Published September 12, 2011
LOS ANGELES – Prosecutors who say a judge was biased against them have filed an appeal trying to reinstate three convictions against Anna Nicole Smith's boyfriend and her psychiatrist.
The unusual appeal filed Monday in California's 2nd District Court of Appeals says Superior Court Judge Robert Perry abused his discretion when he granted a new trial to the two defendants and dismissed the few counts on which they were convicted. A jury had acquitted them on most of 11 charges involving drug prescriptions given to the former Playboy model in the months before she died of an accidental drug overdose in February 2007.
A co-defendant, Dr. Sandeep Kapoor, who was Smith's physician, was acquitted of all charges.
Two guilty verdicts against Dr. Khristine Eroshevich and Howard K. Stern on conspiracy counts involved the use of false names to obtain prescription pain medications for the Smith. Eroshevich also was convicted of one count of obtaining Vicodin under a false name.
Perry found that the defendants' actions in trying to protect Smith's name were not unusual in the celebrity world of Hollywood. He dismissed the conspiracy counts and reduced the one conviction against Eroshevich to a misdemeanor with a sentence of one year probation.
Prosecutors argued in the appeal that Perry was biased against them and had created a celebrity exception to the law.
"Having repeatedly and unequivocally expressed its bias against this case and the trial prosecutors," the appeal said, "the court granted the new trial motions and dismissed the case, not because substantial evidence was lacking to support the verdicts ... but rather, because the court wanted to usurp the charging power of the People."
They noted that Perry accused a prosecutor of ethical violations during the case and said that the case had been overcharged.
Perry suggested authorities had chosen the wrong case to prove their point and indicated they did not understand the legislative intent of the law involving prescription drugs.
"The court has no doubt that abuse of prescription medications is a troubling problem for many persons," Perry said in his ruling. "There is no doubt that there are doctors who are nothing more than pill pushers and should be prosecuted and imprisoned. This case did not involve such doctors."
Perry acknowledged Smith's celebrity status and said, "In our media-driven society, there is a strong interest on the part of celebrities for privacy." He added that the use of prescription drugs can be misinterpreted by the public and can harm a celebrity's career.
The judge found that Stern never had the intent to defraud when he used his name and others to protect Smith's privacy in obtaining prescriptions for her.
Perry also found that Eroshevich was acting out of concern for Smith and cited her long medical career and service to the community in deciding to sentence her to no more than one year of probation and a $100 fine for obtaining one Vicodin prescription under a false name.
"The weight of the evidence clearly shows that Stern and Eroshevich are guilty as found by the jury. It was arbitrary and capricious for the court to apply to their case a court-created celebrity exception," the appeal said.
The defense has 30 days to file a response to the appeal.
The defendants' nine-week trial was the last act of a long-running drama centering on Smith's troubled life, which was documented on reality TV, in tabloids and in trial testimony.
The blond beauty's also made headlines in a continuing court fight with the estate of her oil tycoon husband.