Sometime over the weekend of Aug. 29, 2020, just after the final days of Arapahoe Park's challenging 2020 season, someone broke into the test barn at the Aurora, Colo., track. They jimmied a sliding glass window out of its frame, took bolt cutters to four padlocks securing refrigerators and freezers, and pulled out the contents. Dozens of bags of frozen urine collected from post-race testing were dumped into the sink, where they would thaw before two Colorado state officials discovered them there. Some 210 vials of blood – believed to be all or most of the split samples collected since the start of the meet in early June – disappeared.
More than a year later, it looks like whoever burglarized the test barn has probably gotten away with it.
On a backstretch where rumors normally spread like wildfire, almost no one seems to have heard about the burglary when it first happened. The meet was winding down, and a lot of trainers had already begun shipping their horses out. Kerry Kemper, who trains Colorado runners on the side of his business hauling horses, was pulling his rig through the backstretch gate on Aug. 31, the same day the burglary was discovered. Kemper spotted Bruce Seymour, director of Mile High Racing and Entertainment.
'Did you hear what happened in the test barn?' he remembers Seymour asking him.
'No,' said Kemper.
'You will,' Kemper remembers Seymour saying.
The tale of two suspensions
Kemper was notified on Aug. 11 that his horse, Midnight Maverick, had a “pending positive” test after winning the sixth race at Arapahoe on Aug. 3. Fellow trainer Miguel Pena was informed Aug. 26 that his horse, One Rare Jess, had a “pending positive” test following a victory in the second race on Aug. 10. While many states do not pursue investigations until their labs have completed both initial screening and confirmatory analysis, Colorado's commission gets a screening report showing which test samples have been held back for further testing, and its investigators begin looking into the operations that may (or may not) have violations coming to them. Commission investigators requested copies of both trainers' veterinary records from the veterinarian they shared, Dr. Jim Dysart. No one searched either trainer's barn or vehicle after notifying them of the pending positives, which sources say was a departure from the standard procedure.
When the trainers were later summarily suspended (Kemper on Aug. 25 and Pena on Sept. 2) and informed that further testing had confirmed the presence of 3-hydroxylidocaine, both said they were puzzled. Kemper had no idea how the metabolite of lidocaine could have gotten into his horse. Pena said the only thing he could think of was an accidental contamination through some topical, possibly from a Caslick procedure he thought his vet had performed on another horse just before seeing One Rare Jess. (The vet later confirmed he hadn't used lidocaine in that procedure and also couldn't figure out how it could have been introduced to One Rare Jess.) Neither horse's veterinary records indicated use of the drug by Dysart.
Perhaps it was a mistake, they reasoned. Both submitted requests for split sample testing.
In Colorado, like most other states, there are two containers of blood and urine taken from selected horses post-race. The winner from each race is tested, and additional horses may be tested by request from the stewards. One set of samples is sent off to Industrial Labs in nearby Wheat Ridge for testing, while the other set is preserved in a locked room in the test barn – the theory being that this set will remain sealed and will not be handled by the same people responsible for doing initial testing, just in case initial testing had in some way compromised the sample. When a Colorado trainer requests a split sample test, they are given a form letter telling them when and where they are to meet with commission officials to supervise its removal from storage, verify chain of custody records, and oversee its packaging as it is sent off to a referee lab. Trainers may be accompanied by a representative from their horsemen's organization to act as their witness and to ensure all the correct procedures are followed.
Both Kemper and Pena were board members of the Colorado Horsemen's Association. They thought it was a little odd when the forms they received had the standard 'test barn' location covered over in liquid paper and the address of Industrial Labs written in. Pena went to the lab on Sept. 9 on behalf of both trainers.
As Industrial lab director Petra Hartmann would later testify, the sample containers she brought into a conference room before Pena and commission investigators were the remainders of the primary samples. Pena pointed to the broken evidence seals on the containers and crusted blood around the rims.
“That's not a split sample,” he said.
It was only then he learned that there were no split samples left for him or for Kemper. They had been destroyed in the test barn burglary, but the commission was planning to pursue the cases against them anyway.
The investigation that wasn't
No one seems to know exactly when the test barn at Arapahoe was broken into. Racing had taken place Monday, Aug. 24, with the meet's closing card taking place on Wednesday, Aug. 26. The Tuesday, Aug. 25, card was cancelled, meaning no one was supposed to be at the test barn in between the Aug. 24 and Aug. 26 race days.
The fridges and freezers where split samples are kept are each secured by two padlocks, both of which must be unlocked at the start of each racing day. One key is kept by a racing commission employee, and the other is held by the Colorado Thoroughbred Horsemen's Association. Representatives of both entities are supposed to be present for lock-up at the end of the day, but because the locks are padlocks, test barn employees have told the commission they just close the locks themselves at day's end.
The commission investigators' inquiries into the situation were brief. Investigator Richard Thomas filed a three-page report detailing his discovery of the scene along with Agent In Charge Ed Kulp at around 6:30 on the morning of Aug. 31. They found the cut padlocks lying on the floor, the bags of urine piled in the sink, and discovered a second office on the other side of the building had also been breached, with the locks on its freezer cut. Later in the morning, information technology personnel were sent to the racetrack to help the investigators access the video from the surveillance camera installed at the barn. They determined that the camera had been hooked up to a malfunctioning hard drive earlier in the season, and no video had been recorded at all.
Sources tell the Paulick Report that at the beginning of the season, the surveillance camera in the test barn had been functioning properly. With a couple of weeks left in the meet, Kulp had been informed that something was wrong, and that the camera no longer seemed to be recording. When asked whether he wanted the camera fixed, Kulp had dismissed the idea, saying that the end of the meet was so close he didn't think it made any difference. It's unclear how many people may have been aware it had stopped working.
Thomas and Kulp called local law enforcement to report the burglary, and according to testimony from a third investigator working for the commission, that seemed to be the end of the commission investigators' role.
The Arapahoe County Sheriff's Office dispatched an officer to investigate criminal mischief, theft, and second-degree burglary. When they arrived, officers learned that Kulp and others had already touched “everything in the office.”
Kulp told the responding officer “that he believes someone did this so that their horse would not be able to test positive for drugs or any other enhancement supplements.” Kulp also told the officer he'd be conducting his own investigation but had no case number yet.
At the time of the burglary, Kemper and Pena hadn't yet requested their split samples be tested. Pena's case wasn't even confirmed as a violation, and Kemper had just been handed his summary suspension but hadn't submitted his request. There were only four other samples marked as “pending” during that time – three which cleared once Industrial tested them further, and one which became a confirmed positive on Sept. 4, several days after the burglary. The trainer in that case settled the case with the commission.
Kemper and Pena say they were never questioned about their whereabouts that weekend, nor was it suggested to either of them that investigators thought they could be involved in the burglary. In fact, an open records act request for investigative documents in this case turned up only initial incident reports from Kulp and Thomas, with no indication that either questioned any other licensees about the incident.
“Because this was a criminal investigation, the Division investigators contacted and reported the crime to Arapahoe County Sheriff's Office to complete the criminal investigation. Therefore, any actions taken the sheriff's office to investigate this burglary would be contained in reports by that agency,” said Suzanne Karrer, a spokeswoman for the Colorado Department of Revenue, which oversees the Division of Racing Events.
When asked whether the investigation was still active, Karrer said: “I cannot comment on the investigations of other agencies. The report was made to Arapahoe County. I suggest you contact Arapahoe County for their investigation report.”
On Sept. 1, the day after commission investigators called the sheriff's office, Kulp called to let the officer working the case to let him know he had no surveillance footage to show them. In lieu of any other information about potential suspects, the case was deactivated by law enforcement that day, according to the Arapahoe County Sheriff's Office's incident report.
Far from being a focus for the Colorado Racing Commission in the months afterwards, the burglary was a passing mention in one meeting of the commission after it took place. At the time, the commission was told the sheriff's department's case was “still open pending additional leads,” according to meeting minutes. The commissioners were told Donia Amick, director of racing events, planned to suggest steel doors and reinforced windows be added to the building, as well as better locks and cameras.
In the seven racing commission meetings since, commissioners have been provided with no updates on the search for the perpetrators of the burglary, according to published meeting minutes.
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Have we been down this road before?
It's not the first time the test barn in Colorado has had difficulties handling evidence. At the end of a prior racing season (no one can quite remember when) Arapahoe Park maintenance staff cut power to the test barn, allowing fridges and freezers inside to thaw and rendering stored split samples useless. According to Karrer, the workers were closing up the backstretch for the season and made a mistake. There were three pending split samples in the test barn at that time. When asked what investigators discovered about the event, she said that “no action was taken by the division or the commission in this incident.”
Then there was a civil case filed in 2010 over the handling of a positive test from Quarter Horse mare Cedar Creek. The mare won a trial for the Rocky Mountain Derby that year but was kept out of the final after a test came back positive for an intra-articular corticosteroid. The horse's owner said the drug was left over from a treatment five months earlier, and the horse had raced at two other tracks after the treatment with no positive findings. A sizable part of the legal case focused on the laboratory's testing for picograms of therapeutic drugs, which was a new level of test sophistication at that time in Colorado, but it also brought up concerns about the security of the test barn.
Lavern Fein, then an assistant to trainer Brad Bolen who had taken Cedar Creek to the test barn, had been appalled when she saw how easily people could access the area where split samples were stored, even before she had any reason to think there would be a positive test on the horse in her care. People came in and out to chat with test barn employees, open and closed unlocked refrigerators at will, and stored their lunches and caffeinated drinks in the same fridge as blood samples.
Fein is a former law enforcement officer and said she was “blown away” by the “violations of all the procedures.”
“The handling of evidence is something I've done my whole life,” she said. “I expect these splits to be handled at the level of law enforcement. This is a government position so there should be rules and standards.”
Fein said she later learned the records of samples en route to the testing lab were also unclear. There are supposed to be records showing who mails samples to the lab and when, but Fein said samples were frequently handed off to people who happened to be heading in the direction of the mailing center, rather than taken by authorized employees.
“It was insanity the whole way,” she said. “I'd never seen it like that before. You couldn't get anywhere when you made complaints. It was really a good ol' boys system like I'd never seen before.”
Fein took videos of the conditions she found at the test lab (with permission of the test lab employees and horsemen's representative Shannon Rushton) and said she remembers submitting them to the commission. She said no one she complained to seemed concerned.
The case goes forward
Pena and Kemper declined to have Industrial Labs send out the remainder of their primary samples in place of a split, so Colorado stewards issued rulings against them without split sample tests.
Colorado adheres to ARCI model rules with regard to medication classification, which means that due to its ability to block pain, lidocaine is considered a Class 2 substance. Class 2 drugs are those that “have a high potential for affecting the outcome of a race.” The most common use for lidocaine in a veterinary setting is as part of a lameness exam, where a veterinarian will use it as a nerve block to knock out pain to select structures in a leg in order to localize the source of a problem.
Of course, lidocaine entered the consciousness of many racing fans last year when embattled trainer Bob Baffert fought sanctions for two lidocaine positives in Arkansas, attributing them to contamination from an over-the-counter pain patch used by one of his employees. In that case, stewards disqualified Charlatan from a win in the 2020 Arkansas Derby and Gamine from an allowance win on that undercard. They also issued a 15-day suspension for Baffert. On appeal, the commission rescinded both the suspension and the two disqualifications, and issued a $5,000 fine per positive.
Colorado stewards hit Pena and Kemper with fines of $2,500 and 180 days of suspension. Initially, the commission told them they would require that suspensions run over racing days, not calendar days. Because the state only hosts a single, short meet in the summer, that means that in practical effect, the suspension would have gone on for six or seven years, depending on the number of race cards in future seasons.
Both trainers decided to fight the suspensions.
“I don't like how the commission handled it,” Pena said. “It was very vindictive, and they didn't really want to investigate anything at all … they wanted to make an example out of us, in a bad way. It's like they know they're in the wrong and they just want me to quit fighting it.”
The appeals hearing before the commission focused primarily on the language of Colorado's code and whether licensees have a legal right to a split sample test or not. Kemper and Pena argued they did, while the commission's attorneys argued they did only if the split sample was available to be tested.
In the end, the commission not only upheld the stewards' suspension, but increased the fine to $5,000. They did retreat from their earlier position regarding the suspension, agreeing that it could be served on calendar days instead of race dates, but also waited to start the clock on the suspension until May of this year.
Kemper and Pena both say they have appealed the commission's ruling, as well as its refusal to grant them a stay of the suspension. Both recently received notice in the mail that their fines have been increased to $10,000 for nonpayment, even as their cases await a court hearing.
So, who committed the burglary?
Perhaps strangely, the issue of who may have been responsible for stealing the split samples didn't seem to come up in either trainer's appeal hearing before the commission.
Around the time of the test barn burglary, Pena and Kemper found themselves the instigators of a battle within the Colorado Horsemen's Association. Before the start of the 2020 meet, longtime CHA executive director Shannon Rushton had taken on the role of racing secretary for the racetrack while remaining in his position with the CHA. Some board members, including Pena and Kemper, worried that this was a conflict of interest. Pena and Kemper say they believe that by the end of the 2020 race meet, Rushton knew they wanted him out of his CHA role.
One of Rushton's duties prior to taking on the racing secretary job was to use the CHA key to open the test barn each morning. When he began working for both the CHA and the racetrack, the board decided someone else should represent trainers during barn searches and in the test barn.
According to testimony from Dr. Joni Smith, state veterinarian during the 2020 meet, Rushton's stand-in for test barn access was Jim Weimer, who was then vice president of the CHA. Weimer was also approved by the commission earlier that year as a security worker for the racetrack, but in practice served as the track's stall man, with his role as a security officer more of an accessory. He was also licensed as an owner and trainer at the time.
When news of the stewards' suspension reached the backstretch, Kemper remembers that Rushton immediately tried to get both trainers removed from the board in the middle of a regularly-scheduled board meeting. He was unsuccessful because the cases were under appeal and the CHA's bylaws were unclear on grounds for removing board members based on regulatory action against their licenses.
Ultimately, Rushton resigned from his position as executive director of the CHA following a disputed vote of its board members. As the Paulick Report detailed earlier this year, board members were asked to vote on whether they wanted to renew Rushton's contract ahead of the 2021 race meet. Board members submitted their votes via text to the organization's then-president, Kent Bamford. Bamford reported that the board had voted to keep Rushton, but some board members, including Kemper and Pena, later discovered that five of the eight had voted not to renew his contract. Rushton, Bamford, and Weimer resigned before a new vote could be taken.
“I find it very weird, because me and Kerry, we've been trying to make a change, trying to make things better around here,” said Pena. “Anytime somebody has a bad test on the backside or any kind of problem with the division or the commission, they go to my barn instead of going to Shannon for me to represent them because I know the rules. I know how to defend myself a little bit and I think that pisses them off a lot.”
Pena said he was never provided with any copies of police or investigative reports, or any photo or video evidence of the burglary. Until he learned from this reporter that a police report existed, he doubted whether the crime had taken place at all.
“I personally believe there was never a break-in,” he said. “Both of us getting a lidocaine test…that's just something you don't do. We all know as horsemen, you can't block horses' legs. It's going to test. We're not going to do it. The two people that are trying to make changes and trying to make people's lives better get a bad test … it's pretty suspicious to me.”
If investigators had wanted to look for licensees with a motive to burglarize the test barn, the two trainers agree they should have been targets of the investigation. Kemper has a fairly clean record, with only one drug violation since he became a licensed trainer in 2011. That was for a high flunixin meglamine level in 2013. For that, Kemper said he knew he had given the therapeutic medication and accepted his penalty without appealing.
Pena, on the other hand, has a somewhat more checkered history with regulators, although he has no medication violations on his record.
In 2019, he ran into trouble in Oklahoma when he and another man allegedly broke into the dorm room of a groom and assaulted the groom, resulting in a summary suspension that stretched on for several weeks.
In 2018 Pena was discovered with needles and syringes in Colorado around the same time he had a confirmed drug positive for clenbuterol. Pena observed the packaging of a split sample in that case along with commission representatives, but when it arrived at his chosen lab for testing, technicians determined the sample had been “destroyed” during shipping.
As a result, the division informed Pena it was dropping the charges related to the clenbuterol finding – demonstrating, he believes now, that standard procedure in absence of a split should be the commission dropping the case.
When the Paulick Report submitted a Colorado Open Records Act request seeking correspondence between commission personnel about the 2020 test barn burglary, there was only one email responsive to the request. It was a note sent from Tyra Barnett, the safety steward at Arapahoe Park that season, who indicated she'd only just heard about the burglary weeks after it occurred.
“My question is, what happens now?” Barnett wrote in the email, sent to the Zach Ceriani, legal assistant for the Division of Racing. “Does the case just go away or can we use the 'prima facie' element to proceed with the case? This is an unbelievable turn of events that seems to surround the trainers involved, and destroying evidence has happened with at least one of them. Although it was never been proven, lightning doesn't seem to strike twice in the same place.”
Pena maintains he had nothing to do with any destruction of samples.
“I know they hate me because sometimes I get people out of trouble who aren't supposed to be in trouble,” said Pena, who recalled one investigator who contacted him after retiring from the division. “He went down to the barn and said, 'Miguel, if I were you, I wouldn't come back here next year. You have a target on your back.'”
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