A New York jury began deliberations Feb. 1 in the horse doping trial of Dr. Seth Fishman.
The jury of eight women and four men deliberated for about 30 minutes before retiring for the night without reaching a verdict. They resume deliberations the morning of Feb. 2.
The charges against Fishman, a 50-year-old Florida veterinarian, stem from a federal government crackdown on horse doping at tracks across the country in which more than two dozen individuals were indicted. Those charged include top trainer Jason Servis, who is awaiting trial, and Jorge Navarro, who was sentenced to five years in the case after pleading guilty.
Prosecutors say racehorse trainers at Thoroughbred and harness tracks juiced their horses with performance-enhancing drugs manufactured by Fishman and designed to elude post-race testing. They say Navarro was one of Fishman's clients.
At the start of the trial's 10th day Tuesday, jurors noted Fishman's absence in the courtroom for a second straight day. They weren't told where he was, and Judge Mary Kay Vyskocil advised them not to speculate on his absence.
“Please don't draw any inference as to why he may be absent,” she said.
The panel spent most of the day listening to prosecutors and defense attorney Maurice Sercarz clash over the evidence in the case.
Prosecutor Sarah Mortazavi addressed the jury first and began by saying that Fishman built “a multi-million drug business through deceit.”
“You know what the defendant Seth Fishman is all about,” she said. “His business was to peddle adulterated and misbranded drugs, performance-enhancing drugs designed by him to cheat horse racing.”
Re-emphasizing evidence submitted during the trial, she paused to play a 2019 Federal Bureau of Investigation wiretap. In that recording, Fishman says that anytime you give something to a horse you are not supposed to, that's doping.
Mortazavi said another wiretap quoted Fishman as saying he was cheating the system.
“If someone says they are trying to cheat the system, that's what they are doing,” the prosecutor said.
A few minutes later, Mortazavi held a drug vial that had been seized from Fishman's business in 2018 and showed it to the jury.
“We're not talking about hay, oats, and apples,” she said.
Mortazavi said there was overwhelming evidence of Fishman's guilt. The prosecution's case included witness testimony, emails, text messages, and dozens of wiretap recordings. Three of the witnesses were trainers who said Fishman supplied them with PEDs.
To prove its case, the prosecution must prove that Fishman defrauded or misled others over the course of the alleged conspiracy.
Mortazavi said the evidence showed Fishman tried to defraud and mislead the Food and Drug Administration by registering his corporation in Panama.
She said the evidence also shows how Fishman tried to avoid scrutiny by racing regulators.
She reviewed a text quoting Fishman saying “absolutely not” when asked if an order of PEDs should be sent to an address at a track.
“Why not send it to the racing office,” Fishman wrote, apparently in jest.
“LOL,” was the response from Fishman's business associate Lisa Gianelli.
She was being tried with Fishman, but a mistrial was declared in her case last week after her attorney tested positive for COVID-19.
Sercarz argued to the jury that there was insufficient proof from the government that his client defrauded or misled.
“Did he do something to violate racing regulations? Yes, but intent to defraud or mislead?” Sercarz said.
He contended Fishman's actions were those of someone acting in good faith and who, as a licensed vet, had the horses' best interests in mind.
“Seth Fishman improvidently chose to live in a rough neighborhood among racehorse owners and trainers bent on cheating,” Sercarz said.
“I submit it was Dr. Fishman who was trying to wean horses off much more dangerous stuff and provide a safer alternative while adhering to his oath as a licensed vet to protect the welfare and safety of animals.”
After Sercarz finished, prosecutors had the final say.   Prosecutor Andrew Adams stood up and asked the jury to reject his adversary's argument.
“He doesn't have much to work with,” Adams said. “He's not a magician. He can't make the evidence disappear.”
The prosecutor told the jury that Fishman's actions weren't about helping racehorses but about helping his clients make money and cheat race regulators.
“He was a drug dealer, not a veterinarian,” Adams said.
  The Thoroughbred industry's leading publications are working together to cover this key trial.
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