Updated on 06/04/2011 8:11AM

State investigator provides details of Dutrow barn search


SCHENECTADY, N.Y. - The investigation that led to the finding of three loaded syringes in trainer Richard Dutrow Jr.’s Aqueduct barn last Nov. 3 was part of a training exercise and not a pre-ordered, fully orchestrated barn search, according to testimony offered Thursday by the New York State Racing and Wagering Board’s director of investigations.

Meanwhile, a second state witness testified that there was no tampering with evidence in the handling and subsequent testing of those syringes, while also testifying that he believes the drug butorphanol - which was found in a Dutrow-trained horse who won a race at Aqueduct on Nov. 20 - was ingested by that horse, Fastus Cactus, within the permissible time frame in which it can be given.

On the second day of testimony in the board’s case against Dutrow, Joel Leveson, the board's director of investigations, went into detail about how the barn search was conducted, which led to the finding of the three syringes loaded with the drug xylazine, an anesthetic. Also, Dr. George Maylin, the director of the New York Drug Testing and Research Program, confirmed that Fastus Cactus had 5 nanograms of butorphanol in his post-race urine sample, which Maylin said "may have affected performance" the day the gelding won a $14,000 claiming race.

Dutrow faces a 60-day suspension regarding the finding of butorphanol, a painkiller, in Fastus Cactus. Dutrow faces another 30-day suspension regarding the finding of the three syringes loaded with xylazine in a drawer of his desk during a search of his Aqueduct office.

Further, the board is attempting to determine whether Dutrow’s current violations coupled with his past history of rules violations warrants a revocation of his license. Rick Goodell is the attorney representing the board before hearing officer Clem Parente.

A resolution to the case is not expected until mid-July at the earliest after the racing and wagering board members review Parente’s report.
Dutrow’s attorney, Michael Koenig, has already asked the board to remove license revocation as a potential penalty.

"Rick’s livelihood and all he’s ever known in his life are at stake right now, and I will use every ounce of my ability to defend him and achieve a favorable outcome," Koenig said after six hours of testimony was given Thursday at the board's headquarters.

Goodell, through a board spokesman, declined to comment following Thursday’s testimony.

During Thursday’s session, Joel Leveson, the board’s director of investigations since 1997, revealed
that on the day he discovered the syringes loaded with xylazine, an anesthetic that is legal but is not permitted for use on race day, he was training two New York Racing Association employees how to do conduct a barn search. However, Leveson further testified that he did not conduct a "full-fledged" search, even after stumbling upon the syringes.

“We did a reasonable search, not a full-fledged search,” Leveson testified on cross-examination by Koenig.

Leveson testified that Dutrow’s barn had been selected for the training exercise by Sidney Anthony, NYRA’s chief of investigators, because Leveson had asked for "an active trainer who had a lot of horses and runs a decent barn." Leveson, along with the two NYRA trainees, had performed two previous training barn searches on Nov. 2 at Belmont Park, though it was not disclosed which trainers’ barns were searched that day.
Leveson testified that he did search other areas of Dutrow’s barn as well as the car of assistant trainer Juan Rodriguez, who was overseeing barn activity that day as Dutrow was out of town at the Breeders’ Cup.

Leveson testified that he found the syringes in a box labeled Promectin, which is known as wormer paste that is administered to horses to ward against internal parasites. Xylazine is legal to possess, Leveson confirmed, but it is illegal for a trainer to possess syringes or needles. Dutrow has denied using xylazine, though vet records showed it had been used one of his horses in late October.

During the course of the barn search and further investigation, Leveson was unable to determine how the syringes got there. Rodriguez told Leveson he had no knowledge about how those syringes got there, but surmised that they may have come in with a load of horses from Kentucky that had arrived a week earlier.

Leveson admitted he never looked into that possibility, one of several oversights Koenig hammered him for during his cross examination. Koenig noted other inconsistencies between Leveson’s report and his testimony.

Leveson wrote that the fluid in the syringes was opaque, but during testimony described it as clear. He reported that the needles were large enough to hold 6 ccs of fluid, but testified they were only large enough to hold 3 ccs. Also, Leveson mentioned the names of two board employees who handled the evidence, but whose names did not appear in the recorded chain of custody.

"The integrity of the evidence cannot be compromised and there’s an indication from the witnesses who have testified that the chain of custody was broken," Koenig said after the hearing. "[Leveson] was having to make some concessions that I don’t think he was thrilled he had to make."

Though Koenig attempted to argue that the chain of custody could have compromised the handling of the evidence bag that contained the syringes, Dr. Maylin testified that the "evidence bag had not been opened" when it arrived at his laboratory on Nov. 11, four days after they were sent.
Maylin also testified that there is no "effective test" to screen for xylazine, which is sometimes used to calm down a nervous horse.

Regarding the butorphanol, Maylin said that the positive test on Fastus Cactus was the only one for a Thoroughbred in the state in 2010 and that he could not recollect another one in a Thoroughbred in New York. Maylin has been the head of the state’s drug testing laboratory since 1971. Maylin also said that butorphanol is "10 times more powerful than morphine."

The testimony of Leveson and Maylin basically wrapped up the state’s case. The case was to continue on Friday with Dutrow expected to testify on his own behalf.