Courting the Problem

By John W. Russell

"No, no!" said the Queen. "Sentence first--verdict afterwards."

"Stuff and nonsense!" said Alice loudly. "The idea of having the sentence first!"

"Hold your tongue!" said the Queen, turning purple.

"I won't!" said Alice.

"Off with her head!" the Queen shouted at the top of her voice.

If a hearing on a medication offense sounds rather like the trial from Lewis Carroll's Adventures of Alice in Wonderland, perhaps the stewards conducting such an inquiry are to be forgiven. Racing law dictates trainers of horses testing positive for illegal substances must prove that the finding was in error and there was no offense, or under the absolute insurer rule they are punished whether or not they are responsible. However, in any court of law in this land, the shoe is on the other foot--those charged are acquitted unless there is proof beyond a reasonable doubt.

It is hardly surprising then that trainers appeal to courts for relief. And it should not surprise anyone that Bob Baffert's 60-day suspension, handed down by California stewards more than a year after his filly, Nautical Look, tested positive for a trace of morphine in a urine sample, was overturned in the U.S. Court of Appeals.

The court reversed the decision because evidence had been destroyed that might have been critical to Baffert's defense. The stewards decided although the methodology used to substantiate medication offenses includes blood analysis, the blood sample from Baffert's horse had no efficacy in the case, and considered it inconsequential that this evidence had been destroyed. Baffert's attorney, Neil Papiano, claimed any methodology should also be made available for a defense, and that the California Horse Racing Board had no right to selectively destroy evidence.

Too many medication cases in California have been overturned or dismissed after months of contentious hearings. Stewards and the Racing Board have claimed they are bound by the inflexibility of the absolute insurer rule. But that will change; legislation has been passed that removes the judicial process from the hands of California stewards to the criminal courts in class 1, 2, and 3 offenses.

"The new process will be good for the public, good for horsemen, and good for the stewards," wrote CHRB executive director Roy Wood, in the CHRB News & Review.

But will it? Wood's remark was not intended as a condemnation of the stewards, but the new law removes them from judicial responsibility in major cases. Nevertheless, there are still too many administrative problems to be faced even before such cases appear before a court.

Since California now has accepted decision levels for nine therapeutic medications, in the face of possible environmental contamination, should class 1, 2, or 3 substances be treated in the same way? In light of a jury decision in the notorious Twinkie defense as grounds for an acquittal of murder, contamination from poppy seeds on a bagel consumed by a horse resulting in a morphine positive doesn't seem too much of a stretch.

But the injection of an illicit substance to influence a horse's performance should be dealt with severely, and courts may be no better than stewards in determining whether a positive test is contamination or crime.

Courts are going to look for evidence of culpability beyond any reasonable doubt, a concept that rules of racing seem to ignore. The burden of proof will rest on the shoulders of those responsible for bringing accusations of an offense; no longer will the mere finding of an illegal substance be grounds for fines and suspensions.

So who will be deciding whether a complaint should be filed or not? The stewards are out of the loop. The bar has been raised, and although "sentence first--verdict afterwards" may not have been exactly the premise for jurisprudence, the lack of an appreciation of mitigating circumstances has often compromised credibility in the past.

JOHN W. RUSSELL is a retired trainer living in Southern California.