Hurwitz Re-Trial Update - Observations on Court Proceedings

I witnessed part of the Hurwitz proceedings yesterday, 2007-04-17. The trial is wrapping up - I was present for the end of Billy’s direct examination and the bulk of the cross examination. I had to leave before re-direct. The veteran trial-watchers amongst the Hurwitz family and supporters expect summations today, and that the jury will begin deliberations this evening or Thursday morning. We may very well have a verdict this week.

[If you are not very familiar with the long history of the Hurwitz case, please see: The Hurwitz Collection - War on Pain Sufferers #4]

Having attended parts of the Hurwitz trial and appeal, I can say the tone of this courtroom is very different. Billy was given a lot of latitude to answer fully, not only on direct as would be expected, but also on cross examination. For example, prosecutor Rossi repeatedly asked compound questions to which he demanded a yes or no answer. Billy kept insisting on breaking the questions down and answering the clauses separately. For example (not quoting from the trial, rather a creative paraphrase):

Rossi: Now doctor it is a fact that you prescribed absurd dosages to Patient X that lead to her death four days later. Correct?

Billy: I would characterized the dosage prescribed as ‘appropriate’ …

Rossi: Is that a ‘yes,’ doctor?

Billy: You asked a compound question… I am just trying to answer… (looks to judge)

Judge: I’ll allow the doctor to answer. (admonishes prosecutor Rossi to better phrase his questions)

Billy: Yes I wrote the prescription, yes I felt the dose was appropriate, and no I do not think that my continuing pain care contributed to the death of this brittle diabetic with multiple medical problems.

Again, this particular dialog did not happen, but this sort of interchange happened repeatedly, with the judge giving Billy latitude to say his piece. The cross examination was contentious, with many defense objections to various Rossi lines of questioning resulting in three (four?) sidebars during the afternoon session alone.

Not that the judge was heavily favoring the defense - several defense objections were overruled with the suggestion that counsel address the issue on re-direct. My overall impression was that the judge was trying to be fair.

Rossi was his usual aggressive, obnoxious, sneering, unpleasant self. I suppose this sort of style is highly valued in the bizzaro world of criminal prosecutions, and it’s purpose is to intimidating the witness into losing their composure on the stand, which is part of the game as we all know, but Billy wasn’t having any of it.

The Rossi v Billy sub-plot generated some darkly humorous moments. At one point Rossi careened into a line of questioning about suicide so odd that the judge allowed it to continue over defense objection just to see where the hell he was going, I think. Again, the dialog is creative paraphrase:

Rossi: You wouldn’t recommend suicide to a patient, would you Dr. Hurwitz?

Billy: (with a slight laugh) You mean like refer a patient to Dr. Kevorkian? No.

Rossi: Ah Ha! Since you mention Dr. Kevorkian…

What happened next was both spellbinding and stomach-turning to me. Rossi launched into a confused recital of the case of David Covillion, as horrific and heartbreaking a Pain Crisis story as I have ever heard. It was Covillion’s tragic story, and Hurwitz’s heroic efforts to help through the last moments of David’s life, that lead to Jacob Sullum’s 1997 landmark article: No Relief in Sight in which he coined the term, “opiophobia.” [I have added this War on Doctors classic to the Highly Recommended list in the right column today. Read Or Reread It.] What was disorienting was trying to figure out why a federal prosecutor was entering into evidence a name synonymous with the moral bankruptcy of the Controlled Substances Act.

Billy figured out where Rossi was going before anyone else, including Rossi, it seemed. Billy interrupted Rossi’s rant after a minute or two:

Billy: (gently, quietly, when Rossi paused for breath) I think I understand your error; may I explain it to you?

Rossi: (a little taken aback) Ah, please do.

Billy: I didn’t refer Mr. Covillion to Dr. Kevorkian. David went to Kevorkian who assessed him and told him, ‘You don’t need my services, you need pain management.’ Dr. Kevorkian referred David to me. (pause, pause, then very quietly) I was on the phone with him when he died from that bizarre contraption he built. (this last was so soft it was hard to hear - but I think he said this, in so many words)

After a moment of profound silence in the courtroom followed a scattering of nervous, perhaps embarrassed, laughter.

All in all, from what I witnessed, a far cry from the courtroom atmosphere of trial Judge Wexler, who admonished the jury that ‘good faith intent’ was not a defense, on which grounds the conviction was unanimously overturned on appeal. [see: Conviction Overturned, Judge Erred in Jury Instructions - Markon; Washington Post; 2006]

Still I was struck, as I always am observing war on docs prosecutions, at how tilted the playing field is, at how much more difficult the defense’s task is. The defense must convince a jury of medical lay people that complicated medical decisions made in very complicated cases were reasonable and well-intended; the prosecution need only sling mud. The former task requires the judge and jury have a medical student level understanding of general medical principles and practices in order to have a context within which to make crucial distinctions. (Dr. Frank Day often makes this point on the Treatment and Prevention of Pain and Chemical Dependency - TPPCD - listServ of the NFTP). This is virtually impossible for the physician on trial and a couple of defense medical experts to accomplish in the direct / cross format. On the other hand, the jury needs no special training to fully understand prosecutorial reasoning and tactics, beyond exposure to one or two episodes of the O’Reilly Factor.

While listenting to Billy attempt this Promethean task I thought, “Damn, Billy and I and whoever else in the gallery happens to be a doctor are the only people in this courtroom who really understand what Billy was up against, what he was trying to accomplish for his patients, and what medical values and practices primarily guided his work.” I fear even core medical ethical principles, most importantly in this case the obligation to place the patient’s interests above all others, was not well grasped.

So it all comes down to a head today (probably) with closing arguments. Here is the basic issues on which the verdict will depend, in my legally dim understanding. The original conviction was overturned because the appeals court felt that Hurwitz was wrongly not permitted to mount a ‘good-faith’ defense. But what trumps a good-faith defense is a prosecution charge of ‘willful ignorance’ aka ‘the ostrich.’ That is where a professional, say a mob lawyer or venal drug-trafficking physician, says to his client whilst covering his ears with his hands, “Don’t tell me - I don’t want to know.”

And this is where Billy faces an uphill fight. While he did parry very well the wired-patient audiotapes, and many of the ‘red-flags’ he was accused of willfully ignoring, the prosecution did establish that Billy knew that certain of his patients who ended up being criminals did not have insurance, yet they continued to pay his fees and the often prodigious medication costs, often in cash apparently. I am guessing the prosecution will lean heavily on this in closing arguments today.

One of the aforementioned veteran trial-watchers, when pushed by me, guessed that it was probably unlikely that Billy would be acquitted on all charges. More likely the jury would acquit on most and find guilty on a few. (This is the usual pattern - another reason war on docs cases are almost impossible to win with a lay jury).

If this came to pass, sentencing falls to the judge. I am not certain if mandatory minimum sentences apply to this re-trial, or even if they do whether this judge would uphold them. I think in this case we could hope for a relatively lenient sentence.

Suggest we all remember to breathe. We should have a verdict, at least, this week.

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P.S.: New York Times journalist John Tierney was in attendance. See the Major Media in the War on Doctors collection for several of his consistently excellent articles supportive of our cause. The Pain Relief advocacy community can’t thank you enough, Mr. Tierney; we are sincerely grateful to you for sticking with the story, and with us.

..alex…

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