Judge in Anna Nicole case doubts prosecutors can prove 2 key charges in drug case

By Linda Deutsch, AP
Tuesday, August 31, 2010

Judge doubts prosecutors can prove 2 key charges

LOS ANGELES — The judge in the Anna Nicole Smith drug conspiracy trial said Tuesday he doubted prosecutors can prove key charges against two doctors and the lawyer-boyfriend of the late Playboy model.

The two counts targeted by Superior Court Judge Robert Perry are at the heart of the case, accusing the three defendants of conspiring to prescribe, administer and dispense controlled substances to an addict and obtaining and dispensing prescriptions by fraud and use of false names.

Perry raised the issue after a juror sent him a note asking for a copy of the charging document. He said he was unsure about sending the jury the entire document, indicating it might change before they were asked to reach a verdict.

“I’m not sure you can make your conspiracy counts one and two from what I’ve heard,” Perry told prosecutors. “But I am not ruling on that now.”

Dr. Sandeep Kapoor, Dr. Khristine Eroshevich and Howard K. Stern have pleaded not guilty. They are not charged with Smith’s overdose death in 2007.

The judge did not mention the third conspiracy count that contains many of the same allegations but covers a different time frame and does not mention Kapoor as a member of the conspiracy.

Perry also questioned the propriety of some of the overt acts cited in connection with the alleged conspiracy.

An overt act is an alleged action by one or more defendants that prosecutors contend proves the conspiracy and other crimes. There are 45 overt acts specified in count one of the felony complaint in the Smith case and 19 acts in count two.

“There are a number of overt acts I think are improper,” the judge said, “at least eight or 10.”

Prosecutors are nearing the end of their case in the fourth week of the trial. Once they rest. the judge has the authority to dismiss any charges he thinks are not supported by evidence.

Earlier in the day, Dr. James Gagne, an expert witness for the prosecution, was cross-examined by defense attorney Steve Sadow, who represents Stern. He attacked Gagne’s claim that Smith was a drug addict and her doctors should have known it.

The defense maintains Smith was dependent on drugs to control her chronic pain syndrome and did not meet the definition of an addict.

At one point, Gagne said he believed Kapoor should not have continued sending Smith prescriptions for Methadone when she was pregnant in the Bahamas.

“She was 3,000 miles away in the Bahamas and she needed local care,” Gagne testified. “I agree stopping Methadone at that point would have been deadly to the fetus. One prescription would have been appropriate but not continuing the medication.”

Sadow asked if Gagne knew Methadone was not available in the Bahamas, but the answer was not allowed because there had been no previous testimony about the topic.

Later, Gagne’s credentials as an expert witness were challenged by attorney Ellyn Garafalo, who represents Kapoor. She elicited his acknowledgment that he has no specialized training in pain management and has never published books or articles in scholarly journals on the topic.

He said if something interests him, he checks it out on the Internet and he has an e-mail service that sends him articles on pain management.

Asked what research he did before testifying, Gagne said, “I did not do research for the specific purposes of generating my opinions in this case.”

He has said he was paid about $38,000 for his work on the case, the third criminal case in which he has testified in court.

will not be displayed