Judge rejects Dewey MacKay defense motions

Dec 13 2011 - 11:15pm

SALT LAKE CITY -- A federal judge Tuesday denied two defense motions seeking dismissal of some or all of the charges against Brigham City doctor Dewey MacKay, clearing the way for his sentencing Monday.

MacKay, 64, was convicted Aug. 18 on 40 of 86 counts of illegally prescribing painkillers.

After a five-week trial, the jury found MacKay was seeing 100 or more patients a day at times and filling prescriptions for no medical reasons.

In two decisions filed Tuesday afternoon, U.S. District Judge Dee Benson tossed motions accusing prosecutors of misconduct in closing arguments and rebutting the jury's decision on the two most serious counts.

MacKay now faces a possible 20-year term in federal prison.

"The implications of these decisions are profound, and of course, we wish the court had agreed with us," said lead defense counsel Peter Stirba. "They will be appealed.

"True justice is always tempered with mercy, and I am hopeful that, at Dr. MacKay's sentencing, his extraordinary contributions to his community and the fact that a 20-year sentence is disproportionate will result in a just and merciful sentence for him."

Stirba said much of Monday's sentencing hearing will be devoted to the question of whether MacKay can remain free pending appeal -- or possibly be handcuffed in open court and taken into custody.

He said the federal system has standards and guidelines for judges on the question, which will be addressed at the sentencing hearing.

A Dec. 13 sentencing date was reset last month by the judge to Dec. 15, then rescheduled again last week by the judge to Monday, according to court records.

Benson had been considering the motions since late August.

One of the defense motions challenged the jury's conviction on two of the charges tied to the 2006 overdose death of MacKay's patient, Ogden resident David Wirick, 55, a rocket scientist at ATK Thiokol.

The defense asserted that the jury gave the evidence more weight than it deserved, that it did not reach the standard of beyond a reasonable doubt.

But Benson wrote in his nine-page decision that there was "sufficient evidence that the jury could reasonably conclude beyond a reasonable doubt" that MacKay caused the death, and "the court must defer to the jury's verdict of guilty."

As to claims the U.S. Attorney's Office intentionally misled the jury in closing arguments on several points of evidence, the judge found only one statement regarding phone calls as potentially a problem.

But Benson ruled the statement was allowable as "argument, which reflects a certain amount of speculation and interpretation of the evidence."

Last week, the judge received more than 300 pages of letters of support for MacKay, including writings from U.S. Rep. Rob Bishop, R-Utah, and state Sen. Pete Knudson, R-Brigham City.

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