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Retrial Impossible for Stern,|Anna Nicole Smith’s Lawyer

LOS ANGLES (CN) - Howard K. Stern, the former attorney to Anna Nicole Smith, could face prison for the model's death, a California appeals court ruled, throwing out a retrial order.

Smith, a model and reality television star who was born Vicki Lynn Marshall, died of an accidental overdose in her Florida hotel room on Feb. 8, 2007.

A forensic pathologist found that Smith died of a cocktail of prescription drugs, including the sleeping medication chloral hydrate.

Los Angeles prosecutors learned that Smith had an excessive amount of drugs at her disposal, many of which were prescribed to Stern, who acted as Smith's attorney and co-starred on "The Anna Nicole Show."

They charged Stern and Smith's psychiatrists, Dr. Khristine Eroshevich and Dr. Sandeep Kapoor, with conspiracy. Jurors acquitted Kapoor but convicted Stern and Eroshevich of using false names in prescriptions for controlled substances and of obtaining controlled substances by fraud, deceit or misrepresentation of concealment of a material fact.

Eroshevich also faced two separate convictions of obtaining controlled substances by fraud or misrepresentation and of giving a false name in controlled-substance prescription.

After the trial, however, Los Angeles Superior Court Judge Robert Perry ruled that there was insufficient evidence to support the convictions. Perry granted Stern a new trial and dismissed two counts against him. Concluding that the dismissed charges undermined the case against Eroshevich, since a conspiracy requires more than one participant, Perry also dismissed the first two counts against the doctor.

Though the court refused to grant the doctor a new trial or dismiss the remaining two counts, it vacated the one conviction as duplicative and reduced the other charge to a misdemeanor.

A three-judge appellate panel reversed Thursday, finding that Perry was wrong to grant Stern a new trial and dismiss the convictions.

"Here, we conclude the trial court incorrectly granted Mr. Stern's new trial motion; the evidence was not insufficient as a matter of law," Justice Paul Turner wrote for Division Five of the Second Appellate District.

There was sufficient evidence to show that Stern had conspired with Eroshevich to acquire the prescription painkillers by using false names and addresses.

Stern knew Eroshevish was writing prescriptions using names other than Smith, and that they "side stepped" doctor's orders when the late model was pregnant to give her "controlled substances that were inconsistent with the detoxification plan," according to the ruling.

Turner rejected claims that Stern did not know it was illegal to acquire prescriptions using false names.

"The jury could reasonably have concluded that a lawyer would know such ongoing and unrelenting fraudulent activity was unlawful," the 34-page opinion states.

By granting Stern a new trial based on evidentiary insufficiency, however, Perry put double-jeopardy protections in play and barred the possibility of retrial, the court found.

"The trial court has a variety of options," Turner wrote. "Conceivably, the trial court could deny the new trial motion and sentence Mr. Stern to prison, place him on probation or reduce the two conspiracy counts to misdemeanors. Or the trial court could deny the new trial motion but dismiss the case pursuant to section 1385 on some ground other than evidentiary insufficiency. Or the trial court could grant the new trial motion after reweighing the evidence (acting as the so-called '13th juror') subject to the following double jeopardy analysis. Or the trial court could dismiss counts 1 and 3 on other than legal insufficiency grounds in connection with the good faith issue. We express no opinion as to how the trial court should exercise its discretion.

"But under no circumstances may a retrial occur." (Parentheses in original.)

Eroshevich can still be retried on the two dismissed charges, the court found.

"No doubt, there can be inconsistent verdicts," Turner wrote. "The fact that all of Dr. Eroshevich's co-conspirators may be so acquitted does not mean she must, as a matter of law, also be found not guilty."

Justice Orville Armstrong and Justice Richard Mosk concurred.

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