Judge aims to rule by Friday on motion to toss murder charges
Attorneys for Dr. William Husel presented just two witnesses Wednesday to support their motion asking a Franklin County judge to dismiss 25 murder counts against the former Mount Carmel intensive-care physician accused of killing patients with overdoses of pain medication.
The first was a medical expert whose testimony triggered a debate between the defense and prosecution about whether Husel’s attorneys were trying to conduct a trial rather than focusing on their claim — that former county prosecutor Ron O’brien obtained the indictment by misleading a grand jury about what constitutes a lethal dose of fentanyl.
“They want to try the case today,” First Assistant Prosecutor Janet Grubb said amid a series of objections to testimony from Dr. Timothy Ihrig, chief medical officer at Hospice and Community Care in Lancaster, Pennsylvania, who was questioned via Zoom video conferencing.
Grubb argued that most of the questions defense attorney Jaime Lapidus posed to Ihrig were unrelated to their allegations of prosecutorial misconduct by O’brien.
At times, Common Pleas Judge Michael J. Holbrook seemed sympathetic to Grubb’s position.
“The focus is, did Mr. O’brien mislead or do anything improper with the grand jury,” Holbrook told Lapidus. “I don’t want to try the case ... today.” The judge said his goal is to issue a ruling on the motion to dismiss by noon Friday, or by Monday at the latest.
If he denies the motion, a jury trial is scheduled to begin Feb. 14 on charges that Husel purposely caused the deaths of 25 Mount Carmel Health intensivecare patients from February 2015 through November 2018 by prescribing overdoses of fentanyl, a powerful opioid.
Assistant Prosecutor David Zeyen said in his closing argument that the defense claims about O’brien’s presentation to the grand jury were purely speculative.
The defense “failed to show any prosecutorial misconduct whatsoever,” Zeyen said.
Because the defense filed the motion, he noted it had the burden to prove the misconduct allegations by “clear and convincing evidence.”
O’brien, a Republican who was the longest-serving county prosecutor, was leading Husel’s prosecution until he was defeated in the November 2020 election by Democrat Gary Tyack.
Jose Baez, a Florida-based litigator who is heading up Husel’s defense team, told reporters after the hearing that “the foundation” of the prosecution’s case “is incredibly flawed. We should not be here.”
Baez was asked whether Husel, who appeared pale and emotionless as he sat at the defense table, was experiencing any health problems.
“I don’t think anyone could go through a process like this and not suffer . ... No, he’s not well,” Baez said. “It’s his faith in God that has gotten him this far.”
Each murder count in the indictment is based on a patient under Husel’s care who died after receiving at least 500 micrograms of fentanyl. All but one of the deaths occurred at the former Mount Carmel West hospital in Franklinton; one patient died at Mount Carmel St. Ann’s hospital in Westerville.
Husel, 46, who lives in the Pickaway County village of Orient, has had his medical license suspended by the state medical board. He pleaded not guilty to the murder counts and has been free on a $1 million bond since shortly after his arrest.
His defense team contends that he was providing comfort care to terminally ill patients in their final hours and not attempting to shorten their lives.
“At the 500-microgram level there would be no legitimate medical purpose,” O’brien told reporters when the indictment was filed in June 2019. “The only purpose would be to hasten their deaths.”
The motion to dismiss contends that prosecutors failed to present evidence of patients under Husel’s care who received more than 500 micrograms of fentanyl and did not immediately die as a result.
The defense team has focused specifically on the case of a patient identified only as “T.Y.” According to the motion to dismiss, T.Y. received a combined 2,500 micrograms of fentanyl during a 37-minute period on Nov. 23, 2014, after being removed from a lifesupport breathing tube, and survived for 10 more days.
Lapidus argued that by withholding information about T.Y.’S case from the grand jury, prosecutors hid evidence that would have rebutted their theory about the lethality of fentanyl dosages prescribed by Husel.
The second witness called by the defense, Columbus Police Sgt. Terry Mcconnell, testified that prosecutors had a copy of T.Y.’S medical records by May 8,2019, nearly a month prior to the grand jury presentation.
Ihrig, the defense medical expert, testified that there is no defined level at which a fentanyl dosage is considered deadly. Based on his experience, Ihrig said, 500 micrograms of fentanyl for someone who has been removed from a ventilator “isn’t universally lethal.”
Lapidus’ efforts to ask Ihrig about the cases of patients other than T.Y. were met with repeated objections from Grubb. jfutty@dispatch.com @johnfutty