The judge in the Anna Nicole Smith drug conspiracy case acquitted her boyfriend-lawyer Howard Stern on Wednesday of two charges of obtaining drugs for her by fraud and deceit, including use of false names.
Superior Court Judge Robert Perry also dismissed part of a conspiracy count against Stern and Dr. Sandeep Kapoor, ruling there was insufficient proof that the two men conspired to obtain controlled drugs through fraud and deceit.
Perry allowed the balance of that conspiracy charge to stand and ruled the bulk of the 11-count complaint would go to the jury for verdicts. Attorneys were scheduled for closing arguments on Monday.
Stern, Kapoor and Dr. Khristine Eroshevich have pleaded not guilty to conspiring to prescribe, administer and dispense a controlled substance to an addict. They are not charged in Smith's 2007 overdose death.
Perry accepted arguments by the defense that because Stern is not a doctor, he would not have known if there were problems with the legality of prescriptions written by Kapoor.
"I don't think there's evidence that a layperson knows it's illegal to write a prescription in another name for a celebrity," the judge said.
Defense lawyers had hoped for more dismissals based on the judge's critical comments regarding the prosecution's case through the trial. Perry previously indicated some charges would likely be dismissed.
"I think there are weaknesses in the prosecution's case, " Perry said Wednesday. "But my inclination is to let it go to the jury."
But the judge also raised the unusual prospect that if he does not agree with jury convictions, he has the option to change the verdicts or order a new trial. He said he has done this in other cases.
Stern's lawyer, Steve Sadow, expressed alarm at that prospect, saying, "Once it's post-verdict, the whole scenario changes. My client would lose his license. The doctors would lose their licenses."
The judge said he had to be "mindful that certain issues are left for the jury, unless there is a total absence of evidence to support it."
The judge also grilled prosecutors intently, explaining repeatedly that to get a conviction, "you need a specific intent to violate the law." Lawyers for Stern, Kapoor and Eroshevich argued that no such intent had been shown because their clients were trying to help a woman suffering from intense pain.