Friday, May 26, 2017
Cadden Renews Acquittal Request
By Walter F. Roche Jr.
Citing a recent appeals court ruling and repeating charges that prosecutors engaged in widespread misconduct, Barry Cadden, the prime defendant in the probe of a deadly fungal meningitis outbreak, has renewed his motion for acquittal on all remaining charges.
In a 34-page filing today, Cadden's lawyers said a ruling in a recent circuit court of appeals mandates that he be acquitted on several charges. In addition the motion charges that prosecutors presented evidence they knew or should have known was "distorted or misleading."
Cadden was convicted in late March following a 10-week trial on racketeering, conspiracy and mail fraud charges. The 12-member jury acquitted Cadden on 25 counts of second degree murder.
In the latest filing Cadden is asking U.S. District Judge Richard G. Stearns to clear him of those 57 remaining counts.
Cadden was one of 14 persons connected to the New England Compounding Center to be charged following a two-year grand jury probe of a deadly fungal meningitis outbreak that sickened 758 patients across the country. Seventy-six of those patients died.
The brief filed today cites a ruling issued by the 1st Circuit Court of Appeals earlier this month setting a new standard in fraud cases like Cadden's.
The ruling "should sound the death knell" for Cadden's mail fraud convictions," the brief states, adding that prosecutors failed to present sufficient evidence that Cadden obtained money by means of alleged fraud.
"The record is barren of such evidence," the filing states, referring specifically to drugs shipped to a Las Vegas hospital and other health facilities.
Noting that only one witness from the Nevada hospital presented limited testimony, the brief states, "It is far too slender a reed on which to base a finding that there were any misrepresentations."
On other counts, the brief states that the government presented no "decision-making witnesses" to show that there were any misrepresentations.
Cadden's lawyers also state that prosecutors misstated the jury's verdict for acquittal on the second degree murder counts. Prosecutors had noted that voting sheets filled out by jurors showed that a majority supported the second degree murder charges in the majority of cases. A unanimous vote was required for a conviction.
"Cadden walked out of the courtroom having been duly acquitted on 25 of 25 injudiciously brought murder charges," the brief states. Noting that Cadden had conceded that drugs from NECC caused the 25 deaths, the brief states that the government nonetheless presented "extraneous and irrelevant and repetitive testimony about the causes and means of death."
Charging that the death testimony was intended to inflame the jury, the brief says the government chose to "go after the emotional jugular."
Contending that prosecutors engaged in an "overarching pattern of misconduct," the filing states that they "surreptitiously" provided jurors with a binder of test results including only government evidence and omitting rebuttal evidence presented during the trial.
"Jurors likely believed this binder contained all the evidence," the filing continues, adding, "the government was not truthful about the binder."
Charging that the government misled the court and Cadden about whether the binder was provided to jurors, the filing concludes, "This is textbook misconduct."
The filing also repeats charges that a slide show presented to jurors during closing arguments "grossly overstated the scope of the outbreak."