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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Thursday, June 25, 2015

Business As Usual: Appellate Court Denies Dutrow Appeal

HALLANDALE BEACH, FL., June 25, 2015—On June 24 the U.S. Court of Appeals for the Second Circuit dismissed trainer Rick Dutrow’s appeal of a 10-year suspension based on his claim that he was denied due process in a 2011 New York State administrative hearing.

This ruling in no way qualifies as an upset, of course. It’s simply how the process works: State’s conduct administrative hearings to adjudicate cases de jure in the guise of acting in the public interest then deny constitutional guarantees during that process.

These hearings are de facto kangaroo courts in which agenda rules. Strict rules of evidence do not apply, hearsay is permitted, and because of racing’s patchwork quilt of drug testing and regulation the results most often are capricious and arbitrary.

Even though the burden of proof is on the state, the presumption in these cases is that the client is guilty. Resultantly, appeals courts are loathe to reverse the findings of administrative hearings, reversals somehow being a tacit admission that the state process was flawed at best or, in Dutrow’s case, unconstitutional at its core.

[See HRI’s 3-part Special Report series posted on May 29, May 30, and June 9, 2015]

In 2011, Dutrow’s training license was revoked for 10 years by the New York State Racing and Wagering Board, the present New York State Gaming Commission, following three days of testimony before a state appointed administrative hearing officer.

Dutrow’s lawyers argued in State Supreme Court that his rights were violated because a conflict of interest involving John Sabini, simultaneously Chairman of the NYSRWB and a board member of Association of Racing Commissioners International, making him prosecutor and judge.

Additionally, they argued that the previous 90-day suspensions that became a 10-year death sentence was antithetical to case law on rightful appeals, and that regulatory statutes and standards governing the process were constitutionally vague.

Because this was a hearing and not a court of law, Dutrow’s attorney’s lacked subpoena power. Despite repeated attempts, they were stonewalled by Schenectady District Attorney Philip Mueller each time they requested a copy of a report sent to him by Queens District Attorney Jim Leander.

Leander’s investigation concluded not only was Dutrow innocent of the charges relating to a drug positive and alleged discovery of three syringes inside his Aqueduct barn office but that the actions taken by some state officials were “actionable.”

Statutes that apply to the appeals process invariably change but Dutrow’s attorneys could not introduce new evidence that state investigator Joel Leveson, who found the syringes as the result of a “barn search” lied under oath.

None of above includes a breach in the chain of custody of several days, false testimony as to who accompanied him when the syringes were discovered, nor the illegal search Leveson conducted in the car of Dutrow assistant trainer Ivan Rodriguez.

Ultimately, the Appellate Division stopped short of specifying whether or not Sabini’s alleged conflict of interest tainted the administrative process, ruling only that Dutrow had a full and fair opportunity to litigate the issue.

Dutrow defense counsel Michael Koenig, partner in the Albany Law Firm Hinckley Allen, conducted the Leveson cross-examination that exposed the fraudulent testimony of the now retired state investigator, had this comment when questioned about the Appellate Division’s appeal dismissal:

“In my 22 years of practicing law, I never saw a client get screwed more than Rick Dutrow in this case. The administrative hearing process conducted by the State Racing and Wagering Board was a travesty of justice. While I have faith in our judicial system, the Dutrow case has shaken, and will continue to shake, that faith,” Koenig said by phone Thursday.

“What Sabini and his cohorts did was despicable. Every lawyer has a case that will stay with him until the day he stops practicing law, and that’s the Dutrow case. It was incumbent on state officials to not allow that to happen. What happened was and is unconscionable.”

What many industry stakeholders still fail to understand is how the administrative-hearing process varies widely from state to state and how the game is rigged against horsemen because of extremely dubious test results and the “absolute insurers rule” that presumes guilt based on a deeply flawed process.

States assume no responsibility for inadequate testing procedures as they either continue to cut funding to state labs or turn over the responsibility for testing over to the lowest out-of-state bidder.

It’s unfathomable how states that sanction parimutuel wagering and benefit financially from it refuse to put any of their own skin in the game. In many cases, betting dollars pay the salaries of officials charged with safeguarding the public interest.

New York is not the only state that fails to recognize due process and the presumption of innocence. In West Virginia in 2013, trainer Chris Grove was fined and suspended six months for “spiking” a horse when all the principals involved in the case could not prove Grove guilty, relying instead on the absolute insurers rule

What should the industry do in cases when the evidence says innocent but the absolute insurers rule demands punishment? Justice never will be served when regulators fail to fulfill their responsibilities, as was the case in West Virginia.

Last year, the Blood-Horse published online commentary by prominent owner and attorney Maggi Moss entitled “When Regulation Runs Amok”.

In it, Moss cited two trainers who signed sworn statements that they used illegal drugs yet were allowed to continue racing, while other trainers in Indiana accepted fines for race-day overages rather than roll the appeals dice that almost always results in harsher penalties.

If there was any good news this week it’s the fact that the industry is slowly but deliberately moving closer to regulatory oversight by the U. S. Anti-Doping Agency.

On the same day the Appellate Court dismissed Dutrow’s appeal, the Kentucky Thoroughbred Association and the Kentucky Thoroughbred Owners and Breeders Association joined the Coalition for Horse Racing Integrity, a group that also includes the Jockey Club; the Water, Hay and Oats Alliance; Breeders’ Cup; the Humane Society of the United States and the Humane Society Veterinary Medicine Association.

All who are tethered to the Thoroughbred will never be righteous until every segment of the industry joins a national effort calling for impartial regulation overseen by a proven, independent agency committed to transparent fairness on and off the racetrack.

Then and only then will there be justice for all, including Rick Dutrow.

Written by John Pricci

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