By Gus Garcia-Roberts | Washington Post | Los Angeles | June 29, 2021 | 5:04 p.m. EDT
In 2018, as star trainer Bob Baffert led his thoroughbred Justify to the Triple Crown, California regulators embarked on a secret effort to exonerate Baffert after the horse’s positive test for a banned substance, according to confidential records obtained by The Washington Post that fully detail the saga for the first time.
The legal records, which draw from dozens of emails, memorandums and other materials that have not previously been made public, show how officials delayed action, contradicted their own plans and rewrote existing rules to Baffert’s advantage. At one point, the regulators’ effort included searching for exonerating evidence in a literal haystack.
Baffert faces unprecedented scrutiny after a positive drug test marred a win by his horse Medina Spirit at this year’s Kentucky Derby. As the trainer battles to protect his legacy, the records offer a new window into how those charged with running horse racing’s disjointed regulatory system have appeared to treat the powerful trainer with deference.
Justify tested positive for scopolamine, an anti-nausea medication said to have potential performance-enhancing effects in horses, after winning the Santa Anita Derby in April 2018. Without that win, Justify would not have qualified to run in the Kentucky Derby, the first leg of the Triple Crown, a month later. But the scuttled test result remained secret until the New York Times reported it in 2019.
The California Horse Racing Board’s inner workings during the episode have remained mostly shrouded by official secrecy. After the test result was revealed, Mick Ruis, the trainer and owner of the Santa Anita Derby’s runner-up, sued the CHRB, claiming Justify’s win should have been erased.
A 23-page analysis of that case, sent to the CHRB by a California deputy attorney general in July and obtained by The Post, suggests the state’s lawyers were concerned about the way the agency responded to the failed drug test. A court, the state’s lawyer wrote, “could find that the CHRB abused its discretion and acted in a manner that was arbitrary, capricious, or entirely lacking in evidentiary support.”
In an email Monday, Baffert’s attorney, W. Craig Robertson III, referred to the CHRB’s initial decision to dismiss the test and a hearing last year in which officials ruled they had no authority to overturn that decision. “There is nothing new here,” he wrote.
A CHRB spokesman said the agency could not comment or make any employees available for an interview, citing the pending litigation. Rick Baedeker, who was executive director of the CHRB before retiring last year, said the board’s decisions were carefully considered to avoid treating Baffert differently than any other trainer. “It’s bizarre,” Baedeker said, “because you have a deputy attorney general criticizing the board for following the law to the letter.”
Rick Arthur, California’s medical equine director, who the documents show played a central role in the scuttling of the Justify matter, said the only part of the CHRB’s handling of the case that “disappointed” him was the secrecy. While he allowed that the case was handled differently because of the Triple Crown ramifications, the special treatment had nothing to do with the horse’s trainer.
A retroactive rule change
On the afternoon of April 18, 2018, Arthur learned that Justify and another Baffert horse, Hoppertunity, had tested positive for scopolamine. By then, Arthur already had a years-long, tangled history with Baffert.
The Post reported this month that Arthur had previously studied a spate of sudden horse deaths in Baffert’s barn. As he did so, a political group with Baffert on its board was involved in legislation that would result in Arthur losing his job. After Arthur cleared Baffert of wrongdoing, the legislation was abandoned. (Arthur and those involved with the bill said the actions were unrelated.)
The records show Arthur’s early decisions led to the CHRB veering off its usual course in its handling of the Justify case, beginning with his email to a testing coordinator that read, “The scopolamine cases will be handled differently than usual.”
By the CHRB’s own guidelines, the way forward was clear: If a second sample came back positive, the CHRB would file a complaint. “A complaint is filed in every case where the split sample confirms the original laboratory finding,” read an advisory on the CHRB website. “Nothing is held back.”
Justify faced disqualification from his victory in the Santa Anita Derby that would cost his owners — a partnership of wealthy interests — their share of the $600,000 first-place purse. If the complaint was ruled on quickly enough, it would have made Justify ineligible for the Kentucky Derby.
Baedeker and Arthur said in interviews that no matter how it was handled it would have been impossible to resolve the case that quickly. “This horse was going to run at the Triple Crown,” Arthur said.
“We have a real conundrum to sort out,” Arthur wrote in an email to top CHRB officials, explaining he believed a disqualification would be “terribly unfair.” More than a year earlier, the Association of Racing Commissioners International, which creates model rules for the sport’s various state bodies, had reclassified scopolamine from a “3/B” to a “4/C” drug. A 4/C violation meant minor punishment that wouldn’t typically involve disqualifying the horse or redistributing winnings.
The CHRB had not adopted that recommendation. Arthur suggested the board retroactively apply it to the Justify case. “The new classification simply makes more sense pharmacologically,” Arthur wrote.
But California’s adoption of ARCI guidelines is not a given. CHRB regulations state that its foreign substances guidelines are “based on” ARCI recommendations “as modified” by the state board. “The ARCI rules are recommendations,” the association’s president, Ed Martin, said in an interview. “If they didn’t adopt those rules, the rules that prevail are the ones they adopted.”
Arthur is the CHRB’s “primary advisor” on drug testing, according to state code; the role ofdetermining penaltiesin individual cases falls to its stewards and commissioners. But in this case, Arthur urged a lighter penalty based on his suggestion the CHRB downgrade the drug.
“I believe there is some precedent in criminal law when a law is changed from a felony to a misdemeanor how they should be prosecuted even before the new law becomes effective,” wrote Arthur, whose job before medical equine director was as a racetrack veterinarian.
CHRB brass agreed to follow Arthur’s suggestion. In correspondence with the agency’s lawyer, Baedeker wrote that because “our staff failed to act in a timely manner, the horses, trainer, owner and others could be harmed unjustly” if they didn’t use the more lenient classification.
Searching for Jimson weed
As the Kentucky Derby approached, officials began discussing the possibility of “contamination” — that the positive test had been triggered by something Justify ingested. Scopolamine, Baedeker wrote, “can be injected but very often is the result of feed or straw that has been contaminated with Jimson weed.”
Arthur had previously suggested he didn’t consider Jimson weed contamination to be a serious threat, writing in a 2016 memo that the “likelihood under our current procedures of getting a positive from environmental contamination is rather low.” In an interview this week, Arthur said he meant that such incidences were infrequent but said that in California, “if you have a scopolamine positive, it’s going to be associated with Jimson weed — that’s just the reality of it.”
On April 26, records show, Arthur emailed CHRB officials that he had “talked to Bob” and informed him the proceedings would not immediately interfere with Justify’s Triple Crown schedule. “I told him there would be nothing from CHRB before the KY Derby, unlikely before the Preakness and possibly not until after the Belmont,” Arthur wrote. “I told him I thought there was a good indication that these were feed contamination.”
On May 5, Justify won the Kentucky Derby, upping the stakes of the investigation. A CHRB investigator, searching for Jimson weed, had found a leafy substance at Santa Anita Park, the records show, and following the Derby, Arthur and the CHRB’s lawyer agreed to have it tested.
When the CHRB also decided to run DNA tests on the horses’ blood samples, the records show Arthur said the request would be a “big deal” and asked if they could “wait until after the Preakness,” which was 10 days away.
Baedeker this week acknowledged that they handled the process more slowly than usual. “We might have gone to the board sooner, but obviously because of the high-profile nature of this thing we were making sure we had everything buttoned up,” he said.
The week after Justify won the Preakness, bringing him to the cusp of the Triple Crown, test results came back showing the plant they had tested was milkweed. The quest to find Jimson weed continued. On June 2, with the Belmont Stakes a week away, the owner of a feed operation showed up at the CHRB office carrying plant sample she said he found more than a month earlier, the records show. Citrus Feed Company’s Larry Bell has long supplied Baffert with feed and has previously testified in Baffert’s defense, according to CHRB records. This time, he aided the CHRB’s search for Jimson weed.
Bell told an investigator he then checked other bales and found a branch and pods he thought were Jimson weed in the parking lot. He acknowledged there was “no way to determine” if that bale was part of the delivery to Baffert, according to the records, but the CHRB investigator nonetheless submitted the sample for testing. The substance was indeed Jimson weed. On Monday, Bell confirmed he helped with the search, adding “Jimson weed has plagued California for years.”
On June 9, Justify won the Belmont — and the Triple Crown.
Throughout the months-long process, CHRB officials had indicated they planned on filing a complaint against Baffert, which would have exposed the failed drug test. On June 1, Baedeker had asked the agency’s top lawyer and investigatorhow close they were to “filing the Scopolamine complaints.”
On July 9, a month after Justify’s Belmont triumph, the agency’s chief counsel, Robert Brodnik, wrote to the CHRB investigator that they “would like to officially file by Monday.”
But by August, the plan had changed. Brodnik presented the board with a two-page memo stating an “extensive investigation was conducted” and “the evidence proves that this was an environmental contamination incident.” Baedeker and Arthur recommended “the pending matters against Baffert be dismissed,” according to the state’s legal analysis. The board followed their recommendation.
Baedeker said this week he changed his mind on not filing a complaint, which would have put the matter before CHRB’s Board of Stewards, because he didn’t want to pass the buck. “I felt that we would’ve been dumping this in their lap, that we would’ve been putting them in an unfair position, and that we needed to go ahead and do the difficult thing, quite frankly, which is take responsibility for the decision,” Baedeker said.
After the Times broke the news of the positive drug test, Ruis sued the CHRB in January 2020. He claimed the board’s “cover up” cost him damages including the $400,000 difference between the first-place and second-place purses in the Santa Anita Derby.
On July 15, 2020, Deputy Attorney General Robert Petersen sent his “initial case assessment” to Brodnik. Petersen opined it “would have been unfair” to punish Baffert for what he called “an oversight by CHRB staff” and said “there is no evidence to suggest a nefarious motive” by the board. But he said it wasn’t clear from the records why the CHRB reversed course on filing a complaint against Baffert. The lawyer wrote there “is evidence suggesting that this matter was handled differently.”
Petersen noted that in a previous case the board had exonerated the trainers of three horses who had tested positive for scopolamine, finding the flunked tests were a result of Jimson weed. But even in those cases, which were handled according to established rules, the horses were disqualified and their winning purses were forfeited.
In his analysis, Petersen estimated the state’s chances of winning at trial to be 50 percent.
Arthur, the equine medical director, took issue with Petersen’s legal finding that the CHRB’s handling of the case could be declared arbitrary or capricious. “Other people may have made a different decision, but to say that there was no basis for that decision is pure bulls—,” said Arthur, who announced his retirement this year. His last day as medical equine director is Wednesday.
Baedeker said that before they made their recommendation to the board, they consulted with the state’s Office of the Attorney General, for which Petersen works, and received “concurrence . . . to move forward.” Petersen did not respond to an interview request. The attorney general’s office referred all questions to the CHRB.
Shortly after Petersen sent the analysis of the state’s chances, the CHRB agreed to settle Ruis’s lawsuit. In the settlement, which records show did not include monetary damages, CHRB agreed to file a complaint against Justify.
In a hearing in October, the state and attorneys for Baffert and the horses’ owners stipulated the scopolamine positive was the result of contamination and it would have no performance-enhancing effects. Darrell Vienna, Ruis’s attorney, said he would not have agreed to those stipulations but was not allowed to intervene.
Baffert’s lawyer called as a defense witness Arthur, who testified that his handling of the case was the fault of “California’s cumbersome regulatory process.” He declared, “I considered this a horse poisoning, not a horse drugging.”
After the hearing, Santa Anita’s Board of Stewards, a three-person panel that rules on drug cases, dismissed the complaints. In a written decision, the stewards stated “the CHRB has already ruled on this matter” in its August 2018 closed hearing and had “followed the law.”
However, the stewards suggested they would not have made the same decision as the CHRB: “It is the Stewards’ opinion that had this Board of Stewards heard the Justify and Hoppertunity complaints prior to August 23, 2018 both horses would have been disqualified.”
Ruis’s lawyers have since argued in court for the settlement to be rescinded “because the stewards refused to make a decision on the merits.”
“I remain convinced that justice has not yet been served,” Vienna told The Post, “and that hopefully the courts will resolve the matter.”
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• Jimson Weed / Medicinal Herby Info »
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Featured Image: BOB BAFFERT. Pat Semanski / Associated Press