TEXAS ATTORNEY NOT READY FOR ASMUSSEN CASE

By Ray Paulick
I’m wondering if Mark Fenner, general counsel for the Texas Racing Commission, owns a hungry dog. Fenner used just about every excuse in the book except “the dog ate my homework” when he asked racing commission steward Dennis Sidener on Friday to postpone next Tuesday’s hearing regarding a nine-month-old medication charge against Eclipse Award-winning trainer Steve Asmussen

Sidener, naturally, granted the request, which stunned Asmussen’s attorneys, Maggi Moss of Iowa and Karen Murphy of New York. They received news of the postponement as they were preparing to travel to Texas and after making arrangements for a number of people to testify before the stewards, including Hall of Fame trainer Bill Mott and Louisiana State University chemist Dr. Steven Barker.

“I am blown away by their cavalier, callous indifference to any of us,” said Moss, who is also a leading Thoroughbred owner. “We are so ready to go. Steve wants the truth, we want the truth. I’ve never dealt with any commission like Texas, which has had seven lawyers involved in this complaint. I’ve handled cases in 10 jurisdictions, and Karen’s counted 15 states where she’s handled cases, and we’ve never, ever run into anything like this.”

Asmussen, who was recently honored with his first Eclipse Award as outstanding trainer of 2008 after setting an all-time single-season mark with 623 wins, was charged in late June with a positive test for lidocaine in Timber Trick, a 2-year-old filly who won a maiden race May 10 at Lone Star Park. Lidocaine, classified as a Class 2 drug, can be used as a pain blocker but also is found in many non-pharmaceutical products, such as creams or lotions. If the stewards ruled against him, Asmussen faces up to a six-month suspension and a fine of $1,500-$2,500. Owner Gainesway Stable would lose the purse money.

Fenner, whom Moss said was the first of six or seven racing commission attorneys she has dealt with on the Asmussen complaint, wrote the following note to stewards on Friday: “I have just been assigned to lead the presentation of this case, and I have pre-existing commitments that prevent me from adequately preparing by that date. These commitments include a Commission Working Group on Funding Meeting on Wednesday, Feb. 11, a Commission Committee on Racetrack Licensing on Feb. 13, and a full Commission meeting on Wednesday, Feb. 25. Each of these meetings requires substantial advance preparation and coordination with individual commissioners, and I must dedicate these next few days to those efforts.”

The delay is just the latest exasperating development in the case for Asmussen’s attorneys. Moss said Texas authorities months ago denied their request to have the plasma tested (which experts told her would be more conclusive than a standard urine test), would not quantitate the amount of the drug detected, and wouldn’t allow a split-sample to be tested at LSU.

“If the plasma says there is a metabolite we’ll accept it,” she said. “Why won’t they quantitate it? Dr. Barker says from what he can tell it’s not lidocaine, it’s some minuscule metabolite of something that contains lidocaine.

“We cannot think of any time that anything like this has happened. There have been 22 lidocaine cases in Texas and they were not handled this way,” Moss said. “In many cases there were mitigating circumstances. In others, the stewards have a hearing and they get their penalty. But the stewards aren’t the bad guys here.

“We’re fighting this,” she continued. “This isn’t just about Steve. Karen and I took this case because we want uniformity in drug laws. This is about Joe Blow at Mountaineer. It’s about tracks and attorney generals taking off and calling everybody cheaters. Texas does not have the same rules the rest of the industry has. We think if you are going to have millions of dollars worth of horses we should have the same kind of testing as the Olympics.

“Steve asked me today, ‘Why do they hate me so much?’ These lawyers have done things that are very questionable. Like today, saying they are going to represent the stewards and also prosecute the case. This is supposed to be a stewards hearing.”

Moss does wonder if the Texas Racing Commission has something against one of Texas racing’s most celebrated families. Steve’s older brother, Cash, was an Eclipse Award-winning apprentice who then went on to enjoy an outstanding career riding in France. His parents, Keith (a former quarter horse jockey) and Marilyn, train horses at their training center in Laredo.

“Six months ago,” Moss said, “investigators from the Texas Racing Commission showed up at the Laredo training center, and say they are there wanting to do an investigation to see if Keith Asmussen’s licensing is in order. They point to some guy and say, ‘Is he legal,’ ‘Is he licensed?’ Keith went into his office and brought out his license and told them where they could stick it.”

According to the Association of Racing Commissioners International database, Steve Asmussen has a total of 74 rulings involving him, including several medication violations, dating back to 1990. He served a six-month suspension in late 2006-early 2007 for a mepivacaine positive in one of his horses racing in Louisiana. Interestingly, the chemist who helped suspend him on that charge was Steven Barker, who was set to testify in Asmussen’s defense on Tuesday.

Copyright © 2009, The Paulick Report