Jurors Gone Wild

The feds slink away from a flubbed Internet pharmacy case.

The judge brought out the juror, who eventually admitted his transgression. One by one, the judge brought out the other jurors to determine whether the panel had been tainted. As it turned out, eight of 12 jurors sheepishly admitted they had been doing their own Internet research.

"They Googled defendants' names. They Googled definitions of medical terms. There was a lot of Googling going on," says one lawyer in the case, who asked not to be named. One alternate juror was found to have been using the Internet on his cell phone during breaks in testimony. Another juror had dug up information showing one of the defendants had once been implicated for prescribing medicine that was used in a double suicide. Before the trial, his lawyer had fought to make sure this tidbit would be excluded from testimony.

Judge Zloch had no option but to declare a mistrial. Days later, the New York Times mentioned the case in a story called "Mistrial by iPhone," which explored how modern technology is challenging centuries-old courtroom rules.

Judge William Zloch refused to sentence defendants who had pleaded guilty.
Newscom
Judge William Zloch refused to sentence defendants who had pleaded guilty.

The mistrial meant the four defendants were set to start all over with a fresh jury. But first, Judge Zloch presided over a sentencing hearing for the two website owners who had pleaded guilty, Antonio and Antiniou.

"The judge takes the bench, and he says, 'I sat in on the trial, and I don't think I can sentence them,'" Raben remembers. "These were the two who had developed the scheme!" Raben says. "They had pled guilty!"

But the judge decided the prosecution hadn't proven the two men broke the law. On April 6, Zloch threw out Antonio's and Antiniou's guilty pleas. Then he ruled the government had to fork over $600,000 it had seized from their business.

How odd is it for a judge to refuse to sentence someone who has pleaded guilty?

"I've never heard of it, ever," says attorney Joseph S. Rosenbaum, who worked on the case.

"It's beyond extraordinary," says David Bogenschutz, a high-powered attorney who represented Antiniou.

It became clear that prosecutor Cohen had little chance against the remaining four defendants. In another highly unusual move, she asked Zloch to dismiss the rest of the charges. He promptly did.

As for the three men who pleaded guilty early on, they're all just finishing prison sentences. Jeffrey Voluck, an attorney for one of them, says they'll now try to have their convictions reversed. And even though charges were dismissed against defendant Serge François, the lawsuit took a toll on him. Since being indicted, he was forced to shut down his pharmacy business. He will receive $91,000 that the government had confiscated.

Several attorneys in the case say they are considering yet another unusual legal maneuver: going after the government to recover attorneys' fees. There's precedent. In early April, U.S. District Judge Alan Gold awarded more than $600,000 in attorneys' fees to a Dr. Ali Shaygan of Miami after finding that the government pursued him overaggressively, going so far as to secretly record witnesses' phone calls.

Defense attorney Ellsworth says the case illustrates how the law struggles to keep up with ever-changing technology. "There's no such thing as an Internet pharmacy," he says. "A pharmacy is a building with people and boxes and pills. The government seems to have a problem with the lack of a physical encounter between a doctor and a patient — that someone can obtain a controlled substance without seeing a doctor in person."

Coincidentally, just last week a new federal law called the Ryan Haight Act went into effect. Named for an 18-year-old who overdosed on Vicodin he bought online, the law makes drug-disbursement networks such as E.V.A. Global clearly illegal by requiring doctors and patients to meet in person.

Bogenschutz speaks as though the dismissal of charges has renewed his faith in the American justice system: "For everyone out there who thinks the courts have abandoned their roles as neutral arbiters of what's in front of them," he says grandly, "this should be a wake-up call." He theorizes that when in doubt, "the judge should say, 'Is this what the law is meant for? When I don't have a good feeling, the call should go in the way of the defendant.'"

The U.S. Attorney's Office refused to comment for this story.

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