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The Conscience of Thoroughbred Racing

REWIND: A REPRINT OF HRI’s 2015 EXCLUSIVE SERIES ON THE FRAMING OF TRAINER RICK DUTROW

Twelve years ago, an undefeated, seemingly invincible three year old returned to New York seeking to achieve the kind of immortality that only a Triple Crown sweep can bestow.

But instead of becoming the sport’s 12th Triple Crown winner and only the second to run the Thoroughbred gauntlet while undefeated, Big Brown was eased before he reached the Belmont Park homestretch.

For Big Brown, the troubles he encountered in the 2008 Belmont Stakes began at the start of the race. It ended with a performance that was a pivotal factor leading to the revocation of his trainer’s license for 10 years.

Rick Dutrow had his livelihood stolen from him at a hearing governed by New York State’s Administrative Procedure Act. This type of hearing is conducted as any trial would, with two notable exceptions:

There is no presumption of innocence, and no due process.

Big Brown’s star-crossed Belmont began as a 2007 juvenile when he suffered a foot abscess, one in each hoof, albeit not concurrently, but resulting in wall separations.

Dutrow’s problems began the Monday of Belmont week in 2008 when he told the national media that his colt would run in the race without the anabolic steroid, Winstrol. Steroids were legal at that time.

The steroid revelation shocked almost everyone in attendance, racing and non-racing media alike. I know because I was there.

Winstrol, and anabolic steroids in general, does have therapeutic uses. It can help brighten a dull coat, stimulate appetite and increase awareness. It puts the Thoroughbred more in sync with its life’s purpose; to run in races.

But now Dutrow was in the midst of a dilemma: Either aggressively pursue the Triple Crown, or do the right thing by Big Brown. Ultimately, he decided that the colt’s present and future health was the priority.

Big Brown won the second leg of the series with one of the more dominating performances in Preakness history–after Winstrol had been withdrawn from his treatment program, a little known factoid.

Unfortunately, however, his foot issues resurfaced. He came out of the Preakness fine but after his first post-race gallop and following four days of stall walking and jogging, Dutrow discovered a quarter-crack.

Noted hoof specialist Ian MacKinlay who, along with Tom Curl, does all the foot work on Dutrow’s horses, was called in to patch the quarter crack. Both farriers insist that any horse they work on must have all medication withdrawn, including Winstrol, during that process.

While not as painful as a wall separation–a condition Dutrow carefully managed from the time Big Brown entered his barn in September of his juvenile year–a quarter crack requires the same cautious approach. And after five or six days of treatment, Big Brown was good to go.

But midway on the far turn over a sun-baked surface on a very hot June afternoon, Hall of Fame jockey Kent Desormeaux stopped urging his mount, fearing something was amiss. Big Brown’s quest ended ignominiously and with it the beginning of Dutrow’s slide into oblivion.

Big Brown’s Belmont came at a time when the sport was suffering through a series of highly visible fatalities: Barbaro succumbed to colic following his breakdown in the 2006 Preakness; the filly Eight Belles, place finisher in Big Brown’s Derby, collapsed after the finish line and euthanized minutes later.

In the run-up to the Belmont, the national press ran with the steroid angle. Big Brown’s dismal effort was perceived as a huge embarrassment for a sport already under intense scrutiny. And somehow it was all Dutrow’s fault.

The trainer’s bad boy reputation and numerous infractions set the stage for what followed. His series of suspensions, in many cases harsher than the offenses justified, were largely the kind whereby trainers ordinarily get a reprimand and a warning from the stewards. Not in Dutrow’s case.

It was widely reported at the time that he received 72 lifetime rulings. After searching all accessible records, we found 56 dating back to 1980 in the RCI database, six more in the New York Gaming Commission databank which was launched in 2009.

Two of 62 rulings were for illegal substances: Mepivacaine, detected in Farmer Jake, a show finisher in a six-horse race in 2003, and Butorphanol in Fastus Cactus, in 2010. The latter positive played a significant role in the Dutrow revocation. It remains a highly controversial finding.

The 60 remaining rulings spanned from personal offtrack transgressions of youth to citations and fines for Lasix and Phenylbutazone overages.

Additionally, there were administrative offenses: Lack of foal papers on file; horses reporting late to the paddock, and the vague “failing to tend to business in a proper manner” penalties.

Butorphanol is a narcotic analgesic agent used to treat superficial and visceral pain in horses. New York State drug-testing lab director Dr. George Maylin testified that the detection of Butorphanol in Fastus Cactus’ urine indicated it had been administered within 96 hours of the race, prohibited by rule.

Maylin also stated at the time that, to the best of his recollection, Dutrow was the only trainer who has ever had a horse test positive for Butorphanol in urine during his lengthy tenure as New York’s director of equine blood testing.

Dr. Stephen Barker, Director of the Equine Medication Surveillance Laboratory in Louisiana who typically testifies for prosecutors, this time was called as an expert witness for the defense.

At the hearing, and in a sworn affidavit, Barker methodically debunked Maylin’s findings, conclusions, and New York’s sub-standard testing procedures re: positive findings. Excerpts from the Barker affidavit:

“I viewed and listened to the testimony of the state’s witness, Dr. George Maylin…At issue was the finding of between 4 and 5 nanograms of the therapeutic analgesic Butorphanol in the urine of the horse Fastus Cactus…Blood testing had failed to find any detectable amount…

“The urine result was obtained by methodology that was not intended for quantification. Thus…the actual amount present is uncertain…Dr. Maylin did not demonstrate by document or testimony that withdrawal time was tied to any specific dose, route, or treatment regimen…

“With no description of these studies offered as to number of horses, doses used, route(s) of administration, time points collected, technology used for detection, etc., we have no evidence that his determinations met any accepted standard of scientific inquiry or were properly performed or formulated…

“The scientific data published at the time showed that the effects of Butorphanol last only up to 6 hours…Its absence in the blood and very low concentration in urine was proof, to a scientific certainty, that the horse was not effected [sic] by its mere presence and that [Maylin’s] findings were pharmacologically irrelevant…

“New evidence [Dr. H.K. Kynch and colleagues in the Journal of Veterinary Pharmacology and Therapeutics, published in 2012] brings into question Dr. Maylin’s entire testimony and the manner in which the Butorphanol 96-hour withdrawal time was devised, implemented and enforced…

“Given this additional evidence, it is clear that persons administering Butorphanol at 96 or even 120 hours prior to a race are subject to being called positive and prosecuted in the State of New York…

“Dr. Maylin’s studies, to the extent they may exist, either gave different results, were less sensitive, did not examine sufficient numbers of horses, or failed in some other way to provide an accurate determination of what the withdrawal time should be so as to prevent positives from being called on otherwise innocent people…

“As the data show, New York should have implemented a longer withdrawal time if their intent was not to permit any detectable level to be present at the time of collection and analysis.

“The record created by Dr. Maylin in his testimony and the data from this most recent study are in obvious conflict…The time this case was brought has been arbitrary and capricious, wherein even the use of the drug as recommended can lead to a positive call.

“Under these guidelines, Mr. Dutrow’s positive would never have been prosecuted and should now–based on the Kynch et al study and the projected change in New York policy—be dismissed.”

Dr. Maylin told NBC News in a 2014 interview that he stands by his testimony owing to wiggle room around the fact that the statute governing post-race samples is so vague it does not specify what methodology to use when searching for illicit drug use, as cited in Section 902, Article 9 of Racing, Pari-Mutuel Wagering and Breeding Law.

However, the racing officials who decided the case, State Racing & Wagering Board Chairman John Sabini and Commissioners Daniel Hogan and Charles Diamond, sided with Maylin and found Dutrow guilty.

[Ed. Note: A Butorphanol study conducted on horses by the highly respected testing laboratory at University of California-Davis found that traces of the drug lasted for 10 days in 30% of the horses tested]

The final element of the SRWB case was the discovery of three syringes in Dutrow’s Aqueduct barn office alleged to have contained Rompun, a.k.a xylazine, a muscle-relaxing agent.

To date, Dutrow has served seven years of an unprecedented 10-year ban despite passing a lie detector test administered by William E. Kelly of the National Polygraph Association by answering “no” to all the following questions:

 “Prior to the Aqueduct race on November 20, 2010, did you know that Fastus Cactus received Butorphanol?”

 “Did you direct anyone to inject Fastus Cactus with Butorphanol before the race?”

 “Prior to their discovery on November 3, 2010, were you aware of the three syringes in your desk?”

 “Have you ever used any equipment for hypodermic injection, including syringes with needles?”

In a letter to then Dutrow attorney Gerard Romski, Kelly wrote: “It is the opinion of this polygrapher that based on the polygraph chart, no deception was indicated when Mr. Dutrow answered these questions.”

Results from lie detector tests are inadmissible in court, of course, but this was not a court of law. Indeed, it was far from that.

The hearing that took place was based on a pattern of deception and backdoor political machinations by high ranking racing officials in Kentucky and New York.

Worse, the case involves Association of Racing Commissioners International President Ed Martin who insinuated himself into state process.

In a FEB 17, 2011 letter to Gail Pronti, Secretary to the Board of the SRWB, written on RCI stationery, Martin wrote in part:

“…I formally request the Board to commence a proceeding and issue a notice to show cause as to why [Dutrow’s license] should not be revoked given what appears to be a lifetime pattern of disregard for the rules of racing.

“…In considering Mr. Dutrow’s suitability to continue his participation in racing, the Board is urged to take into account his adherence to rules in all jurisdictions he participated in…” On the same day, RCI issued a press release to that effect.

The following day, Lisa Underwood, Executive Director of the Kentucky Horse Racing Commission, sent an email to RCI Chairman Willie Koester, copying Sabini and former RCI Chairman Daniel Hartman, questioning whether Martin’s actions “were authorized by any directors of the executive board?”

“I think it was totally inappropriate for Ed [Martin] to send the letter and issue a release,” she continued. “I would be furious if he ever interfered with a Kentucky matter.” As it turned out, it was only the beginning of Martin’s involvement in the Dutrow inquiry.

Three days later, on FEB 21, Koester responded to the Underwood email: “I talked to Ed and he said he would never issue a press release without the approval of the parties involved.”

Underwood accepted the answer without further question.

The pattern of deception by regulators continued a year later as California Chrome was about to begin his Triple Crown quest. In an investigative news story by Mike Brunker of NBC News, Jeremiah Byrne, representing ARCI in the Dutrow lawsuit, issued this statement:

“Throughout all the pleadings that Dutrow has filed, he has never denied that he has a history of cheating. Also, ARCI only gave information to the New York Racing Commission, and it was the racing commission that acted against him.”

To the contrary, Dutrow always affirmed wrongdoings when it came to his personal life, therapeutic drug overages, and administrative infractions, but never once did he admit to cheating.

“I never cheated to win a race,” Dutrow answered every time he was asked.

A continuing email trail showed that Martin’s agency was instrumental in denying Dutrow a training license in the Commonwealth of Kentucky, disproving Byrne’s statement that ARCI gave information only to the New York Racing Commission.

The denial of Dutrow’s Kentucky license was another building block upon which the SWRB built its case, connecting the Martin letter to Pronti that urged New York regulators to “take into account [Dutrow’s] adherence to the rules in all jurisdictions he has participated in,” etc. , etc.

At the hearing, Defense Counsel Michael Koenig summarized how the SRWB 10-year ban ultimately evolved: “The board never sought to revoke Mr. Dutrow’s license – not in November – not in December – not in January and not in February.

“It was only after Mr. Dutrow indicated he would appeal the February 16 suspensions that the board sought revocation…This is precisely the type of realistic likelihood of vindictiveness the law prohibits…

“One key case on this is Avery Richter [71, 86nd 500, third department case law]: ‘If an individual has a right [to appeal], a meaningful right cannot exist if, when exercised, it results in a heightened punishment…an affront to, and a violation of due process’.”

Defense counsel also explained that Racing & Wagering Board Chairman Sabini, by simultaneously serving on the Board of Directors, Executive Committee, and as chairperson of the board-elect of ARCI, he effectively acted as judge, jury and executioner in this case.

Additional testimony showed that state investigator Joel Leveson gave conflicting testimony regarding his own actions the day a highly unusual barn search, lasting only 10 minutes, was conducted under a false premise. There also was an unexplained two-day break in the chain of evidence.

During this process, defense counsel lacked subpoena power. They could not examine evidence or review an account of actions taken by Queens District Attorney Jim Leander, who sent a copy of his findings to Schenectady District Attorney Philip Mueller.

Leander later told Dutrow his investigation found something that Dutrow’s lawyers “could act on.” [Ed. Note: the Queens County District Attorney as of JAN 6, 2020 is Melinda Katz].

Under New York’s Administrative Procedure Act guidelines, strict rules of evidence do not apply and hearsay is permitted. Of greater import, “the burden of proof is on the board,” according to Hearing Officer Clemente J. Parente’s opening instructions.

If New York’s Racing & Wagering Board was able to deny Dutrow his rights as a citizen without satisfying the necessary burden of proof, it can do the same to any horseman at any time.

This case extends beyond whatever Dutrow is alleged to have done. It affects every backstretch worker licensed by the state of New York and, presumably, elsewhere.

In advance of further testimony, this is a sworn declaration from Dr. Larry Bramlage, regarded as one of the world’s foremost equine surgeons who, among other duties, has served as veterinarian-in-residence on nationally televised broadcasts of racing’s biggest events:

On Direct from Defense Counsel: “The only capacity I’ve known Rick is our professional relationship…He sends us horses for examination when he suspects there is a problem…

“…I very much like to work on his horses because he recognizes problems prior to their becoming very serious for the horse. He’s one of the top handful of trainers that we work for that’s able to do that…

“Interestingly, not all prominent trainers are able to recognize the problems and respond to them as quickly as he does…

“The health of his horses are impeccable when we get them. One of the reasons I like working for Rick is that his problems are recognized early and, therefore, we have a chance to save the quality and longevity of the horse…”

“He’s never once told me that we want to do this a cheaper way or a less satisfactory way…he says ‘we want to do this in the best way’…

“So it’s a pleasure to work for him because he’s very much willing to do the right thing for the horse. He’s always done what we recommended as the highest quality treatment…”

There was no cross examination from state counsel and no questions for Bramlage from the Hearing Officer, who thanked him for his time.

Added context: During the hearing, state counsel made an issue of Fastus Cactus big class drop, the inference being the 5-year-old gelding was somehow infirm. Dutrow was asked why the dropdown: “Because the owner told me to put him in that race,” a $14,000 claiming race.

Fastus Cactus won that race November 20 and was claimed by Naipaul Chatterpaul. Fastus Cactus raced five times for his new connections, from date of claim to March 5. During that time he won on the raise to $20,000 less than two weeks later, finished third for $60,000 the following start and four months after that finished second in the Grade 3 Tom Fool.

Chatterpaul obviously had made a good claim. On July 8, Fastus Cactus finished sixth on a sloppy Belmont track and lost the horse via claim to trainer Bruce Brown for $25,000.

Dutrow had run Fastus Cactus in seven races after claiming him, winning four.

According to the best available records and recollections of veteran racing media dating back to Dutrow’s last day as a trainer, January 17, 2013, and confirmed by NYRA’s attending veterinarian, no horse trained by Dutrow suffered a catastrophic breakdown at a NYRA track, racing or training, for 11 consecutive years.

PART II: The role Kentucky’s license denial played in the New York ban; testimony from the state investigator who found the syringes in Dutrow’s office desk draw and how the “crime” of appealing two questionable rulings led to a draconian 10-year license revocation:

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 on a visit to his Long Island home in April.

At the 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 influence from outside sources, the Kentucky Racing Commission denied Dutrow a license on the ‘wrong box’ technicality.

Between that meeting and license denial, Amen Hallelujah was entered by Dutrow, his name listed on the official track program. When the fillies began their parade postward, 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 and 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, time-stamped 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 came 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, trainers normally are afforded the courtesy of a phone call saying 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.

On April 8 at 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.”

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

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

At 12:06 p.m. Rick Goodell of the New York State Racing & Wagering Board, later counsel for the State at Dutrow’s administrative 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”

On 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.”

At 3:24 p.m., Ed Martin, at [email protected], 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 be no match for New York’s power-laden Racing & Wagering Board.

The following shows how the barn search was conducted, culled from administrative hearing sworn testimony and subsequent interviews, including 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 workers 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 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 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-gauge 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.

***

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

Where does one start regarding Leveson’s testimony? Leveson’s statement that NYRA chief investigator Sid Anthony asked him to perform a training exercise with two veteran subordinates is untrue.

I reached Anthony in Maryland on his car phone. Anthony said he no longer worked for NYRA, was out of racing altogether and strongly hinted he exited with some form of severance and had signed a confidentiality agreement.

He had “no comment” to any of our questions, the same responses he gave to NBC News’ Mike Brunker in 2014.

Leveson did not meet with NYRA investigators Klein and McDonnal before they walked into Dutrow’s Aqueduct barn 10 together. Klein, like MacDonnal an ex-state trooper, never went Dutrow’s barn in order to investigate.

In fact, MacDonnal was summoned by Leveson, not the other way around. And before MacDonnal arrived at Barn 10, Leveson already had possession of the syringes.

MacDonnal [was] 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 be able to say ‘no’ if I’m asked if I ever spoke to the press.”

[Ed. Note: After his retirement, MacDonnal testified under oath stating that Leveson lied at the administrative hearing. However, as the Dutrow events were transpiring, MacDonnal told NYRA’s Cerda that Sid Anthony never asked Leveson to do a check of Dutrow’s barn.

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 before Dutrow’s troubles surfaced.

“The unwritten rule is if you tell the truth you can lose your job,” she said in a 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 with Leveson inside Dutrow’s barn office and not Klein, as Leveson testified.

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

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

Dutrow told HRI that his barn had been searched four times in the past and the process lasted about two or two-and-a-half hours. The day of the 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, as Leveson was going to explain how the barn search was conducted after finding the syringes, state counselor Goodell, who asked the original question, interrupted his own witness before describing how it was done.

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

Many questions about Leveson’s testimony remain; the description of the disparate size of the syringes and the liquid’s change in appearance were never answered with any reasonable 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 what to do?

Defense attorneys lacked subpoena power to examine forensic evidence and were unable 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,” left the company not long after the incident.

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 2015 Wood Memorial, before volunteering, without prompting, “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.

© HorseRaceInsider.com 2015-2020 edited for brevity and context

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