An attorney for a Brigham City doctor convicted of multiple counts of unlawfully distributing painkillers to hundreds of patients asked a federal judge on Tuesday to reconsider his mandatory 20-year prison sentence.
Peter Stirba, attorney for Dewey C. MacKay, told U.S. District Judge Dee Benson that a recent U.S. Supreme Court decision now requires that a controlled substance like the oxycodone and hydrocodone Mackay prescribed must individually be capable of causing a death for a mandatory minimum sentence to be enacted.
At issue is the death of patient David Wirick, who died after taking the two drugs prescribed by MacKay. Stirba argued that evidence at the trial was that the drugs in combination with others caused Wirick’s death, but not either oycodone or hydrocodone individually.
Assistant U.S. Attorney Michael Kennedy argued there was evidence at the trial that "but for" the drugs MacKay prescribed there wouldn’t have been a death.
"That ‘but for’ standard was applied throughout this case," Kennedy said, adding he believed any new sentence would be close to what MacKay is now serving.
The 10th Circuit Court of Appeals last year affirmed MacKay’s conviction but said Benson needed to specify what the sentence was on each count and not lump them together into one 20-year prison term for all 40 counts on which MacKay, 67, was convicted in August of 2011.
Since that decision, Stirba argued, the Supreme Court decision has required that in a case like MacKay’s, an illegally distributed drug must be found to be capable of causing death on its own. In MacKay’s case, there was no proof offered at trial that either of those drugs were independently capable of causing Wirick’s death, Stirba argued.
"In this case the proof is nonexistent," the attorney said.
Benson said he hoped to issue a written decision soon on the issues.
MacKay was not present in court, though the room was packed with about 80 of his supporters. He is serving his sentence at the low-security Terminal Island federal prison in San Pedro, Calif., according to the U.S. Bureau of Prisons website.
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