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

Comments (6)


Sunday, May 20, 2018

Derby? check; Preakness? check; Belmont???

Since before the 144th running of the Kentucky Derby, trainer Bob Baffert stressed how important a sharp break away from the starting gate would be to the future success his chestnut beast, Justify.

Baffert repeated the mantra prior to Preakness 143. He knew before the Derby he had the best horse and just wanted to have an uncompromised opportunity to prove it. And the consensus of his rivals agreed with Baffert’s assessment.

Justify is a superior talent; He was--and still remains--the horse they must all beat three weeks hence.

In the lead-up to Preakness, most analysts agreed that the Classics’ second leg rated as a two-horse race on paper. Justify v Good Magic: “The Rematch.”

Justify, extremely light on his feet for such a big, powerfully built colt, showed that he’s a superior wet-track performer, getting away from the barrier cleanly and quickly once again.

So comfortable was Justify that he probably would have loved to join those Preakness infield revelers who cheerfully chose to dive head-first, belly-flopping their way across mud that had been building for five long days.

As for Justify’s main rival, his fate was sealed at the break, too. Good Magic broke sharply and indeed gained an advantage in the early going. But in his case, that good news also turned out to be the bad news.

The sharp break virtually eliminated Good Magic's chance to avenge his Derby defeat. When no one else attempted to go for the lead, Jose Ortiz, who promised to turn the Preakness into a match race if need be “because you can’t give Justify an inch,” did just that.

It was exactly the wrong tactic. Battling head to head from the inside under match-race conditions most often is a prescription for defeat--the inside horse invariable feels more pressure when an outside rival makes it a speed battle.

This is not to suggest that Good Magic would have won the match within the Preakness had he drawn outside in the head-to-head matchup. Justify is the superior horse who will win a match race with Good Magic every time.

In demonstrating the class needed to withstand two later challenges, Justify remained undefeated and gave Baffert a chance at his second sweep in three years and for his horse to join Seattle Slew in the pantheon of undefeated Triple Crown champions.

I don’t know if defending Eclipse champion Ortiz could have made adjustments as the race was unfolding. His only option might have been to wrangle Good Magic back sharply, breaking stride and losing momentum over a track that played kindly to speed all afternoon, albeit mostly sprinting.

Whatever the reason, Good Magic was out if his comfort zone and Justify was not, playing his usual game as pace presser, again emerging with no mud on his face, just like in the Derby, a phenomenal horse showing his superiority.

“He’s the best 3-year-old I’ve ever ridden,” Mike Smith said. “I’ve been blessed to ride some great older horses but, man, at such a young age and having raced only five times, to do what he did is unheard of.”

Said Baffert: “Everyone came and saw a great horse race. Good Magic, I tip my hat to him. He made us really work. He’s a really good horse … It was almost like Sunday Silence and Easy Goer…”

Or like another Classics speed horse, Affirmed, won the Preakness after being stalked by Alydar throughout in 1989, or the aforementioned Seattle Slew, forced to match-race Maryland speedster Cormorant into defeat in 1977.

But Baffert was anxious. “[Good Magic] was going to make us earn it and I wasn’t liking it down the backside. Justify had to gut it out. It’s good for these horses. It’s the first time he’s really had to lay it down, and he came through.

“These great horses, they just define themselves when they get in that situation and today he showed not only is he a big, beautiful, gorgeous horse, he is all racehorse, and that’s what it took to win today.”

Meanwhile, Good Magic's trainer, Chad Brown, was unhappy given the Preakness speed scenario. "I didn't want the horse on the lead,” Brown said.

"The post didn't help. Unfortunately, our horse took the worst of it being on the fence and getting pressed the whole way. He's not a horse that runs on the lead, so I'm pretty disappointed…

“He didn't give up. I know this horse very well and he's not a horse to be on the lead. No way. You guys asked me all week what I wanted to do: sit off the pace and follow Justify around. And he was following us.”

And following from very close range. Indeed, Justify seemed to hold the slightest advantage while outside all the way around. How many horses racing on the inside in this circumstances win? One, two, out of 10?

Good Magic had 2-1/2 lengths to make up from the Derby and did manage to cut the losing margin down by more than half, defeated by a length: He finished fourth, beaten by a half-length and two necks for all of it.

But Good Magic was beaten on the square by a better horse. However, that doesn’t mean he shouldn’t try him again, only this time while racing on his terms; a stalker, not a speed horse. Trips and dynamics dictate outcomes.

I had suggested to Brown that Good Magic’s best chance to reverse the Derby decision was to perhaps surprise Justify with a bold mid-race move to command, taking Justify out of his comfort zone. Perhaps next time.

It probably would not have altered the result but it might have. The one certainty is that he needs to try something new instead of chasing from close range or dueling. And the two never had met on a fast track, so there’s that.

Good Magic will not run in the Belmont but likely neither will Quip who never had a chance to show what he could do in his first race on a wet track.

But what about Audible? Will Winstar, et al, give Todd Pletcher the green light to run him in the Belmont against one of their own, a Triple Crown aspirant? Pletcher will not be on the sidelines; Derby wide-tripper Vino Rosso is scheduled to run.

At the moment, Bravazo and Tenfold are expected to soldier on from the Preakness; Lone Sailor’s schedule is undecided. Brown said before the Preakness that, win or lose, there would be no Belmont for the juvenile champ.

The “Test of the Champion” is scheduled to attract Derby participant Hofburg, Peter Pan winner Blended Citizen, European sensation Gronkowski, along with “possible” at this writing, including Audible, Free Drop Billy, good Derby fifth My Boy Jack and Solomini. There will be more in advance of Belmont 150, so stay tuned.

New York, racing biggest equine circus will be coming to town in three weeks. Start spreading the news.

Written by John Pricci

Comments (8)


Monday, May 14, 2018

A Time for Mercy and Second Chances

It’s axiomatic that times have changed and not for the better. More than at any time in our history, acrimony and discord are the order of the day. Resultantly, recidivism is beating re-assimilation to the finish line in too many instances.

New York State’s #1 citizen, Gov. Andrew Cuomo, recognizing this and believing in the concept of justice augmented by enlightened mercy and second chances, created New York’s Pro Bono Clemency Program.

In support of that philosophy three years ago, Cuomo granted two pardons and two commutations to four convicted criminals who would later turn their lives around and become contributing members of society and the public good.

In this spirit, there are an overarching number of stakeholders in the horse racing community who wish to see the New York Gaming Commission show mercy to one of racing’s own, one who’s happiest when using his unique skills to tend to the animals in his care.

If not for his outstanding ability to provide watchfulness and caution in care of his horses, Richard E. Dutrow would have no life at all. And after more than five years in exile, he wouldn’t want it any other way.

At this posting, 2,154 members of the racing community have agreed by signing a petition introduced by Churchill Downs’ all-time leading trainer, Dale Romans, in support of Dutrow’s reinstatement.

Racing officials, owners, jockeys, fellow trainers and luminaries from the world of medicine, professional sports and business, believe Dutrow is worthy of a second chance.

His reinstatement on the backstretch of America’s racetracks, principally in New York, surely would take money out of their pockets but they nonetheless remain convinced that there is a higher principle at stake in this case.

When the Governor instituted his Clemency Program, he 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.”

Cuomo recognizes the importance of forgiveness and mercy, especially in scenarios like this one in which a severe, unprecedented punishment was meted out.

And this was in advance of new evidentiary findings which showed that perjured testimony was made against him in an Administrative Hearing that took place more than five years ago.

Despite this discovery, neither Dutrow nor his counsel wish to relitigate the case. What is done is done. The time has come for tempered mercy and for moving on.

Dutrow has promised to submit himself to any manner of inspection deemed necessary by racing or government officials or both. There is nothing to hide here.

In five years on the sidelines, Dutrow has had time to reflect on his life, his inability to filter his words or how much those words have embarrassed the industry he loves.

To atone for that, Dutrow performed good works in service to horses and people. It became part of a personal reformation. By any measure, they were nothing less than acts of contrition.

In addition to the Clemency Program, there is a second remedy for the Gaming Commission to consider: 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’s 10-year revocation was harsher than those assessed one trainer who administered a narcotic painkiller, Darvon; a second on one who used an illegal, manufactured synthetic opiate--more potent than morphine—and a third who administered dermorphin, a powerful Class 1A painkiller.

Beyond the realm of politics in this charged atmosphere, showing mercy and clemency in this case would be just, fair, righteous; a truly Christian thing to do.

The petition itself was as unique as a 10-year revocation based of an overage for a legal therapeutic medication and the controversial discovery of vials containing another permissible drug in Dutrow’s desk draw in November, 2010.

In a recent, detailed report, Community, Law, Clemency Support Dutrow.docx, we offered a substantial list of prominent horsemen and media who support Dutrow’s reinstatement:

Steve Asmussen, Angel Cordero Jr., Jimmy Jerkens, Peter Miller, Jose and Irad Ortiz Jr., Todd Pletcher, Johnny Velazquez. The list goes on and on.

Industry titan and philanthropist William K. Warren Jr. is among Dutrow’s supporters, as is MLB executive Joe Torre, world-renown equine surgeon Dr. Larry Bramlage, Stephen Barker and Thomas Tobin, both DVMs. Former NYRA steward, the late Dave Hicks loaned his support. All were character witnesses.

Successful owners surely recognize top horsemanship: Michael Dubb, Paul Pompa, Ken Ramsey, Mike Repole, Barry K. Schwartz, Samantha Siegel, and Roddy Valente. All are household names within the industry.

And media plays a role, too, among them Hall of Fame Jockey Jerry Bailey, Donna Brothers, Steven Crist, Barbara Livingston, Frank Lyons, Randy Moss and the entire HRI staff.

And finally come current and former racing officials: Jim Gallagher, Bernie Hettel, Bruce Johnstone, Lou Raffeto Jr. and Gerald Romski. All are in favor of reinstatement.

Significantly, Bennett Liebman, retired appointee of Gov. Cuomo to the post of Gaming Commission Deputy Secretary, is supporting reinstatement. Liebman recently returned to Albany Law School as Government Lawyer-in-Residence.

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 Dutrow never has been found guilty of using a banned substance. The record shows three overages for two legal therapeutic meds.

Empirically, though, there is one statistic that has no known equivocation: No horse trained by Dutrow suffered a fatal breakdown at a New York track, either racing or in training, for 11 consecutive years.

But of all the endorsements Dutrow has received, one that comes from outside the sphere of racing, might be more meaningful than all the rest, supplying added context and badly needed closure:

From an email sent on letterhead to the New York Gaming Commission dated April 20, 2018:

“Dear Commissioners:

“I am writing to you on behalf of our organization HorseAbility. I do so to provide you with a brief background of Rick Dutrow’s work interacting with retired race horses and with individuals with special needs.

“As you may already know, Rick came to us in 2015. He did so, unsolicited, to help us better utilize our horse population in particular to our work with children.

“It was evident from the first visit that he truly has a special touch and a way with the horses. For our clients this turned out to be a wonderful adventure that led to real bonding with the animals.

“I understand that you are considering whether to let Rick return to his profession of training race horses in New York. For whatever it is worth, we here at HorseAbility wholeheartedly support his return.

“I can only say from our experience with him that he will be a great asset to the industry and a boost to the public perception that great horsemanship and love for the animal is what racing should be all about.

Katie McGowan, Horse Ability founder/executive director”

The New York Gaming Commission will soon conduct its monthly meeting. It is hoped that the Rick Dutrow case will be on the agenda and that the Commissioners will consider the will of thousands of industry stakeholders.

A training savant needs this panel to give this matter due consideration, please. To survive, a good man needs his work and a second chance.

Written by John Pricci

Comments (11)


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