Final Opinion on 2nd Appellate Court of California vs. Dr. Khristine Eroshevich and Howard K. Stern. I have not read it yet so will give my opinion after I read it and after I ask for on record statements.
For reference sake this article we had in October 2012 states most of the same things. That article was titled; Howard K Stern and Dr. Khristine Erosovich has Major loss as California Appeals Court Reverses and Remands back to Judge Robert Perry”. This latest opinion has added two more pages but so far as I read it is just the same as last year.
After I read through this I will be back with more to say! So stay tuned to Rose Speaks.com tonight as we unravel what this opinion actually means and share what you think it means after you read it!!!!!
Am I the only one who thinks California should just let this go and not keep spending tax payers money of a selected case to prosecute?
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The expressions in this blog article are based on the opinions of Rose Turner or our featured authors, please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this blog article are the opinions and sole property of the blog site members and do not necessarily reflect those of the site owners. If comments to this or any other articles are not related to the article or does not meet the terms of use for Rose Speaks, they will be removed by the moderators.
California Appeals Court today, October 18, 2012, Reveresed Judge Perry’s decision to dismiss charges against Howard K. Stern and ruled that the felony conviction MUST be reinstated on Dr. Khristine Erosovich.
Here is the main description and the download has now been FIXED!
Oct 18 2012 California Appeals Court Reverses Remands with Direction the Trial court Dismissing and/or lowering the Charges on Howard K. Stern and Dr. Khristine Eroshevich
The clear thing that sticks out if the first paragraph:
The People of the State of California appeal after a series of rulings which resulted in the dismissal of charges against two defendants, Dr. Khristine Elaine Eroshevich and Howard Kevin Stern. Mr. Stern?s new trial motion was granted. Two conspiracy counts were then dismissed pursuant to Penal Code1 section 1385, subdivision (a) (section 1385). We will reverse the new trial and dismissal orders.
Next the Court gives some directions to Judge Perry Court of alternative positions to take to still dismiss the charges on Howard K. Stern:
We agree with the prosecution that Mr. Stern?s new trial motion could not be granted nor the charges dismissed on the ground the evidence was insufficient as a matter of law. But, as we will explain, what can occur to Mr. Stern once the remittitur issues is limited by the double jeopardy provisions of our Constitutions.
Here, we conclude the trial court incorrectly granted Mr. Stern?s new trial motion; the evidence was not insufficient as a matter of law. As will become clear, the former jeopardy effect of the erroneous order granting Mr. Stern?s new trial motion is the same as an acquittal. Similarly, we conclude the trial court dismissed the charges against both defendants based on an erroneous finding the evidence was insufficient as a matter of law. Thus, we reverse the orders granting Mr. Stern?s new trial motion and dismissing the case pursuant to section 1385 as to both defendants. Once the remittitur issues, the trial court may take up the remaining new trial motion issues, dismiss on other grounds pursuant to section 1385, or even impose sentence. But, there is one thing the trial court may not do and that is to order Mr. Stern to be retried.
Some background on the proceedings are given by the Court of Appeals:
Dr. Kapoor was acquitted of all charges. As to count 3, the jury found defendants conspired between June 5, 2004, and September 10, 2006. As to count 1, the jurors found defendants conspired between September 11, 2006, and February 8, 2007. The jury found defendants conspired to commit two crimes. The first target offense was to obtain controlled substances by fraud, deceit or misrepresentation or concealment of a material fact. (Health & Saf. Code, § 11173, subd. (a)2.) The second target offense was to unlawfully give false names or addresses in prescriptions for controlled substances in violation of Health and Safety Code section 11174.3
Dr. Eroshevich was also convicted of two other charges. She was convicted in count 7 of obtaining controlled substances by fraud or misrepresentation in violation of Health and Safety Code section 11173, subdivision (a). Further, she was convicted as charged in count 9 of giving a false name or address in a controlled substance prescription in violation of Health and Safety Code section 11174.
Next we have a summary of the Trial Court’s Ruling of Judge Robert L. Perry:
Howard K. Stern
Preliminarily, the trial court found Ms. Marshall suffered from chronic pain syndrome; further, her “drug-seeking behavior” was primarily due to inadequate control of pain rather than addiction. The trial court was further persuaded the overriding purpose in procuring controlled substances in names other than Ms. Marshall?s true name was to protect her privacy. With respect to prescribing medications in a false name, the trial court concluded the law was vague as to what constitutes a false name. The trial court found no basis for charging a conspiracy ending on September 10 and a new one beginning the very next day on September 11, 2006. More significantly, the trial court found, “[T]here is [no] evidence in the record at all that Howard Stern lacked a good faith belief that the practice of obtaining prescription medicines for [Ms. Marshall] in names other than [her true name] could be against the law.” The trial court found Mr. Stern acted to protect Ms. Marshall?s privacy, as had most of the doctors and hospitals that had dealt with her. The trial court concluded: “When I consider all the evidence, and even viewing it in a light most favorable to upholding the verdict, I find it is clearly insufficient. Under these circumstances, I find no reasonable trier of fact could find that Howard Stern had a specific intent to violate either of these target crimes . . . and I do grant a motion for new trial to Mr. Stern on these [conspiracy] counts . . . .” Immediately after granting Mr. Stern?s new trial motion, the trial court stated: “[B]ut I?m going further. [¶] I find the evidence at trial was so lacking and insufficient to show a specific intent to join a conspiracy on the part of Howard Stern to commit these target crimes, that I do believe the interest of justice supports the dismissal of these counts as to Mr. Stern, and I so order. And this, of course, is under Penal Code section 1385 . . . .”
The minute order prepared for Mr. Stern sets forth the trial court?s reasons for dismissing counts 1 and 3 as required by section 1385: “On the court?s motion, counts 1 and 3 are dismissed due to insufficiency of the evidence. [¶] The court further clarifies that it is dismissing counts 1 and 3 in their entirety, which includes all hung target offenses, due to insufficiency of the evidence as a matter of law pursuant to Penal Code section 1385.”
Dr. Khristine Eroshevich
Having dismissed the conspiracy counts as to Mr. Stern, the trial court turned to Dr. Eroshevich?s motion. The trial court concluded: “I don?t think there was an agreement between the two of them to violate the law, and . . . I don?t think the conspiracy counts can stand [as to Dr. Eroshevich], and so I dismiss those as well . . . .” The clerk?s minutes for Dr. Eroshevich contain no statement of reasons for the dismissal. The minutes state concerning Dr. Eroshevich: “The cause is argued and the court grants defense motion to dismiss counts 1 and 3 pursuant to . . . section 1385 due to insufficiency of the evidence.” No other language pertinent to the dismissal of counts 1 and 3 as to Dr. Eroshevich is contained in the clerk?s minutes. We will later discuss the effect of the absence of any language in the trial court?s oral order or the clerk?s minutes concerning: the substantial evidence standard of review; having viewed the evidence in a light most favorable to the verdicts; and that no reasonable trier of fact could find guilt beyond a reasonable doubt. (People v. Hatch, supra, 22 Cal.4th at p. 273; People v. Salgado, supra, 88 Cal.App.4th at p. 10.)
However, the trial court denied Dr. Eroshevich?s motion for a new trial or to dismiss as to counts 7 and 9: “I choose not to disturb the jury?s verdict regarding [Dr.] Eroshevich on counts 7 and 9. There is no doubt in the court?s mind that based on the evidence [Dr.] Eroshevich acted out of a heart-felt desire to help her friend. Obtaining a prescription in the name of another person, Charlene Underwood, without [Ms.] Underwood?s knowledge or consent was clearly wrong and constituted a violation of the law. As a doctor[,] [Dr.] Eroshevich well knew she should not have done this and it is clear to the court that she acted with the required intent to defraud.” However, the trial court “vacated” the count 9 conviction on grounds it was not appropriate to punish Dr. Eroshevich twice for the same act. The trial court then reduced count 7 to a misdemeanor. The prosecution has not appealed the trial court?s orders with respect to counts 7 or 9.
However, DON’T get to excited here, the Appeals Court gave Judge Perry several options to dismiss the charges or other options but not that of a NEW TRIAL. This is becoming the cases that never ends!
After I read through this I will be back with more to say! So stay tuned to Rose Speaks.com tonight as we unravel what this opinion actually means and share what you think it means after you read it!!!!!
The expressions in this blog article are based on the opinions of Rose Turner or our featured authors, please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this blog article are the opinions and sole property of the blog site members and do not necessarily reflect those of the site owners. If comments to this or any other articles are not related to the article or does not meet the terms of use for Rose Speaks, they will be removed by the moderators.
Dr Murray found guilty in the death of Michael Jackson and Judge Pastor was quick to revoke bail and remand Dr. Conrad Murray to the Los Angeles Sheriff’s department pending sentencing on Nov. 29, 2011.
The only surprising thing today was the remanding and revoking bail. We all thought Murray would be convicted. John has said on many shows this was like musical chairs and when the music stopped Murray was left standing with the Propoful bottle in his hand.
Murray barely had time to look back at his mother and girlfriend before being taken into custody and whisk out of the court room.
Straight Talk with John J Nazarian guest tonight is Criminal Defense attorney Adam Braun, who has been both a prosecutor and now one of the top criminal attorneys in California. Braun will answer questions of what now? Over crowding in the jails, why the revoking of bail? Can the defense appeal based on Dr. Klein never appeared in trial which was a major set back most say to Murray? Will Murray get house arrest or a retreat like Ryan Bowman did for involuntary manslaughter in the Lauren Freeman case, at camp Seal on the California coast line.
Adam Braun is one of the best criminal defense lawyers in California. Braun is the Principal at Law Offices of Adam H. Braun and was a Federal Prosecutor at the United States Attorney’s Office for over 6 years. The Princeton University graduate represented Dr. Khristine Eroshevich during the lead up to the Anna Nicole Smith trial. Braun was the attorney for one of Anthony Pelicanno’s co-defendants.
In other bizarre interviews we have Dr. Arnold Klein on what looks like his golden throne.
“Dr. Arnold Klein said he personally tried several times to prevent other doctors from administering propofol to Jackson for sleep. “I knew this problem existed,” Klein said in the interview. “I did my best to prevent it. Whenever I could, I prevented it, but I’m only one man and I have to support my own life and take care of myself.”
Klein disputed the argument by Dr. Conrad Murray’s lawyers that he addicted Jackson to Demerol in the months before his death, saying he used only low doses of the painkiller while repairing Jackson’s collapsed nose and jaw line.
Klein described three instances in which he said he was involved in interventions to prevent Jackson from getting propofol, the surgical anesthetic the coroner ruled killed him, although Klein gave no indication of when the incidents occurred.
In the first instance, Klein said he chartered a plane to Las Vegas when he heard Jackson was getting propofol at a hotel where the singer was staying. Klein claimed he threw out the doctor involved to prevent him from giving Jackson the drug. In another encounter in Hawaii, Klein said he and his nurse slept on the floor of Jackson’s room to prevent him from getting propofol from a plastic surgeon.
Klein claimed he once “saved” Jackson in New York when another doctor administered propofol, combined with another drug. It made Jackson go “running down the street,” Klein said. Klein, interviewed in his Beverly Hills home, said that while it was too upsetting to him to watch much of the trial, he watched enough to believe Murray wanted to “make me look like a demon” and “make me as a scapegoat.”
Klein said he began the slow and painful process of rebuilding some of Jackson’s facial skin in early April after his nose collapsed and after he lost his jaw line.
Telephone lines are always open to call in at 818-572-8030 long distance charges do apply, join in the discussion or ask questions of John and his guest, Adam Braun.
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The expressions in this blog article are based on the opinions of our featured author, John Nazarian and/or his agents, please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this blog article are the opinions and sole property of the blog site members and do not necessarily reflect those of the site owners.
The world waits for the Jury Verdict to come in next week in the Dr. Conrad Murray Trial in the Involuntary Manslaughter charge in the death of Michael Jackson.
What is Dr. Murray and his lead defense attorney Edward Chernoff thinking and doing today, waiting for the jury to come back perhaps as early as tomorrow with a verdict.
Here is the jury instructions for you to read through and decide how tough is this going to be for this jury.
Straight Talk with John J Nazarian guests tonight are Criminal Defense attorney Adam Braun, who has been both a prosecutor and now one of the top criminal attorneys in California. Adam Braun can tell us what the Deputy D. A. David Walgren and his team or doing and thinking today about the upcoming week. Braun can also tell us what it is like as a defense lawyer waiting for the verdict to come in and Braun can give us a pretty good guess as to what Dr. Conrad Murray is doing this weekend except for just praying.
Adam Braun will be joined by two retired homicide detectives who were also partners for a time with the L. A. P. D, Robert Jakucs and William Cox. They can share what the detectives are doing this weekend now that months and months of work is complete and it is just a waiting game at this point.
The radio broadcast will be embedded here soon after it airs live at 7 PM PST – 10 PM EST
Adam H. Braun, Esq.
One of the best criminal defense lawyers in California. Braun is the Principal at Law Offices of Adam H. Braun and was a Federal Prosecutor at the United States Attorney’s Office for over 6 years. The Princeton University graduate represented Dr. Khristine Eroshevich during the lead up to the Anna Nicole Smith trial. Braun was the attorney for one of Anthony Pelicanno’s co-defendants. Braun comes from one of the highest profile families of brilliant criminal attorneys.
Robert A. Jakucs – Retired Homicide Detective of L.A.P.D
Robert A. Jakucs is a retired Los Angeles Police Department Detective with over 30-years of investigative experience. During his distinguished career with the L.A.P.D he worked such high-profile assignments as Homicide, Hollywood Vice, SWAT, Robberies, Burglaries, Complex Thefts, and gang-related shootings. He was a member of the Night Stalker Task Force that investigated the serial murderer Richard Ramirez. Robert Jakucs is also a consultant for national television specializing in private and police investigation issues and has appeared on the news shows Nightline, 20/20 and Inside Edition.
William Cox was a Los Angeles Police Detective who retired in 2007 after 32 years
William Cox worked in a variety of assignments including uniformed patrol, CRASH (gang detail) in South-Central and West Los Angeles areas. He also worked homicides for over 20 years and finished his career in Robbery-Homicide Division (RHD) which handles major cases including serial killers, multiple murders, media and high-profile cases, officer-involved shootings, and assaults and murders on police officers. He also worked the Rampart Corruption Task Force for two years. William Cox was also involved or handled several high-profile cases over the years including the Kimes (mother-son grifters who were responsible for 3 murders in LA, NY, and the Bahamas); the Goetz of the West case; the murder of the pregnant mother at LAX; plus several others.
William Cox has appeared on Investigative Discovery channel, 48 Hours, and E-entertainment. He is currently employed by the US State Dept. as a background investigator.
William Cox’s last case he worked on at RHD was a Chinese immigrant student attending USC who had gone to a frat party and had attempted to pull a gun and start shooting students. He was wrestled to the ground by other students who then called police. After a search warrant was served on the suspect’s apartment Cox and three other detectives were sent to NY City to investigate and attempt to identify approximately 20 persons he had targeted to possibly kill. (This incident occurred shortly after the mass murders at West Virginia Tech.) Cox was also working on a murder where a husband set his car and wife on fire on the Golden State Frwy. Cox had also been working (for the past four years) on a double homicide that had occurred in 2002 wherein two victims were killed in their car and their car set on fire. That murder was the story that 48 Hours has done and shown on television in February 2011.
With this combined years of experience this is a must tune in a listen and even ask a question of two as to what we should expect this coming week of the verdict watch for Dr. Conrad Murray.
Telephone lines are always open to call in, join in the discussion or ask questions of John and his guests, Adam Braun, Robert “Bob” Jakucs and William “Bill” Cox at 818-572-8030 long distances charges do apply.
Note from Ken and Rose Turner Because so many of you have asked here goes:
John J. Nazarian does not own any part of Rose Speaks.com nor will he ever. Rose Speaks.com is a labor of love that came to be because those here saw a grave terrible miscarriage of justice being done to a man none of us knew. Rose Speaks.com does not own any part of Desperate Exes.com or any other site belonging to John J. Nazarian.
Many of you have noted that Ken has not been on the blog hardly at all for a few months. Ken has opened his own company, studied hard, and then got the chance of a lifetime to represent John J Nazarian on many levels and endeavors. Ken got these chances from hard work nothing less and nothing more. I know that most of you really like Ken and wish him and the others that are part of K N Turner and Associates only the best in their upcoming endeavors.
Straight Talk with John J. Nazarian on Blog Talk Radio tonight’s guests are Criminal Hollywood defense attorney Adam Braun and retired L. A. P. D. homicide detective Robert Jakucs.
Tonight Mr. Adam Braun will be telling us what to expect in opening statements and what points to look for that both sides have to make during each of their opening statements. Mr. Bruan can give us that rare view of both sides; Adam Braun was a Federal Prosecutor at the United States Attorney’s Office for over 6 years, and since 2007 has been one of the brightest, brilliant, upcoming and truly one of the Super Lawyers in Los Angeles. He will also be able to tell us what the jury profiles tell about what kind of jury each side tried to have seated last Friday, September 24, 2011.
Mr. Braun will be a regular guest on Straight Talk throughout the trial and will be a valuable guest in directing and helping us through each part of the prosecution and defense of the case with a score as to who he sees ahead during the next 3-5 weeks. You might remember Adam Braun from both the Anna Nicole Smith trial and the Anthony Pellicano trial.
Robert Jakucs will give us his insight what the prosecution has to prove during their part of the trial and what to look for with the officers who investigated the case will testify as well as what to expect the defense will do in an attempt to nullify their testimony. As a previous homicide detective for the L.A.P.D, he will be able to give us a look inside the preparations the police have done to aid the D. A. to get this case ready.
Mr. Jakucs will be a guest on Straight Talk throughout the trial as his busy schedule allows and will be a most welcome guest to any show throughout this 3-5 week trial.
Join us tonight on Straight Talk with John J. Nazarian for the kick off of the Dr. Conrad Murray trial in the allegations of involuntary manslaughter trail in the death of mega super star Michael Jackson.
The call in number is 1-818-572-8030 long distance charges to apply or call in using Skype internationally free.
NOTE FROM ROSE: All of Straight Talk with John J. Nazarian coverage of the Michael Jackson trial will be embedded into Rose Speaks within 10 of the live broadcasts ends.
Well talk about “the other shoe dropping,” it did for a few people this morning. I am sure that anything to do with the “Supremes” will never be a favorite group for those left behind in the Anna Nicole Smith saga, for that matter they may never mention “Supreme” anything. The cascading and never-ending grief that surrounded Anna Nicole Smith just continued today when the U.S. Supreme Court made it clear, “Get a Job.” There will be no millions and millions and for that matter there will be Zilch, Nada and all those legal fees..ouch! The dreams of all those “Benjamins” stacked neatly in big piles and personal bankers have all turned into nightmares, just like the lives of many involved in the Anna Nicole Smith Saga.
It is my belief that had Anna Nicole Smith lived, life would have been better for some and just awful for one or two. The “Master Plan” would have been in effect and she and her constant companion would have lived happily ever after raising “their child.” Perhaps I think that the U. S. Supreme Court Decision on Anna Nicole Smith Estate (231); U.S. Supreme Court would have maybe been a little more generous had Anna been around. What “The Supremes” thought of this case and the “players” was addressed by Justice Roberts. The comment by Justice Roberts in quoting Charles Dickens novel “Bleak House“ spoke volumes with what he was thinking in reference to this entire matter, again, my opinion.
Someone told me that they thought that they heard someone yell, “Oh my god stop decorating,” we are not sure in what context that was heard, but funny right? All those millions would have been a pain in the ass for someone to have to handle, just terrible. And the lifestyle, Big Houses, Big Pools, Big Lawns, Big Staffs, Big Security, Fancy Cars, First Class travel, Wonderful Fancy Hotels the “Life of Riley.” Who the hell would want such a thing to have to wake up to every morning, knowing that all you had to do was have fun with your kids. And spend money taking “care” of all their little needs each and every one of them. Looking at what money and fame has brought to the life of Anna Nicole Smith, maybe the simple life will be the trick and one of joy and love. Frankly, what the hell, seems like there is not much of a choice at this point…
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NOTE FROM ROSE TURNER: This is the last article this site will do on Anna Nicole Smith, as one of our members said to me, life has moved on and so has all of us.
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The expressions in this blog article are based on the opinions of our featured author, John Nazarian, please remember we are not lawyers and those opinions expressed here are each of our individual opinions and should not be taken as legal advice and/or legal opinions. The comments following this blog article are the opinions and sole property of the blog site members and do not necessarily reflect those of the site owners.
As I have read through the 39 page transcript of the criminal hearing from January 6, 2011, I notice several things I will comment on and ask you what are your thoughts to Judge Perry in this hearing? I will then close this chapter of the saga with some personal thoughts.
On the hearing on January 6, 2011 the appearances in front of Judge Robert L. Perry were:
THE STATE OF California. Renee Rose, Sean Carney, & David Barkhurst Deputy District Attorneys for Los Angeles County..
Bradley Brunon attorney at law and his client defendant Dr. Khristine Eroshevich
Steven Sadow & Christopher Smith with their client defendant Howard K. Stern.
Judge Robert Perry first outlined the charges brought by the prosecution, summarized those charges as follows: “The District Attorney brought an extremely complex criminal prosecution in this matter involving three conspiracy counts and eight substantive counts against three Defendants which allege criminal acts over a period of approximately three years. The theory of the case was that the defendants wrongfully obtained excessive quantities of prescription drugs for Anna Nicole Smith, who was alleged to be addicted to said drugs. The charges involved allegations of furnishing statutes and violations of obtaining prescriptions by fraud or in false names. The three defendants collectively faced a potential of 23 guilty verdicts. The jury returned six guilty verdicts, four against Eroshevich, two against Howard stern. Dr. Kapoor, the lead defendant, was acquitted on all counts.
In the next part Judge Robert Perry gives us a rundown of the charges the Jury either found not guilty or found Howard K. Stern and Dr. Eroshevich on with first a statement that in the Court’s opinion “It is the court’s view that the verdict was a stunning repudiation of the prosecution’s case.”
Mr. Stern was acquitted on all eight substantive counts. Stern and Eroshevich were convicted of two conspiracies, count 1, a conspiracy alleged to have commenced on September 11th of 2006, that continued until Ms. Smith’s death on — in February of 2007. Count 3, which was alleged to have commenced on June 5th of 2004, which continued until September 10th of 2006, the day before the count conspiracy was alleged to have commenced. Regarding the conspiracies, the jury found that Stern and Eroshevich CONSPIRED to commit two target crimes: One, to obtain a controlled substance by fraud in VIOLATION of Health and Safety Code section 11173(a), and a second target crime to unlawfully give a false name in a prescription for a controlled substance in violation of Health and Safety Code section 11174. Eroshevich was also convicted of two substantive Counts, Counts 7 and 9. Count 7 pertained to the charge of obtaining a controlled substance by fraud in violation of 11173(a) of the Health and Safety Code. Count 9 charged a violation of giving a false name in a prescription for a controlled substance in violation of 15 11174. Both counts involved a single prescription for Hydrocodone, otherwise known as vicodin, written on November 24th, 2006, by Eroshevich in the name Charlene Underwood.
Judge Perry then gives us the breakdown on the charges the jury deadlocked on and what the vote was by the jury:
“The jury also hung in a split of 6 to 6 for Eroshevich on counts 5 and involving the same event, the prescription for Charlene Underwood. Count 5 charged a violation of unlawfully prescribing a controlled substance, in violation of Health and Safety Code section 11153(a). Count 11 charged a crime of unlawfully prescribing a controlled substance to an addict in VIOLATION of 11156. In addition, the jury deadlocked on certain target crimes alleged in the conspiracies in Counts 1 and 3. The jury hung 5 to 7, 5 would be in favor of guilt, in favor of acquittal, for the target crime of unlawfully prescribing, administering, or dispensing a controlled substance to an addict. As to Count 1, that would be a violation of Health and Safety Code Section 11156, the jury hung 10 to 2 in favor of conviction for the target crimes on Count 1 of unlawfully prescribing a controlled substance in violation of Health and Safety Code section 11153, and excessively prescribing or administering drugs in violation of business and profession code section 725(a). As to the Count 3 conspiracy, the jury found not true that the Defendants conspired to prescribe drugs to an addict in violation of Health and Safety Code section 11156. They — the jury found, or held rather – rather hung 7 to 5 for the unlawful prescribing of a controlled substance, 11153(a), and unlawfully prescribing a controlled substance to a person not under a physician’s treatment for a pathology other than addiction to a controlled substance, a violation of Health and Safety Code Section 11154(A) and (B). The jury also found — or hung 5 to 7 in favor of acquittal for the target crime on Count 3 of excessively prescribing or administering drugs in violation of business and profession code section 24 725(a).“
“The court must view the evidence in a light most favorable to the prosecution. I have concerns about the conspiracy counts, in particular as to Mr. Stern and whether there is specific intent in the evidence to show that he had a specific intent to violate the two target crimes of which he stands convicted in both counts.” At this part of the hearing Judge Perry asked Steve Sadow to address those issues and what the evidence presented at trial.
I like the part that Sadow thanked the AP reporter and quoting from an article that appeared on January 6, 2011 saying: “I have to give due credit to the esteemed and honorable reporter Ms. Deutch for her article today. I don’t know if the Court saw it. But she found a quote that your Honor — a statement your Honor had made — and thank you, Linda. And that’s Howard K. Stern. What the evidence in this case showed is that he and Dr. Eroshevich had an agreement that prescriptions for Anna Nicole would be written in Howard’s name, and that’s all the evidence shows. There is no evidence that Howard knew of any other name, not Ben Stern, not Charlene Underwood, not any other name. He didn’t pick them up, he didn’t have anything to do with obtaining them. There was never a witness who connected any of those names to him or brought to South — to the Keys. That’s what we have.”
Steve Sadow went on to say; “We all had either the fortune or misfortune to sit through two and a half months of facts. The Court instructed the jury, and did so because all of the parties agreed, that if a defendant had a good faith belief that his or her actions were legal, he or she is not guilty of conspiracy. And I really think that’s the crux of where we are because if you look at the evidence in any light, the evidence does not show that Howard K. Stern specifically intended to break the law insofar as these two target offenses, and that he, in fact, had a good faith belief that his actions were legal.”
One of the strongest arguments I think Sadow brought to the Court’s attention is that Howard K. Stern was honest about using his name to Danny Santiago stating: “And based on the evidence here, there is not a single indication that Mr. Stern believed it was illegal to do so and didn’t have a good faith belief that it was okay. They’ve been doing it for Anna since 2000 in Michelle Chase, in Jane brown. They went on and continued to do it in the Bahamas the same way. Howard knew it was going to Anna. Dr. Eroshevich knew it was going to Anna. There was never any question about that. When agent Santiago goes to see Mr. Stern on October the 12th, in a non-custodial setting, Mr. Stern says, Absolutely, it was in my name. It was written for privacy. There wasn’t any question about it. Now, that’s not evidence of a guilty intent. That’s evidence of someone who believes that what he did was legal.”
Judge Perry brought up the question about that pesky black bag stating; “Well, the argument was made that because Mr. Stern had a bag of prescription medication that ended up in the hotel room, that that was some indication of knowledge.” To which Mr. Sadow countered with; “All his name. All Howard K. Stern’s name. Not one other name was in that bag, and that was the beginning of the trial. So we — you know, we have always acknowledged, always admitted, Howard has always done so, he knew they were being written in his name. The question is, did he specifically intend to break the law? Did he know it was illegal to do so? And I’m suggesting that the evidence is insufficient as a matter of law to have convicted on that.”
Judge Perry then turned to Dr. Eroshevich’s attorney Bradley Brunon and asked: “If the evidence fails to support Stern’s involvement in a conspiracy, is it your view that the conspiracy charge against Dr. Eroshevich would fall?” To which Brunon responded in part that; “Yes, your Honor. There would have to be mutuality of intent in the conspiracy and it takes at least two people. And if one of them isn’t criminally culpable, then the other one, I would say, couldn’t be just as a matter of law.”
At this point Mr. Brunon brought up “the elephant in the room” throughout the trial saying: “There’s the additional problem that the Court very clearly, very forcefully and very early in the trial said, we’re not going to litigate Ms. Smith’s Death. And yet, it became kind of a subtle thing, a light motif. We started off very early on with the toxicologist talking about the drugs found in her body at autopsy, obviously a postmortem event. That was followed by Birkhead and others concerning about the ultimate outcome to her health in taking these medications. So it became kind of the elephant in the room.” He further brought up the millions of dollars at stake stating: “[T]hat Mr. stern was trying to drug her into a tractable state where he could make way with Marshal millions, that turned out not to be the case.”
The fact of being a celebrity was addressed by Brunon in stating; “the Journal carried a rather extensive article about the medical data leaks from institutions and doctors that go beyond celebrities to expose thousands, and I think I can cite this simply for the fact that it’s common knowledge — we talked about it during the course of the trial — that celebrities seem to be fair game to anyone that thinks they can make some money off of exposing some secret in their life.” Following this was this exchange with Judge Perry and Brunon:
“THE COURT: I remember the issue involving Farrah Fawcett and her admission at UCLA. and how people were all over themselves trying to find out what she was there for and getting copies of her records.
Mr. BRUNON: And the woman was in terminal condition, and yet someone profited by it.”
It appears that Bunon hints that a medical malpractice suit would have been more appropriate then a criminal trial when he said; “I alluded in my pleadings to the issue that kind of malpractice crept into this, Dr. Eroshevich didn’t practice psychiatry correctly; therefore, she’s guilty of writing bad prescriptions. It had some relevance, but not the relevancy that it was given. I mean, Dr. Botello physically shuddered when he had to consider the photo of Dr. Eroshevich and Ms. Smith in the bathtub … It really wasn’t an issue in the case. In the case — the forgery case”
After the Deputy District Attorney Sean Carney responded the Court said in part: “I did a little review of the schedule of prescriptions. And I looked at it with the idea of finding what the evidence was as to prescriptions that Howard Stern had allegedly picked up that were prescribed by Eroshevich. And I found in my review, and I think that’s what the evidence supports, that stern picked up prescriptions that Eroshevich had issued for Vickie Marshal. There were a number, maybe eight or nine. I can give you the dates if it’s necessary. That he picked up one prescription for Ambien for Anna smith, and then he picked up on four occasions prescriptions in the name Howard Stern.” Then Judge Perry went on to comment on what good pleadings Carney had written saying: “I thought you were correct in your pleading — of course, I think you do excellent pleading work — in that you thought it was a slightly higher standard for the court on its own motion to dismiss.”
Of course the retrying of the hung charges and that either side could appeal came up.
Judge Perry issued his verbal ruling in a thoughtful and precise way that I believe will hold up under any appeal with a multi-page decision. At the end to this detail explanation Judge Perry stated; “Let me make clear that I am dismissing on my own motion in furtherance of justice counts 1 and 2 (corrected to 3) in this case as to all target crimes finding the evidence insufficient. I think that that needed to be said. All right.”
The only thing left was if the D. A. was going to retry Khristine Eroshevich on the counts that there was a hung jury with the D. A. is to let Judge Perry know in writing and that they had sixty days to file a notice and appeal on Judge Perry’s decision.
I am sure one of you has the charging document, [juries written decisions on all charges], or if not perhaps we can find one. I remember reading it right after the trial in October 2010.
I have been reading and talking to some of you about feeling sorry for Howard K. Stern losing four years of his life here. True, but that said, Stern made a conscious decision to enter into the chaos that appears Anna Nicole Smith’s life which entangled all who came to care for her.
I could whine about the three plus years of my life gone and the fact that 90% of the internet including members of Rose Speaks.com turned against me for not being willing to go to jail. I chose not to because simply there was nothing to hide, and unlike other co-defendants I did not have a robbery or had my hard drive in a bank box. They did not lie about what happened to them, but I did have my emails and hard drives. I simply knew that the truth would prevail that many had great lawyers in this and that I just had to batten down the hatches for however long this storm lasted. I chose to enter the chaos of having a blog that covered “All Things Anna Nicole Smith” so I did throw myself into the peripheral chaos by not closing this site and/or not stopping coverage of this horrible ongoing saga.
Who does my heart ache for and will for a very long time? First two moderators of Rose Speaks.com who did nothing and yet ended up in jail on ridiculous contempt charges. Recordings came out during the discovery that had one “witness” taped by a lawyer in two phone calls about putting Lyndal Harrington in jail, anything to get to me for this person’s own personal vendetta. She was willing to take down Bonnie Stern, Lyndal Harrington and Teresa Stephens if the lawyers promised that I would be brought down. What kind of sick person does that? As I told the lawyer I could only listen to one of the two tape phone calls but that my phone records as well as the time line would prove I never was the “brains” behind robberies, hiding of hard drives and filing a bankruptcy even suggesting that I had that kind of power over others is ludicrous. My prayer is that Karma is a bitch and you know who you are. Hint, it happened in the spring of 2009. So it was NOT QV or Havana or any of the people you might think it was. The complete ability to hate so much that you are willing to sacrifice three people you knew were innocent, to get to someone you just wanted to destroy is unconscionadle. Someone you never met and did nothing to you but try to be a support system during what you said, and now I believe was no more than a made up crises. I don’t think I even want to get in the head of someone like that to see the darkness there.
Besides those two moderators my heart bleeds for Howard K. Stern’s parents, Leon and Bea Stern. They sent their son, the baby of the family, to obtain a top notch education and secured his earning ability only to have him end up with one client. They had nothing to say about the chaos surrounding Anna Nicole Smith flooding into their lives and upon her death to cause what must have been a living hell for them for the next four years. These were just parents, who loved their son and stood by him. Any of us as parents would do the same thing. They had no control over what their lives became and due to their age, I am sure the price emotionally and physically is one none of us can even begin to imagine.
So my tears will be for the two moderators that went to jail and for Howard’s parents, those four people did not deserve to find themselves in the midst of this as none of us should have been entangled. This should have been a simple three hour hearing and court decision where Anna Nicole Smith wanted and intended to be buried not four years of hell.
I will not be saying anything else about anything connected to Anna Nicole Smith except for the Supreme Court hearing and the South Carolina trial; and of course if California is willing to throw more money with what seems to me to be idiocy any Appeal in criminal court they file. I will be updating the download page with all of the paperwork pending before the Supreme Court in the next few days for reference reading for all of you.
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