Jason Servis | Horse Racing Free Tips

Mistrial Declared in Giannelli Case Due to Covid

Covid-19 temporarily upended Jan. 24 the horse doping trial of Dr. Seth Fishman and Lisa Giannelli–who are among the 27 horse racing professionals, including prominent trainers, charged in the case.

As the trial's second week began, testimony was delayed after it was revealed that Giannelli's trial attorney had tested positive for the disease before the trial was to resume Monday.

Judge Mary Kay Vyskocil then declared a mistrial on Giannelli's behalf because her attorney Louis Fasulo wouldn't be able to return to court for at least 10 days.

“I can't have a jury on ice for 10 days,” she said.

The jury never heard any witnesses Monday and Vyskocil sent them home after lunch with the resumption of the trial in doubt.

In the courtroom and without the jury present Fishman's attorneys also moved for a mistrial. Vyskocil reserved decision on the motion until Jan. 25 in the morning but during back and forth with the Fishman defense team she hinted she was considering having the trial resume with only Fishman. The trial continues Tuesday at 9:30 a.m.

The trial opened Jan. 19 with jury selection followed by two days of opening statements and testimony from three witnesses.

Prosecutor Anden Chow told the jury Fishman and Giannelli had for two decades operated a “black-market drug business” that peddled to horse trainers around the country performance enhancing drugs that were administered to horses on race days and that couldn't be detected by horse racing commissions in post-race testing.

Most of the testimony the jury has heard came from the government's first witness, a 34-year-old woman, Courtney Adams, who worked at Fishman's South Florida business for five years until 2017. She said Fishman was fixated on creating drugs that were untestable.

FIshman attorney Maurice Sercarz told the jury his client's actions were in accordance with his veterinary oath to protect the safety and welfare of animals. Fasulo said Giannelli didn't believe she was doing anything wrong while working for Fishman.

They are charged with conspiracy to violate drug adulteration and misbranding laws in the doping horses. Prosecutors say the 11 trainers charged in the case acted to win lucrative purses without regard to the health of their horses.

Both Fishman and Giannelli are out on bail and were in court Monday.

The U.S. District Court in New York has implemented numerous Covid protocols to avoid outbreaks. The witness stand has been outfitted with a HEPA-filtered plexiglass box. There's also a HEPA-filtered plexiglass box for lawyers to use when they question witnesses. Masks are required of everyone in the courtroom, including the judge, but witnesses and lawyers can remove them if they are using those boxes.

Over the weekend courthouse officials implemented a new protocol. It required that lawyers and witnesses needed to take a rapid PCR test if they intended to remove their masks while using the boxes.

It was when Fasulo took the test in accordance with the new protocol that he learned of the positive result.

He showed up the courtroom briefly and then left. He spoke to the judge via an audio hookup.

His symptoms appeared mild. He told Vyskocil he had a “tickle in his throat.”

“I don't know what we're going to do. I feel terrible,” Fasulo said before consenting to the mistrial.

Giannelli's new trial date hasn't been set.

Fishman's other attorney Marc Furnich argued a mistrial was warranted given the positive Covid test. He also said it was warranted given that the trial's beginnings had exposed a conflict in defense strategy with Fasulo.

As proof Fernich and Sercarz pointed to Fasulo'a opening statement.

“Mr. Fasulo's second line was'we sit here after hearing the government say Lisa Giannelli was a lone wolf in a herd of sheep. What she was was more the proverbial sheep herded by the sheep master' a clear reference to Dr. Fishman,” Sercarz said.

He and Fernich argued that it would be difficult to convince the jury otherwise after they heard that and Giannelli was no longer part of the case.

Vyskocil said she didn't see what the problem was.

“Opening statements are not evidence and the jury has been told that,” she said.

Still awaiting trial is Jason Servis whose horse Maximum Security finished first in the 2019 Kentucky Derby only to be taken down for interfering with another horse. Prosecutors have accused Servis of doping dozens of horses in his barn, including Maximum Security.

The post Mistrial Declared in Giannelli Case Due to Covid appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

Doping Trial Pauses for Weekend, But Court Filings Don’t

Although the federal racehorse doping conspiracy trial for veterinarian Seth Fishman and his assistant, Lisa Giannelli, paused for the weekend, attorneys for both sides remained busy on Saturday and Sunday, filing requests with the court over the admissibility of evidence regarding an equine fatality and the way witnesses must testify while wearing masks as a pandemic precaution.

On Sunday morning, the prosecution filed a motion in United States District Court (Southern District of New York) that asked for permission to present evidence related to Fishman being investigated in Delaware more than a decade ago when a Standardbred died after being injected with one of his prescribed products.

“The Government moves for the admission of evidence regarding Fishman and Giannelli's knowledge of the death of the horse 'Louisville' in light of the defendants' opening statements and lines of cross-examination,“ prosecutors wrote in the Jan. 23 motion.

“The Government is entitled to fairly rebut the joint defense theory that the defendants lacked criminal intent because they sought only to help animals. Given that defense counsel has placed the safety and welfare of animals squarely at issue with respect to the defendants' intent to defraud or mislead in distributing these drugs, the Rule 403 balancing has shifted significantly,“ the filing continued.

Rule 403 pertains to a judge's discretion to exclude certain evidence if it is outweighed by the potential danger of unfair prejudice to defendants or could cause confusion among jury members.

In this case, prosecutors had previously been told that the evidence related to Louisville would not be permitted. But now the feds are saying that based upon the defense's strategy presented in the first few days of the trial, the evidence related to that equine death and its investigation by the state is newly relevant and should be allowed.

“The defendants each have advanced the theory that Seth Fishman was acting only in the best interest of the animal, and that Lisa Giannelli acted in reliance upon Seth Fishman's so-called veterinary expertise,“ the motion stated.

“A defendant suffers unfair prejudice only where evidence 'lure[s] the factfinder into declaring guilt on a ground different from proof specific to the offense charged,'” the motion argued. “But defense counsel cannot have it both ways: they cannot raise the defense that the defendants were concerned with the welfare of horses (or had no reason to believe they risked the safety of horses), then exclude highly probative evidence to the contrary…

“Countervailing evidence that Seth Fishman and Lisa Giannelli were aware of the risks of Pentosan, in particular, and IV drugs, generally, yet still distributed those drugs directly to racehorse trainers without prescriptions from or the oversight by a veterinarian is now highly relevant to the defendants' state of mind—the central point of contention as a result of defense counsel's arguments and questioning,“ the filing stated.

“By giving trainers and other non-medical personnel access to prescription and custom injectable drugs, Fishman and Giannelli provided the means by which trainers could do serious injury to their horses, and both defendants were aware of that fact at least as a result of the complaint lodged against them…

“There is no question that Giannelli and Fishman were aware of these risks as of at least 2010 when the complaint was filed with the Delaware Division of Professional Responsibility. That they continued to distribute Pentosan, and other IV medications to trainers, grooms, and others, has significant relevance in light of the arguments now raised to the jury,“ the filing stated.

Fishman is charged with two felony counts related to drug alteration, misbranding, and conspiring to defraud the government. Giannelli, who worked under Fishman (her exact role is disputed) faces similar charges.

In a separate letter to the judge filed by Fishman's attorney on Saturday, the defense took umbrage with a courthouse COVID-19 safety protocol requiring witnesses to testify while wearing masks despite already being sequestered in a HEPA-filtered plexiglass box.

“In our respectful view, adding a mask requirement to the current precautions hampers adequate assessment of witness demeanor and credibility, impermissibly impairing defendants' Fifth and Sixth Amendment rights to confrontation, due process and fair trial,“ Fishman's lawyer wrote.

“Granted, balancing those essential guarantees against public health considerations is no easy task. But even amid an ongoing pandemic, an additional witness mask requirement seems unwarranted overkill, a belt-and-suspenders approach,“ the Jan. 22 letter stated.

“Conversely, the prevailing lesser restrictions–including ample distancing and continuously masking all trial participants and spectators save a single testifying witness and speaking lawyer, each sequestered in their own HEPA-filtered plexiglass box–appear more than sufficient,“ the defense stated.

The post Doping Trial Pauses for Weekend, But Court Filings Don’t appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

Full Day of Testimony in Fishman Trial

A New York jury heard a full day of testimony Jan. 21 in the horse doping trial of Dr. Seth Fishman and Lisa Giannelli. The entire morning and most of the afternoon featured a second day of testimony from a woman who worked for Fishman at his Florida business Equestology for five years.

Courtney Adams, 34, testifying from Florida via video conference, told jurors that Fishman and Equestology were all about “testability.” That meant creating “product” that couldn't be detected in post-race testing by horse racing authorities, she said.

During her testimony in U.S. District Court in Manhattan, prosecutors showed an email in which a veterinarian who was a client of Equestology asked about one of the products, equine growth hormone, and whether it was testable.

“That was our biggest selling point, that he specialized in making product that wasn't testable,” Adams testified, referring to Fishman.

The witness, who had been an Equestology office manager and then a sales rep, said that Fishman told her there was a risk of regulators coming up with a test to detect the substance. If that happened, Fishman said he would have to create another product that would be undetectable, she said.

“That was the whole point of that product to be not testable,” Adams testified.

Fishman and Giannelli face conspiracy charges in a wide-ranging scheme to dope horses with performance-enhancing drugs to boost the treated horses' chances of winning races. Those charged include prominent trainer Jason Servis, who has maintained a not guilty plea and is awaiting trial. Others, such as trainer Jorge Navarro, have pled guilty and been sentenced.

Prosecutors say the accused were motivated by greed to win races and acted without regard to the welfare and safety of horses.

While on the stand, Adams admitted helping to mislabel products that Fishman created for clients around the country and in the United Arab Emirates. She said she also shipped vials of product without any labels.

Under questioning by prosecutor Andrew Adams, the witness said that she knew “in general terms” that some of those who purchased Fishman's drugs were horse trainers.

“He would discuss why they wanted them and why they were being used by them,” she testified.

“And did he say why they were being used by trainers?” the prosecutor asked.

“He said they were being used because they were untestable,” Adams replied.

The jury also heard the witness cite the names of some of the drugs Equestology sold.

Those products included Endurance, Bleeder, Hormone Therapy Pack, HP Bleeder Plus, and PSDS.

Adams testified that PSDS stood for Pain Shot Double Strength, describing it as a “double strength product for pain.”

She indicated she didn't know what the other substances were for.

Adams said she stopped working for Equestology in 2017.

“I was over it to be honest,” Adams testified. “I didn't want to do it anymore.”

As she left, Fishman asked her not to discuss their business with anyone, Adams noted.

“I said okay,” she said.

She said in 2018 investigators with the Food and Drug Administration approached her to ask about Fishman. She said she wasn't comfortable talking to them without a lawyer.

After Fishman, Giannelli, Servis, and about two dozen others connected to horse racing were indicted in March 2020 in the doping case, Adams said a friend sent her a link with a story about the arrests.

She said after reading it she contacted law enforcement.

“I read the story, and I realized they didn't have the whole story, and I felt obliged to give it to them,” Adams told the jury.

She said as a result of the information she provided, government lawyers offered her a non-prosecution agreement.

During cross-examination, Fishman's attorney Maurice Sercarz sought to suggest that Adams was motivated to contact law enforcement out of personal animosity against Fishman.

She admitted that before she left Equestology, Fishman had accused her of theft and using Equestology funds to purchase personal items.

She told Sercarz she was upset about those accusations “because they were false.”

During his cross-examination, Giannelli's attorney, Louis Fasulo, questioned Adams about whether she would work at a place that put horses in danger.

No was her response.

Adams also said she didn't think she was breaking the law when labeling products she said were mislabeled.

Toward the end of the day, Long Island retired Federal Bureau of Investigation agent Angela Jett took the stand to read from notes of an interview she conducted with Fishman in 2010.

Jett said she had interviewed Fishman as a potential government witness in a $190 million securities fraud case. That case involved a magnate named David Brooks and a body-armor company he owned on Long Island. Fishman worked for Brooks, an owner of Standardbred racehorses that competed in New York and elsewhere.

According to the notes, Fishman told Jett that he had supplied performance-enhancing drugs to Brooks, who administered them to horses before racing.

Brooks was found guilty in 2010 of charges connected to the fraud and died in prison while serving a 17-year prison sentence.

Under cross-examination by Sercarz, Jett acknowledged that her notes don't say whether Fishman learned of the doping at the time it occurred or “after the fact.”

He also pointed out that Jett's notes show that when Brooks asked Fishman to dope a horse, Fishman refused.

Fishman's admissions to Jett never led to charges.

The trial resumes Jan. 24.

The Thoroughbred industry's leading publications are working together to cover this key trial.

The post Full Day of Testimony in Fishman Trial appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

Horse-Doping Trial: Former Fishman Employee Cites Non-Testable Products

A New York jury heard a full day of testimony Jan. 21 in the federal horse doping trial of Dr. Seth Fishman and Lisa Giannelli.

The entire morning and most of the afternoon featured a second day of testimony from a woman who worked for Fishman at his Florida business Equestology for five years.