NY Gaming Commission explains rejection of Dutrow appeal: Daily Racing Form 8/8/18

By: Matt Hegarty

SARATOGA SPRINGS, N.Y. – An appeal by the trainer Richard Dutrow to the New York Gaming Commission seeking the reopening of the case that led to his 10-year ban in 2011 was rejected in large part because the trainer did not present any new evidence that would challenge his admission of culpability in the incidents cited in the penalty, according to a ruling endorsed by the commission on Wednesday.

The 16-page ruling provides details into the thinking behind the six members of the gambling commission when they voted in closed session on July 16 to reject the appeal by a 4-2 vote. The result of the vote was announced at the close of a meeting of the commission that day without explanation or comment by any of the commissioners.

The ruling states that as part of the appeal, Dutrow’s attorneys submitted sworn testimony collected in 2013 from a New York Racing Association investigator and a former assistant trainer of Dutrow’s that case doubt on one of the violations cited by the commission’s predecessor, the New York State Racing and Wagering Board, in its decision to revoke Dutrow’s license and prohibit the trainer from filing for a license for 10 years.

That violation was based on a 2010 search of Dutrow’s barn at NYRA’s Belmont Park that resulted in investigators finding three unlabeled syringes in a drawer in Dutrow’s barn office containing the regulated medication xylazine, a sedative. It is a violation for a trainer to possess a syringe, let alone a syringe with an unmarked medication in it.

But the ruling states that the persons who provided the testimony to Dutrow’s lawyers for the recent appeal had also been available to provide testimony in Dutrow’s 2011 hearing, even though Dutrow’s attorneys did not contact the individuals prior to the hearings. The ruling also states the testimony is immaterial to the appeal to reopen the case, since Dutrow admitted to being guilty of the violations in the appeal to reopen the case.

“This evidence does not present any basis for reopening this proceeding,” the ruling states. “First, the evidence only goes to culpability, which Dutrow does not challenge. For purposes of this application, Dutrow has effectively admitted the violations.”

The testimony sought to introduce the possibility that investigators planted the three syringes. According to the submitted testimony, the New York Racing Association investigator, John McDonnell, a New York City police officer for 22 years prior to being hired by NYRA, found the search to be “highly unusual” due to the fact that the evidence was found just after investigators arrived at the barn. McDonnell was present during the search.

The ruling states that the gambling commission provided Dutrow’s lawyers with a list of all personnel who participated in the search prior to his hearing before the commission.

“McDonnell could have been subpoenaed to testify at the hearing,” said the ruling. “Instead, though, McDonnell states that Dutrow did not contact him prior to the hearing. Nor is there any valid explanation for the lengthy delay before the application to reopen was made.”

While the penalty was handed down in 2011, Dutrow continued to train while he appealed the decision through New York’s civil courts. The courts rejected each of Dutrow’s appeals, and he began serving the penalty in January, 2013. McDonnell was interviewed by Dutrow’s lawyers in May 2013.

While the finding of the syringes was an important factor in the penalty, the board cited Dutrow’s long history of medication and administrative violations as the foundation for the 10-year ban, calling Dutrow’s continuing involvement in the sport “inconsistent with the best interests of racing.” In addition, following the search, a horse trained by Dutrow had also tested positive for a painkiller, butorphanol, which was also a factor in the penalty.

Supporters of Dutrow began organizing an effort to lobby the commission to grant the trainer “clemency” two years ago, first by mobilizing friends of the trainer to write letters in support. Then, in March of this year, the supporters launched an online petition calling for Dutrow to be re-licensed. The petition was signed by more than 2,000 individuals, mostly in the racing industry, including a handful of Hall of Fame trainers and riders.

Daily Racing Form reported that the commission was weighing whether to reopen the case in the week leading up to the June 16 meeting this year, but the commission refused to comment. Dutrow and a handful of his supporters attended the meeting, but his attorneys’ requests to allow the supporters to address the commission were rejected.

The ruling notes the recent campaign of support, but it also states that character witnesses testified on behalf of Dutrow’s horsemanship and care for his horses during his 2011 hearing, including employees of the commission.

In conclusion, the ruling states that the appeal didn’t clear the hurdles necessary to warrant a review.

“Respondent has litigated the merits of the charges against him to the fullest, in this agency proceeding and in every court available to him on review,” the ruling says. “The charges against him have been established, with a full and fair opportunity provided to him to challenge the charges and present his arguments against them. Dutrow states that he is not contesting culpability in this application, yet the bulk of his arguments here are, in fact, another attempt to litigate the merits of this matter.”