CINCINNATI - A week after her conviction on a felony drug charge, fired Cincinnati VA Chief Dr. Barbara Temeck is demanding a new trial, citing jury confusion.
“The jury's verdict was required to be unanimous, and it was not,” wrote defense attorney Ben Dusing in a motion that seeks a judicial inquiry of the verdict. “At least one juror, and potentially two others, judged the defendant not guilty on Count 3 and disagreed with the verdict reported to the court by the foreperson and represented to be unanimous.”
Dusing filed under seal the “specific facts” supporting his argument to protect the identity of the juror. His motion said the details were reported to Kenneth Hawley, an employment lawyer who represents Dr. Temeck on administrative matters in the VA.
Dr. Temeck was convicted of prescribing a generic form of Valium for the wife of her former boss in November 2013. She was acquitted on two other charges after she testified that she didn't call in prescriptions to local pharmacies on two occasions prior to her arrival in Cincinnati in July 2013.
Dr. Temeck admitted writing the prescription that led to her conviction, but said it was an emergency situation and medically necessary.
A jury of five men and seven women each said they agreed with the guilty verdict after it was read. Dusing now claims a female juror had doubts about the conviction. Had she expressed those doubts when the jury was polled, Judge Michael Barrett could have ordered further deliberations or declared a mistrial.
“Because of the juror's lack of understanding that she could voice her dissent during the polling process, the defendant, to her great prejudice, was denied those available remedies," Dusing wrote. "Now, after the fact, the only way to remedy the lack of unanimity in the verdict is to grant the Defendant a new trial as to Count 3, the sole count of conviction.”
Prosecutors have yet to respond to the motion. Dusing is also trying to get Judge Barrett to reverse the verdict based on a lack of medical expert testimony in the case.