This could be trainer Jeff Mullins' last stand.
Ordered last month to begin a 70-day suspension June 1 for a medication probation violation dating back to a 2006 case, the Southern California-based conditioner says he'll fight the California Horse Racing Board "to the bitter end."
Mullins' attorney, James Maniscalco, plans to return to Superior Court court the week of May 23 seeking a stay of the suspension and to overturn the ban, which would require the trainer to close his Hollywood Park stable at Barn 65 South and vacate the premises.
The attorney plans to base his argument for a writ of mandate on two major points: evidence withheld in the original case, a Class II mepivacaine positive involving the horse Robs Coin, and a pattern of alleged wrongdoing by the CHRB while it was under the direction of then-executive director Ingrid Fermin.
"Unless the courts stop the CHRB's vendetta against me, there is no doubt that they will eventually end my career," Mullins said. "It's obvious to me that's what they've been trying to do for the last six years but I still have faith in the California justice system."
Maniscalco once described the penalty as a "death sentence" for Mullins' career.
In a ruling dated April 28, CHRB commissioners meeting in executive session rejected a hearing officer's recommendation to suspend Mullins for 60 days for violating his probation in the 2006 case, with a credit for the 20 days he served in 2008. Regulators instead imposed the full 90-day ban contained in the original ruling, meaning Mullins must still serve 70 days.
Under the original decision, the balance of the suspension was stayed provided he have no further medication violations for a period of one year. However, a complaint alleging Mullins committed a Class III infraction for excessive total carbon dioxide (commonly known as a "milkshake") was filed later in the year in connection with the horse Pathbreaking. The complaint was ultimately upheld and Mullins served a 30-day suspension for that last year.
A subsequent hearing dealt with the probation violation issue before Steffan Imhoff, a hearing officer/appellate judge appointed by the CHRB, who recommended the lighter suspension late last year.
Maniscalco was unhappy that the CHRB's meeting in executive session overturning Imhoff's decision was held without representation for Mullins.
"Jeff Mullins has been trying for years to present his case regarding the corruption and bias in the California Horse Racing Board," he said. "The CHRB went to great lengths to silence Mr. Mullins, including proceeding with Mr. Mullins' trial without giving Mr. Mullins notice or an opportunity to be heard.
"We now put that chapter behind us and are thrilled to be proceeding in California Superior Court where we will undoubtedly be given a fair opportunity to present evidence of the six-year vendetta against one of the nation’s premier trainers.”
Robert Miller, counsel for the CHRB, said that the board followed its usual procedure in reviewing such cases. He said Maniscalco could have provided written support for Mullins prior to the April 28 board meeting, but failed to do so.
"They were given the opportunity to provide any additional briefing they wanted," Miller said. Since the board meeting, he said a request from Maniscalco to delay imposition of the 70-day ban to allow a court appeal was denied by CHRB chairman Keith Brackpool.
Among the leading trainers on the California circuit from 2003-07, Mullins has seen his totals decline since 2008. He averaged about $4.5 million annually in purse earnings over a seven-year period ending in 2009. But last year, he won with just 40 of 228 starters and saw his earnings dip to $1.2 million. So far in 2011, he has eight victories in 62 starts and earnings of $392,961.
Like many California trainers during a tough time for racing in the state, Mullins has lost major clients such as Bob Bone, who has cut way back on his involvement during the past few years. But Mullins' reputation has undoubtedly been hurt by run-ins with racing authorities.
In addition to his California troubles, he was ruled off the New York Racing Association tracks for six months for using a cough medication on the horse Gato Go Win in the detention barn at Aqueduct prior to the 2009 Bay Shore Stakes (gr. III). In 2005, he told a Los Angeles Times columnist that people who bet on horse racing are "idiots."
It's unclear what would happen to the 25 horses Mullins has in training, or his 16 employees, should the 48-year-old trainer ultimately serve the 70 days. Mullins said he has not made any decisions in that regard.
"I've been telling my clients that my attorney is very confident that we're going to get the stay and not to worry," Mullins said. "I hope he's right."
Kirk Breed, the CHRB's current executive director, said the agency is "not singling (Mullins) out," but wants to draw the case to a conclusion.
"This is one of those cases that goes on and on," he said. "We're better off just letting the court do what it's going to do. I just want to get the thing over."
Frank Moore, chief of the CHRB's investigation unit from November 2000 until his retirement in February 2007, supports Mullins' contention that he was being pursued by Fermin.
"The truth is we were targeting Jeff Mullins; he was one of several trainers," Moore said. "We were concentrating on him. We had his barn under surveillance. We stationed investigators there."
Barn searches, he said, were routine and the horses of certain trainers, including Mullins, were subject to out-of-competition testing for blood doping.
A document obtained by The Blood-Horse of an email message from Fermin lists Mullins as one of five trainers whose horses' blood samples were to be retained and frozen for future testing. The UC Davis lab keeps hundreds of such samples in storage so they can be tested again as new substances are identified.
Moore said it was an odd time to be a CHRB investigator. Fermin, he noted, came into office promising to clean up drug cheating. Her predecessor, Roy C. Wood, had been criticized by some for settling on the side of leniency with trainers found responsible for medication violations.
"Mullins was winning at the time and if you were winning at a high percentage, you were presumed to be cheating," Moore said. "The investigator's job was to find out how."
Mullins' objection to his treatment begins with the 2006 case involving Robs Coin, an Idaho-bred claiming horse he took for $32,000 on behalf of owner Darren Carraway. Robs Coin finished second in a $40,000 claiming race at Hollywood Park July 8, 2006 and was randomly selected for post-race testing.
Analysis of the urine sample done by the equine testing laboratory at the University of California-Davis resulted in a positive finding for mepivacaine, a local anesthetic commonly used for suturing after routine veterinary procedures. Mullins vigorously protested his innocence in the case, saying the horse was perfectly sound and would not have required mepivacaine for any purpose.
Jerald Mosely, the deputy attorney general prosecuting the case, did not submit the results of a report from Dr. Gus Cothran, a DNA expert from Texas A&M University, according to the report of the administrative law judge. Cothran, who was acting in response to a request from Mosely, compared the original urine sample tested by UC-Davis to urine, blood and hair samples taken from Robs Coin.
According to his affidavit at the time, "the original urine sample (found to contain mepivacaine) was contaminated with the presence of more than one horse."
David Rosenman, the ALJ, responding to a motion from the attorney representing Mullins at the time, ruled that Mosely was under no legal obligation to submit Cothran's statement. He ruled it inadmissible and found Mullins responsible for the positive test under the "trainer insurer" rule as he imposed the 90-day suspension.
Carraway, who lives in Idaho and had Mullins claim Robs Coin because he wanted to bring the horse back to race in the state, said he has long felt his trainer was subjected to what he called a "railroad job."
He said Mullins originally had advised him against claiming the horse because he was undersized.
"He called me up after he got him back to the barn and told me (Robs Coin) was the soundest SOB he'd ever claimed," Carraway said. "He'd never had a joint injected in his life. There was nothing wrong with that horse and there would have been no reason for him to have received mepivacaine."
Carraway said it was not until two days after the deadline had expired for him to appeal the ALJ ruling that he received formal notification from the CHRB that the purse had been revoked.
"The whole deal stunk as far as I was concerned," Carraway said.
Maniscalco, according to records, was also rebuffed in his attempt to use the DNA evidence during the later TCO2 administrative hearing. He reasons that if a Superior Court judge looks at the evidence and decides that it casts doubt on Mullins' guilt in the Robs Coin case, his client should never have been on probation.
Beyond that, Maniscalco alleges that he has documentation proving the CHRB under Fermin engaged in back-room dealings, manipulated the system for drug testing against some trainers, including Mullins, and misspent hundreds of thousands of taxpayer dollars.
His charges come on the heels of a whistleblower lawsuit filed in Sacramento County Superior Court April 26 against the CHRB by Mory Atashkar, the board's former chief information officer. Atashkar alleges that he suffered recriminations from Fermin, who resigned as executive director in 2008, and others after he reported alleged wrongdoing. He is seeking damages under the California Whistleblower Protection Act. Maniscalco believes other longtime CHRB employees were mistreated as well.
"It’s scary when your own state government is allowed to get away with what these people have," Mullins said. "The taxpayers of California need to be made aware of the misappropriation of state funds and the blatant misuse of power. I will fight this to the bitter end.”