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Convicted pill doc remains free man for now despite court ruling against him

Published: Wednesday, Jan. 11 2012 4:47 p.m. MST

Dr. Dewey MacKay, with his wife Kathy MacKay, arrives at the Frank E. Moss Courthouse for a hearing last December.

Kristin Murphy, Deseret News

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SALT LAKE CITY — Pill doctor Dewey C. MacKay will remain a free man for now, even though a federal judge ruled against his plea to stay out of prison pending the appeal of his conviction.

Immediately after U.S. District Judge Dee Benson announced his decision at a hearing Wednesday, defense attorney Peter Stirba told Benson he would appeal his ruling and asked him to extend MacKay's Feb. 1 prison reporting date by 30 days.

Benson, who has sympathized with MacKay throughout the case, allowed him to continue living at home through the appeal of his ruling. Prosecutor Michael Kennedy did not object, provided the appeal is promptly filed.

Stirba said he doesn't know how long the appeals process could take, but estimated several weeks. MacKay had no comment as he left the courtroom.

A jury found the Brigham City doctor guilty of 37 counts of illegally dispensing painkillers, including two that resulted in the death of 55-year-old David Wirick; and three counts of using a communication device in a drug trafficking offense. Jurors acquitted him of 44 other counts.

Benson begrudgingly sentenced MacKay to 20 years in prison last month, saying federal minimum mandatory sentencing guidelines left him no choice. Benson called it harsh and too long.

MacKay's attorneys have filed a notice to appeal the conviction with the 10th Circuit Court of Appeals.

At Wednesday's hearing, Stirba argued that prosecutors did not present sufficient evidence for the jury to conclude MacKay prescribed painkillers without a legitimate medical purpose. He described him as a sloppy doctor, but not a criminal.

Also, MacKay, 64, suffers from several health issues including diabetes, cirrhosis of the liver, coronary artery disease and gout. His personal doctor, John Markeson, testified that MacKay's condition worsened recently and that he has an increased chance for a heart attack or stroke.

Striba said MacKay won't get adequate medical care or the expensive medication he needs in prison.

"It is doubtful that MacKay could live out his 20-year sentence and it is unduly harsh to expedite his grave medical prognosis by requiring incarceration during his appeal," Stirba argued in court documents.

Kennedy called Stirba's legal argument "run of the mill" for a defendant convicted of drug crimes and said the federal prison system is "perfectly capable" of handling MacKay's medical needs.

Benson ruled that MacKay's attorney did not prove there was insufficient evidence for the jury to convict the doctor or that he would prevail on appeal. The law presumes a convicted person will be incarcerated unless the defense can show otherwise. The judge said he must follow the law.

"The humanitarian side of me would like to find otherwise," he said, reiterating he believes the sentence is too long.

"I know a lot of people dearly love Dr. MacKay, Benson said, adding he has done much good in the community.

"I can't even imagine the nightmare this is for his family. It must be like there is a black cloud around them every second of every day."

E-mail: romboy@desnews.com, Twitter: dennisromboy

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