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Ominous Implications of the Hurwitz Appeal Decision?

Bill Marcus; NFTP listServ; 2006-08-22. Posted: 2006-08-30.
Related resources:
The Dr. William Hurwitz Collection  ;  Drug War Journalism and Advocacy archives
See also:
US v Hurwitz Appeal Decision (PDF) - Widener, Traxler, and Currie; 4th Circuit Court of Appeals; 2006 -08-22
Brief of Appellant William Eliot Hurwitz (PDF) - Robbins, Russell, & Taaffe; 2005
 Pain Doctor William Hurwitz Wins Appeal, Gets New Trial - Drug War Chronicle #450; 2006-08-25

The Accidental Drug Trafficker - Jacob Sullum; ReasonOnline; 2006-08-30
War on Doctors and Pain Crisis Weekly - RSS feed:   HTML view:

While the [overturning of the Hurwitz conviction] is clearly good news, having now read the Court's opinion, down the road Billy will still have trouble on retrial.  The court of appeal was not impressed factually by Billy's defense. It merely said it could not say that some reasonable juror could not have accepted Billy's defense, had the proper instruction been given.
On the other hand, if this decisions stands, it should at least make prosecutors more cautious before filing criminal charges.
But the other good thing is, as defense attorney Mary Baluss has pointed out, that the decision is a unanimous reversal. The dissent, which is a very brief note, simply says that how can "good faith" be objective - in other words, it would go further than the majority.
Either side, of course, could appeal the parts of the decision adverse to it to the full 4th circuit (technically, petition for a full hearing) or petition the Supreme Court for review, including because as Mary points out, and the court itself acknowledges, its standard for upholding warrants is looser than that of most other federal circuits.
This is a published opinion, meaning it is of precedential value if not superceded by a decision of the full circuit or a Supreme Court decision, and that concerns me because it, for the first time of which I am aware, supports an interpretation of good faith that is not based on the traditional definition of the term (the subjective meaning of the term to which the dissent refers) .
Now, even if the trier of fact believes the doctor honestly believed what he or she was doing was for a proper medical purpose, he or she can still be found to lack good faith by evidence, beyond a reasonable doubt, that what the doctor did was beyond the bounds of any accepted medical practice.  So Billy, and any other proposed defendant doctor, is going to have to be prepared to take each and every prosecution expert apart and to have the best possible experts to testify in his or her own behalf.
-- Bill Marcus, Retired California Attorney General



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Originally posted: 2006-08-30

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