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PRESCRIPTION PAINKILLER CASE

Doctor Will Remain In Prison Until Retrial

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By Jerry Markon
Washington Post Staff Writer
Thursday, October 12, 2006

Former Northern Virginia pain-management doctor William E. Hurwitz, whose conviction on drug-trafficking charges was overturned, will not be released from prison until his retrial, a federal judge ruled yesterday.

U.S. District Judge Leonard D. Wexler said he was concerned that Hurwitz might flee after a federal jury in Alexandria convicted him in 2004 of running a drug conspiracy out of his McLean office and trafficking in narcotics. Hurwitz is perhaps the most prominent doctor to be targeted in a federal crackdown on what authorities call the over-prescribing of OxyContin and other painkillers.

"Things have changed with respect to flight," Wexler said as he rejected a motion from Hurwitz's attorneys to free him on bond. "A jury has found him guilty of 50 counts . . . I think there is a risk of flight."

The case has generated strong emotions, with Hurwitz becoming a symbol in a nationwide debate over whether licensed doctors who prescribe legal medication to patients in chronic pain should be prosecuted if their patients abuse or sell the drugs. About 10 family members and supporters were in court yesterday, and Hurwitz's brother said afterward that the judge's concerns were "laughable."

"He's not going to run away," said Kenneth Hurwitz, who is a senior associate for Human Rights First in New York. "He believes he's innocent. This is a guy who went to law school and medical school. He cares about his reputation. He's not someone who wants to live as a fugitive who knows where."

William Hurwitz, dressed in a green prison jumpsuit, sat quietly during the hearing, then glanced at family members and glumly shook his head as he was escorted out. He had been free on $2 million bond during his first trial.

In August, a federal appeals court overturned Hurwitz's conviction and granted him a new trial, which is scheduled for March. The U.S. Court of Appeals for the 4th Circuit ruled that Wexler improperly instructed jurors that they could not consider whether Hurwitz acted in "good faith" when he prescribed large amounts of OxyContin and other painkillers -- for one patient, 1,600 pills a day. The "good faith" argument was central to Hurwitz's defense, his attorneys have said, because he believed he was helping his patients.

The appeals court noted that prosecutors presented "powerful" evidence at Hurwitz's trial that showed he was "acting outside the bounds of accepted medical practice." Wexler also cited that finding in declining to release Hurwitz yesterday.

Jurors convicted Hurwitz of trafficking that is alleged to have caused the death of one patient and seriously injured two others. They found him guilty on 50 counts, acquitted him on nine and deadlocked on three. Hurwitz, then 59, was sentenced to 25 years in prison.

The likelihood of a long prison term if he is convicted again gives Hurwitz reason to run away, prosecutors said yesterday as they urged Wexler to keep him in prison. "At least one jury found him guilty 50 times over," said Assistant U.S. Attorney Gene Rossi. "He's about 60 years old, and the sentence that was imposed, 25 years, is essentially a life sentence. That is a strong incentive."

Hurwitz's attorneys said he has a good chance of winning the retrial and didn't flee when he had the chance before. "He faithfully abided by every condition of his release," said defense attorney Lawrence Robbins.


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