On the eve of their scheduled sentencing, lawyers for Dr. Khristine Eroshevich and Howard K. Stern want something different. They are asking to have their clients' convictions reduced to misdemeanors or dismissed in the interest of justice.
They argue in written motions that using pseudonyms to protect the privacy of celebrities in medical situations is common practice. They accuse the district attorney's office of singling out the doctor and lawyer for prosecution "for political and publicity purposes, not justice."
Superior Court Judge Robert Perry, who presided over their nine-week trial, has the option to sentence them to up to three years and eight months behind bars at a hearing Thursday.
In a sentencing memorandum filed Tuesday, Deputy District Attorney Sean Carney advocated sentencing both defendants to five years of supervised felony probation, 300 hours each of community service, with Stern working for Caltrans, California's highway maintenance department. The memo suggested Eroshevich's community service be directed by the California Medical Board and that each defendant pay a $5,000 fine.
Carney also asked that Eroshevich be barred from prescribing controlled substances, severely limiting her ability to continue practicing medicine.
Stern and Eroshevich are seeking dismissal, a new trial or reduction of their convictions to misdemeanors. A third defendant, Dr. Sandeep Kapoor, was acquitted of all charges and the jury deadlocked on several counts.
Stern's attorneys, Steve Sadow and J. Christopher Smith, noted in written motions that Stern was convicted of only two of 11 counts involving conspiring with Eroshevich to use his name on prescriptions for Smith.
"The evidence proved that Mr. Stern honestly believed the practice was legal," said the motion, which noted past use of false names on prescriptions for celebrities including the late Michael Jackson and actress Brittany Murphy. It said their doctors were never charged with violating the false names statute.
The sentencing hearing will mark the denouement of a long-running drama centering on the blonde beauty's troubled life, which was documented on reality TV, in tabloids and in trial testimony. Smith also made headlines in a continuing $300 million court fight with the estate of her oil tycoon husband.
Stern, 41, had been Smith's lawyer, manager, lover and friend since they met in 2001. Testimony showed they were inseparable, even when she was involved with other men. The trial documented their romantic odyssey and the birth of a baby Stern once thought was his. DNA tests confirmed photographer Larry Birkhead was the father.
Eroshevich, Smith's friend, neighbor and psychiatrist, rushed to her side in the Bahamas after Smith's son died of a drug overdose and she went into an emotional decline.
Smith died after suffering a drug overdose in a Florida hotel room in 2007. The death was ruled an accident and the California defendants were not charged with causing her death.
Smith's physical and emotional problems were the subject of exhaustive testimony as prosecutors sought to paint the defendants as enablers who fed Smith's addiction to prescription pain killers. But the jury rejected most of the charges, accepting defense arguments that Smith was not an addict but a woman with chronic pain.
The jury also appeared to reject prosecution claims that the defendants were dazzled by Smith's glamor and filled her demands for prescription drugs to protect their insider status in her personal life and her celebrity world.
Attorney Bradley Brunon, who represents Eroshevich, 63, said in a written motion that she acted in good faith, and "with proper medical motives to assist a fragile and suffering person."
Brunon said Eroshevich acknowledges that "she could have done things differently and perhaps better."
"Dr. Eroshevich accepts this and would rewrite history if she could," said the motion, calling it her only inappropriate action in a 30-year medical career.
Along with conspiracy, Eroshevich was convicted of unlawfully obtaining Vicodin by fraud. The jury deadlocked on whether she unlawfully prescribed the drug.
Prosecutors strongly opposed reduction of charges to misdemeanors and said there is "ample evidence to support the verdicts."
Eroshevich and Stern also may face revocation of their professional licenses.
