Hurwitz Update: Jury Instructions

Hurwitz Update: Jury Instructions – Mary Baluss; Project for Pain and Chemical Dependency; National Foundation for the Treatment of Pain; 2007-04-23

The Jury was told by the judge that some charges had been deleted but that they were not to draw any inferences one way or the other from that in deciding the remaining charges. The jury did not know precisely the item by item charges, but only the general headings: conspiracy and drug distribution. I am not sure they would even have realized until they got the verdict sheet that there are separate counts for individual prescriptions and now they will not know that there were separate counts for individual rx that led to “serious bodily harm”.

They were given the standard “good faith” instruction which I don’t like since it talks about the honest exercise of “best” professional judgment. But they were also clearly and carefully instructed about the difference between malpractice and drug distribution. They also got the “willful blindness” (ostrich) instruction and were told that it is possible to determine the requisite scienter (knowingly, wilfully) from that. I always find jury instructions confusing at best. They have written copies of the oral charge in the jury room.

Jury also was given the standard instruction that folks who have plead and been given leniency in return for cooperation may be considered less reliable than others who had not had that experience. They were told to weigh all testimony as they saw fit in light of all of the evidence and what they could discern about the testifer. Those aren’t the exact words of the charge, but it’s the gist.

The two jurors that I liked least from this inscrutable 14 were excused. They were two white middle aged guys who may have been too young for serioius pain and parental demise and too old to have a more relaxed attitude toward the war on drugs. Well, we’ll see.

On Friday the jury sent out a single question. They wanted a definition of “outside the bounds of medical practice” (OMBP). The judge gave a quite good response straight out of Gonzales v. Oregon: OBMP = acting as a drug distributor rather than a doctor. Again, the language is not perfect, but it’s what the judge has to go with.

The defense has preserved on the record a request for an instruction of good faith based on subjective rather than objective criteria, using the dissent in the 4th Circuit reversal of the first trial.

The evidence included a great deal of admissions and records that show that Billy “doctored” the bad patients and the good.

They also heard from the good patients, who were prescribed in some cases equivalent doses to the “bad” patients about the lives saved. One compelling line in the closing argument went something like this: Was he a drug pusher when he saw Rita Carlin (bad) at 11:00 on May 24 and a doctor when he saw Molly Shaw on the same day at 2:45? Was he… [Defense counsel] Larry Robbins had found some of the pairs of patients that the jury had seen and heard about and used it wonderfully.

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7 Comments

Comment by:
Bill

When should we expect the writ to be granted or denied?

Thanks,

Bill
Comment by:
adeluca

Hello Bill,

I’m sorry – not sure what you mean exactly by ‘writ.’ The testimony part of the Hurwitz trial has ended. The most serious charges against him have been dropped. The jury is deliberating the remaining charges. (See recent posts on the Hurwitz trial for these details.)

Sooo, we expect a verdict from the jury any day now – very likely this week. If convicted, then the judge will sentence Dr. Hurwitz. There are no mandatory minimum burdens to the remaining charges.

Hope this helps.

..alex…
Comment by:
Bill

Sorry. I meant to post that under the latest update regarding Dr. McIver’s petition to the Supreme Court.

I was just wondering when they may decide whether or not to hear the case. I certainly hope they do because his case, like many others including Dr. Hurwitz’s, challenges the high court’s ruling in Moore and Gonzales. The US Attorney’s Office has unfortunately caused district courts to lower the criminal standard to the civil standard when physicians are on trial. Certainly the Supreme Court will see the need to restrain the DOJ again.

I would love to see a discourse on how it is decided which cases will be heard in the Supreme Court.

Bill
Comment by:
adeluca

“Sorry. I meant to post that under the latest update regarding Dr. McIver’s petition to the Supreme Court.”

I should have figured that out .

“I would love to see a discourse on how it is decided which cases will be heard in the Supreme Court.”

Me too, actually. Getting this issue heard in the SC is the major goal of the Pain Relief Network. Reynolds and Flannery should be able to enlighten us about this.

I will ask them and get back to us.

..alex…
Comment by:
adeluca

Bill,

Could I ask you to please cut/paste your question into the Comments under PRN’s ‘Writ of Certeriorari’ to the Supreme Court regarding Dr. McIver?

I spoke to Siobhan, and she would be happy to come here and discuss this with us, but I’d like the Comments to be connected to the McIver post.

Thanks, man.

(But I’ll give you a hint. Our case hsa already been accepted ‘in conference’ – or something like that. Meaning, the Court sees enough in our brief to have decided to talk about whether to hear the case.)

..alex…
Comment by:
Bill

Will do.

That is great news. I would hope that the Justices, especially Justice Kennedy would see the McIver decision, and all the prosecutions (given the nature of prosecutors comments and expert testimony) as an afront to their decision in Gonzales v Oregon.
Comment by:
adeluca

From your mouth to God’s ears, Brother.

To all: This discussion of the Dr McIver Writ will be continued here:

http://doctordeluca.com/wordpress/index.php/archive/why-fight-4-mciver/87/#comment-14

Siobhan Reynolds, President of the Pain Relief Network, will more fully answer Bill’s question about the process and timing of getting a case heard before the Supreme Court.

In McIver, PRN has passed the first major hurdle — the justices have agreed to conference to consider taking the case. Still a longshot, but this was a huge step forward for Dr. McIver, and for PRN.

..alex…