Three friends of the late Anna Nicole Smith entered not-guilty pleas Friday against charges they’d conspired to keep her in a pharmaceutical fog.
This was the first time Howard K. Stern, Dr. Sandeep Kapoor and psychiatrist Dr. Khristine Eroshevich had sat in the courtroom of their new presiding judge, David Wesley.
The Superior Court judge has a reputation as a fair, thoughtful and patient man. That last quality will serve him well when this trial kicks off what is expected to be a Homeric saga of sex, drugs and death.
California Deputy Attorney General E.A. Jones III had joined the D.A.’s prosecutors Friday to ask Wesley three things:
To prohibit the two doctors from practicing medicine for the duration of the trial and to order them to surrender their prescription pads; and to increase their bail upward, now that they have been ordered to stand trial.
Jones, who was acting in concert with the California Medical Board, said the measures were necessary to ensure public safety.
Preliminary hearing testimony indicated that Kapoor and Eroshevich had prescribed Smith Demerol, Methadone, Vicodin and an atlas of other opiates as though they were candy corn on Halloween.
But there was probably another reason that Jones didn’t mention: By shutting down their livelihoods, the court would cripple their ability to finance an in-depth defense. The AG’s unspoken suggestion is that writing prescriptions is like printing money for these two defendants.
Judge Wesley, however, was incredulous at the AG’s request — or at least, its timing. If, Wesley asked, the attorney general and the California Medical Board believed Kapoor and Eroshevich were such threats to public safety, why hadn’t they filed this request two and a half years ago, following Smith’s death by drug overdose?
Jones’ replies to Wesley’s prolonged questioning increasingly sounded circular – and lame. Basically, they got down to the position that, sure, the request could’ve been filed earlier, but the AG was filing it now. There, end of story.
Wesley wasn’t buying it, pointing out that while it’s true courts adopt a certain presumption of guilt during the setting of bail, that presumption could not extend to suspending doctors’ licenses.
“Is a suspicion of guilt a presumption of evidence?” Wesley asked. “What’s the burden [of proof]?” Wesley asked.
“‘Probable cause,’” Jones answered.
“No it’s not!” corrected Wesley. “It’s ‘clear and convincing evidence of a danger to the public.’ You’re asking me to suspend [licenses] on less of a burden than the medical board uses. They haven’t been found guilty of anything. No, I can’t do it.”
Eroshevich’s attorney, Adam Braun, added that there has been no change of the legal circumstances regarding the defendants, whose charges stem from their relationship with a single client three years ago.
Wesley’s dressing down of the deputy attorney general (“I hope you don’t think I’m picking on you,” the judge told Jones) inadvertently raised two issues that have formed an unacknowledged back story to the coming trial.
The first is whether AG Jerry Brown’s zealous prosecution of this case was politically motivated. (He’s widely expected to run for governor next year, while the trial’s on.)
The second concerns longstanding charges that the state medical board acts far too slowly in bringing to book doctors who engage in gross misconduct — Jones’ motion seemed to be trying to get Judge Wesley to do the board’s work for it.
After court, Jones clarified for TheWrap that the AG’s office had asked Wesley to order Kapoor and Eroshevich to cease practicing medicine during their trial — but not to suspend their licenses. When questioned, he admitted the difference was one of semantics.
He also claimed that his office “frequently” sought judges to do this when doctors were facing trial on professional misconduct charges.
Deputy D.A.s Sean Carney and Renee Rose sat, stock still, as their state colleague took his lumps from Wesley. Stern, who had been Smith’s lover and attorney, nodded his head at the spectacle, a smile buckling across his mouth.
The judge did invite Jones to request that Wesley order the state medical board to monitor the two doctors, though, Wesley exclaimed, he found that quite unnecessary. (Only three months ago the AG’s Bureau of Narcotic Enforcement unveiled the upgraded CURES software program, which allows strict monitoring of suspicious prescription-writing patterns.)
“I can’t believe,” Wesley said, “the medical board doesn’t have the right to monitor doctors. That’s their job!” Wesley then set Feb.5 5 as the next court date, though the actual trial is probably much further away than that.
