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Andrew Turro Noted in, "The Pena Case: Why Are There No Positive Tests?"

Sep 1, 2012Equine & Racing LawLitigation & Dispute Resolution

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SCHENECTADY, NY- The New York State Racing and Wagering Board is attempting to prove that trainer Lou Pena illegally drugged horses under his care on more than 1,700 occasions and deserves to be punished severely for that alleged offense. It has made its case these last three days in an administrative hearing in Schenectady, but never did it adequately answer a question that remains the central mystery of the Pena affair: If he drugged all these horses, how come not a one of them tested positive for any illegal drugs?

Whether or not that hole in the NYSRWB's case leads to Pena being exonerated remains to be seen, but his legal team aggressively seized on the issue yesterday and put it forth as a central part of its defense.

Both sides rested yesterday. The matter is now before hearing officer Clem Parenti, who will issue a recommendation to the Members of the New York State Racing and Wagering Board. The members can either abide by Parenti's decision or overturn it. However, since the NYSRWB acts as both the prosecutor and the judge during such hearings, a Pena victory is considered a huge long shot. If the Board in fact rules to uphold his suspension, Pena then would have the option of taking his case to the New York state court system.

The day began with Dr. George Maylin, the head of the state's equine drug testing program, on the stand. After coming up with a few reasons, none of which seemed that credible, why the horses passed the drug tests, Maylin had to withstand a steady onslaught of questions from Pena's attorney, Andrew Turro.

Turro focused on the drugs that the state has effective tests for, in particular Robaxin and Robinul. According to the veterinary records that the NYSRWB has based its case around, both drugs were given to Pena-trained horses some 24 hours before they raced on hundreds of occasions, a violation of state racing rules.

Maylin admitted that, given the circumstances, he would have expected at least some of the horses to test positive. When asked for an explanation, he replied: 'We didn't find it and I don't know why.'

After Maylin was done, Turro stayed with the same line of attack when he called his own witness, Dr. Jonathan Foreman, an associate dean at the University of Illinois' College of Veterinary Medicine.

Foreman testified that had Pena actually used the drugs he has been charged with using they should have shown up in tests.

'If George (Maylin) can't find it, it ain't there,' he said.

Foreman added: 'In most jurisdictions the presence of a drug in a drug test is the trigger for a prosecution.

Otherwise, why do drug testing?'

Foreman also asserted that the drugs in question were not the type of drugs that would improve a horse's performance. With virtually each one, he said that giving it to a horse would do nothing to improve its times or performances. He called a thyroid drug Pena is alleged to have used in violation of the rules a 'waste of money.'

On two separate occasions, Turro asked Parenti to throw out the case against Pena because, he argued, the NYRSWB lacked sufficient evidence. Parenti declined to do so.

As was the case throughout the hearing, Pena sat by passively and quietly. Toward the end of the hearing Turro and Board attorney Rick Goodell squared off on the fact that Pena did not testify.

Goodell asked the hearing officer to rule that Pena's silence was a matter of 'adverse inference' or that his failure to testify is a sign that wrongdoing occurred. Parenti said he would consider Goodell's claim.

With the NYSRWB expected to uphold Pena's suspension, his future will likely be determined by the actual courts. It may not go unnoticed that Lance Armstrong was, for all practical purposes, thrown out of bicycle racing even though authorities in that sport went after him without the benefit of positive drug tests.

Wherever this case may go within the legal system, those who will decide Pena's fate will have to figure out whether veterinary records that indicate he illegally gave horses drugs are valid, credible and enough to pin a conviction on him. They must also decide whether or not the lack of any positive drug tests are grounds to acquit Pena or merely a minor and inconsequential flaw in the case against him.