Attorneys arguing about drug testing policies and procedures may differ in their opinions about the applications of such high-profile systems, but they agree that the landscape in which they work has changed in this age of “instant information” available through various on-demand media outlets.
Two attorneys presenting April 29 at the 25th National Conference on Equine Law in Lexington said the immediacy of information available to the public is one of the biggest challenges facing them in aiding their clients.
Alan Foreman, a Maryland-based attorney and industry executive who is known for both prosecuting and defending drug-violation clients, said the development of wide-ranging Internet information outlets has put the emphasis on moving quickly and accurately in collecting evidence. He specifically cited the prominent “cobra venom” case involving trainer Patrick Biancone, in which Foreman was part of the defense team for the trainer.
“In this world when you have bloggers and instant information going straight from the racetrack and backstretch to the media, it is very difficult for you all (attorneys) to manage that situation if you have a client,” said Foreman, whose resume includes executive positions with the Thoroughbred Horsemen’s Association and vice-chairman of the Racing Medication and Testing Consortium.
“The one thing that made the Biancone case difficult for us … was the fact that the media had the story before Patrick had even engaged counsel.”
Karen Murphy, a New York-based attorney, who was the defense counsel for the other major player in the Biancone case, Dr. Rod Stewart, concurred with the assertions of Foreman. Stewart, who ultimately received a five-year suspension from the Kentucky Horse Racing Commission for having cobra venom and two other prohibited substances in Biancone’s barn at Keeneland in April 2007, wasn’t treated fairly, Murphy claimed.
“(Stewart) goes to the steward and explains (the situation), and within 48 hours there is pronouncement in the press from regulators: ‘The most egregious violation they have ever seen.’ ” Murphy said. “From that day, I lost the case. I lost the case because the facts didn’t matter.”
Murphy argued that Stewart at the time carried cobra venom as a legal drug used in treating other animals in Kentucky – including Standardbreds – and that changes were made to Kentucky rules because of the case. But it was too late to help her client, she said.
“The case was lost and the facts were lost and the regulations were an explanation for part of what went wrong here,” Murphy said. “Those regulations have been changed, but that hasn’t helped my client, because those changes weren’t used to mitigate his sentence. And his sentence was unprecedented and potentially career-ending.”
But Foreman said drug-testing rules and procedures are put in place based on intensive scientific stud,y and the best approach is often to try and control the damage done by the violation.
“The rules are strict -- rules are rules that say strict liability -- and they have to be,” he said. “And if a drug is detected to be present, that’s prima facie (on the face) evidence, that the person was responsible for that violation and goes to the strict liability standards that we have in racing, you are responsible regardless of the acts of third parties – it’s a rule of strict liability.”
Murphy, who has also defended such clients as trainer Jeff Mullins, said at least one study shows that 80% of drug positives are explained by environmental contamination. “If we had 80% less drug violations, there would be 100% less clamor that we are all cheating; (the perception) is that all we do all day is cheat, and it couldn’t be further from the truth.”
But Foreman said the 80% figure cited on environmental contamination is “nonsense.” He said such instances are rare due to the proficiency of instrumental testing.
“If the client tells you that they have no idea how the drug got into the horse’s system, don’t buy it,” he said. “There is always a reason for how a drug gets into a horse’s system.”
Foreman said the leading method of drug testing and analysis, liquid chromatography mass spectrometry, is the “gold standard.” Drugs that couldn’t be detected decades ago are now discoverable, even to the minute levels of a picogram, which is a trillionth of a gram.
“One of the things that is popular and in vogue today, is this discussion that we are using super-sensitive equipment and reporting positive tests at these infinitesimal levels,” he said. “You are ruining reputations, and it is unfair to the industry and unfair to the participating competitor.”
But Foreman said many drugs, including some tranquilizers, are often only recorded in picograms, and that those levels are significant. “Am I going to attack the science?” Foreman asked the gathered attorneys. “You aren’t going to have much success in attacking the science.”
Instead, Foreman said often the best approach is to try and mitigate, or lessen, the severity of the penalty. He said his defense of three violations against Kiaran McLauglin (http://www.bloodhorse.com/horse-racing/articles/54218/mclaughlin-takes-suspensions-for-trace-levels), where the trainer received three concurrent 30-day suspensions in Kentucky, was a good example.
“We were able to find a very good way out of that case that didn’t hurt his reputation; that allowed racing to get its ounce of blood; and allowed the industry to look at its rules and policies,” Foreman said. “I don’t go in thinking I am going to win the case because I am going to make it go away; (instead) it’s how do I get the best result for my client to make things move on.”
Long-time Lexington attorney Edward S. “Ned” Bonnie, who said he took his first drug-testing case in 1965, feels the onus is on attorneys to help write proper rules and regulations for authorities to interpret.
“I think we have a responsibility to do our best to write rules that make sense, and to write due process rules so that if a person is penalized, they may not like it, but feel they have had a fair hearing,” he said.