Jury Deadlocks, Judge Throws Out "Fraud" Charges
© 1997 by Ralph W. Moss, Ph.D.
On monday afternoon, 3/3/97, Federal Judge Simeon Lake III declared a mistrial in the case of Stanislaw R. Burzynski, M.D., Ph.D. after the jury deadlocked. Six were for acquital on all counts; five were for conviction on all counts; one was undecided. After ruling on the mistrial, Judge Lake then issued a "directed verdict of acquittal" on all the mail fraud (insurance) counts (#42-#75). Judge Lake said that the government had not presented sufficient evidence on those charges. That means that nearly half the government's argument--that Burzynski defrauded the insurance industry by miscoding reimbursement statements--is now gone.
"Most of the testimony offered by prosecutors Clark, Amy LeCocq and George Tallichet centered on the fraud counts on which the judge directed acquittal," according to the Houston Chronicle, which has offered balanced and detailed coverage of the trial. (See their excellent Web site for the full texts of all their articles since 1995. Use search term "Burzynski.")
Nevertheless,that afternoon, prosecutors announced that they were still going to retry Dr. Burzynski on the remaining charges. A conviction on these FDA-related charges, could still send him away to prison for life. Judge Lake set a tentative trial date for May 19, 1997. However there is a chance that federal prosecutors will decide to cut their losses. Again, according to the Houston Chronicle, "Clark said the decision to pursue them could change before then. "It's a horribly sad case. We want to reassess what happened," he said. (Last month we commented on Mike Clark's contradictory statements regarding Burzynski.)
Clark didn't specify what was "horribly sad"--the fact that the full force and power of the U.S. government was brought to bear against a leading cancer researcher, or the fact that Clark and his team had failed to convince either the jury or judge of far-fetched charges.
Clearly, the patients were not impressed. Although the purpose of the trial was to prevent patients from being "exploited" by the doctor, according to the Houston Chronicle:
"The throng of Burzynski supporters who had been present for much of the trial kissed and hugged one another after the decisions were announced, displaying joy and relief." 'I have a chance to live," said Patricia Meade, a Burzynski patient from Iowa who is afflicted with a rare form of cancer.
"Burzynski displayed a wide grin as he and his wife surveyed the jubilant scene outside the ninth-floor courtroom." 'It's a great relief," he said, nodding. "It's like going through cycles of living and dying.' "
Some of the jurors were very outspoken about the prosecution's action.
"I think this was a government witch hunt," said juror Sharon Wray. "I don't understand why they brought criminal action when they had a civil remedy."
Dr. Burzynski was quoted in the New York Times (3/4) as saying:
"We're going to do whatever is possible to continue to treat our patients, to bring our medicines to final approval. If the government wants to waste more money, your money, let them do it."
The Times said that the split verdict seemed to reflect the national debate over the rights of patients vs. the government's "right" to strictly regulate medicines. Strong sentiments, pro and con, were expressed by jurors on both sides.
The jury foreman, John Coan, also favored acquittal: He is quoted in the New York Times:
"The fact that we didn't make a unanimous decision one way or another does not mean we didn't make a decision," Coan said. "The decision is that he is neither guilty nor innocent doesn't mean he doesn't need to do work within his practice, and the FDA obviously needs to pursue things as well."
"I couldn't find any victims," Coan added (Houston Chronicle 3/3/97).
But another juror, a 40-year-old engineer named Anthony Batiste, said he favored a guilty verdict "I couldn't go into my kitchen and make things. Why should somebody else be above the law?" In fact, Burzynski is now conducting many FDA-approved clinical trials, and his medicines are being legally shipped out of the state. So the charges, if ever applicable, now appear moot, and the government's action seems vindictive.
The Times noted that "many of Burzynski's patients remained ardent in their support for him, filling the courtroom each day, rallying repeatedly outside the courthouse and filing affidavits on his behalf."
Further information, including practical suggestions on what you can do now to protest the government's actions, can be had at the Burzynski Web site. You can also view current New York Times articles by signing up for their free on-line subscription.
What follows is the first story that appeared on the mistrial, from the UPI wire service:
HOUSTON, March 3 (UPI) A deadlocked jury has prompted a Houston federal judge to declare a mistrial in the case of cancer [doctor] Dr. Stanislaw Burzynski following 20 days of testimony and about 35 hours of deliberations.
Burzynski and the Burzynski Research Institute were charged with contempt, violations of Food and Drug Administration regulations and mail fraud concerning his use of a drug not approved by the FDA.
Jurors Monday told U.S. District Judge Sim Lake that they cannot reach a verdict on any of the counts in the 75-count indictment. It was the third time they had said they were deadlocked.
Defense attorneys said last week that they would consider a mistrial as good as an acquittal for Burzynski.
Prosecutors have the option of retrying Burzynski however they were not immediately available for comment.
Burzynski was indicted on 75 counts, and each of the jurors told Lake in the courtroom that they could not reach a verdict on any of the counts.
The 1995 indictment stemmed from Burzynski's use of a class of cancer-fighting drugs called antineoplastons. Burzynski developed the drugs in the 1970s and has been manufacturing them at his laboratory west of Houston.
Burzynski never fulfilled the clinical trials as required by the FDA in order for a drug to be approved by federal regulators.
Copyright 1997 by United Press International. All rights reserved.