I’m Back

I’m back from a distribution-of-misbranded-drugs jury trial — disappointed, but back.  Statistics vary but people estimate that the government wins anything from three-quarters to nine-tenths of criminal trials.  Sorry to say, we ended up in the (overwhelming) majority this time.  Still doesn’t feel very good.

I won’t talk more about the case because it’s still pending.  All I’ll say is that I admire my client’s fortitude and am reminded of the words of Teddy Roosevelt:

“It is not the critic who counts: not the man who points out how the strong man stumbles or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood, who strives valiantly, who errs and comes up short again and again, because there is no effort without error or shortcoming, but who knows the great enthusiasms, the great devotions, who spends himself for a worthy cause; who, at the best, knows, in the end, the triumph of high achievement, and who, at the worst, if he fails, at least he fails while daring greatly, so that his place shall never be with those cold and timid souls who knew neither victory nor defeat.”

“Citizenship in a Republic,” Speech at the Sorbonne, Paris, April 23, 1910

Sometimes you have to fight the fight.  It’s the nature of the business we’re in.

In Trial

Back later.

Good Write-Up Of U.S. v. Hernandez

The Broward/Palm Beach New Times has a thorough write-up of the U.S. v. Hernandez case.

Between February and April, a rather remarkable legal drama unfolded in U.S. District Court Judge William J. Zloch’s courtroom in downtown Fort Lauderdale. Federal prosecutors had spent two years building their argument against doctors, pharmacists, and businessmen who were operating an internet pharmacy network. But midway through the trial, their efforts unraveled in spectacular fashion. The case – titled United States of America vs. Frank Hernandez et al. – featured misconduct by the prosecution, misconduct by the jury, two mistrials, and a judge refusing to sentence two men who’d pleaded guilty. In the end, the U.S. Attorney’s Office was forced to turn tail and release defendants they once labeled as peddling pharmaceuticals illegally.

The full article is here.

U.S. v. Hernandez – More Thoughts From Juror No. 1

Some more thoughts from Juror No. 1 in U.S. v. Hernandez:

Were you glad they dropped the case?

I was extremely happy the case was dismissed.  I was surprised that the charges against Emmanuel Antonio, E.V.A. Global, Inc., Theophilos Antoniou, and Tropic Spiral Systems, Inc. were dropped.  Especially because they pled guilty.

Do you think the government ought to pay the defendants’ legal fees?

I’m not sure.  It depends and what is customary in a situation like this one.  I would also need more details as to why the prosecution moved to dismiss the case.

Jive Networks Trial – A tale of two cities

A report from the East Volusia News about some testimony.

Jurors in the federal Internet pharmacy trial of a former Daytona Beach man heard a recording in court Monday of a woman ordering more of the diet pills she’d previously bought online.

Mary Krieff of Tampa testified she was the caller who ordered 90 Adapex pills from Jive Network, a now-defunct business on Fentress Boulevard in Daytona Beach. Prosecutors say the business netted more than $77 million selling diet, sleeping and other pills without valid prescriptions through Web sites.

“Someone told me it would help me stay awake,” Krieff, 50, testified of her two purchases, one for $229, in June 2004.

Like other people who bought drugs from the company run by Jude LaCour, 36, Krieff testified she never saw a doctor for a prescription. She said she bought the pills for energy.

The frightening part of the story:

Follow Up On U.S. v. Hernandez – Part III

Continuing the conversation with Mark Hardiman:

Were there any rulings about the applicable law that made a difference?

Absolutely. Most critically, with respect to the jury instructions. In order to convict a practitioner of drug dealing, Judge Zloch instructed the jury that the government had to prove that the practitioner acted other than in good faith, outside the usual course of professional practice in the United States, and without a legitimate medical purpose. The court also instructed the jury that while ignorance of the law was no excuse, it could be considered by the jury as a factor in determining whether a defendant was acting in good faith, including with respect to his honest belief that his conduct was legal.

As a result, unlike the instructions given in many published Internet prescribing cases, our jury instructions made it very clear that practitioners could not be convicted of drug dealing simply because they may have violated professional standards of practice, committed malpractice, or acted negligently.

More Insight Into U.S. v. Hernandez – Insight from Juror No. 1

I recently spoke with a juror from the Hernandez case.  Obviously, we lawyers can chatter all we want; in the end of the day, it’s the juror who decides what happened.  This juror has some interesting answers to some questions I put to him.  (And while he’d rather remain anonymous on the blog, I confirmed his identity with defense counsel.)

1) In your view, what was single most helpful piece of evidence for the prosecution?

In my view the single most helpful piece of evidence for the prosecution was that it was very easy for a patient to change the information on the online questionnaire. I believe there should have been stronger filters to prevent this.

2) What was the single most helpful piece of evidence for the defense?

The single most helpful piece of evidence for the defense was that there was no law requiring a face-to-face physical exam.

DEA Changes Its Tune On In-Person Evaluation – But only in hindsight

I’m just going through the DEA’s rules on the Ryan Haight Act.  I’ll have more to say later but can’t resist posting this gem:

While the lack of an in-person medical evaluation has always been viewed as a ”red flag” indicating that diversion might be occurring, the Ryan Haight Act makes it unambiguous that it is a per se violation of the CSA for a practitioner to issue a prescription for a controlled substance by means of the Internet without having conducted at least one in-person medical evaluation . . . .

Follow Up on U.S. v. Hernandez – Part II

More from Mark Hardiman:

What was the most important evidentiary ruling during the trial?

I think the most important evidentiary ruling for the defense was probably that Judge Zloch correctly excluded portions of the 2001 DEA policy published in the Federal Register which stated that a valid prescription could not be based solely on a physician’s review of a medical questionnaire over the Internet.  The court correctly kept these statements out because this policy was not a statute or regulation, DEA is not authorized to promulgate standards of medical practice, and it was for the jury to decide whether such a prescribing practice was within the usual course of professional practice and without a legitimate medical purpose.  This was a critical ruling because we were very concerned that the jury would treat these DEA opinions as having some type of legal force and effect regardless of what we argued.

Follow up on U.S. v. Hernandez Dismissal – Part I

I’ll be posting some insights from Mark Hardiman on his recent victory in Fort Lauderdale.  Here’s the first part.

Looking back on this lengthy trial, were there any watershed moments for the defense?

Sure.  The most unusual development was that the government kept calling cooperating witnesses whose testimony would support the defense.