Wednesday, December 14, 2016
Key Defendant Files 11th Hour Dismissal Motion
By Walter F. Roche Jr.
Acting at the 11th hour, a key defendant in the criminal case stemming from a deadly fungal meningitis outbreak, is asking a judge, once again, to dismiss 25 counts of second degree murder.
Acknowledging that the deadline for such motions has long since passed, the lawyer for Barry Cadden is charging that the murder counts in the 2014 indictment are fatally defective because they fail to show that Cadden caused any of the 25 deaths.
In a two-page motion and a 13-page memorandum, attorney Bruce A. Singal also is repeating an already rejected request to force prosecutors to disclose the instructions given to the grand jury that indicted Cadden and 13 others in late 2014.
Cadden and co-defendant Glenn Chin are scheduled to go on trial Jan. 5 on the second degree murder charges. Cadden was a part owner and Chin a supervising pharmacist at the New England Compounding Center, the firm that shipped thousands of vials of fungus riddled steroids to health facilities across the country.
In the motion filed today, Cadden contends that it is Chin who should be held liable, not him.
"For each of the three lots (of drugs) at issue, it is Chin rather than Cadden who is alleged to have performed unlawful acts," the motion states.
In addition the indictment, the motion states, does not properly allege the core elements of a second degree murder case."
The motion contends that the facts cited in the indictment about long term problems at the New England Compounding Center, refute the contention that Cadden was "reasonably certain" that the three deadly lot of methylprednisolone acetate would kill anyone. Despite the long term poor conditions there had been no prior deaths, Singal argued.
The motion comes as U.S. District Judge Richard Stearns is considering a motion to separate the trials of Cadden and Chin. He previously denied a motion to dismiss the murder charges. He also denied a motion to force prosecutors to provide copies of their grand jury instructions.
Two other defendants have entered guilty pleas to reduced charges. Two others have had charges dismissed. The remaining defendants are scheduled to go on trial in April.