Thursday, April 12, 2018


Racing Community, Procedural Law & Cuomo Clemency Program Supports License Reinstatement for Dutrow


As a result of a grass roots movement initiated by Churchill Downs’ all-time leading trainer Dale Romans, a petition supporting the reinstatement of Rick Dutrow Jr.’s license to train Thoroughbreds has attracted 1,916 signatures in less than a fortnight.

The support this petition attracted is as unique as the 10-year revocation of Dutrow’s trainer’s license based of an overage for a legal therapeutic medication and the discovery of vials containing another permissible drug, the latter from a highly controversial search of Dutrow’s barn in November, 2010.

In a 2016 amended Notice of Motion, the New York Gaming Commission Division of Thoroughbred Racing learned that the state’s lead investigator, Joel Leveson, perjured himself on multiple occasions based on interviews conducted with three NYRA investigators by the Queens County District Attorney’s Office.

The new evidence relies heavily on the testimony of NYRA investigator John McDonnell, a distinguished New York State Police investigator for 22 years prior to working for the New York Racing Association.

McDonnell came forward to “clear his name” after reviewing Leveson’s Hearing testimony.

NYRA’s investigator stated Leveson’s testimony “was inaccurate with what happened” during the search. McDonnell believed it was a random search conducted by Leveson. Juxtaposed, Leveson’s Hearing testimony indicated the search was conducted at the direction of McDonnell. McDonnell vehemently denied that assertion.

McDonnell also told the District Attorney’s office that Leveson found the syringes in a desk draw almost immediately upon entering Dutrow's barn office. “[I] was very uncomfortable with the sudden discovery of the items." In all his years, McDonnell said, “I was never that lucky.”

By and large, the racing community wants Dutrow’s reinstatement--even if his presence results in taking money from their own pockets.

Among the notable petition signatories are natural rivals such as Todd Pletcher, Johnny Velazquez and his agent, legendary Hall of Famer Angel Cordero Jr.

Other trainers who would compete with Dutrow across the country have signed on: Brian Lynch, Jimmy Jerkens, Peter Miller, Jeremiah Englehart, Kellen Gorder and Gary Contessa, Kristen Mulhall, to name just a few.

Governor Andrew Cuomo, not known as a racing fan, very likely would favor Dutrow’s reinstatement as the author of New York’s Pro Bono Clemency Program. When granting two commutations and two pardons to four convicted criminals in 2015, Cuomo said:

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

A second remedy for Board consideration is 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’.”

DUTROW: HISTORICAL REFERENCE


At the heart of the case against a world class horseman is his penchant for not knowing when to keep their shut, and when Thoroughbred racing is embarrassed, the punishment it meters out usually results in significant overreach.

For Dutrow, the consequences were an unprecedented and disproportionate sanction that gravely damaged his life and livelihood.

Lacking both guile and a completed high school education, his audacious, naïve innocence to tell the whole truth about the physical condition of his horse six days prior to the 2008 Belmont Stakes opened a chapter in his life that would end disastrously.

In a Belmont-week press conference, Dutrow reaffirmed to the sports media, more familiar with baseball and football than horse racing, that his Triple Crown hopeful would run in the series finale without a then legal anabolic steroid. And for good reason.

image
Big Brown gets hands-on treatment from Dutrow
Photo by Corey Sipkin, New York Daily News

Noted hoof specialist Ian MacKinlay had been called in by Dutrow to treat Big Brown’s historically problematic feet, specifically to patch a quarter crack. MacKinlay insists that any horse he works on be medication free prior to the procedure.

But the mainstream media ran with the steroid angle and 36-point tabloid headlines ensued. Because of Barry Bonds and other prodigious home run hitters of the day, horse racing had become huge negative national news.

Just as the Belmont Stakes speed horses entered the homestretch in Elmont, jockey Kent Desormeaux was taking care of his troubled mount, easing Big Brown out of the race before reaching headstretch. Over 100,000 racing fans gasped at the sight in disbelief.

Fast-forward to Breeders’ Cup week two years later. Dutrow was training an extremely fast colt named Boys At Toscanova, who was co-favorite to win the Breeders’ Cup Juvenile along with the eventual 2008 juvenile champion, Uncle Mo.

On November 2, Dutrow boarded a Kentucky-bound plane with a television crew and other horses he was entering that weekend at Churchill Downs. The trip came soon after he announced to ESPN’s national audience that the entourage would soon be Louisville bound.

The next morning, Dutrow’s barn was searched by Joel Leveson, et al, and three syringes were “discovered” in Dutrow’s office desk draw.

What happened thereafter was a conspiracy of events that painted a false picture of Dutrow, one culled from incomplete and inaccurate records. Certain aspects of the search were illegal, including a broken chain of evidentiary custody.

In the end, Dutrow’s 10-years revocation a harsher than those assessed on a trainer who administered a narcotic painkiller, Darvon; another for use of an illegal, manufactured synthetic opiate more potent than morphine, and a third against a trainer who administered dermorphin, a powerful Class 1A painkiller.

At this juncture, Dutrow’s best chance for reinstatement is the evidence that might have come too late to help Dutrow at a State Administrative Hearing but significant enough for the trainer’s to file a Motion in June of 2017.

A State Administrative Hearing is one conducted by a Hearing Officer. In this process, hearsay is permitted and due process is not a requirement.

HRI acquired a copy of the DA’s report in which NYRA investigators John McDonnell, John Clyne and Denice Vasquez were interviewed. (Vasquez, who was observed entering Dutrow’s barn 40 minutes before Leveson arrived, was fired by NYRA two months later).

There were other facets to the barn search that raises questions in addition to McDonnell’s comments relative to Leveson. A routine barn search normally takes about two hours to conduct.

By all accounts, Leveson was there approximately a total of 15 minutes after first entering Dutrow’s barn unaccompanied and proceeding directly to Dutrow’s office.

None of the stalls housing 58 head were searched, nor were any of six tack boxes, which would be common procedure. Dutrow had another dozen horses housed in the next barn that was never searched.

Eventually but not long after giving testimony, Leveson resigned and spent a duration of his time afterward in his home in Panama.

Immediately after the stewards issued their 90-day suspension and no fine, American Racing Commissioner’s International insinuated itself into the process by issuing.

The intervention by the ARCI, spelled out in a series of e-mails between its chairman and that of the Kentucky Racing Commission—reprinted in our original reporting on this case in 2015--was instrumental in Dutrow’s being denied a Kentucky license.

The suspension of Dutrow’s Kentucky license was the lynchpin upon which New York built its case.

The above is a small part of the story, an onion with many noteworthy layers of malfeasance. But neither Dutrow, his attorneys, nor the racing community, are interested in re-litigating, holding anyone to account. It’s about getting a second chance.

Dutrow has served five years, two months, and counting. While harsh, the stewards considered a 90-day suspension appropriate and just. But when those findings were challenged on appeal, a three-month suspension turned into a 10-year revocation.

CONTEXT MATTERS: DUTROW’S BONA FIDES


In the amended Notice of Motion before the New York State Gaming Commission Division of Thoroughbred Racing are these certifiable facts:

• Dutrow has started over 7,200 horses in his career and won with 25% of his starters, including a Breeders’ Cup Classic, Kentucky Derby and Preakness. Over 60% of his starters have been tested.

• No horse trained by Dutrow suffered a fatal breakdown at a New York track, either racing or in training, for 11 consecutive years.

• ARCI records dating back to 1976 show that Dutrow never has been found guilty of using a banned substance. The record does shows three overages for two legal therapeutics; one for Mepivacaine and two for Clenbuterol.

• Character witnesses at time of the Hearing included MLB Executive Joe Torre, philanthropist W.K. Warren and voluntary support from long-time NYRA steward Dave Hicks, who passed away prior to an appearance as a character witness.

• Dutrow was denied an opportunity to work with layups and active horses at Frank Stronach’s Ocala Farm. Dutrow was offered a salary of $100,000 per year.

• During his suspension, Dutrow performed low-profile charity work, working with autistic children, war veterans and Alzheimer patients, through the charity “Horse Abilities.”

• Sworn testimony from Dr. Larry Bramlage, regarded as the world’s foremost equine surgeon: “I like very much to work on [Mr. Dutrow’s] horses because he recognizes problems prior to them becoming very serious…He’s one of the top handful of trainers we work with that are able to do that.

“The health of his horses are impeccable when we get them. He has never once told me that we want to do this the cheapest way or less than satisfactory way…he says “we want to do this in the best way.”

• The Administrative Hearing Officer referenced “numerous drug violations for the use of phenylbutazone in Florida.” In fact, there were seven such instances, all resulting in fines of either $250 or $500.

• As to the Hearing Officer’s claims that Dutrow showed “a consistent inability to abide by regulatory rules” by falsifying license applications in California, Kentucky and Delaware, the ARCI records he referenced are devoid of such entries with no such rulings reflecting those applications. There was, however, a 1979 instance in connection with a “temporary license.”

THE RACING COMMUNITY AND DUTROW’S REINSTATEMENT


In any competitive endeavor, especially those involving high stakes, there are feuds born out of jealousy and frustration. But make no mistake: If the issue is one of fairness, justice, and what’s best for the Thoroughbred, racetrackers unite around a cause.

What at once is shocking and gratifying is the fact they would rally behind a man whose return to the game in many cases would cost them money.

The common thread at work is a second chance for a trainer some have described as an “equine savant,” a horseman who has demonstrated that he puts his horses first.

Here are handful of signatories from anyone and everyone tethered to Thoroughbreds, be they fans, owners, trainers, jockeys, grooms, agents, breeders and media members.

The following is only a partial list, supplied by Dutrow’s counsel, of racing luminaries that have signed on, by category:

OWNERS: Chip Acerno, Clark Brewster, Paul Carlucci, Michael Casper, Michael Dubb, Eric Fein, Louis Lazzinaro, Jack Mondato, Paul Pompa, Ken Ramsey, Mike Repole, Lanston Robbins III, Vincent Scuderi, Barry K. Schwartz, Samantha Siegel, Becky Thomas, Roddy Valente, Aron Yagoda

JOCKEYS: Hall of Famer Jerry Bailey, Joe Bravo, Eric Cancel, Angel Cordero Jr., Hall of Famer Ramon Dominguez, Stuart Elliot, Tammie Fox, Manuel Franco, Abel Lezcano, Mike Luzzi, Jose Ortiz, Irad Ortiz Jr., Hall of Famer Edgar Prado, Jeremy Rose, Luis Saez, Jean-Luc Samyn, Hall of Famer Jose Santos and Velazquez

JOCKEY AGENTS:
Mike Lakow, Ron Anderson, Walter Blum, Bill Castle, Richard Depass, Ronnie Ebanks, Jimmy Riccio Jr., Michael Sellito,

VETERINARIANS: Dr. Stephen Barker, Dr. Bramlage, Michael Galvin DVM, Thomas Tobin DVM

RACING MEDIA:
Donna Brothers, Steven Crist, Ed Fountaine, Karen Johnson, Barbara Livingston, Frank Lyons, Ernie Munick, Dick Powell, Randy Moss, Anthony Stabile, Jonathan Stettin and HRI Staffers Mark Berner, Tom Jicha and John Pricci

INDUSTRY RELATED: Aaron Cohen, Jim Gallagher, Bernie Hettel, Bruce Johnstone, Drew Mollica ESQ, NYRA assistant starters (3), Rick Proctor, Dr. Thomas Qualtere, Lou Raffeto Jr., Gerald Romski, Sobhy Sonbol, and Rudy Wollendale

CONSIDERATIONS

The Governor of the State of New York, whatever the politics, knows something about justice and the dignity that goes along with second-chance opportunities.

Dutrow’s counsel stipulated in their Motion that if some form of probationary rider were attached to the reinstatement, it would be OK with them and their client; whatever it takes.

All it takes is a fair review of the circumstance of the case and consideration of new evidence unavailable in 2011.

It is just to acknowledge the overwhelming support of a highly competitive community; the quiet good works; and revisiting of the outstanding achievements of an old school horseman.

The members of the New York State Gaming Commission, none of whom were present when the politics of the old SRWB unjustly levied outlandish and disproportionate sanctions on a horseman that never was found guilty of administering illegal drugs. The next NYSGC meeting is April 23.

No trainer I know or ever heard of can boast of a record for soundness over a virtually unsustainable 11-year period. That statistic alone is worthy of a second chance. As cited above, it’s all but certain that the most powerful person in New York State would agree.

Link to petition: (https://chn.ge/2I3vKyD)

Written by John Pricci

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