Tuesday, May 22, 2018

An Open Letter to Governor Andrew Cuomo

Dear Governor Cuomo,

All New Yorkers are aware that Thoroughbred racing is not one of your favorite sports, so please allow this introduction. I’ve been a turf writer and handicapper since 1976 and won several sports-writing awards during a 17-year career at Newsday.

In fact, an investigative piece with a Newsday colleague on morning workouts was picked up by the wire services and ran on the front page of the Albany Times Union on Sunday in advance of the 1986 Saratoga race meet.

The subject I am about to broach also requires an explanation for fans and horseplayers--the most critical and paranoid of all sports audiences--because this participatory pastime is built on opinion backed by betting dollars.

This group, and the six members of the New York Gaming Commission, four of whom are your appointees, need to understand the meaning of the phrase “justice delayed is justice denied.” It is more than just a quaint notion.

Rather, the phrase is a legal maxim meaning that if legal redress is available for a party that has suffered some injury, but is not forthcoming in a timely fashion, it’s effectively the same as having no redress at all.

Indeed, it is the only means of redress whereby practitioners can adjudicate fairly when it believes that courts or agencies are acting too slowly to resolve a legal issue because the system is too complex, or the party in question lacks political favor.

It is widely accepted within the community that it is the latter predicate at work in this case.

The Gaming Commission held monthly meeting yesterday and went back on its promise it made to a citizen that his request for clemency, in light of new evidence, would be placed on the agenda for the Monday, May 21 meeting. The body reneged on that pledge. By doing so, the Gaming Commission abdicated its responsibility in this matter.

At an Administrative Hearing in 2011, Thoroughbred horse trainer, Richard E. Dutrow, had his work license revoked for a period of 10 years.

The ruling was unprecedented, unduly punitive and an example of egregiously monumental overreach by the state because the offender, believing himself innocent, had the effrontery to appeal an original 90-day suspension.

The 10-year revocation was, at minimum, nine years harsher than one meted out to a trainer who administered the illegal narcotic painkiller Darvon, or one who used an illegally manufactured synthetic opiate more potent than morphine, and a third for the use of dermorphin, aka “frog juice,” a powerful Class 1A painkiller.

In a recent open letter following the Santa Fe tragedy, you challenged the President of the United States to lead on the issue of sensible gun legislation reform in light of the 101st mass murder committed in our country this year.

So that there is no misunderstanding, we mean no equivocation between the draconian punishment of Mr. Dutrow and mass murder committed at a Texas high school. But there is a life at stake here, one deserving of a second chance.

And who better to understand the principle of second chances than the Governor who authored New York’s Pro Bono Clemency Program and, in the name of justice, granted two pardons and two commutations to four convicted criminals?

At that time, you stated: “We are taking a critical step toward a more just, fair, and compassionate New York. With this initiative, we are seeking to identify those deserving of a second chance to help ensure that clemency is a more accessible and tangible reality.”

Additionally, of course, there is a second just remedy for the New York Gaming Commission to consider, one that provides them with all the cover they need: Section 470.15 of Criminal Procedure Law:

“As a matter of discretion and in the ‘instance of justice’, discretionary power specifically includes the authority to reduce a sentence because that punishment, ‘though legal, was unduly harsh or severe’.”

I cannot fathom the Commission’s reluctance to address this issue and a body that continually has kicked this issue down the road. Why are they not meeting their $300 per diem-responsibility is beyond my reasonable understanding?

Last week, Mr. Dutrow was informed that his request for reinstatement would be on last Wednesday’s agenda in advance of yesterday’s Gaming Commission meeting. With honor and respect, sir, where is the accountability?

As a matter of redress, Mr. Dutrow filed a Letter Application on July 1, 2016 to Re-Open the Proceedings for the Limited Purpose of Modifying the Penalty Imposed, pursuant to Racing Law 9 NYCRR 4550.10(b). The letter went unanswered.

On January 20, 2017, a Supplemental Submission seeking Commutation of the Penalty to "Time Served" introduced newly discovered evidence was submitted. It, too, went unanswered.

On June 8, 2017 Dutrow’s counsel filed a motion citing additional new evidence that lead state investigator, Joel Leveson, perjured himself at the Hearing, giving false testimony involving an illegal search of Mr. Dutrow’s barn.

This latest evidence came through the auspices of the Queens District Attorney’s Office based on testimony provided by a NYRA investigator who was present, possessing direct knowledge of events that transpired during the barn search, indicating that the state investigator lied under oath.

How can all this fail to at least stir further inquiry from the New York State Gaming Commission?

Mr. Dutrow’s racing bona fides are considerable. He has started more than 7,200 horses, winning with 25% of them, including a Breeders’ Cup Classic, Kentucky Derby and Preakness. Over 60% of his starters have been tested.

American Racing Commissioners International records, dating back to 1976, show that has never been found guilty of using a banned substance. The record shows three overages for two legal therapeutic medications.

Most significantly, he never had a horse suffer a fatal breakdown at a New York track for 11 consecutive years. This unparalleled standard speaks to his horsemanship.

Under Racing Law, doesn’t the Commission have an obligation to review the matter now that Mr. Dutrow, denied a livelihood, has served more than five years of his extraordinary 10-year ban that commenced in 2013?

Further, at the Commission’s request, Mr. Dutrow paid a $50,000 fine in NOV, 2017—plus interest, subsequently returned because the Commission failed to comply with State Finance Law--made a humble public apology, with a promise to adhere to the terms of any conditional reinstatement made by officials.

Finally, Mr. Dutrow volunteered his time with no remuneration to a children’s rehabilitation organization that works with horses as a sign of good faith and contrition. Does this also not count for something?

Empirically, a petition recently circulated by one of Mr. Dutrow’s peers, Dale Romans, the leading trainer in Churchill Downs history, attracted more than 2,300 signatures from inside, and tangential to, the racing industry. That figure continues to grow.

In the interests of brevity, below are a few industry and sports notables to sign the petition in favor of reinstatement: Hall of Fame trainer Steve Asmussen, Hall of Fame jockeys Jerry Bailey, Angel Cordero Jr. and John Velazquez, and seven-time Eclipse Award winning trainer Todd Pletcher.

Among character witnesses who wrote letters of support were philanthropist William K. Warren Jr. and MLB executive Joe Torre. World renowned equine surgeon Dr. Larry Bramlage gave sworn testimony as an expert and character witness at Mr. Dutrow’s Hearing.

Prominent owners include Michael Dubb, Mike Repole and Barry K. Schwartz; racing officials Lou Raffeto Jr., Gerald Romski and Bernie Hettel are signatories. Bennett Liebman, your former Deputy Secretary for Racing and Gaming, is a supporter of reinstatement.

Prominent media members also seeking justice for Mr. Dutrow, in addition to the aforementioned Bailey, are NBC analysts Randy Moss and Donna Brothers and retired publisher Steven Crist.

Clearly, the racing community wants him back. Offered for your consideration, too, is an excerpt from a letter sent to the Racing Commission by the National Jockey’s Guild, signed by National Manager Terence Meyocks and Chairman Velazquez:

“With jockeys, safety is the greatest concern. When they get a ‘leg up’ on a horse going out to the track, they have an ambulance follow them around as they do their job, a job that puts their lives at risk each and every time they ride.

“As a trainer, we have faith that Mr. Dutrow’s ultimate concern is that of the horse, and, in turn, the well-being of the jockeys. Therefore, we, along with so many other respected owners, trainers, and industry participants, believe that Mr. Dutrow should be given a second chance.”

The relatively new appointees to the New York Gaming Commission have no exposure on this. Circumstances warrant that a special meeting be held, given the world class exposure Thoroughbred racing brings to New York State.

Doesn’t good conscience demand that the Dutrow matter be given due consideration, especially in light of new testimony indicating that a state investigator perjured himself in a State Administrative Hearing?

I know you are aware, sir, but I must inform our readership and industry stakeholders who may not know that a State Administrative Hearing does not guarantee due process and it is one in which hearsay is permitted.

Now, nearly 2,400 industry stakeholders believe that racing is better with horsemen like Mr. Dutrow on its backstretches than outside its gates. You recently demanded publicly that the President of the United States act to end the gridlock in Washington.

An important industry, providing the state with more than $2.5 billion in revenue in 2017, humbly petitions that you take action by instructing New York's Gaming Commission to accept its moral responsibility to investigate this case in light of new evidence that could lead to a just resolution and a second chance.

Administrative lethargy and the dictates of Jockey Club political machinery should no longer be allowed to stand. Thanking you in advance for your time and consideration, I remain


John Pricci, executive editor

Written by John Pricci

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