By T. D. Thornton
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.