Ray Paulick in his excellent blog The Paulick Report wrote about the ongoing issue in New York regarding the ability or better yet the inability for those of us representing trainers before the Gaming Commission to obtain split samples of tests that are initially found to be positive. This inequity puts testing in question across racing and prevents those trainers accused of violations from getting a truly fair hearing.
A split sample is exactly what it sounds like. It is additional sampling of the urine taken post race from a horse. This sample is then sent in New York to the State University at Morrisville, where Dr. George Maylin tests the samples to determine if there are any overages of medications. The remainder of the samples are to be kept under a specific and codified methodology for chain of custody and safe keeping. When those procedures are not followed, the sample is rendered unusable and the defense counsel are at a loss to disprove the findings of Dr. Maylin and ultimately left with the inability to completely exonerate one’s clients.
A court does not throw out the positive sampling because the evidence was not maintained properly for the defense to get a split sample in racing cases . This is despite the well established rule that the fruit of the poisonous tree should not be admissible. The argument has been that the sample the Dr. Maylin utilizes was kept in accordance with the rules and therefore his testing is accurate. However, when a defense counsel cannot provide an expert enough of a sample to have an independent review of the process then that sample should be excluded as well.
Part of a lawyers job is to vigorously protect the process as well as the clients rights. Failure to do that is failing to do the best for your client.