Judge hears call to dismiss MacKay's conviction

Sep 21 2011 - 11:59pm

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MacKay
MacKay

SALT LAKE CITY -- A judge Wednesday took under advisement defense motions seeking to throw out a Brigham City doctor's conviction last month for dealing narcotic painkillers.

Dewey MacKay, 64, was convicted Aug. 18 on 40 of 86 counts of illegally prescribing painkillers from his Brigham City office after a nearly five-week trial before U.S. District Judge Dee Benson.

During jury deliberations, lead defense counsel Peter Stirba filed a motion claiming the U.S. Attorney's Office lied during closing arguments.

Stirba wrote that prosecutors made "complete and utter fabrications unsupported by the evidence" and did so knowing the statements were false. All charges should be dismissed due to "prosecutorial misconduct," he argued.

Earlier this month, Stirba filed formal documents also asking Benson to set aside the jury's verdict on the first two counts against MacKay.

Those two charges deal with prescribing drugs that the jury found resulted in the death of David Wirick, an Ogden man and engineer at ATK and a long-term patient of MacKay.

That motion claims the evidence was insufficient for the jury to find that MacKay supplied all four drugs found in Wirick's body or that the drugs alone caused the death. The last point was strongly disputed during the trial, with the state medical examiner finding pneumonia caused Wirick's death, but other experts pointing to the drugs.

MacKay was seeing as many as 120 patients a day, according to testimony, most simply given prescription refills without being evaluated.

State records show MacKay issued more than 37,700 prescriptions for hydrocodone and oxycodone between June 2005 and October 2009, totaling more than 3.5 million pills, the most prescribed for hydrocodone, or Lortab, in the state at the time.

Benson said Wednesday he would issue written decisions on the motions as soon as possible and would be bumping MacKay's sentencing date to November.

During more than two hours of arguments, the judge seemed most interested in the charges relating to the ATK Thiokol engineer Wirick's death, quizzing Assistant U.S. Attorney Michael Kennedy and Stirba at length on those charges.

Benson noted that, of four medical experts who testified, two found pneumonia the cause of death, although one was vague; while two others testified the pills were fatal.

"You would have to agree there are competing facts as to the medical experts," the judge said.

"No rational juror would find beyond a reasonable doubt that the evidence supported a guilty verdict" on the two charges tied to Wirick's death, Stirba argued vehemently.

But Benson also questioned that stance, noting the late Maureen Frikke, who was assistant state medical examiner, found the pills the likely cause of death. "If Dr. Frikke, who's done thousands of autopsies, found that way, isn't it rational a juror could?"

Stirba answered that Frikke's boss, State Medical Examiner Todd Grey, disagreed, finding pneumonia the cause of death. Benson then noted he found Grey less than strong in that opinion.

The defense's angst over the prosecution's closing arguments centered on differing phone records regarding calls between MacKay and a patient.

Stirba accused the prosecution of intentionally withholding a page of phone records that detailed calls a witness denied ever making.

"Offensive," Kennedy labeled that accusation, saying the page was inadvertently left out of a prosecution exhibit and was restored as soon as the oversight was noted.

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