More Court Obsevations Re: Hurwitz Verdict

More Court Obsevations Re: Hurwitz Verdict; Mary Baluss, Esq.; two Comments posted to TeirneyLab in response to Tierney’s Hurwitz Convicted on 16 Counts; 2007-04-27; Mary Baluss, Esq.; 2007-04-27 Comment #3. April 27th, 2007, 10:32 PM Math is not my subject, which is why I’m a lawyer. However, out of 59 (57?) counts, the jury found Dr. Hurwitz guilty on 16. There’s a great line in The Lion in Winter in Which Henry II says to Philip IV, “to these tired old eyes, boy, that’s what winning looks like”. Maybe you had to be there but still.

The important thing is that the prosecution all but begged the judge to bring the jury back to make them continue to work. The judge demurred: Rossi said, we want a verdict regarding conspiracy and some of the individual counts.

Judge: “that [you want] is not a reason. Do you have a reason?” Rossi repeated same. Judge: “Not a reason - after three weeks of trial, these [jurors] are civilians, they have worked hard, they are talking about financial hardships. I’m not going to bring them back.” Rossi (babbles). Judge: Well, you can appeal and if I’m wrong we can try it again.”

The look on her not very expressive face did not change, but her voice did. I don’t want to be Rossi if he gets her reversed on this issue and brings it back.

At this point, the judge stepped down and Rossi turned back to the court room. His face wanted to cry. The courtroom was full of the prosecutors from the first case. Even Paul McNulty, now beleaguered #3 at DOJ was there. There was no rejoicing in Mudville. Not total defeat, but not the expected or at least hoped for end [for the prosecution].

I spoke with Dr. Hurwitz last night and his mood was positive. Without knowing the outcome he expressed relief at being given a chance to become known to the judge and the jury. This was a better, fairer trial.

I do hope that the jury will respond not only to Mr. Tierney’s interest, but the interest of several public policy organizations such as the National Foundation for the Treatment of Pain and the Center for Practical Bioethics to understand what they saw and learned and what they think we might learn from them. This is a serious matter and they were a serious jury. My respects to them, to the defense and very sincerely, to a judge who embodied the best of what American jurisprudence can offer.

And so it goes, — MB Comment #4. April 27th, 2007, 10:40 PM I haven’t analyzed the verdict in any comprehensive way. However, I find comfort in two facts:

The individual counts for which there was a guilty verdict involved prescriptions that were late in the practice. With one exception, the acquittals were earlier on. In between we have the dismissed charges over which the jury wrestled. I wonder if perhaps the jury had a sense of the “ostrich” aspectàthat at some point one should be aware that a patient is not who he/she seems. And that the dismissals (no verdict) reflect an inability of the jury to decide where that line was crossed. If so, though not what I might have hoped, the verdict as reasonably consistent with what one might expect.
Sentencing may be a matter of flexibility and justice. Sentencing in drug cases is based on the “weight” of the pills. I mean that both figuratively and literally. Weight includes the coating on the pills and the filler as well as the active ingredients. Many of the not guilty and dismissed charges were in that sense of “lesser weight” than the guilty verdicts. In large part this was because Dr. Hurwitz was curbing his problematic patients and tapering all patients as the time came to close his practice. This may bode better for the future.

I do not suggest this is a happy outcome, but for those of us who watched the first trial, it is a marvelous relief to see the outcome of a thoghtful defense weighed by a thoughtful, if not omniscient, jury. — MB

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