Court reverses conviction of Las Vegas doctor’s assistant
The 9th U.S. Circuit Court of Appeals has reversed the conviction of a Las Vegas man serving a 20-year federal prison sentence for his role in supplying drug addicts and dealers with powerful opioids.
The decision stemmed from U.S. District Court Judge Kent Dawson’s decision to dismiss a juror during deliberations in the monthslong trial of David Litwin and Dr. Henri Wetselaar, who at the time was a 93-year-old Las Vegas pain management practitioner.
In handing down the 52-page decision, a three-judge panel wrote that they were “constrained to conclude that the district court erred in dismissing the juror” in the 2017 trial. Both men were ultimately convicted.
“We are firmly convinced there was a reasonable possibility that the juror’s dismissal stemmed from her views on the strength of the government’s prosecution,” the decision penned by Judge Daniel Bress stated.
Prosecutors said Litwin, now 61, and the doctor prescribed oxycodone, hydrocodone, Xanax and Soma to more than 230 people who did not medically need them.
The judges disagreed with Dawson’s determination that the juror harbored “malice toward the judicial process.”
“Dismissing a juror based on her views of the strength of the government’s case is an intrusion on the jury’s role and violates the Sixth Amendment,” Bress wrote.
The panel’s decision was careful to explain that Dawson was right not to prod into the heart of the deliberations, but also stated that he should have been more thorough in clarifying why the juror said she refused to deliberate.
“If a juror has reached a decision, at what point is potential unwillingness to alter that position a failure to deliberate as opposed to a reflection of the juror’s sincerely held view of the evidence presented?” Bress wrote. “Is a perceived disinterest in entertaining the views of other jurors a refusal to follow the jury instructions or merely an expression of disagreement with the opinions of fellow jurors? Gauging the extent of an impasse becomes only more difficult in the tinderbox of the jury room, where frayed nerves and passionate views can cause persons of good faith to doubt the sincerity of those with whom they disagree.”
Litwin’s attorney Lisa Rasmussen lauded the decision. But she said the prison sentence had been “very difficult” for Litwin, who remained imprisoned at Terminal Island, a federal institution in California, where he was diagnosed with coronavirus in May.
“I know it is not easy for any of the parties involved to have to retry a case, whether it be from a hung jury, or a retrial following an appeal,” Rasmussen wrote in an email. “It is important, however, that we maintain a jury system that allows for disagreement because that is what it means to be acquitted or convicted by a jury of your peers. I think the opinion reflects that difficult balance.”
Litwin spent years working as the “right-hand man” to Wetselaar, who received a 10-year sentence for penning prescriptions with no legitimate medical purpose and laundering his profits.
The doctor died at home in April after having been released from prison while his conviction was being appealed, according to his lawyer, Dan Hill. After Wetselaar’s death, his conviction was abated.
A spokeswoman for the Nevada U.S. attorney’s office said prosecutors were reviewing the decision to determine how to proceed with the case.
Contact David Ferrara at dferrara@reviewjournal.com or 702-380-1039. Follow @randompoker on Twitter.