Hurwitz Conviction Overturned

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Today the U.S. Court of Appeals for the 4th Circuit overturned the conviction of McLean, Virginia, pain doctor William Hurwitz on drug trafficking charges, finding that the trial court erred by telling jurors they could find him guilty even if he prescribed narcotics in good faith. The 4th Circuit has ordered a new trial for Hurwitz, who was sentenced last year to 25 years in federal prison. It is amazing this issue had to be litigated, but the government steadfastly maintained that it didn't matter whether Hurwitz was honestly trying to relieve the suffering of patients with severe chronic pain. Although the appeals court rejected this position, it muddied the waters by saying the good faith standard should be "objective," based on general medical practice, rather than "subjective," meaning the defendant thought he was practicing good medicine. Judge H. Emory Widener joined the ruling but departed from the majority on this point, writing: "I do not believe good faith should be objective; the two terms are contradictory, it seems to me." Me too.

[Thanks to the Pain Relief Network's Siobhan Reynolds for the tip.]

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  1. Hey, it’s about as good as we can expect these days.

    Sad, but true.

  2. So, does this mean that he stays in jail until he gets a new trial?

  3. Making a good faith effort is likely to be objective in the sense that people agree what counts for it and what counts against it, just from sharing the language.

    It’s not objective in the sense that the narrative spun from these elements depends on presentation.

    Which is not a concealment of good faith, but simply how it is used : in a narrative, as an account or explanation or excuse.

    Then you could complain, objectively again, that it’s not good faith because …, and that’s how the narrative doesn’t quite fit.

    The narrative stops changing when all the jurors have made their corrections to it.

    But “good faith” being clear is how this happens.

  4. “I do not believe good faith should be objective; the two terms are contradictory, it seems to me.”

    Ahh no. Not me. If a cop has a “good faith” reason to search my person, house, papers or effects, I think he should have something objective to base that faith on.

  5. Warren, I respect your thoughts on how high the bar should be set for the scenario you described. I think the criteria you’re suggesting should be specified as additional to “good faith”.

  6. If a cop has a “good faith” reason to search my person, house, papers or effects, I think he should have something objective to base that faith on.

    Agreed, but we’re comparing apples and oranges here. It’s possible, and even necessary, to objectively prove that you committed a murder or a theft before you’re prosecuted for it. But how can anybody else state objectively how much pain you are suffering?

    I had a wisdom tooth pulled yesterday. I’m about to make three statements concerning my current state of pain:

    1. My wound doesn’t hurt at all.
    2. My wound hurts, but only a little.
    3. My wound hurts a LOT, and I need some painkillers.

    How can you–or anyone else–objectively prove which of those statements is true? You can probably disprove number 1; if I say I feel fine but wince every time I try to speak, chances are I’m lying when I say it doesn’t hurt. But if I say I am “3,” how can anybody prove I am actually “2” or “1”? Or, to rephrase the question: if I really am “3,” what proof should I be expected to show before I’m allowed to have some painkillers?

  7. Finally! A HnR post that doesn’t make me want to go home and drink! Nice to see a glimmer of good news every once and a while.

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