PROSECUTION REBUTTAL
8 WE'LL PROCEED, MR. WILSON.
9 MR. WILSON: THANK YOU, YOUR HONOR. I'LL TRY TO
10 KEEP IT SHORT.
11 FIRST OF ALL, I GET THE IMPRESSION THAT THE DEFENDANT
12 WANTS TO CHARACTERIZE THE REASON THE DEFENDANT IS HERE BEFORE
13 YOU TODAY --
14 THE COURT: MR. WILSON, YOU NEED TO SPEAK UP.
15 MR. WILSON: EXCUSE ME, YOUR HONOR.
16 THE REASON THE DEFENDANT IS HERE BEFORE YOU TODAY IS
17 BECAUSE WE CHARGED HIM FOR PROVIDING END-OF-LIFE CARE TO
18 THESE PATIENTS. THAT'S NOT IT AT ALL.
19 THE REASON THE DEFENDANT IS BEFORE YOU HERE TODAY IS
20 BECAUSE IT WAS THE DEFENDANT THAT BROUGHT THEM TO THE DYING
21 CONDITION. IT WAS THE DEFENDANT THAT THEN ASSERTS THE
22 MEDICAL DIRECTIVES AND USES THAT AS IMMUNITY TO KEEP HIM FROM
23 BEING PROSECUTED AND TO SAY TO YOU, LADIES AND GENTLEMEN OF
24 THE JURY, THAT WE'RE ALL GOING TO DIE OF VARIOUS CONDITIONS.
25 IT JUST SO HAPPENS I HAD THE BAD LUCK OF GETTING FIVE
1 PATIENTS WHO DIED ON MY 10-BED UNIT IN 16 DAYS. AND SO I HAD
2 TO PROVIDE THOSE PATIENTS -- AND LET'S NOT FORGET, LADIES AND
3 GENTLEMEN, THIS ISN'T A HOSPICE UNIT. THIS ISN'T A CRITICAL
4 CARE UNIT OR A MED UNIT. THIS IS A GERIATRIC PSYCHIATRIC
5 UNIT. THESE PEOPLE WERE BROUGHT IN FOR ACUTE PSYCHIATRIC
6 PROBLEMS, NOT FOR MEDICAL PROBLEMS. AND IF THEY WEREN'T
7 QUALIFIED, THEN THEY SHOULD HAVE NOT BEEN ACCEPTED.
8 THAT'S NOT THE STATE'S CASE. WE'RE NOT SAYING THEY
9 WEREN'T QUALIFIED TO BE ACCEPTED. WE'RE SAYING ONCE THEY
10 WERE ACCEPTED, BECAUSE OF THE DEFENDANT'S FAILURE OF CARE --
11 THIS ISN'T A MURDER CASE. WE'RE NOT SAYING THAT THE
12 DEFENDANT INTENTIONALLY AND KNOWINGLY KILLED THESE PEOPLE.
13 WHAT WE'RE SAYING IS, IS THAT THROUGH THE LACK OF CARE
14 THROUGH HIS MEDICAL TREATMENT OF THESE PEOPLE, HE BROUGHT
15 THEM TO A STATE OF DYING.
16 AND THEN AFTER HE BROUGHT THEM TO THE STATE OF DYING, HE
17 IMPLEMENTED DOSES OF MORPHINE, AT LEAST IN TWO OF THOSE
18 CASES, IN TERMS OF -- OF COMPLETING THE DYING PROCESS. AND
19 HE FAILED TO RECOGNIZE -- HE FAILED TO RECOGNIZE DURING THE
20 TREATMENT PROCESS THE RISK OF DYING THAT HE WAS IMPOSING ON
21 THESE PATIENTS. NO, IT'S NOT A MURDER CASE.
22 AND WAS DEATH UNEXPECTED? THESE FAMILY MEMBERS EXPECTED
23 DEATH. THAT WASN'T THE SITUATION HERE. IT WAS HOW THEY DIED
24 THAT WASN'T EXPECTED.
25 NOW, WE'VE HEARD A LOT ABOUT THE DISAGREEMENT BETWEEN
1 THE STATE'S EXPERTS AND THE DEFENSE EXPERTS. THERE'S TWO
2 AREAS THAT WE DISAGREE ON. THOSE AREAS ARE, NUMBER ONE, THE
3 DIAGNOSIS OF PAIN AND THE LEVEL OF PAIN, AND THE MANNER IN
4 WHICH THAT PAIN WAS TREATED AND THE DEFENDANT'S FAILURE TO
5 INTERVENE TO DETERMINE APPROPRIATE PROCEDURES TO ALLEVIATE
6 THAT PAIN. I MEAN, THERE WASN'T -- HE WASN'T EVEN LOOKING
7 INTO WHAT MIGHT BE CAUSING THE PAIN IN A NUMBER OF THESE
8 INSTANCES.
9 THE BASIC DISAGREEMENT WITH THE DEFENDANT'S EXPERTS IS
10 THEIR CHARACTERIZATION THAT THESE DRUGS DID NOT PLAY ANY PART
11 IN THEIR DEATHS. I THINK THAT'S ABSURD, EVEN BY THEIR OWN
12 CHARACTERIZATION OF HOW THE DRUGS AFFECT US.
13 AND WHILE WE'RE ON THIS SUBJECT, I'D LIKE TO ADDRESS THE
14 SITUATION WITH BRAD HARE'S TESTIMONY. DR. HARE TESTIFIED AS
15 TO ELLEN ANDERSON AND HE GAVE TESTIMONY AS TO THE LONG-TERM
16 EFFECTS OF THE MORPHINE. AND WHAT HIS TESTIMONY WAS, LADIES
17 AND GENTLEMEN OF THE JURY, IS THAT IT WAS THE MORPHINE THAT
18 CAUSED THE DAMAGE TO THE ORGANS IN ELLEN ANDERSON AND THAT
19 WAS WHAT RESULTED IN HER DEATH.
20 IT WASN'T THE EFFECTS OF THE MORPHINE THAT WERE
21 DEMONSTRATED IMMEDIATELY AFTER BECAUSE WE DIDN'T HAVE ANY
22 MONITORING IN PLACE. THERE WAS NO WAY OF KNOWING. YOU LOOK
23 AT THOSE CHARTS. THOSE RESPIRATIONS ARE TAKEN AT 12-HOUR
24 INTERVALS. NOW, IF YOU EXPECT THE PEAK EFFECT OF MORPHINE TO
25 BE WITHIN AN HOUR AFTER THE SHOT IS ADMINISTERED, HOW ARE YOU
1 GOING TO KNOW WHAT HER BLOOD PRESSURE AND RESPIRATIONS ARE AT
2 THAT TIME UNLESS YOU MONITOR IT?
3 THE DEFENSE ALSO MISCHARACTERIZED, I THINK, THE
4 INSTRUCTION AS IT RELATED TO THE MEDICAL DIRECTIVES. AND I
5 WOULD EXHORT YOU TO READ INSTRUCTION 30, BUT I'M JUST GOING
6 TO READ THE LAST PART OF THAT: THE BURDEN IS ON THE STATE AS
7 TO EACH SEPARATE COUNT TO PROVE THAT THE DEFENDANT DID NOT
8 ACT IN GOOD FAITH IN WITHHOLDING OR WITHDRAWING
9 LIFE-SUSTAINING PROCEDURES, OR IN ADMINISTERING MEDICAL CARE
10 OR TREATMENT IN CONFORMITY WITH A WRITTEN DIRECTIVE BY
11 PROVING BEYOND A REASONABLE DOUBT THAT THE DEFENDANT ACTED
12 WITH RECKLESSNESS OR CRIMINAL NEGLIGENCE AS YOU HAVE BEEN
13 INSTRUCTED.
14 SO WHAT I HAVE THE BURDEN OF SHOWING BEYOND A REASONABLE
15 DOUBT IS THAT IN THE TWO COUNTS OF MARY CRANE AND OF JUDITH
16 LARSEN THAT IT WAS AN ACTION OF RECKLESSNESS AND I HAVE TO
17 PROVE THOSE ELEMENTS BEYOND A REASONABLE DOUBT.
18 I HAVE THE BURDEN OF PROVING, IN THE OTHER REMAINING
19 THREE COUNTS, THAT THE DEFENDANT ACTED WITH CRIMINAL
20 NEGLIGENCE, THAT HE FAILED TO PERCEIVE THE SUBSTANTIAL AND
21 UNJUSTIFIABLE RISK THAT HIS CONDUCT WAS CREATING, AND AS A
22 RESULT OF THAT, THE PATIENT DIED.
23 NOW, ONCE I PROVE THAT BEYOND A REASONABLE DOUBT TO YOU,
24 HE NO LONGER HAS AND CAN ASSERT THE DEFENSE OF THE ADVANCE
25 DIRECTIVES. THEY'RE MOOT BECAUSE IT'S EVIDENCE THAT HE HAS
1 BAD FAITH. YOU CAN'T CRIMINALLY TAKE SOMEBODY'S LIFE EITHER
2 IN A NEGLIGENT FASHION OR A RECKLESS FASHION AND THEN SAY,
3 I'M IMMUNE FROM -- FROM RESPONSIBILITY HERE, BECAUSE IT'S
4 EVIDENCE OF THE BAD FAITH IN AND OF ITSELF.
5 NOW, I THINK RATHER THAN GO OVER SOME OF THE OTHER
6 INSTRUCTIONS, I'M GOING TO REFER YOU TO A NUMBER OF
7 INSTRUCTIONS THAT DEAL WITH -- NUMBER 14, REASONABLE DOUBT, I
8 WOULD ENCOURAGE YOU TO READ THAT AGAIN. NUMBER 35, WHICH HAS
9 TO DO WITH THE CREDIBILITY OF WITNESSES, I WOULD ENCOURAGE
10 YOU TO READ THAT ONE BECAUSE YOU ARE THE JUDGES OF THEIR
11 CREDIBILITY. NUMBER 34, WHICH IS -- RELATES TO EXPERT
12 WITNESSES, I WOULD ENCOURAGE YOU TO READ THAT ONE.
13 NOW, IN RESPECT TO THE PROOF OF THE GROSS DEVIATION FROM
14 THE STANDARD OF CARE, THESE ARE THE AREAS THAT I WOULD SAY TO
15 YOU THAT THERE WAS A DEVIATION FROM THE STANDARD OF CARE.
16 THERE WAS A FAILURE TO APPROPRIATELY EVALUATE ON -- ON
17 ADMISSION. THERE WAS A FAILURE TO DIAGNOSE. THERE WAS A
18 FAILURE TO EVALUATE ON A MEDICAL EMERGENCY. THERE WAS A
19 FAILURE TO CONSULT. THERE WAS A FAILURE TO INTERVENE
20 APPROPRIATELY. THERE WAS A FAILURE TO DOCUMENT. THERE WAS A
21 FAILURE TO MEDICATE APPROPRIATELY, A FAILURE TO MONITOR, A
22 FAILURE TO TITRATE.
23 ALL OF THESE ACTIONS AND CONDUCT BY THE DEFENDANT
24 CREATED THE SUBSTANTIAL AND UNJUSTIFIABLE RISK AND RESULTED
25 IN THE DEATHS OF THESE PATIENTS.
1 NOW, AS TO THE CHARACTERIZATION OF OUR EXPERT WITNESSES,
2 I THINK I WOULD INVITE YOU -- I'D INVITE YOU TO PUT THEIR
3 CREDENTIALS UP TO THE CREDENTIALS OF THE EXPERTS THAT
4 TESTIFIED ON BEHALF OF THE -- OF THE DEFENDANT. BRAD HARE, A
5 PH.D. PHARMACOLOGY, SOME 20 SOMETHING YEARS EXPERIENCE IN
6 PAIN MANAGEMENT, AN INSTRUCTOR AT THE UNIVERSITY OF UTAH, A
7 PROFESSOR THERE. HE WAS -- HE WAS GIVEN TO YOU AS A PAIN
8 MANAGEMENT SPECIALIST AND HE TESTIFIED IN THAT CAPACITY.
9 DR. MICHAEL CROOKSTON, ALSO A PSYCHIATRIST WHO IS VERY
10 FAMILIAR WITH THE USE OF THE PSYCHOTROPIC DRUGS THAT WERE
11 USED IN THIS -- IN THIS PARTICULAR CASE. AGAIN, HE HAS VAST
12 EXPERIENCE AND HE KNOWS HOW THESE DRUGS EFFECT AND HE ADHERED
13 TO THE STANDARD THAT WELBY JENSEN TALKED ABOUT: GO LOW, GO
14 SLOW.
15 WHAT'S WRONG WITH THAT STANDARD? REALLY. I MEAN, WHEN
16 YOU'RE DEALING WITH FRAGILE PATIENTS, WHEN YOU'RE DEALING
17 WITH PEOPLE WHO ARE SUFFERING FROM ALL KINDS OF
18 COMORBIDITIES, AS -- AS WE'VE HEARD, WHAT'S WRONG WITH THAT
19 STANDARD? I MEAN, WHY PUT A PATIENT AT RISK IF YOU CAN AVOID
20 THAT RISK? WHY -- WHY PRACTICE AGGRESSIVE MEDICINE?
21 NOW, I'M NOT SAYING THAT WELBY JENSEN'S GO LOW, GO SLOW
22 IS THE STANDARD. WHAT I'M SAYING IS, IS THAT IS A ACCEPTED
23 PRACTICE AND ONE THAT YOU NEED TO LOOK AT IN -- IN LOOKING AT
24 THIS DEFENDANT'S CONDUCT.
25 NOW, WE -- WE'RE TOLD, TOO, IN RESPECT TO THE EXPERTS OF
1 THE DEFENDANT -- AND I JUST WANT TO TALK ABOUT A COUPLE OF
2 THOSE BECAUSE I THINK THAT FOR THE MOST PART YOU CAN EVALUATE
3 THEM. DR. CASSIN, WHO WAS THE COUNTERPART TO THE MEDICAL
4 EXAMINER, AT LEAST AS I LISTENED TO HIS TESTIMONY, MOST OF
5 THESE -- MOST OF THESE PEOPLE DIED OF ARTERIOSCLEROSIS.
6 BUT THE REAL DIFFICULT PART I HAVE WITH HIS TESTIMONY IS
7 WHEN YOU LOOK AT THE FACTS OF THE CASE, WHEN YOU LOOK AT THE
8 DOSAGES OF MORPHINE THAT ARE GIVEN, AND HE'S SAYING, WELL,
9 OUR MEDICAL EXAMINER, THE STATE MEDICAL EXAMINER, TODD GREY,
10 HAD A BIAS BECAUSE HE WAS LOOKING FOR THE MORPHINE. WELL,
11 YEAH, HE'S GOING TO LOOK FOR THE MORPHINE BECAUSE THAT'S WHAT
12 THE MEDICAL RECORDS SHOW THAT WERE GIVEN, PARTICULARLY IN THE
13 CASE OF JUDITH LARSEN. SHE WAS GIVEN HEAVY DOSES.
14 BUT WHAT DID -- WHAT DID -- WHAT DID HE SAY? HE WENT
15 THROUGH THOSE MEDICAL RECORDS. HE COMPARED THEM AND HE
16 ELIMINATED OTHER ACUTE CAUSES OF DEATH. AND IN EVERY SINGLE
17 ONE OF THOSE CASES, HE ELIMINATED ACUTE CAUSES OF DEATH.
18 NOW, HE DIDN'T SAY THAT -- THAT THEY COULDN'T HAVE DIED FROM
19 THESE OTHER THINGS. HE DIDN'T SAY THAT. HE SAID OUT OF THE
20 FOUR OUT OF THE FIVE CASES HE SAID IT WAS UNDETERMINED. I
21 THINK THAT'S VERY RESPONSIBLE, I THINK THAT'S VERY ACCURATE,
22 AND I THINK THAT'S VERY HONEST.
23 WHAT HE DID SAY IS IN THE CASE OF JUDITH LARSEN, I'M
24 PERSUADED FROM -- FROM THE FACTS OF WHAT DOSAGES THAT SHE WAS
25 GIVEN, TO A REASONABLE DEGREE OF MEDICAL CERTAINTY BECAUSE
1 I'VE RULED OUT OTHER ACUTE EVENTS, THAT SHE DIED AS A RESULT
2 OF THE MORPHINE.
3 YOU TAKE THEIR SPECIALIST, KERRY CRANMER, GERIATRIC
4 MEDICINE. WHEN WE GOT LOOKING AT HIS REPORT AND I ASKED HIM
5 SEVERAL QUESTIONS, HE HAD THINGS IN HIS REPORT THAT DIDN'T
6 LINE UP. HE HAD LYDIA SMITH GETTING MORPHINE THREE DAYS
7 BEFORE SHE DIED. THAT'S NOT ACCORDING TO THE CHARTS.
8 HE ALSO HAD LYDIA'S FAMILY, AND TALKING WITH KENT SMITH,
9 SUPPOSEDLY, ON THE 6TH ABOUT TAKING LYDIA OFF ALL OF HER MEDS
10 BECAUSE SHE WAS IN CHRONIC -- OR TO SEE IF THAT WOULD --
11 WOULD SOLVE THE PROBLEM OR -- AND THAT SHE WAS IN -- SHE WAS
12 EXPERIENCING CHRONIC PAIN. I CAN'T REMEMBER EXACTLY WHAT IT
13 WAS NOW, BUT -- BUT I CAN REMEMBER THAT HE DID HAVE A LOT OF
14 INCONSISTENCIES IN HIS REPORTS.
15 IN RESPECT TO SHARON WEINSTEIN, I THINK PROBABLY IF YOU
16 WANT TO TALK ABOUT BIASES, SHE'S PROBABLY THE MOST OBVIOUS
17 BIAS. SHE SITS ON THE UTAH MEDICAL ASSOCIATION BOARD AND SHE
18 ACKNOWLEDGED RIGHT HERE: HEY, I HELPED SIT ON THE COMMITTEE
19 THAT SPONSORED A RESOLUTION THAT SAID, MR. PROSECUTOR, YOU
20 SHOULDN'T PROSECUTE A DOCTOR UNLESS -- PARTICULARLY IF
21 SOMEBODY ADVISES YOU THAT MAYBE IT'S NOT CRIMINAL CONDUCT,
22 UNLESS YOU GO TO A BOARD OF PHYSICIANS OR YOU GO TO THE
23 STATE PROFESSIONAL LICENSING BOARD. WE WANT TO TAKE AWAY
24 YOUR DISCRETION, MR. PROSECUTOR, BECAUSE WE DON'T BELIEVE YOU
25 HAVE THE ABILITY TO DISCERN THESE THINGS.
1 BUT THEY TAKE IT ONE STEP FURTHER, LADIES AND GENTLEMEN.
2 THEY TAKE IT A STEP FURTHER IN THEIR RESOLUTION AND THEY SAY:
3 WE DON'T THINK A JURY CAN DECIDE THOSE FACTS.
4 I THINK THAT TOTALLY DISCREDITS HER TESTIMONY HERE IN
5 COURT BECAUSE I THINK SHE'S COMING FROM A DEFINITE BIAS.
6 AND DR. FINE -- AND COUNSEL WENT TO GREAT LENGTHS TO
7 TALK ABOUT PERRY FINE. AND HE SHOWED YOU THE LETTER OR THE
8 LETTERS ON THE SCREEN THAT RELATED TO PERRY FINE. AND I JUST
9 WANT TO CALL YOUR ATTENTION TO ONE ASPECT OF THOSE LETTERS,
10 AND THAT'S THE LETTER DATED APRIL 13TH. THIS IS WHERE BETSY
11 BOWMAN, WHO WAS ASSISTING US AT THAT TIME, WAS SENDING HIM
12 CERTAIN RECORDS. AND YOU'LL READ IN THE LETTER: ENCLOSED
13 PLEASE FIND THE REQUESTED MEDICAL RECORDS ON ENNIS ALLDREDGE,
14 ELLEN ANDERSON, MARY CRANE, JUDITH LARSEN, AND LYDIA SMITH.
15 AND THEN SHE GOES ON TO POINT OUT THAT THERE ARE OTHER
16 RECORDS AVAILABLE. WE WEREN'T HIDING ANYTHING FROM PERRY
17 FINE. AND HE -- HE DIDN'T DISPUTE THE FACT THAT BASED UPON
18 THOSE RECORDS HE HAD, HE MADE A FINDING THAT THE DEFENDANT'S
19 CONDUCT WAS BUMBLING, IT WAS D-MINUS, AND THAT HE SHOULD
20 NEVER PRACTICE MEDICINE.
21 OH, SURE, HE GETS UP HERE NOW AND HE SAYS TO YOU, WELL,
22 I DIDN'T HAVE ALL THE RECORDS. THOSE WEREN'T DISCLOSED TO
23 ME. GIVES THE IMPRESSION THAT THERE WAS A DELIBERATE
24 NONDISCLOSURE TO HIM, AND THEN PROCEEDS TO TELL YOU, BUT I'VE
25 CHANGED MY OPINION NOW THAT I'VE SEEN THE OTHER RECORDS. IF
1 HE -- IF HE DIDN'T HAVE ALL THE INFORMATION TO GIVE THE
2 OPINION IN THE FIRST PLACE, THEN WHY IS HE GIVING IT TO US.
3 OBVIOUSLY, A BIAS.
4 AS I SAID AT THE ONSET, IT'S NOT A FORUM FOR END-OF-LIFE
5 CARE, IT'S NOT ABOUT PAIN MANAGEMENT. IT'S ABOUT THE LIFE --
6 LIVES OF THESE FIVE PATIENTS. BUT IT'S ALSO ABOUT AN
7 ATTITUDE, AN ATTITUDE OF ARROGANCE, AN ATTITUDE OF DELIBERATE
8 INDIFFERENCE, AND A BETRAYAL OF TRUST. ARROGANCE IS
9 DEMONSTRATED TIME AND AGAIN IN THE DEFENDANT'S UNWILLINGNESS
10 TO ACCEPT RECOMMENDATIONS AND TO ACCEPT THE NURSES'
11 OBSERVATIONS OR THE FAMILIES' OBSERVATIONS. INDIFFERENCE AS
12 DISPLAYED BY HIS FAILURE TO NOT ONLY ATTEND HIS PATIENTS, BUT
13 REPEATED FAILURES IN ADHERING TO THE STANDARDS OF CARE.
14 AND LAST, BUT NOT LEAST, BETRAYAL NOT ONLY TO THE
15 PATIENTS, BUT TO FAMILIES BY HIS USE OF THE DYING PROCESS TO
16 IMPLEMENT THE SO-CALLED COMFORT MEASURE AND CAUSING THEIR
17 UNTIMELY DEATHS.
18 LASTLY, LADIES AND GENTLEMEN, THIS CASE IS ABOUT
19 ACCOUNTABILITY. DR. CROOKSTON POINTED OUT THAT WE'RE ALL
20 ACCOUNTABLE AS PHYSICIANS -- THEY ARE ALL ACCOUNTABLE AS
21 PHYSICIANS WITH THEIR DECISIONS. THAT'S WHAT IT'S ABOUT HERE
22 TODAY. I'M ASKING YOU TO HOLD HIM ACCOUNTABLE FOR HIS
23 DECISIONS, AND FOR THE TREATMENT AND LACK OF TREATMENT AND
24 LACK OF CARE AND INDIFFERENT ATTITUDE TOWARD THESE PATIENTS.
25 THE EVIDENCE IS THERE AND I REQUEST YOU BRING IN A
1 VERDICT OF GUILTY ON ALL COUNTS AS CHARGED. THANK YOU.