03/16/2005 12:00AM

Innocent until proven guilty


ARCADIA, Calif. - "The last thing we want to do is punish someone who is innocent."

Those were the words of Dr. Rick Arthur, uttered just last week. He was referring specifically to California's prerace testing program for elevated levels of total carbon dioxide in Thoroughbreds - four trainers have been singled out so far this year - but his sentiments touched a universal nerve.

At one extreme, there are the ultimate, irreversible mistakes. Since 1973, from more than 7,000 capital punishment sentences, there have been 119 people released from U.S. death rows after their innocence was established, convictions overturned, or charges dropped. The most recent of those occurred just three weeks ago in Ohio.

At the other end of the spectrum, thugs rule, cheaters profit, and straight-shooters are left at their mercy, while those faced with upholding codes of behavior are underfunded, demoralized, or just plain incompetent.

As point man for the TCO2 testing program, Arthur has gone to extraordinary lengths to make sure the science behind the testing is sound, and that the interpretation of the test results accurately reflects their purpose as a deterrent to illegal conduct, especially in the administration of race-day substances.

Yet, even though the science can be stone-cold solid, drug policy is never more reliable than the individuals charged with their enforcement. The California racing community learned this the hard way.

After experiencing an alarming cluster of cocaine positives among trainers that were made public in late 1988 and early 1989, drug testing became an almost daily obsession. As it turned out, all six cases were dropped, and, just as suddenly, announcements of cocaine positives dried up. The debate shifted to the ability of laboratories to detect illegal substances in minuscule amounts, well below what would affect performance in a race, and how those amounts should be interpreted. New guidelines were necessary to determine the difference between accidental or environmental contamination and calculated dosing to avoid detection. The executive director was given broader powers of discretion to dismiss cases that were not deemed worthy of pursuit.

Within a couple of years, new drugs began to enter the backstretch rumor mill, such as clenbuterol, an effective bronchial dilator that was not sold legally in the U.S. In the spring of 1992, reports began to circulate that a handful of horses had tested positive for clenbuterol. Unlike the cocaine positives, however, this time the racing board appeared reticent in bringing public charges against the trainers involved.

When it was learned that Dennis Hutcheson, who had replaced the retired Leonard Foote as CHRB executive director, went so far as to dismiss four clenbuterol cases, there was an uproar. In what amounted to a shift of 180 degrees from the indignant reaction to the cocaine positives, a vocal segment of the horsemen's community turned on the racing board and demanded that names be revealed and penalties imposed.

In the end, the racing board launched an independent investigation into the handling of the clenbuterol cases. Hutcheson ended up losing his job, and the discretionary powers of the executive director in drug positives were curtailed.

At one meeting before commissioners during the 1992 clenbuterol affair, trainer Richard Mandella stood up and demanded to know if he was on the list of dismissed positives, stating that he was tired of being the subject of rumors. He was told that he was not among the cases dismissed by Hutcheson.

Two years later, in April of 1994, Mandella and five other Thoroughbred trainers were wishing that the executive secretary - now a former trainer named Roy Wood - was willing and able to wield the same discretionary power used by Hutcheson. The trainers were accused of running horses that tested positive for scopolamine, a substance found primarily in medications used to slow the equine bowel and help prevent severe diarrhea, especially in foals.

Baffled, Mandella embarked upon a personal crusade to find out how his horses came up with such tests. Through independent testing, he and his fellow trainers discovered that scopolamine was found in the common jimsonweed, and that an unusual amount of the weed had been turning up in the hay sold on the Southern California backstretches that spring.

As far as the trainers were concerned, they had proven the scopolamine to be a clear case of accidental environmental contamination. This time, however, the racing board persisted in its prosecution of the cases. Fines of $500 to $750 were levied upon the trainers, and the owners of the horses had to forfeit all purse money, in one case amounting to $66,300.

Appeals in the scopolamine cases dragged on for more than a year before the trainers finally were exonerated by the racing board, based upon findings by an administrative law judge. The owners, on the other hand, were never able to recover their purses, based upon the strict interpretation of racing law.

"I didn't really expect a 'thank you' from the racing board for my part in figuring out where the scopolamine came from, or an apology for what they put us through," Mandella said. "I just hope no other trainer has to go through what I went through to prove their innocence."