Los Angeles County prosecutors asked a state appeals court Friday to reconsider its ruling that would prevent the late Anna Nicole Smith's longtime companion from being retried on conspiracy and other charges for providing prescription drugs to the one-time Playboy playmate.
An appeals court panel ruled last month that Howard K. Stern can either be sentenced on the two conspiracy charges on which he was convicted, or pursue a motion for a new trial. The court ruled, however, that due to double-jeopardy protection, Stern cannot be retried, and the case against him would have to be dismissed if the judge grants his new trial motion.
In a 19-page motion filed with the state's 2nd District Court of Appeal, county prosecutors requested that the court modify its ruling “to reflect that the prosecution is not barred from retrying the defendant should the trial court grant a new trial on the remaining issues.''
“Should Defendant Stern pursue a new trial on other grounds, those efforts are his alone and not done with the consent, or at the request of, [prosecutors],'' according to the motion. “Accordingly, there are no double jeopardy concerns regarding a possible retrial because it is defendant Stern who is pursuing efforts to obtain a new trial on grounds other than insufficiency of the evidence, not [prosecutors].''
Attorneys for Stern could not be reached for immediate comment.
Stern and Dr. Khristine Eroshevich, a psychiatrist, 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 in 2011, 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.
Last month, however, a three-justice panel from the 2nd District Court of Appeal ruled that Perry erred by finding insufficient evidence in Stern's case, and reinstated his conviction on the conspiracy counts. According to the court's 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.
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, who also lived nearby Smith, 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.''
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.