Kerry Jensen, Kerry Jensen, Deseret News
Dr. Dewey MacKay enters federal court in Salt Lake City on Wednesday, July 20, 2011. He is on trial facing 85 counts of illegally prescribing painkillers.

SALT LAKE CITY — Attorneys for a Brigham City doctor convicted of illegally prescribing painkillers asked a federal judge to dismiss the case Wednesday, alleging prosecutorial misconduct.

Defense attorneys for Dewey MacKay, 63, also asked U.S. District Judge Dee Benson — who oversaw the man's five-week trial — to acquit MacKay of two charges stemming from the death of 55-year-old David Wirick. A jury convicted MacKay in August on 44 of 86 charges.

Defense attorney Peter Stirba argued Wednesday that Assistant U.S. Attorney Michael Kennedy made statements that were "patently false and not true" to jurors in closing arguments of the trial. The statements were centered on the testimony of a female patient who testified that she allowed MacKay to give her an erotic nude massage at an Ogden motel in exchange for cash and a prescription.

She also testified that MacKay told her to falsify a police report in exchange for more medication. MacKay denied the allegations, and Stirba said the woman lied under oath, committing perjury. He said prosecutors knew that, could see she lied in phone records, but used the false information in their closing arguments anyway.

"There was behavior alleged by (the witness) that would have been substantially prejudicial if believed," Stirba said. "For a government lawyer to stand up in the face of the evidence … knowing full well what it says, what it meant and the import of it — that's prosecutorial misconduct."

Kennedy said multiple times that Stirba's allegations were "offensive" and the statements Stirba took issue with were either taken out of context or simply needed to be qualified as speculation.

In his memorandum disputing Stirba's claims, Kennedy wrote that the judge's instruction to the jury was that attorneys' statements or arguments are not evidence, thus curing any misstatements that might have been made.

"There was no way this jury was mislead as to what the facts were," Kennedy said in court. "They had the fullness of the evidence."

Stirba also argued that "no rational juror" would believe that MacKay's actions led to Wirick's death. Wirick died on May 3, 2006, following a drug binge that occurred three days after MacKay wrote a prescription for the man, even though MacKay had previously agreed with Wirick's family doctor to stop seeing Wirick.

Stirba said Wirick had other pills prescribed by other doctors, and there was no way of saying the drugs MacKay prescribed were responsible — especially because some doctors said there was a therapeutic level of drugs in Wirick's system. He also said Wirick came to MacKay because his regular doctor was out of town and that Wirick was crying, complaining of pain. 

"If (Mackay) didn't prescribe (the medication) for a legitimate, medical purpose, what did he prescribe it for?" Stirba asked, noting that Mackay knew Wirick had a history of chronic pain. 

Kennedy countered that at least two doctors attributed Wirick's death to the drugs in his system. He said MacKay's motive in giving a prescription to Wirick was "to get him in and out of his door as fast as he could."

"And make money?" Benson asked, referring to an earlier argument made by Kennedy.

"Right," Kennedy replied.

Benson said he would take both motions under advisement and issue rulings "shortly."

MacKay was to be sentenced Oct. 29, but Benson continued the hearing until early November to allow for preparation of a pre-sentence report. 


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