was the beginning of his trainer’s slide into oblivion.

Big Brown’s Belmont came at a time when the sport was suffering through a series of highly visible fatal injuries. Barbaro finally succumbed to colic following his breakdown in the 2006 Preakness; the filly Eight Belles, second in Big Brown’s Derby, collapsed after the finish line and was euthanized minutes later.

In the run-up to the Belmont, the national press ran with the steroid angle and Big Brown’s subsequent dismal effort was perceived as a huge embarrassment for a sport already under intense scrutiny. Somehow, it all became Dutrow’s fault.

The trainer’s bad boy reputation and numerous infractions set the stage for what was to follow. His series of suspensions, in many cases harsher than the offense justified, were the kind whereby trainers ordinarily get a reprimand and warning from the stewards, but not in his case.

It has been widely reported he received 72 lifetime rulings. After searching all accessible records, we found 56 dating back to 1980 in the RCI database, six more in the New York Gaming & Racing Commission databank launched in 2009.

Two of the 62 rulings were for illegal substances: Mepivacaine, detected in Farmer Jake, a show finisher in a six-horse race in 2003, and Butorphanol in Fastus Cactus, in 2010. The latter’s positive, which played a significant role during the hearing, remains highly controversial.

The other 60 rulings spanned from transgressions committed in his personal life as a youth, to citations and fines for copious Lasix and Phenylbutazone overages, to administrative offenses such as lack of foal papers on file, horses reporting late to the paddock and “failing to tend to business in a proper manner.”

Butorphanol is a narcotic analgesic agent used to treat superficial and visceral pain in horses. New York State drug-testing lab director Dr. George Maylin testified that the detection of Butorphanol in Fastus Cactus’ urine indicated it had been administered within 96 hours of the race, prohibited by rule.

Maylin also stated at the time that, to the best of his recollection, Dutrow was the only trainer who has ever had a horse test positive for Butorphanol in urine during his tenure as New York’s director of equine blood testing.

Dr. Stephen Barker, the director of the Equine Medication Surveillance Laboratory in Louisiana who typically testifies for prosecutors, testified as an expert witness for the defense.

At the hearing and in a sworn affidavit, Barker methodically debunked Maylin’s findings, conclusions, and New York’s sub-standard testing procedures. Excerpts from the Barker affidavit:

“I viewed and listened to the testimony of the state’s witness, Dr. George Maylin…At issue was the finding of between 4 and 5 nanograms of the therapeutic analgesic butorphanol in the urine of the horse Fastus Cactus…Blood testing had failed to find any detectable amount…

“The urine result was obtained by methodology that was not intended for quantification. Thus…the actual amount present is uncertain…Dr. Maylin did not demonstrate by document or testimony that withdrawal time was tied to any specific dose, route or treatment regimen…

“With no description of these studies offered as to number of horses, doses used, route(s) of administration, time points collected, technology used for detection, etc., we have no evidence that his determinations met any accepted standard of scientific inquiry or were properly performed or formulated…

“The scientific data published at the time showed that the effects of Butorphanol lasted only up to 6 hours…Its absence in the blood and very low concentration in urine was proof, to a scientific certainty, that the horse was not effected [sic] by its mere presence and that [Maylin’s] findings were pharmacologically irrelevant…

“New evidence [Dr. H.K. Kynch and colleagues in the Journal of Veterinary Pharmacology and Therapeutics, published in 2012] brings into question Dr. Maylin’s entire testimony and the manner in which the Butorphanol 96-hour withdrawal time was devised, implemented and enforced…

“Given this additional evidence, it is clear that persons administering Butorphanol at 96 or even 120 hours prior to a race are subject to being called positive and prosecuted in the State of New York…

“Dr. Maylin’s studies, to the extent they may exist, either gave different results, were less sensitive, did not examine sufficient numbers of horses, or failed in some other way to provide an accurate determination of what the withdrawal time should be so as to prevent positives from being called on otherwise innocent people…

“As the data show, New York should have implemented a longer withdrawal time if their intent was not to permit any detectable level to be present at the time of collection and analysis.

“The record created by Dr. Maylin in his testimony and the data from this most recent study are in obvious conflict…The time this case was brought has been arbitrary and capricious, wherein even the use of the drug as recommended can lead to a positive call.

“Under these guidelines, Mr. Dutrow’s positive would never have been prosecuted and should now--based on the Kynch et al study and the projected change in New York policy—be dismissed.”

Dr. Maylin told NBC News in a 2014 interview that he stands by his testimony, owing to lots of wiggle room by virtue of the fact that the statute governing post-race samples is so vague it does not even specify what methodology to use when searching for illicit drug use, as cited in Section 902, Article 9 of Racing, Pari-Mutuel Wagering and Breeding Law.

The racing officials who decided the case, State Racing & Wagering Board Chairman John Sabini and Commissioners Daniel Hogan and Charles Diamond sided with Maylin and found Dutrow guilty.

[Ed. Note: A Butorphanol study conducted on horses by the highly respected testing laboratory at University of California-Davis found that traces of the drug lasted for 10 days in 30% of those horses tested]

The final element of the SRWB case was the discovery of three syringes in Dutrow’s Aqueduct barn office alleged to have contained Rompun, a.k.a xylazine, a muscle-relaxing agent.

To date, Dutrow has served 29 months of his 10-year ban despite passing a lie detector test administered by William E. Kelly of the National Polygraph Association by answering “no” to the following questions:

• “Prior to the Aqueduct race on November 20, 2010, did you know that Fastus Cactus received Butorphanol?”

• “Did you direct anyone to inject Fastus Cactus with Butorphanol before the race?”

• “Prior to their discovery on November 3, 2010, were you aware of the three syringes in your desk?”

• “Have you ever used any equipment for hypodermic injection, including syringes with needles?”

In a letter to Dutrow attorney Gerard Romski, Kelly wrote: “It is the opinion of this polygrapher that based on the polygraph chart, no deception was indicated when Mr. Dutrow answered these questions.”

Results from lie detector tests are inadmissible in court, of course, but this was no court of law; indeed, far from it.

The hearing that took place was based on a pattern of deception and backdoor political machinations by high ranking racing officials in Kentucky and New York. Worse, the case involves Association of Racing Commissioners International President Ed Martin insinuating himself into state process.

In a Feb. 17, 2011 letter to Gail Pronti, Secretary to the Board of the SRWB, written on RCI stationery, Martin wrote in part:

“…I formally request the Board to commence a proceeding and issue a notice to show cause as to why [Dutrow’s license] should not be revoked given what appears to be a lifetime pattern of disregard for the rules of racing…

“…In considering Mr. Dutrow’s suitability to continue his participation in racing the Board is urged to take into account his adherence to rules in all jurisdictions he participated in…” That day, RCI issued a press release to that effect.

The next day, Lisa Underwood, Executive Director of the Kentucky Horse Racing Commission, sent an email to RCI Chairman Willie Koester, copying Sabini and former RCI Chairman Daniel Hartman, questioning whether the actions taken by Martin “were authorized by any directors of the executive board?”

“I think it was totally inappropriate for Ed [Martin] to send the letter and issue a release,” she continued. “I would be furious if he ever interfered with a Kentucky matter.” As it turned out, it was only the beginning of Martin’s involvement in the Dutrow inquiry.

Three days later, February 21, Koester responded to the Underwood email: “I talked to Ed and he said he would never issue a press release without the approval of the parties involved.” Underwood accepted the answer without further question.

The pattern of deception by regulators continued a year later as California Chrome was about to begin his Triple Crown quest. In an investigative news story by Mike Brunker of NBC News, Jeremiah Byrne, representing ARCI in the Dutrow lawsuit, issued this statement:

“Throughout all the pleadings that Dutrow has filed, he has never denied that he has a history of cheating. Also, ARCI only gave information to the New York Racing Commission, and it was the racing commission that acted against him.”

Dutrow always has affirmed wrongdoings when it came to his personal life, therapeutic drug overages and administrative infractions, but never once admitted to cheating. “I never cheated to win a race,” Dutrow told NBC News and HRI.

image
Brown delivered big time in Baltimore.
Getty Images


A continuing email trail to be posted tomorrow in Part 2 will show that Martin’s agency insinuated itself into Dutrow’s denial of a training license in the Commonwealth of Kentucky, disproving Byrne’s contention that ARCI gave information only to the New York Racing Commission.

The denial of Dutrow’s Kentucky license resulting from a clerical error in 2006 and a record of past transgressions were building blocks upon which the SWRB made its case. The latter references the Martin letter to Pronti that urged New York regulators to “take into account [Dutrow’s] adherence to the rules in all jurisdictions he has participated in,” etc.

At the hearing, Defense Counsel Michael Koenig summarized how the SRWB 10-year ban ultimately evolved: “The board never sought to revoke Mr. Dutrow’s license – not in November – not in December – not in January and not in February.

“It was only after Mr. Dutrow indicated he would appeal the February 16 suspensions that the board sought revocation…This is precisely the type of realistic likelihood of vindictiveness the law prohibits…

“One key case on this is Avery Richter [71, 86nd 500, third department case law]: ‘If an individual has a right [to appeal], a meaningful right cannot exist if, when exercised, it results in a heightened punishment…an affront to and a violation of due process’.”

Defense counsel also explained that Board Chairman Sabini, by simultaneously serving on the Board of Directors, Executive Committee, and as chairperson of the board-elect of ARCI, he in effect was judge, jury and executioner in this case.

Additional testimony showed that state investigator Joel Leveson gave conflicting testimony regarding his own actions the day a highly unusual barn search, lasting only 10 minutes, was conducted under a false premise. There also was an unexplained two-day break in the chain of evidence.

During this process, defense counsel lacked subpoena power. They could not examine evidence or review an account of actions taken by Queens District Attorney Jim Leander, who sent a copy of his findings to Schenectady District Attorney Philip Mueller. Leander later told Dutrow his investigation found something that Dutrow’s lawyers “could act on.”

Under New York’s Administrative Procedure Act guidelines, strict rules of evidence do not apply and hearsay is permitted. Of greater import, “the burden of proof is on the board,” according to Hearing Officer Clemente J. Parente’s opening instructions.

If New York’s Racing & Wagering Board was able to deny Dutrow his rights as a citizen without satisfying the necessary burden of proof, it can do the same to any horseman at any time.

This case extends beyond whatever Dutrow is alleged to have done. It affects every backstretch worker licensed by the state of New York and, presumably, elsewhere.

In Part 2 HRI will present further testimony culled from the hearing transcript plus relevant interviews. Only then can interested, fair-minded parties decide just what happened in a Schenectady court room almost three years ago.

In advance of that, consider the sworn declaration of Dr. Larry Bramlage, regarded by many as the world’s foremost equine surgeon who, among other duties, has served as veterinarian-in-residence on nationally televised broadcasts of racing’s biggest events:

On Direct from Defense Counsel: “The only capacity I’ve known Rick is our professional relationship…He sends us horses for examination when he suspects there is a problem…

“…I very much like to work on his horses because he recognizes problems prior to their becoming very serious for the horse. He’s one of the top handful of trainers that we work for that’s able to do that…

“Interestingly, not all prominent trainers are able to recognize the problems and respond to them as quickly as he does…

“The health of his horses are impeccable when we get them. One of the reasons I like working for Rick is that his problems are recognized early and, therefore, we have a chance to save the quality and longevity of the horse…”

“He’s never once told me that we want to do this a cheaper way or a less satisfactory way…he says ‘we want to do this in the best way’…

“So it’s a pleasure to work for him because he’s very much willing to do the right thing for the horse. He’s always done what we recommended as the highest quality treatment…”

There was no cross examination from state counsel and no questions for Bramlage from the Hearing Officer, who thanked him for his time.

Added context: During the hearing state counsel made an issue of Fastus Cactus big class drop, the inference being the 5-year-old gelding was somehow infirm. Dutrow was asked why the dropdown: “Because the owner told me to put him in that race.” It was a $14,000 claiming race.

Fastus Cactus won that race November 20 and was claimed by Naipaul Chatterpaul. Fastus Cactus raced five times for his new connections, from date of claim to March 5. During that time he won on the raise to $20,000 less than two weeks later, finished third for $60,000 the following start and four months after that finished second in the Grade 3 Tom Fool.

Chatterpaul obviously had made a good claim. On July 8, Fastus Cactus finished sixth on a sloppy Belmont track and he lost the horse via claim to Bruce Brown for $25,000.

Dutrow had run Fastus Cactus in seven races after claiming him, winning four.

And there is this: According to the best available records and recollections of veteran racing media dating back to Dutrow’s last day as a trainer, January 17, 2013, no horse trained by him suffered a catastrophic breakdown at a NYRA track, either racing or training, for 11 consecutive years.

I wonder how a “juicer” accomplishes that?

TOMORROW: The role Kentucky’s license denial played in the New York ban and testimony from the state investigator who found the syringes in Dutrow’s office desk draw.

Continue reading - Part II: Racing & Wagering Board v Rick Dutrow: Nightmare From the Start





Written by John Pricci

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