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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Saturday, May 30, 2015


Racing & Wagering Board v Rick Dutrow: Nightmare From the Start





In Part 1 of the HRI Special Report, it was established in sworn testimony and e-mails that the positive Butorphanol findings in the horse Fastus Cactus were highly dubious and there was meddling into state process by the president of a national regulatory organization.

Part 2 will examine how Rick Dutrow Jr. was denied a license in the Commonwealth of Kentucky, adding to a dossier compiled by the New York State Racing & Wagering Board that would suspend the trainer 10 years for the “crime” of appealing two questionable suspensions.

How and why this all happened remains a mystery


In the winter of 2010, Rick Dutrow got a phone call from a member of the Kentucky Racing Commission asking him to come to a meeting when he arrived in Lexington that spring to run in two Grade 1 races at Keeneland: Amen Hallelujah in the Vinery Madison and Court Vision in the Makers’ Mark Mile.

After several conversations with commission personnel, Dutrow made arrangements to attend the meeting. Despite continually asking about the reason for the sit-down, he was told it was simply “to clear up a few things, make sure everyone’s on the same page,” he told HRI in April.

At that Kentucky meeting, Dutrow was asked a series of questions which he answered without giving the queries a second thought. “They put a whole bunch of papers in front of me. One was my license application from 2006. They showed me where [my secretary] checked the wrong box.”

As a result of that meeting and influential coaxing from outside sources, the Kentucky Racing Commission denied Dutrow a license.

image
Big Brown always got the best of care.
Photo: Ed Reinke, Associated Press


Between the meeting and license denial, Amen Hallelujah was entered by Dutrow, his name listed on the official track program. When the fillies began their parade post-ward, an announcement was made there would be a trainer change for Amen Hallelujah, from Dutrow to Mick Nevin.

Nevin, a second generation horseman from Ireland and father of Dutrow assistant, now trainer Michelle Nevin, has a farm in Lexington and does a lot of layup work for Dutrow.

“Is this even allowed?” I asked. “That day at Keeneland it was,” Dutrow said.

Several days later, Court Vision ran in the Makers’ Mark with Justin Sallusto listed as trainer. But that gets ahead of the story.

On March 31, 6:03 p.m., Kentucky Licensing Director Chris Clark and three other officials received an email from Commission Chairwoman Lisa Underwood, stating “[Dutrow] has a horse nominated for the Vinery Madison…entries close on April 10. He also has a horse nominated for the Makers Mark…

“So if possible we need to try to have a meeting on April 7th or 8th in Northern Kentucky.”

And then this: “The other decision we need to be discussing is what do we do if he doesn’t apply and transfers horses to another trainer...? This should not be discussed over email—our mail is subject to open records etc. but be thinking about it.”

In most jurisdictions, a possible administrative ruling involving a horseman where a denial or revocation may be at issue, a trainer usually is afforded the courtesy of a phone call to say there might be a problem if you apply for a license.

Under those circumstances, most racing commissions would accept an application, table it, later returning it to the trainer should there be sanctions taken against him. Dutrow never was given that opportunity.

April 8, 10:31 a.m., Underwood received an email from Clark: “I just spoke to another attorney from the Dutrow camp. I am anticipating Dutrow will be with legal help for the meeting on the 13th. Also, I have spoken with [Licensing Administrator Jenna McDonald] at RCI, the ruling will be on the website before lunch today. Contact me with any questions.”

10:32 a.m. Underwood informed Clark “I believe NY will be sending us their file for the books. Should have it this morning.”

10:33 a.m. Clark replied: “Good news, I will keep you posted...”

12:06 p.m. Rick Goodell of the New York State Racing & Wagering Board, later counsel for the State at Dutrow’s hearing, sent Underwood the “good news” email Clark was hoping to get. In it were four attachments:

• Pending NYSRWB Order to Show Cause with state steward’s rulings

• Chain of custody bag (11-03-10 barn search); letter form lab reporting xylazine positives; sample cards (11-20-10 test barn); letter from lab reporting post-race butorphanol positive

• Stipulation of settlement from 2005

• Stipulation of settlement from 2007 (conformed copy)

Due to the low quality of the CoC [chain of custody] bag, I will also fax item #2 above to 859-246-2039.

Rick”

April 13, 2:43 p.m., an inter-office email was sent from Glen Webb of the KHRC to Susan Speckert, with copies to Tim West and Underwood: “Nicole Ribilotta, Director of Licensing from New York, wants a copy of the exact language on the Dutrow letter (she said ruling)…This is the second time she has called.”

3:24 p.m., Ed Martin, at , sent a forwarded email to Lisa Underwood, subject line: “Kentucky Horse Racing Commission License Review Committee denies license application for trainer Rick Dutrow”

It read: “You are my hero!”


DUTROW BARN SEARCH, November 3, 2010

The story of the Dutrow barn search actually began the day before State Director of Investigations Joel Leveson entered Barn 10 on the backside of Aqueduct Race Track.

That day an ESPN film crew accompanied Dutrow on an air-transport plane bound for Churchill Downs. The trainer was excited to run Boys at Tosconova in the Juvenile, among other Breeders’ Cup entrants.

It turned out that his colt was no match for eventual Eclipse champion Uncle Mo. The next morning it turned out that Dutrow would learn he would be no match for New York’s power laden Racing & Wagering Board.

The following will show how the barn search was conducted, culled from the administrative hearing’s sworn testimony and subsequent interviews, including one with Patti Cerda, for 20 years the Manager of the New York Racing Association Identification Office.

Cerda was responsible for issuing credentials to all personnel having business on NYRA’s three racetracks, from every manner of backstretch worker to racing media.

She left NYRA’s employ in February, 2010 before Dutrow’s problems became public. She knew Dutrow for many years and “never had a problem with him at any time.”

The following was excerpted directly from sworn testimony, commencing on page 193 of the hearing transcript.

After establishing Leveson’s bona fides, SRWB Counsel Rick Goodell asked Leveson to describe what took place leading up to the time of the barn search and immediately thereafter:

Goodell: “What were your duties on [November 3]?”

Leveson: “Actually, I had been asked by NYRA, chief of NYRA investigations [Sid Anthony], they had two new – new to the backstretch investigations --they had been working on the front-side many years and [Anthony] just wanted me to go with them and show what was entailed in working in the backstretch, particularly in the field of drugs and drug intervention, and how we, you know, worked on the backstretch.

G: …Did you conduct any barn searches?

L: We did…

G: …On November 3…you went with them to do a barn search at Aqueduct?

L: Yes. I think I met them at Belmont that morning…because I was going to be going to our office at Aqueduct…we went separately and we met at barn 10 , Aqueduct…we had decided to go to the Dutrow barn…barn 10.

G: …When you arrived there, did you recognize anyone…?

L: Well, I went directly to Mr. Dutrow’s office presuming that I’d meet him there…not that I knew he was there but – I knew [the office] would be a focal point for us… We did meet his assistant trainer Juan Rodriguez.

G: What took place…when you first got to Mr. Dutrow’s office…?

L: …We, myself and [NYRA investigators] John Klein and John McDonnal walked in together. I introduced them to [Rodriguez]…Finally we met up with [NYRA investigator] Denise Vasquez…I did tell [Rodriguez] that I was giving these guys training…in how to do barn searches…

…I sat down [at Dutrow’s desk]…I looked for a middle draw...the next thing is I opened the draw on the left…I was drawn to what looked like a fairly new box. I looked around the box and then I picked up the box on second thought…There was a lot of movement inside the box…

…I opened the box…and immediately I could see the top of three plungers of three small syringes…They were syringes with one-and-a-half inch 20-guage needle attached…almost two ccs of an opaque fluid.

G: What did you do after you emptied the box?

L: …If you are doing barn searches you have in your pockets either a large or small Sirchie bag or chain of evidence bag…and then at that point started to ask Juan [Rodriguez] what he knew about the syringes…

G: What did he have to say?

L: …He said it had been there almost a week.

G: What took place after you conversed?

L: I then put [syringes] back in the bag. I did not seal it at that point, and I handed it to Denise Vasquez…We went around the room, asked [Rodriguez] to open a wall closet…in that closet was arguably the barn’s allowable training drugs…not injectable, all allowable stuff…

Once that was over I took back the bag [from Vasquez]…that was what she was meant to be doing, holding on to it. I put it in my vehicle and locked it…

G: Was it in unchanged condition?

L: Yes. The only thing she had done while she had it is she actually put her name on the top level.

G: Investigator Leveson, why had you not sealed the evidence bag when you handed it to Denise Vasquez?

L: …We were walking out the door to go to [Rodriguez’s] car, we were going to check his vehicle as well…

G: Did you then participate in the continued search of the rest of barn 10 after having examined [Rodriguez’s] car?

L: Right. What we did is we walked in from the parking lot and went into the barn. I believe we –-- [Goodell interrupts]

G: Let me ask you this. Were the results of that search negative?

L: They were negative.

LEVESON on CROSS from DEFENSE COUNSEL Koenig

K: “You had indicated on…either your initial report or something, that these were 6 cc syringes, correct?

L: “That is correct.”

K: But, in fact, they’re not 6 cc syringes?

L: That, too, is correct.

K: Did you ever correct your report?

L: I did not.

K: Even knowing that this no doubt would go to a hearing, you never corrected your report with regard to the size of the syringes, correct?

L: Correct.

K: And you also said, I think today, there was an opaque substance in here?

L: Correct.

K: And on your report it says it was clear fluid, correct?

L: Correct.

K: And opaque and clear are different, right?

L: After thinking about it, yes. It would have a light milkiness to it.

K: So these needles that are marked in here are different in size than you reported; they contain a different color substance than you testified to; and someone who had possession of them for at least two days is someone not identified in the chain of custody; is that a fair summary?

Goodell for the State: “I’m going to object. I think, again, that his testimony is not that it has a different appearance. I think he expressly testified that this is the same appearance.”

Hearing Officer Parente: “I’m going to sustain it just as to the form of the question.”

DEFENSE CROSS continues re: CHAIN OF CUSTODY:

K: You talked earlier about how you train people or gave your seminars was about the importance of the chain of custody, correct?

L: Yes

K: And that’s true in drug cases, [street] drugs as well, correct?

L: Yes

K: It’s very important to have chain of custody documentation?

L: Correct

K: That’s all the more true when you expect something to end up in a hearing like this?

L: Correct

K: It’s going to be an issue whether or not the substance or the paraphernalia has a pristine line chain of custody, correct?

L: Yes

K: If that chain of custody is broken, that could compromise the integrity of the paraphernalia?

L: Correct

K: And you train your investigators on that, correct?

L: I do

K: And Louie Gonzales knew that as well, correct?

L: He did.

K: And he was a DEA agent, I think, before he came to the Racing & Wagering Board, right?

L: I believe that’s true.

K: So knowing that – and I think you also said Louie Gonzales did have possession or custody of that bag for a period of time?

L: He did

K: And more than just in passing, he had it for, I think, a couple of days, is that right?

L: Correct

K: What I want to do is show you this now and ask you where Investigator Gonzales’ initials, name or any indication that he had it exist on the document bag?

L: It doesn’t exist on this document.

K: So that would mean this is not a pristine chain of custody bag, correct?

L: In the technical sense, correct.

If I were in that hearing room and were allowed to ask Leveson a question at that point it would be this: “So, in the technical sense means in the lawful sense, right?

image
Dutrow confers with Counsel at Schenectady hearing
Photo: Skip Dickstein, Albany Times Union


The barn search was conducted on the morning after an ESPN film had documented that Dutrow and his horses left town.

It’s difficult to know where to start regarding Leveson’s testimony: His statement that NYRA chief investigator Sid Anthony asked Leveson to perform a training exercise with two of his veteran subordinates is untrue.

I reached Anthony in Maryland on his car phone while in New York covering the Wood Memorial. He told me he no longer worked for NYRA and was out of racing altogether. He strongly hinted that he exited with some form of severance and had signed a confidentiality agreement. He had “no comment” to any of our questions, the same response he gave to NBC News’ Mike Brunker in 2014.

Leveson did not meet with NYRA investigators Klein and McDonnal before walking into Dutrow’s Aqueduct barn 10 together. Actually Klein, like MacDonnal an ex-state trooper, was never at Dutrow’s barn that day.

It also turns out that MacDonnal was summoned by Leveson, not the other way around. By the time MacDonnal arrived at Barn 10 at Aqueduct, Leveson had possession of the syringes.

MacDonnal is still employed by NYRA and would “not comment at this time,” he said by phone. “I don’t want to taint myself as a witness and I want to be able to say ‘no’ if I’m asked if I ever spoke to the press.”

However, as the Dutrow events were transpiring, he did tell NYRA employee Patti Cerda that Sid Anthony never asked Leveson to do a check of barn 10 at Aqueduct.

Cerda had a working relationship with all NYRA investigators during her tenure and considered MacDonnal a good friend. She left NYRA’s employ in February, 2010.

“The unwritten rule is if you tell the truth you can lose your job,” Cerda said in an April phone interview. “It’s set up so that it’s impossible to be honest. That’s why I could no longer be there.”

Cerda also confirmed on that call that it was Kenneth Byrd, an African American, who was one of the people with Leveson and Vasquez inside Dutrow’s barn office, not Klein as Leveson testified.

Dutrow assistant Juan Rodriguez told HRI in an April phone interview that “a black man,” Byrd, was in the office with Leveson, Vasquez and himself before MacDonnal showed up later.

“I never said that the box was in the drawer for a week, I never saw that box before,” explained Rodriguez. “The investigator went right to the desk drawer and was at the barn for less than 20 minutes.”

Dutrow told HRI that his barn has been searched four times and lasted on average about two-to-two and a half hours. The day of the barn search, Dutrow “had a full barn, 56 horses, and I had another 12 in Barn 11. Why wasn’t that barn searched?

“Leveson said he checked the tack boxes; there are six of them in my barn. And why would you put the evidence bag in a car before completing a search of the entire barn? And all this was done in about 20 minutes?”

At the point Leveson was going to explain how the barn search was conducted after finding the syringes in the office desk drawer, state counselor Goodell, who asked the original question, interrupted his own witness before he could describe how it was done.

As above, Goodell cut to the chase. “Were the results of that search negative?” “They were negative,” replied Leveson.

Many questions about his testimony remain; the description of the disparate size of the syringes and the liquid’s change in appearance were never answered with any reasonable level of credulity.

Why were chain of custody protocols so blatantly ignored by a teaching State investigator, then submitted for exhibit by a NYRA investigator who in a previous life worked on the French Connection case? How could Gonzales not know?

Defense attorneys lacked subpoena power to examine evidence to verify the box’s content for residue and fingerprints.

With the exception of Cerda, no one outside the Dutrow barn was willing to go on record. NYRA investigator Vasquez, who was “there to hold the custody bag,” no longer works for the company.

New York stewards never felt compelled to investigate the matter because “we lack licensing power,” explained NYRA steward Braulio Baeza Jr. the morning of the Wood Memorial, before volunteering, without being asked, “and neither does the Jockey Club…”

As Leveson attempted to leave Dutrow’s barn office, Rodriguez chased after him: “Wait, wait, aren’t you going to look more?”

“No, I don’t need to do anything else,” said Leveson. “That’s when I called Mr. Dutrow in Kentucky,” said the assistant trainer inside Barn 10 on the Aqueduct backstretch.





Written by John Pricci

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