Sun Sentinel Palm Beach Edition
Judge calls mistrial in prescription diet pills case
A Broward judge declared a mistrial Tuesday in the cases of five defendants accused of illegally prescribing and distributing prescription diet pills, blasting statewide prosecutors he accused of sabotaging the case and leaving him no choice.
The decision blocked the possibility of a retrial, meaning the case is over and the defendants have won.
Broward Circuit Judge Andrew Siegel delivered his ruling late Tuesday morning after hearing from defense lawyers for the accused and from the prosecutor.
The defendants were accused of conspiracy to distribute a controlled substance, the prescription drug phentermine, over the internet over a decade ago through what is now known as “telemedicine,” which was in its beginning stages at the time. “They were pioneers of telemedicine,” said defense lawyer Michael D. Weinstein. “There was no criminal statute at the time that said they can’t do it.”
While the defendants operated in Broward, the patients were from other areas of Florida, which is why the case was handled by the Attorney General’s Office of the Statewide Prosecutor.
According to Siegel, the prosecution tried to “goad” the defense into seeking a mistrial “from the moment this trial began” in mid-January, “for the purpose of gaining prosecutorial advantage.” Under Florida law, mistrials usually require both sides to pick a new jury and start over. But when the prosecution provokes or goads the defense into seeking a mistrial, the judge can declare that jeopardy has attached. It’s unconstitutional for someone to be tried twice for the same crime.
“This is extraordinary. This does not happen on a routine basis,” said Weinstein, who sought the mistrial after he said prosecutors tried to treat a witness as an expert without telling the defense about it.
In criminal trials, witnesses testify specifically about what they saw and heard, but expert witnesses are allowed to express their opinions and conclusions about specific areas. Both prosecutors and defense lawyers are required to disclose their expert witnesses before trial to give the other side the opportunity to challenge their qualifications or conclusions.
“We don’t have trial by ambush,” Weinstein said.
Other defense lawyers agreed. “This trial was an abomination,” said attorney Jim Lewis.
“They wanted to keep our
clients in a state of perpetual prosecution,” said attorney Michael McDonald.
Lead prosecutor Cynthia Honick denied any allegation of misconduct. “The state did not cause or goad this mistrial,” she said. “The defense’s lack of preparation caused this mistrial.”
But Judge Siegel did not agree, calling it a “clear and blatant case of prosecutorial misconduct.”
Prosecutors were not done presenting their case when the ruling came down and the defendants learned they could go back to their careers seven years after their initial arrests.
Defendant Lancelot James said he was targeted because state investigators did not understand the emergence of telemedicine and the ability of patients to visit doctors online. The pandemic has led to some increased understanding of the practice, he said. “This is the norm now,” he said.
The other defendants on trial were Claude White, Adesumbo Cassandra Adesioye, Sharrie Ann Thelwell-James and Jean Mario Pierre, each of whom was charged with conspiracy and money laudering. A sixth co-defendant, Dorothea Thompson Robinson, pleaded guilty and agreed to testify for the state. But when she took the stand, she said neither she nor her co-defendants had done anything wrong.
Attorneys for the co-defendants said Robinson pleaded guilty because she is 70, tired, and unable to afford to keep fighting the charges.
Adesioye, represented by McDonald, and White, represented by David Fry and Phyllis Cook of the Broward Public Defenders Office, said they did not know until they were arrested that they were even suspected of having committed a crime.
“Our job depends on us abiding by the laws, crossing t’s and dotting i’s,” said Adesioye.
“We look to the law to guide us. We never expected it to come after us.