A state appeals court panel today overturned a Los Angeles judge's 2011 decision throwing out the convictions of the late Anna Nicole Smith's longtime companion and most of the convictions of the former Playboy playmate's psychiatrist.
Former local resident Howard K. Stern and Studio City resident Dr. Khristine Eroshevich were convicted Oct. 28, 2010, of conspiring to provide prescription drugs to the reality television star, who died of an accidental drug overdose in Florida on Feb. 8, 2007.
But during their sentencing hearing, Los Angeles Superior Court Judge Robert J. Perry threw out Stern's two conspiracy convictions, citing insufficient evidence. He then dismissed three of Eroshevich's four convictions -- including two conspiracy counts. He sentenced her to a year of probation and a $100 fine for her sole remaining conviction -- unlawfully obtaining a prescription by using a false name.
In reinstating Stern's conviction on the conspiracy charges, a three- justice panel from the 2nd District Court of Appeal ruled that Perry erred by finding insufficient evidence in Stern's case.
According to the 34-page ruling, Perry must either reconsider Stern's motion for a new trial, find other grounds for dismissal or sentence him to prison or probation based on the original convictions. The panel noted, however, that due to the issue of double jeopardy, Stern cannot be retried.
If Perry grants Stern's motion for a new trial, "the case must be dismissed on double jeopardy grounds,'' according to the panel's ruling. "Mr. Stern may not be retried,'' Presiding Justice Paul Turner wrote on behalf of the panel.
The appeals panel noted, however, that due to the legal wording of Perry's ruling, Eroshevich has no such protection under double jeopardy rules as it pertains to the two conspiracy charges that were thrown out.
According to the appellate panel, Perry could grant her a new trial or potentially dismiss the charges on other grounds. Stern and Eroshevich were convicted after jurors spent 13 days considering the case against them. Stern -- who was also Smith's attorney -- was acquitted of seven other charges, including unlawfully prescribing a controlled substance. Jurors deadlocked on two counts against Eroshevich, a psychiatrist who lived next door to Smith in Studio City.
A third doctor, Sandeep Kapoor, was acquitted of all six charges against him. The three defendants were not charged with Smith's accidental drug overdose death at age 39. During the sentencing hearing for Stern and Eroshevich, Perry criticized prosecutors, saying the trial verdicts -- in which the most serious charges were rejected by the jury -- were "a stunning repudiation of the prosecution.'' Perry said that while doctors who doubled as "pill pushers'' were an ongoing societal problem, "this case did not involve such doctors.''
He also said the trial revealed a "misunderstanding'' of conspiracy law on the part of the prosecutors. In granting the defense's motion for a new trial on the conspiracy counts against Stern, the judge said the evidence was both "lacking and insufficient.''
District Attorney Steve Cooley quickly announced later that day plans to appeal Perry's decision. In overturning the judge's decision, the appellate court panel found that there was "evidence Mr. Stern knowingly participated in conduct designed to avoid detection and scrutiny'' and that Stern knew Eroshevich's prescriptions were written in names other than Smith's true name -- Vicki Lynn Marshall -- including his own.
"His knowledge and involvement was such the jury could reasonably conclude Mr. Stern, a lawyer, knowingly participated in the ongoing illegal practice of securing illegal prescriptions,'' the justices found.