Many of us are beginning to wonder if the jury is a hung jury on some of the counts. There are 21 all together against Howard K. Stern, Dr. Sandeep Kapoor and Dr. Khristine Eroshevich. The three are charged with multiple felonies for allegedly conspiring to furnish prescription drugs to an addict. Stern has nine felony counts against him and Kapoor and Eroshevich each have six felony counts and there are a slew of misdemeanor counts against each defendant.
Stern and the two doctors’ charges include conspiracy, unlawfully prescribing a controlled substance, obtaining a prescription for opiates by fraud, deceit or misrepresentation, obtaining a prescription for opiates by giving a false name or address and prescribing, administering or dispensing a controlled substance to an addict and conspiracy to commit a crime.
The defense took a gamble and did not present any evidence at trial with Steve Sadow on behalf of Stern saying in part; “that there was an “abundance of reasonable doubt’ in the case against his client and the doctors, and said prosecutors had trashed Smith ‘as an out-of-control drug addict’ and showed no regard for the chronic pain she suffered for years.”
Ellyn Garofalo, Dr. Kapoor’s attorney, stated in her closing arguments that “Kapoor acted in “good faith” and had a legitimate medical purpose’ in prescribing medications to Anna Nicole Smith. Kapoor is a Hollywood expert with pain management.
Bradley Brunon, of Phil Spector fame, in his closing arguments on behalf of Dr. Eroshevich stated that, “the psychiatrist reached out on an emergency mission’ to help Smith after the former reality television star and Playmate of the year, son died and did what she could to try to help her in a time of crisis.”
Renee Rose Deputy District Attorney, argued that the evidence presented during the nine-week trial showed “that these defendants knew what they were doing was wrong’ and that “they knew their conduct was unlawful.”
Most trial observers agree that the main sticking points are that Kapoor kept a diary with entries that seem to substantiate that he knew something were wrong and that he had drug problems in the past as well. Then there is the fact that Kapoor took Smith’s medical files home and hid them in the bottom of his closet. Rose made a strong argument that showed intent and that Kapoor knew what he was sending to Smith was excessive.
Sadow was successful in getting a lot of the evidence including traveling to the Bahamas with an enormous amount of drugs thrown out. He was also able to turn Ford Shelley from a prosecution witness to a defense witness. Sadow also kept out a large part of the evidence including what appeared to show in part that Eroshevich’s ex-husband had sent wired sum of moneys divided in the names of both Eroshevich and Stern to make it easier to pick up. If the prosecution had been successful at presenting evidence of that it would have gone a long way to prove that Stern knew his name was on some of the prescriptions as well as shore up the conspiracy charges.
The jury has sent only one note to Los Angeles Superior Court Judge Larry Paul Fidler during last Thursday’s session asking how Stern could be found guilty of prescribing since he is not a doctor. Judge Fidler’s response was that Stern had “liability — if any’ on the two charges of unlawfully prescribing a controlled substance “as an aider and abettor.” Judge Fidler went on to clarify that should the jury find Dr. Kapoor or Dr. Eroshevich not guilty on either of these counts, then they should find defendant Stern not guilty on those same counts, Judge Fidler noted for the jury that the two doctors would have to be convicted on those counts before Stern could be. When asked if that answer the jury’s question the foreperson indicated it had.
Judge Fidler, who many court watchers in the Los Angles area is seen as pro-prosecution judge, was standing in for trial Judge Robert J. Perry, who took an “unscheduled vacation” during the first week of deliberations. Judge Perry had stated multiple times his frustrations that these charges had ever been brought. At one time Judge Perry even told the deputy district attorney it appeared that the state was throwing a lot of charges towards the defendants with hope that some would stick and it appeared like overkill or potential jury abuse to him.
Many of us felt that Sadow had Judge Perry going in the way of sympathy for the defendants when Judge Perry indicated he would be dismissing most of the charges before the case went to the jury only to reverse himself at the last moment and deciding the jury could rule on all of the charges and then he could throw them out after conviction if a conviction occurred. You know it is pretty bad when a sitting judge for over 18 years says this is one of the worse three cases he had sit on as the trial judge.
My feeling is that if the jury does not return with a verdict by Thursday we will find that this is a hung jury. If so will the state be out the money to retry the case after the elections in November including paying another $40k to the two nannies? Even more important is will high profile attorney Steve Sadow appear again pro bono for Stern? Brunson did not represent Spector in his retrial.
If a retrial happens then the defense will have the advantage of knowing what the D. A. will present and the D. A. will not know what the defense will present because of the lack of any defense witness in this trial.
So what are your thoughts, hung jury or just a lot of charges to go through?
October 19, 2010
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