LOS ANGELES (AP) - July 30, 2010
"I think it's obvious she was part of the conspiracy because she wanted this medication," Deputy District Attorney Renee Rose said during a pretrial hearing.
"It's a surprise to me," said Superior Court Judge Robert Perry. "It's a different situation if she's orchestrating it."
Rose responded, "There's no reason for a doctor to overprescribe if she is not asking for it."
It was unclear how the claim of Smith's involvement could affect the case. Perry, however, said he was not going to dismiss any charges at this time against the defendants.
Dr. Sandeep Kapoor, Dr. Khristine Eroshevich and Howard Stern have pleaded not guilty to conspiring to illegally provide the former Playboy model with opiates and sedatives. They are not charged in the overdose death of Smith in 2007 in Florida.
Rose alleged in court that Smith had e-mailed Bonnie Stern, the sister of Howard Stern, asking for medication to be delivered to Smith in the Bahamas. The e-mails between Smith and Bonnie Stern were found on Smith's computer after she died, Rose said.
Rose wants to introduce the e-mails as evidence at the upcoming trial and believes she can do that if she names Smith and Bonnie Stern as uncharged co-conspirators in the case.
A telephone listing could not be found for Bonnie Stern. Efforts to reach her were unsuccessful.
Earlier, the judge said he was barring all evidence linking the defendants to Smith's fatal drug overdose because they were not charged with causing her death.
Perry said he fears the defendants could not get a fair trial if attorneys focused on Smith's cause of death rather than the drug conspiracy.
Defense lawyers contend their clients did not know Smith was an addict and that they tried desperately to save the depressed model in her waning years, including a period when she gave birth to a daughter and lost her grown son to a drug overdose.
The judge also barred admission of a videotape the prosecutor described as one of her strongest pieces of evidence. The tape, which has been broadcast on TV, shows Smith in clown makeup playing with a child.
Rose said Smith appeared "loopy" and that Stern asked if she was "on a mushroom trip."
Rose said the 10-year-old seen in the video would testify she saw Stern give Smith liquid medicine from a bottle. But the judge noted that prosecutors don't know what was in the bottle and don't have a prescription linked to it.
Perry also barred a taped TV interview of Smith when she left the Betty Ford Center after treatment for drug and alcohol addiction in 1996. He said it was too far removed in time from events involved in the trial.
Perry also said he was uncomfortable with the prosecution's claim that the doctors violated the law by prescribing to Smith under assumed names. Witnesses are likely to testify that is the norm in the celebrity community.
"That's not what this case is about," Perry said. "The case is about were they overprescribing and was she addicted."
Prospective jurors are set to return to court Monday for in-depth questioning, with opening statements scheduled Wednesday.