Yesterday I attended the closing arguments in the federal drug trafficking trial of McLean, Virginia, pain doctor William Hurwitz. Leaving aside my views on drug policy– in particular, regarding the conflict between drug control and pain control–it seems clear to me that the government has not met its burden of proving that Hurwitz deliberately facilitated the illegal distribution of narcotics.
The prosecution argues that Hurwitz, who faces a possible life sentence, had a tacit agreement with patients who were misusing and/or selling the drugs he prescribed not to ask too many questions and to look the other way when there were signs of abuse or diversion. "The defendant repeatedly and intentionally covered his eyes and ears," said Assistant U.S. Attorney Gene Rossi. He ignored the "red flags and loud gongs" that should have led him to stop treating certain patients. It was "conspiracy of silence," carried out by "a wink and a nod."
The problem with this theory is that the evidence supporting it is necessarily ambiguous, leaving plenty of room for reasonable doubt. None of the surreptitiously recorded conversations with patients-turned-informants that the prosecution has presented include a clear acknowledgment or reference to the conspiracy that Hurwitz supposedly led. In fact, these conversations, Hurwitz's records, and his former patients' testimony tend to confirm his defense: that he was tricked by "predators" who always knew the right thing to say to get more drugs and who bragged about how they had won his trust. Conceding that Hurwitz may have displayed "a degree of naivete" and "even foolishness" in accepting their stories, defense attorney Patrick Hallinan called him "the perfect mark for these people," because he was dedicated to helping people in pain and reluctant to cut them off even if, say, they tested positive for illegal drugs or failed to follow his dosage instructions.
If there was indeed a conspiracy, Hallinan asked, "Why would you have to lie?" If Hurwitz and his patient-dealers were in cahoots, why would he carefully record all the potential signs of trouble the prosecution would later cite as evidence of his "head-in-the-sand attitude"? And if he was engaged in drug trafficking, asked Hallinan, "Where's the split?" Although some patients made a lot of money by selling the opioids he prescribed, Hurwitz never saw a dime of it. Unlike the typical "pill mill" doctor, he did not even charge by the prescription, or charge more for larger amounts. According to the prosecution, his profits consisted entirely of fees from his patients–in other words, his income as a doctor.
Again and again, Rossi tried to sway the jury by suggesting that Hurwitz was a bad doctor: arrogant, negligent, indifferent to his patients. This portrait is belied by the testimony of patients who are eternally grateful to Hurwitz for risking legal trouble by treating their chronic pain when no one else would and for treating them with compassion instead of suspicion. The government concedes that many of Hurwitz's patients were legitimate, and Hallinan estimates that only 5 to 10 percent were abusing or selling drugs.
More to the point, as Hallinan emphasized, the jury is not supposed to determine whether Hurwitz is a good doctor; that's an issue for the state medical board (and the civil courts, in the case of a malpractice suit). The jury is supposed to determine whether he intentionally fed the black market in opioids. If he was prescribing in good faith–that is, with the intent of treating pain–he cannot be convicted of drug trafficking, regardless of how the jurors view his competence and care as a doctor.
The jurors are supposed to receive their charge today. If they remember what their job is, they will acquit him.