Friday, March 29, 2013
Court of Appeal Reaffirms Ruling in Case Of Anna Nicole Smith’s Lawyer, Doctor
Panel Says U.S. High Court’s Double Jeopardy Decision Does Not Affect Outcome
By KENNETH OFGANG, Staff Writer
Howard K. Stern, left, was found guilty of giving false names and acting by fraud to obtain prescriptions. Dr. Khristine Eroshevich was found guilty of multiple charges, including unlawfully prescribing Vicodin by fraud. The court of Appeal ruled yesterday, for the second time, that there was sufficient evidence to support the verdicts, but post-trial motions remain to be heard.
A Los Angeles Superior Court jury had sufficient evidence before it to find the lawyer who managed Anna Nicole Smith’s career and much of the last 12 years of her life guilty of conspiring to obtain prescription drugs for her illegally, the Court of Appeal for this district ruled yesterday.
Adhering to the conclusion it reached last October, Div. Five said Los Angeles Superior Court Judge Robert Perry erred in finding the evidence against Howard K. Stern insufficient as a matter of law.
Double jeopardy principles bar Stern from being retried, however, so the court will have to reinstate his conviction and sentence him, or dismiss the case on some other basis, such as in the interests of justice under Penal Code Sec. 1385, Presiding Justice Paul A. Turner wrote.
The court also reinstated guilty verdicts against Dr. Khristine Eroshevich, the Beverly Hills psychiatrist who admitted prescribing drugs for Smith—a reality TV star and former Playboy model whose real name was Vicky Lynn Marshall—under phony names, but denied any intent to commit fraud. Turner said the trial judge erroneously set aside the conviction under Sec. 1385, but did not find the evidence insufficient as a matter of law, so the doctor could face another trial.
The appellate panel issued its original decision on Oct. 18, but granted rehearing sua sponte a month later to await the Supreme Court ruling in Evans v. Michigan.
On Feb. 20, the justices ruled in Evans that a defendant whose motion for a directed verdict was granted at the close of the prosecution’s case could not be retried, after the Michigan Supreme Court said the trial judge erred by acquitting based on lack of proof of an element that the relevant statute did not require.
But Turner said yesterday that Evans did not require a change in the prior decision. He noted, however, that Stern’s motion for new trial raised issues apart from sufficiency of the evidence that the trial judge must still rule on.
“But under no circumstances may a retrial occur,” Turner said.
Justice Orville Armstrong concurred in Turner’s opinion, as he had last year. But Justice Richard Mosk dissented in part, arguing that an order granting new trial—based, for example, on the trial judge acting as a “13th juror”—would be a permissible outcome.
Stern, Eroshevich, and Dr. Sandeep Kapoor were tried on an 11-count information involving prescriptions given to Smith in the months before she died in Florida on Feb. 8, 2007, of an accidental drug overdose. The defendants were not charged with causing her death.
The jury returned verdicts in October 2010, acquitting Kapoor on all charges, while finding Eroshevich guilty of obtaining controlled substances by fraud or misrepresentation, and giving false information to obtain controlled substances and finding both Eroshevich and Stern guilty on two counts of conspiring to commit those offenses.
At a sentencing hearing, however, Perry threw out both of Stern’s convictions and all but one of Eroshevich’s, and reduced that one charge—obtaining drugs by fraud or misrepresentation—to a misdemeanor. The doctor was sentenced to a year of probation.
In September 2011, prosecutors filed an unusual appeal saying Perry was biased and abused his discretion when he dismissed the counts on which Stern and Eroshevich were convicted.
Prosecutors argued in their appeal that Perry was biased against them and had created a celebrity exception to the law. They noted that Perry accused a prosecutor of ethical violations during the case and said that the case had been overcharged.
Common Practice Claimed
The defendants did not dispute that drugs prescribed in Stern’s name, or in the names of others who had no connection to the case other than having their identities misused, were for Smith’s use. But they claimed that they were simply engaging in a common local practice of using false identities to protect the privacy of celebrities.
But Turner said the prosecution met its burden of proving that Stern and Eroshevich conspired for a criminal purpose.
Stern, he said, was aware that multiple prescriptions were being written in multiple names—by Eroshevich and other doctors—and being filled at multiple pharmacies, and that Smith’s treating doctors were unaware of this. Both defendants, Turner noted, “knowingly side-stepped” Kapoor’s efforts to detoxify Smith after she became pregnant.
“His knowledge and involvement was such the jury could reasonably conclude Mr. Stern, a lawyer, knowingly participated in the ongoing illegal practice of securing illegal prescriptions,” the presiding justice wrote.
As for Eroshevich—who was placed on probation by the Medical Board of California and had her license suspended for 90 days as a result of the case—Turner explained that the dismissal of the charges against her was based on the erroneous conclusion that she could not have conspired with Stern because there was insufficient evidence that Stern was guilty of conspiracy. On remand, the judge can still consider her motion for a new trial or dismiss on other grounds, Turner said.
The case is People v. Eroshevich, B231411.
Copyright 2013, Metropolitan News Company