Jewish World Review Jan. 7, 2005 / 26 Teves 5765
Drs. Michael A. Glueck & Robert J. Cihak
Jury can fire liars for hire
On December 15, Dr. Bill Hurwitz was shackled in the courtroom and hauled away to jail. A federal jury in Virginia declared the doctor guilty of some of the drug-dealing charges the government brought against him - a conviction that carries a mandatory minimum prison sentence of 20 years to life.
Dr. Hurwitz specialized in treating patients suffering with chronic pain. Some of his treatment techniques were considered "controversial" a decade ago but are now widely accepted as standard practice by doctors working in medical schools as well as in private practice. These methods are now recognized in state law, for example, in Virginia.
Further, the doctor's plan or protocol for treating such patients was formally accepted in written agreements by both state and federal government officials in 1997 and 1998.
As part of these agreements, Dr. Hurwitz allowed federal government agents working for the Drug Enforcement Administration (DEA) access to all his patient records, at any time, without requiring a court order or search warrant. He also provided DEA agents with complete and ongoing records of all patients receiving powerful pain medicines every three months.
This degree of openness and the detailed paperwork given to government agents was unprecedented. Dr. Hurwitz provided this access and all these reports with a hope that the government would work with him to counter illegal drug diversion by his patients. His hope was in vain.
During four years of providing prodigious amounts of patient information to government agents, DEA agents never advised him about any of the illegal activities of the few patients who did so.
Hurwitz himself became aware of illegal or unethical activities of 17 patients and refused to treat them further. After learning that four other patients suffering with chronic pain were arrested on drug charges, he watched these patients more carefully and used laboratory tests to confirm that these patients were indeed taking the drugs in the prescribed doses.
About 15 of his 400 patients lied to Dr. Hurwitz about their pain in order to get prescriptions for more medicine than they needed. When government agents discovered these patients were selling drugs illegally, they bribed them to testify against Dr. Hurwitz by offering lenient prosecution.
They also sent "patients" to him that were imposters, liars for hire, paid for by government prosecutors.
Given that government agents were given all the information they wanted and more, it would have made sense to let Dr. Hurwitz know when a patient was diverting drugs.
Instead, the government knew that Hurwitz's former patient Tim Urbani sold his prescribed medicines for $3 million and patient Robert Woodson made $750,000 in two years. Dr. Hurwitz wasn't told about these diversions and did not receive a penny of these illegal profits.
Instead of helping Dr. Hurwitz identify and manage law-breaking patients, DEA agents searched his office on November 6, 2002, and subsequently indicted him on 62 charges, including conspiracy to traffic in controlled substances, drug trafficking resulting in death and serious bodily injury, and health care fraud.
Prosecutors commonly cook up dozens of charges against a physician, each one of which carries a heavy prison sentence, in the hope that the jury will find the doctor guilty of at least one charge. Or that the jury will think that there are so many charges, the doctor must be guilty of something.
Every aspect of the trial was stacked against Dr. Hurwitz.
In this case, the judge restricted testimony from most of Dr. Hurwitz's genuine patients who were willing to testify that he had saved their lives. But the illegal drug users and paid patient imposters were invited to swear to tell their "truth" and bear false witness against him.
With inflammatory language, the prosecution tried to turn the requirement for the burden of proof away from the government and tried to make Dr. Hurwitz prove his innocence. This turns our "innocent until proven guilty" basis of criminal law upside down.
The judge did not allow Dr. Hurwitz to tell the jury about the signed, sealed and religiously executed agreement with the DEA itself. It beggars my imagination to understand why this evidence of four years of full cooperation with the very agency that prosecuted the doctor was not allowed.
How can we citizens prevail against such "legal" injustice?
We need to be aware of our power as jurors.
We believe the jurors did not realize they could find Dr. Hurwitz not guilty. One eyewitness in the courtroom told me, "Everyone in the courtroom knew Billy was innocent."
Let's remember the 1735 John Peter Zenger trial in colonial New York. Zenger was accused of the crime of printing harsh criticism of the colonial New York governor. Zenger's defense was simple: he had the right to print the truth. Although under the law at the time, the jury had no authority to acquit Zenger based on the truth of his statements, the jury acquitted him anyway.
"Jurors must know that they have the option and the responsibility to render a verdict based on their conscience and on their sense of justice as well as on the merits of the law," according to the Fully Informed Jury Association, http://www.fija.org.
"Jurors protect against tyranny by refusing to convict, and our Founding Fathers planned and expected jurors would exercise this power without question. Juries are the last defense of liberty before we resort to arms, and thus our best defense without loss of life."
Jury nullification lives today. Thomas J. Binder, my mother's father, owned and ran an all-family bar in the small farming community of Tabor, South Dakota. I call it an "all-family bar" because he sold candy and ice cream for the kids up front near the door, tobacco in the next section, and beer and hard liquor farthest back. He owned the bar for over half a century, retiring at age 92.
When he was about 88 years old, my grandfather was put on trial for selling beer to an underage youth. At the trial, he was asked all the usual questions: "Did you know the young man?" "Did you know he was underage?" "Did you sell him beer?" He answered "Yes" to all these supposedly incriminating questions.
A jury of his neighbors in this hard-working community rendered their verdict: not guilty.
When you, as a juror, are told to believe professional, lying criminals and distrust honest citizens you have not only a right but an obligation to tell all these criminals to go to hell.
The American jury is our last line of defense against corrupt government prosecutors, cops, judges and liars for hire. It's not just a right, it's an obligation.
Editor's Note: Robert J. Cihak penned this week's commentary.
Michael Arnold Glueck, M.D., is a multiple award winning writer who comments
on medical-legal issues. Robert J. Cihak, M.D., is a Discovery Institute
Senior Fellow and a past president of the Association of American Physicians
and Surgeons. Both JWR contributors are Harvard trained diagnostic radiologists.
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