Hurwitz Family: The Jury Verdict on Dr. Hurwitz

The Jury Verdict on Dr. Hurwitz; Ken Hurwitz (Billy’s brother); to friends and supporters; 2007-04-30, 11:02pm

30 April 2007 Dear Friend:

Late last Friday afternoon, 27 April, the jury delivered its verdict on Dr. William Hurwitz after 7 days of deliberation. Of the 45 drug-trafficking counts that went to the jury, he was found guilty on 16 and acquitted on 17; the jury was unable to reach a verdict on 12 counts.  Ordinarily, when a jury is unable to agree on a charge (“a hung jury”), the government retains the right to bring a new trial on the undecided counts.  In this case, however, the presiding judge, Leonie Brinkema, dismissed the “hung” counts, over strenuous protest from the prosecution.

As previously reported in the media, before sending the case to the jury, Judge Brinkema had already granted the defense’s requests to dismiss the 5 most serious counts of causing bodily injury or death, which would have each carried a statutory 20-year minimum sentence.  That was itself a very significant victory for the defense.

It saddens us that after such a truthful and vigorous defense (see below for more details), the jury still believed that Dr. Hurwitz had in some instances acted not as a doctor but as a drug trafficker, and appeared to have equated his errors of professional judgment regarding some of his patients with criminal actions. But it is important to bear in mind that this mixed judgment is a vindication, if only a partial one, for Dr. Hurwitz.  The verdict can be seen as a clear repudiation of the government’s original highly-publicized theory of Dr. Hurwitz as a major “drug kingpin” at the center of a “continuing criminal enterprise” of massive illegal drug distribution. Significantly, as in the earlier trial, the government failed to persuade the jury that Dr. Hurwitz had conspired with any of his patients to commit a crime.  With the 20-year mandatory minimum charges dismissed, we believe it is highly unlikely that any sentence ultimately imposed will come close to approaching Judge Leonard Wexler’s outrageous 25-year sentence in the first trial.

We urge anyone who has not done so to take a look at John Tierney’s coverage of the case, in two recent columns in the New York Times Science section (enclosed) and other postings in his blog, including one from today, titled: “Hurwitz Jurors Explain Their Verdict,” at:  http://tierneylab.blogs.nytimes.com/ . Comments sent in by readers to the blog indicate overwhelming support for Dr. Hurwitz and understanding of the broader significance of this case. [see also: Collected Observations/Analysis of the Hurwitz Retrial]

Trial Length The trial began on Monday, 26 March, and ended on Wednesday, 18 April, a total of 15 days, spread over 3 and a half weeks.  (The court did not convene on Fridays.)

The Prosecution The prosecutors were Assistant U.S. Attorneys Eugene J. Rossi and Jonathan L. Fahey. Rossi was the lead prosecutor in both this and the earlier trials.  Fahey was new to this trial.

The prosecution presented its case first and took a total of about 9 days, presenting 41 witnesses, including paid expert witnesses (one of whom acknowledged his $100,000 contract for his testimony), dishonest former patients who diverted and/or abused their pain medications, and relatives of some of these patients.

The central message of the prosecution was that Dr. Hurwitz’s refusal to totally cut off any patient at the first sign (past or current) of illegal drug use or diversion made him a willing participant in these activities. The prosecution did not even try to show any coherent motivation – financial or otherwise – for Dr. Hurwitz’s alleged crimes.  Conversely, while acknowledging errors of judgment, the defense maintained that Dr. Hurwitz’s efforts to persuade misbehaving patients to stop their misconduct, and to taper down misbehaving patients who proved incorrigible, were in all cases the practice of medicine. And in fact, Dr. Hurwitz did succeed in reforming some misbehaving patients and cut off many of those who were incorrigible. As a healer, Dr. Hurwitz argued, it would have been unethical and immoral to put someone on high dose opioids through an ordeal of “cold-turkey” and possibly life-threatening withdrawal. Typical of the government’s distortions was its use of a secretly recorded tape in which Dr. Hurwitz complains about being the victim of a “conspiracy of silence” by his dishonest patients – which Gene Rossi repackaged as an “admission” that he was the organizer of such a conspiracy.

Most of the dishonest patients who testified for the prosecution remain in jail, but they received extremely generous sentence reductions in exchange for cooperating with the government against Dr. Hurwitz. One, for example, got his 20-year sentence reduced to 7. All of them admitted lying to Dr. Hurwitz in order to get pain medication to sell or abuse, and not one of them claimed that Dr. Hurwitz knew what they were doing or was a partner in their crimes.

The Defense The defense was led by two pro bono co-counsel, Larry Robbins of Robbins, Russell, Englert, Orseck & Untereiner, and Richard Sauber of Fried, Frank, Harris, Shriver & Jacobson. (Larry is also the lawyer who won the Fourth Circuit appeal that overturned the verdict of the first trial.) Larry and Dick, supported by legal teams from their respective firms, did a spectacular job. We knew they all had been working very hard for quite a long time in preparation, but as we saw how carefully and powerfully events unfolded in the courtroom, we were just blown away by the energy and dedication they put into unearthing, organizing and presenting the evidence.

The defense’s task was to take a vast set of facts and complicated issues, with tens of thousands of pages of evidence, and crystallize it all into one central question:  Was Dr. Hurwitz a doctor practicing medicine or a drug dealer peddling drugs?

The defense presented 18 witnesses, including 4 experts, 10 patients whom Dr. Hurwitz helped regain their normal lives, the father of an 11th patient who was too sick to come, two other fact witnesses, and Dr. Hurwitz himself.

Larry Robbins Through his direct examinations of the defense’s fact witnesses, particularly the honest patients, Larry powerfully elicited the true story of Dr. Hurwitz as a talented and compassionate – if flawed – physician, and the stories of the lives he helped improve. All of them spoke movingly of Dr. Hurwitz’s skill, sincerity and humanity. The patients gave gripping accounts of their individual trauma and their difficulty in finding doctors who believed them and were willing to prescribe enough, if any, pain medications to relieve their pain until they came under Dr. Hurwitz’s care.  They included an occupational therapist who now has to save up medications for “special” occasions such as grocery shopping; a computer analyst who opted for bilateral below-the-knee amputations in an effort to stop his pain; and a former school teacher whose doctor sent her for brain surgery rather than prescribing the drug that could relieve her pain.

In cross examinations, Larry showed that most of the bad patients testifying for the prosecution not only lied to Dr. Hurwitz (which they admitted) but were also lying on the stand during this trial.  In one case, using the government’s own tape recording of one of these patients, Tim Urbani, Larry revealed to the court and the jury that Urbani had, even before he began cooperating with the government, already planned to blame Dr. Hurwitz for his own criminal activities, including drug trafficking, robbery and arson. Another dishonest patient, Kathy Shortridge, was similarly exposed when Larry showed that a key claim she made at trial regarding Dr. Hurwitz was exactly opposite to her testimony in the grand jury that led to the original indictment of Dr. Hurwitz.

Larry delivered a stirring closing argument pulling together three weeks’ of testimony and evidence into the same single critical question of whether Dr. Hurwitz was a physician or a drug dealer.  Larry urged the jury not to be taken in by the prosecution’s blunderbuss approach of a 50- count indictment premised on the likelihood that a divided jury would be tempted to “split the difference.”  Referring to one of the genuine patients who had testified powerfully shortly before, Larry asked the jury to consider seriously whether it was possible that Dr. Hurwitz was acting as a doctor when he saw Molly Shaw at 10am on such-and-such a day and then became a drug dealer two hours later when he saw Tim Urbani.

Richard Sauber Dick’s skillful and thorough examinations of defense expert witnesses Dr. Russell Portenoy, of Beth Israel Medical Center, New York, and Dr. James Campbell, of John Hopkins Medical Center, Baltimore – two of the leading pain experts in the country – enabled them to provide a truthful and compelling narrative of the history of pain treatment with opioids and the controversy surrounding it, which constituted the essential background for understanding Dr. Hurwitz’s practice and his actions.  All of the defense’s expert witnesses, including forensic pathologist Dr. John Pless and toxicologist Dr. Michael Evans, both from Indiana, testified without compensation.

In his cross examinations of prosecution experts, we felt that Dick was able to give the court and the jury a clear understanding of how the government’s reign of terror in pain medicine has forced doctors to abandon patients, with patients as the ultimate victims.

Dick showed that one of the government’s two important experts, Dr. Jane Robin Hamill-Ruth, of the University of Virginia Pain Management Center, turned away a patient suffering from severe migraines who later sought and received help from Dr. Hurwitz. Dr. Hamill-Ruth had referred the patient to a psychologist and, instead of pain medications, prescribed Buspar to her, an anti-anxiety drug with headaches as a side effect.

The second of the government’s main experts, Dr. Lowell Douglas Kennedy, of Kentucky – the $100,000 man – turned out to have lied under oath in another case regarding his personal history including suspension of hospital privileges for unprofessional conduct. Kennedy was also shown to have supplied materially false information in a malpractice insurance application.

Perhaps most important was Dick’s thorough and sensitive examination of Dr. Hurwitz, who was on the stand for 2 ½ days. We were all relieved when Dr. Hurwitz told us on the eve of his testimony that Dick’s advice to him was to be himself and tell the truth. Previous counsel had tried to persuade him to contrive an oversimplified less-than-truthful narrative in order to score easy points, disregarding the fact that Dr. Hurwitz is simply incapable of lying. We have always believed that only the truth can explain his actions and mistakes.

* * *

We are grateful to all of you for your support – moral and material – without which we could not have brought the appeal and in turn pursued this trial.

Even though the jurors failed to grasp completely the truth about Dr. Hurwitz, we owe both Larry and Dick and the many lawyers who worked with them enormous debts of gratitude. The following message from Dick shows how very fortunate we were to have found these lawyers with hearts of gold – and brains of steel:

The representation of your brother has been one of the high points of my career.  It was, of course, an incredibly interesting trial with a host of fascinating issues.

But more importantly, it was a chance to represent someone who has been unfairly imprisoned, the highest calling for any lawyer.  Billy is many, many things, as you and your family know, but he is not a criminal — not even close.

And our representation of him served other important goals - to encourage others in similar positions to fight back, and to deter the government from being too heavy handed in the future.

Sincerely,

Ken Hurwitz - On behalf of the Hurwitz Family

P.S. - Please read:

At Trial, Pain Has a Witness; John Tierney; New York Times; 2007-04-24

Trafficker or Healer? And Who’s the Victim?; John Tierney; New York Times; 2007-04-27

[END]

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Tags: chilling effect, diversion, drug trafficking, ethics, good faith, govt misconduct, legitimate practice, persecuted physicians, prescription drug abuse, prosecution, public health, red flags, statistics

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