period and in needless emotional detail that had no purpose but when the jury goes their response as you know is that the defense in this case from factor d s was not really that he denied the conduct as i understand it but that the conduct while perhaps negligent and below the standard of care professionally did not amount to criminal conduct i think though i'm paraphrasing to be sure but important issue so i just want to paraphrase it ask you can you go straight to that why is that wrong first i don't believe that their theory with absence of mistake i believe their theory which they clearly articulated with knowledge and inten concrete evidence in this case i don't dispute that there is an avenue of admissibility that there was a way the government could have used some of this i think what i'm talking about is the specific evidence that was put in separate across the line you have to show it was prejudicial yes what's your best shot at that my best shot at that is that the government fought tooth and nail to get this in there they could have charged these five das but they didn't and the reason they didn't was because they could not prove the conduct was illegal in those instances so what we have is there is no proof that the conduct was illegal in those instances let's talk about steven on the mother could they have charged the death i thought she didn't get any the mother did killers from what she did get killed for but you know the the mother i frankly don't even understand why the mother came in ok but let's look at the other one what wait a minute i want to make sure i've got the facts was the mother given narcotic drugs by dr d yes yes thanks yes and she did die of an overdose no she died a few died of cancer ok so this is this is the problem cancer matthew davis has been getting prescription drugs from a completely different doctor we don't even know that dr dia's is prescribing had anything to do with his steven ma council i have a question for you about that it seems to me that what you preserved in the trial court was an objection to evidence about the bets specifically and i  may be mistaken about this but i don't think you preserved a separate objection to each of these pieces of you know irrelevant emotional non death related things like  people's disabled children or other extraneous facts about them that made them sympathetic am i right about that but i'm going to shepherd my objective that i don't see a specific objection to that but the government did not argue forfeiture this but when it did if you know when somebody started talking about a disabled child or about something with baseball or whatever the one objection that that  often deal with that counts one both sides in the court is by stipulating to a continuing objection was there any stipulation to a continuing objection seconds to usefully to answer my questions on the other judge's questions some of these photos dropped me as obviously irrelevant photos of dead people and photos of dead people's relatives have noted for you usually a judge won't keep things out even if the judge thinks it's probably error to let them in because the defense lawyer may have a very good reason for not objecting and maybe some strategy the defense pursuing for example in this case the obvious one would be the government can't prove that this was out of the usual medical corps so they're making this into a daytime television show showing you pictures of disabled children and dead bodies so that you will be distracted from the medical evidence that would be a reason if i were a trial judge in this case for just letting it go and i can't see why we should assume the trial judge didn't have a reason for just patient deaths is prejudicial so it was a very broad objection but counsel when you come back i know your time's ticking so maybe this is where you have a time think about it here's what's in my notes it's bothering me just as the flavor i think you're going to have to overcome the evidence that the jury heard that for example one patient was given three times the maximum dose any normal person should receive a hydrocodone that came from the government's expert another example and there are many but another example is that it was below the standard of care to give a one year supply to one patient rather than what would be typical which is a one month supply for example there's i mean you're very familiar the record obviously so these are the kinds of bullet point samples that i think you have to overcome and maybe you can think about that when you come back if you don't i don't so i don't use your time now ok ok thank you please the court will on behalf of the united states counsel i had a real problem with this record it really did read to me more like a daytime television show than a trial whole lot of the stuff you put in it was just garbage you and i can't see any reason for it other than to arouse the jury's emotions well if i'm if i may i will jump them rights to the issue of the appellant's argument about the prejudice aspect of the evidence that's what the government overplayed its hand in a case like this ever so much evidence and that there's these glaring examples i agree with jeff kline if i may i believe that the record has been really distorted in terms of how much of this evidence was actually presented so let me just go through it first of all there were a total of nineteen overdose deaths during dr di as is operation of his pill mill the government presented evidence to the jury of twelve of those why didn't you charge them because we did not feel that it was necessary or appropriate to charge him with the deaths but we wanted the jury to see the context in which the charge person he wanted to see the photographs and the disabled child counsel really ok let me again let me let me put it in proper context because it really ok so twelve total that were presented eight of them on cross examination so that leaves four in the government's case in chief of those four only three of why would you put in a picture of a disabled child the dead body them some dead bodies have some relevance to the case for we disabled child i can't see why except well kind of like those ends to get you to contribute to hospice to charities the time t v your hon voice to the victims who can no longer speak for themselves but it was really really a very very small part of the government's case so i get getting to the three family members did put in a disabled child they were never received the prescription and the disability had nothing to do with dr d s there was a picture of the first for certain i know we did put in life pictures not for charities no wheelin people children in wheelchairs we did give a face to the victims yes we did put in was a disabled child the victim she was the daughter of the victim she was the daughter  each one a prescription of over fifty thousand prescriptions exactly exactly but but and again the prescriptions are being written to people that he knows he knows that they are addicts he knows they are me what you have to prove is that he was giving narcotic prescriptions beyond what is acceptable medical practice and with the defocus of the case would normally be on your expert witnesses the various doctors who said this was not appropriate pain treatment the defense would normally be except it couldn't have been in this case i mean a cancer doctor my patients have a whole lot of pain from cancer and i have to prescribe a lot more th somebody who is not a geriatrician his problem would have then been that these are young people they're not geriatric cancer patients and instead it was it was just a psycho drama with fundraising  honor with all due respect what the government has to prove in this case in any case like it is that a medical doctor abandoned his oath and ok let me say beyond a reasonable doubt i'd have  to distribute or dispense the drugs and with intent to distribute them outside the course professional practice and what we period right and what we are confronted with is a medical doctor who says i had a bunch of lying manipulative addicts who duped medical practice did this going back to judge klein felt question did the defense have an expert that said that this pattern within this geriatric pain management practice was acceptable no right so it didn't seem like to me that it was very tough for the government to demonstrate what it needed to demonstrate for conviction here well the defendant did bring in the california medical board investigation which once upon a time did look at his practice and i said that he had complied with the standard of care right so he has even a couple complaints and now he was actually cleared of those and he testified himself right to say that they tricked me they duped me i'm unfairly paraphrasing but i gr but was there any other evidence from the defense justify this pain the prescriptions of pain medication other than his own testimony you know but again if i could so i just wanted to again and you put i subsequent determination by the medical board that his license needed to be taken away right it did come up on the director of the california medical board investigator that his license had been yes that was but that was not discussed any further but it was it was mentioned during her test i heard that i heard the but and they heard the not discussed any further you did put in evidence that were point to say the license had been written no your honor actually it ok so that's helpful to me what was it for so she was i know one of the things that she testified to for example was when she made an unannounced visit to his how minimal the actual emotional testimony about which appellant complains was those three individuals so we had a nine day trial they their testimony all of it  takes up sixty seven total pages they testified combined for less than an hour during the entire course of the trial and eleven day trial to ninety i believe the ninety trial ok so you're sixty seven pages comprises who's in there and so that is for steven meadows ex wife matthew davis is ex wife and adam montgomery's father those were the three individuals and those were the three times that we put up pictures and the ok and the photos came in through those witness rest and that was and that was the sum total of it and they testified to i believe it was about about a few sentences in which they described the way they met their personality and then with respect to adam montgomery at the at the end his father testified  it was as i recall we we had interspersed this testimony with all of with the other testimony that being the former patients the medical experts  the california medical board investigator and all of the other evidence that was brought in scuse me which oh and included in addition of course the three doctors from cottage hospital and then all of the evidence that we got in through our investigator and our case agent regarding the patient files the duplicate prescription pad and the medication log of drugs sold directly out of dr d is that office so that is all of that evidence was the nine day how do we know what you want to believe is that it wasn't a whole lot of the concern that would be needed for i mean that's all that there is on appeal is all this garbage emotional stuff where you have nothing to appeal otherwise and i can't figure out why you'd put it in if you didn't think you needed it because your evidence was too weak to so your case beyond a reasonable doubt your honor the again the i'm up the emotional family history impact testimony was very very minor but i do believe in this case and in any case going forward that it is really really important that the government be permitted when a doctor when when we know when we have evidence that a doctor knows that his patients are addicted that they are overdosing and that they are dying you can't say you didn't charge the deaths i just i'm going to quit belaboring the point so i'm using up all your time but i just joined judge kleinfeld i'm only speaking for myself i guess on this part but the government gave the defendant appeal points here that just weren't necessary and that's my feedback that's my for what it's worth and thanks to change the subject certain a different question there were physicians offered as laid witness it's correct concern in the community and have been for some time about the prescribing practices of the defendant but in closing the government argued quote these aren't lay people these are other doctors these are other doctors they would not do something like this likely so it's an example that's concerning to me because the government didn't qualify these folks as experts and then is really kind of vouching for them as though they're  doctors you know as other experts suggesting to that to that effect and in closing what's your response please oh my initial response is that this was raised in the report reply brief and therefore that that particular argument about the fact that it was fact that they were that they testified as percipient witnesses because what they saw what they heard and what they did was all that they testified to right and so when the government says these aren't lay people these are doctor other doctors these are other doctors correct in the context of this case because that is i mean yes that that is how they were interacting with the defendant who was also a doctor they were interacting with them as doctors and this was something that they felt so strongly about that they went to the california medical board they went to d n a and it is not something that they did lightly and i believe that that was a of a fair comment on the fact that this was this is not easy for them but it was something that they felt they had to do for public health reasons why is why why did why did the prosecution say these aren't really people or how tough is it to qualify them as experts you know and maybe that's your best response it's concerning that's all that was i think it probably that it's fair that that was a mistake misstatement that they because they were testifying as lay people but they were they were doctors and that was i believe what the reference meant was that they were doctors who i appreciate your candor and i think it's always possible to flyspeck you know we we have the benefit of twenty twenty hindsight here but i wanted to give you a chance to response and thank you for doing what didn't you have the guy nailed without the emotional evidence i believe we had him nailed but probably without putting up pictures i agree your honor but i think it was very important that we definitely let the jury know what he knew about the fact i don't know why it was important enough for you needed was to convict him and you had him since just nailed to the wall while i was perfectly legitimate evidence and i'm just trying i wasn't at the trial so i don't know and the best inference i can draw for prosecutor larding the case this way is that it looked like it was going to go south they are very difficult cases i will be candid it is very very thought you're going to lose on the evidence that will really related to the crimes and that's why you needed the emotional stuff your honor i believe that the deaths of the patients is very relevant i don't i don't put that in the emotional stuff category that's very relevant your honor that part i grant you was that is the emotional part that is a very very small part but not all of the the evidence of patient deaths it makes i think that you didn't think it was harmless you thought it was necessary to prejudice the jury that's the only reasonable inference i can draw so far again if we're talking about the patient death evidence i do not believe that that is irrelevant by any stretch nor do i believe that it is designed in any way to just work the jury's emotions i do believe that that is very significant very significant relevant probative evidence of his knowledge his intent and the fact that he was prescribing you had you thought you had to prove because otherwise who would know that too much narcotics kill somebody nobody and nobody knows that unless you prove some i'm going to the flipside of that is i don't know how you could beat the case even if they didn't put in all this garbage well you know if they didn't put in all of the garbage we would know it was garbage and they needed it  i'm sorry forgive me i'll just make my point it's not even really a question but so you have a chance to respond if the defense didn't have an expert didn't have anybody to say that this was acceptable medical practice my question to you is there there's at least one he just says i would just mark it deceased and give it to the girls up front and you know i just put up with all the others that was so that was so that's relevant as that may have been relevant  but that's that's also you know i mean i guess i have a hard time seeing that the the deaths that are used appear to be related to the prescription narcotics i have a hard time seeing that those are not i see that i'm not going to get you on that i would like to try to focus on prejudice because i think that i have an i have something to say and i'm so so let's be clear first of all that it's not just th that we're not charged it was these patients except for monk armory were not charged at all so these individuals prescriptions were not part of the charges in this case and that is very relevant because of this the nine patients that were actually charged would not have made appealing witnesses the three that came in and knowledge that they had pain that they lied to the doctor that they were they asked for immunity from the prosecution they were not appealing witnesses and they all presented the waiting room as if it was this place where people were just like nodding off and trading tips about about drug seeking behavior but when our s l a garcia the c m the investigator signing and dating your script yes but let me go back to the prejudice issue so yes we have nine unappealing witnesses so what the jury did was brought in more appealing people ok so we brought in steven meadows his wife we brought in matthew davis wife we brought what the government did with a product in more appealing people that they could not have charged and the reason they could not have charged was because these people had very serious medical issues ok so the government says oh they're only sixty seven pages i counted way more than that i don't remember what the number is but they most of this trial there's tons of evidence about this woman marlo cochran not even one of the charge patients and why because she had serious medical issues so what they did was they charged people who maybe didn't have as serious medical issues so they could show that it was outside the you know it was not for a legitimate purpose but rather bringing in those witnesses they brought more appealing witnesses in to it to sway the jury and that's just not how you try cases right you don't charge one set of unappealing things and then only bring in the witnesses of the more appealing things and again i understand that this court generally does not reverse when it finds that the the other evidence is overwhelming but it can and it does when the you know possibly and it was also overwhelming and case