On trial and out of sight

OxyContin case defendants refuse to appear in court

November 07, 2005|By MATTHEW DOLAN | MATTHEW DOLAN,SUN REPORTER

The silver-haired judge watched from behind the bench. Jurors listened intently. Prosecutors described the crimes, and defense lawyers protested. The court reporter took down every word.

Still, something was missing in Courtroom 5A this week: the men on trial.

In one of the more unusual twists to a criminal case, two Baltimore men are refusing to attend their own drug-conspiracy trial, arguing that the federal court has no jurisdiction over their "flesh and blood." U.S. District Judge J. Frederick Motz agreed to let Oliver Clifton Hudson and his half brother Gregory Wayne Banks sit out their trial over the objection of federal prosecutors.

Jurors who have never seen the defendants will return to federal court today to continue deliberating the brothers' fate.

The rare legal strategy is not widespread but is being attempted by more and more defendants, according to attorneys in the Baltimore region.

"Frankly, I think this desperate tactic is the product of a fairly desperate condition they have as pre-trial defendants in Supermax," said James Wyda, the federal public defender for Maryland. The maximum-security state prison in Baltimore holds inmates waiting to go to U.S. District Court because the city does not have a federal detention center.

Wyda, who has two assistants defending Banks, added: "The frustrating thing for me is watching clients make bad decisions because of the terrible conditions they're held under."

Michael I. Meyerson, a professor of constitutional law at the University of Baltimore Law School, expressed concern about the idea of no-show defendants. The Sixth Amendment to the Constitution ensures that defendants have the right to confront witnesses against them.

"Normally, rights can only be waived if they are knowingly and voluntarily waived," Meyerson said. If a judge allows a defendant to give up a right without fully understanding the consequences, the decision could be grounds for appeal, he added.

Critics say these defendants are using the same type of faulty argument employed by those who attempt to stop paying taxes.

"There is a whole overlapping melange of junk law out there," said Philadelphia attorney Daniel B. Evans, who built an Internet site to debunk those who believe they have a legal right to refuse to pay taxes. "I was dumbfounded because they say they are so certain. But the cases they cite don't say what they say they say."

He made comparisons to the Freemen, a mostly underground movement in the Western states whose followers think that the U.S. government is acting illegally by collecting taxes and operating the Federal Reserve bank. Its members have challenged indictments against them as illegal and argue that the United States is a corporation and can't file criminal charges.

The legal language they use can be "gibberish," according to Evans.

In his unsuccessful motion to dismiss his case, Hudson argued that he could not be charged, in part, because the conspiracy indictment against him listed his name in all capital letters. The proper wording of his name, he wrote, is "Oliver Clifton: Hudson"

Motz has repeatedly brought Hudson and Banks into court to see if they wanted to attend their trial. He reminded them that any appeal they might want to make later would not be undermined if they came to his courtroom.

They still said no.

So federal marshals have hauled Hudson and Banks to the courthouse on Lombard Street almost every weekday for the past month, where the brothers have sat in a holding cell in case they changed their mind. They haven't, declining to sit through a parade of witnesses accusing the pair of running a sophisticated ring of prescription fraud to obtain the painkiller OxyContin.

The brothers also didn't see one of their court-appointed defense attorneys, William B. Purpura, attempt to remind jurors in closing arguments Thursday that his client really exists.

"Here he is," Purpura said as the lawyer slapped a somewhat grisly picture of Hudson - sporting a scruffy beard with an eye patch to cover a bullet wound - on an electronic projector beamed to computer screens placed in front of the jury.

Without the defendants, the courtroom atmosphere was almost sedate last week. A marshal, usually charged with guarding the defendant, instead sat in the back working on a crossword puzzle.

Federal authorities accuse Hudson and Banks of helping to run an OxyContin ring that defrauded pharmacies, cheated Medicare and profited by selling the addictive painkiller on the street.

For at least five years, prosecutors say, the Baltimore group used phony prescriptions, make-believe "clinics" and other people's health insurance cards to dupe local pharmacies into doling out OxyContin.

Defense attorneys say the government has vastly overblown the role that Hudson and Banks played in the ring. If they were running a massive criminal enterprise, attorneys asked, how come they were so poor that the telephone company disconnected their service?

If convicted, Banks and Hudson could be sentenced to life in prison for the drug conspiracy charges. Banks and Hudson also are charged with engaging in a "continuing criminal enterprise," a count that carries a 20-year minimum sentence.

But Hudson and Banks have told their attorneys that they don't want to be there when the clerk of the court calls the lawyers to hear the jury's verdict.

"I'll have to go tell them what happened," Purpura said.

matthew.dolan@baltsun.com

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