Editorial: Jury Manipulation 12/24/04

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David Borden, Executive Director, [email protected], 12/24/04

David Borden
The war of words between physician organizations and the federal drug bureaucracy -- and their physician henchmen -- over pain control has continued to escalate. Just prior to the trial's ending, a letter was sent to Dr. Hurwitz's attorney, intended to be shared with the judge and if possible the jury, by six past presidents of the American Pain Society, blasting the testimony of Dr. Michael Ashburn -- another past APS president whom the prosecution had hired to help make their case. The presidents cited "factually wrong or serious misstatements of consensus in the field" by Dr. Ashburn, and wrote that while they had previously regarded him as a "respected colleague," they were "stunned" by his testimony and felt "morally compelled" to speak up (http://stopthedrugwar.org/breakingnews/index.shtml#painpresidents).

A week ago, Jacob Sullum of Reason magazine commented, "I have to admit I'm impressed by the achievement of the federal prosecutors who call McLean, Virginia, pain doctor William Hurwitz 'a major and deadly drug dealer.' Although the evidence they presented in his trial made it clear Hurwitz was not a drug trafficker, they still managed to convict him of drug trafficking" (http://www.reason.com/sullum/121704.shtml). Comments given to the Washington Post by jury foreman Ralph Craft, published there on Tuesday (http://www.washingtonpost.com/wp-dyn/articles/A15167-2004Dec20.html), show that Sullum hit the nail on the head, but also that there are two nails. Craft's quotes prove beyond a reasonable doubt that the jurors fundamentally misconstrued both their legal obligations as jurors and the medical evidence on pain control, and may complete the discrediting of the Hurwitz convictions that has proceeded so rapidly already.

Craft told the Post, "The dosages were just astounding," citing testimony that Hurwitz had 1,600 pills per day to one of his patients. "Certainly, the legitimate doctors out there don't prescribe anywhere close to what Hurwitz did," he continued, reasoning that the convictions of Dr. Hurwitz would therefore not affect how legitimate physicians deal with pain treatment. To Craft, the number of pills reflected a "cavalier attitude" that led to the deaths of some of Hurwitz's patients.

The problem is, according to top experts on pain control -- including one who testified at the trial -- Craft is completely wrong. According to Frank Fisher, a physician who served as a consultant to the Hurwitz defense team and who survived his own bout with the drug police, "1600 5 mg oxycodone pills per day, if this had been prescribed, would have been only 8 grams of morphine per day," whereas "there are accounts in the literature of patients taking as much as 35 grams per day" -- more than four times as much.

Any competent clinician could have told Craft that the number of pills is irrelevant. The relevant quantity is the amount of the opiate -- e.g. the number of pills multiplied by the amount of morphine each pill contains, varies widely between different types of medications. Fisher sent me a quote from a textbook chapter written by Russell Portenoy, chairman of the Department of Pain Medicine and Palliative Care at Beth Israel Medical Center. It's technical, but it says it:

"Once an opioid and route of administration are selected, the dose should be increased until adequate analgesia occurs or intolerable and unmanageable side effects supervene. There is no ceiling effect to the analgesia provided by the pure agonist opioid drugs and the maximal dose is immaterial as long as the patient attains a favorable balance between analgesia and side effects. This implies that the opioid responsiveness of a specific pain can only be ascertained by dose escalation to limiting side effects. In clinical practice, the range of opioid doses required by patients is enormous. Doses equivalent to more than 35 g morphine per day have been reported in highly tolerant patients with refractory cancer pain."

So there have been legitimate prescriptions recorded for more than four times the dosage as the largest ones brought up at the Hurwitz trial. But despite having one of the leaders in the pain control field, Russell Portenoy, present to tell them that in person, Craft just wasn't willing to believe that it could be true. In fairness, the prosecution had provided them with another doctor -- Ashburn -- who was willing to tell them what they apparently wanted to hear. But when faced with one expert who says "innocent" and the other "guilty," at worst is it not a situation of reasonable doubt?

The legal issue may be even more troubling. Consistent with Sullum's observation, Craft actually seems to have understood that Hurwitz was not a drug trafficker. "No, he wasn't running a criminal enterprise," he told the Post. Good that Craft recognized this -- I guess -- but why then did he and the other jurors vote to convict Dr. Hurwitz of drug trafficking -- a criminal enterprise?

In the end, though, as much as part of me wants to blame the jurors -- for the arrogance of thinking they understand pain control better than the world's top experts in pain control, for the illogicalness of convicting a man for conduct in which they recognize he did not engage -- ultimately I believe the blame lies elsewhere. The jurors screwed up, no doubt, about as badly as they could have. But they never should have been placed in that position in the first place.

The mistakes the jurors made are human kinds of mistakes. They are not doctors or lawyers, who are trained in medicine and logic and scientific thought. They are ordinary people. They relied on the expectation -- had a right to expect -- that the government would provide them with a clear and realistic understanding of both the facts of the case and the principles of the law -- the truth, the whole truth, and nothing but the truth. That's not what they got. As a result, they were vulnerable to the prosecutors' tricks, the playing up of the irrelevant but seemingly shocking number of pills, the muddying of the legal issues by calling Hurwitz a drug dealer over and over despite presenting no evidence of it.

It is a testament to the weakness of the fibers that bind our nation to the principle of rule of law. Federal agencies are free to overstep their legitimate boundaries, in this case by intruding into the realm of medicine -- a matter for civil society to regulate if there ever was one, certainly not a matter for drug war police. It then gets tested in trial, at enormous personal and financial cost to the victims so targeted. The case is then decided by a group of 12 citizens who are probably well meaning, but who don't for the most part possess the degree of knowledge and finely-tuned reasoning skills to counteract the vivid portrayals of professional prosecutors and their hand-picked witnesses. Unfortunately, there is currently no mechanism existing in our legal system to guard against inappropriate use of prosecutorial powers in advance -- and once the process starts, just outcomes cannot be expected with any reliability.

The Hurwitz trial and the comments of the jurors in its aftermath cry out for a separation of prescription opioid treatment from the area of criminal law, at least on the first level. If there is a role for the criminal law, it should first be doctors who go to the government when they are convinced true criminal malfeasance has occurred, not the other way around. This is not a legalistic or academic issue. A man is facing life in prison for fully living up to his medical obligation to treat patients for their pain; and patients around the country and living with the torture of untreated or under-treated severe chronic pain, many being driven to the horror of suicide. Because federal prosecutors do not respect the rule of law.

It's time for Judge Wexler to undo his mistakes that contributed to this travesty. He could begin to do so immediately, by restoring Dr. Hurwitz's bail and allowing him to remain free pending appeal. He's not going to prescribe opioids again, after all, his license was revoked. And Craft's comments to the Post may give Wexler grounds to reverse the verdict itself. It would be an unusual step, but it is a power that judges possess for a reason. When it is demonstrated that a jury simply did not understand the legal issues or its obligations under the law, that's a very good reason. And the indirect impact of the verdict on pain patients everywhere is another. It's time for a judge to show reason and courage.

-- END --
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Issue #368 -- 12/24/04

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Editorial: Jury Manipulation | Conflict Over Pain Management Heats Up as Mainstream Medical Groups Wake Up | In Run-Up to New European Union Drug Strategy, European Parliament Adopts Report Critical of Continued Drug War | Young Reformers Give Drug Czar Hard Time at Monitoring the Future Press Conference | DRCNet Book Review: Under The Influence: The Disinformation Guide to Drugs, Edited by Preston Peet (The Disinformation Company Ltd., 2004, 312 pages, $24.95) | Legalization Talk | Newsbrief: Senior Citizens Support Medical Marijuana, AARP Poll Finds | Newsbrief: This Week's Corrupt Cops Stories | Newsbrief: From Federal Prison, Martha Stewart Calls for Sentencing Reform | Newsbrief: Anachronistic Law Could Hamper Hemp in South Africa | Newsbrief: Dutch Open First Retirement Home for Junkies | Newsbrief: Hungarian High Court Overturns Drug Reforms | Newsbrief: Intelligence Bill Yields New Federal Drug Fighter Position | Newsbrief: First Cannabis-Based Prescription Drug Wins Preliminary Approval in Canada | Newsbrief: Canadian Study to Examine Safety of Medical Marijuana | Newsbrief: Illinois Nurses Join Growing List of Nursing Groups Supporting Medical Marijuana | Media Scan: Reason on Pain, Cockburn on Webb, Grits for Breakfast, Faith Under Fire, BJS | This Week in History | Apply Now to Intern at Drcnet! | Job Opportunity at MAPS | DrugWarMarket.Com Seeking Information, Affiliations, Link Exchanges | The Reformer's Calendar

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