Mistrial declared in Giannelli case after attorney tests positive for COVID-19

NEW YORK – COVID-19 on Monday temporarily upended the trial of Seth Fishman and Lisa Giannelli, who were among more than two dozen people connected to horse racing who were indicted in 2020 on charges of misbranding or adulterating drugs.

As the trial's second week began, testimony was delayed after it was revealed that Giannelli's trial attorney had tested positive for COVID-19 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 Tuesday 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 opened Jan. 19 with jury selection followed by two days of opening statements and testimony from three witnesses.

Prosecutor Anden Chow told the jury that 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 has come from the government's first witness, 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 that 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.

Fishman and Giannelli are charged with conspiracy to violate drug adulteration and misbranding laws. 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 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 and learned of the positive result. He showed up briefly in the courtroom and then left. He spoke to the judge via an audio hookup.

His symptoms were said to be 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 attorney Marc Fernich said a mistrial was warranted for his client given the positive COVID test. He said the trial's start had revealed differences between Fishman and Giannelli regarding their defense strategies.

"The defense has a right to have a trial with a clean slate," Fernich said.

Still awaiting trial is Jason Servis whose horse Maximum Security finished first in the 2019 Kentucky Derby but was disqualified for interference. Servis has maintained a not guilty plea.

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