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Judge: Prosecution statements 'distressing' in Anna Nicole Smith trial

By Alan Duke, CNN
Anna Nicole Smith died in 2007 from what a Florida medical examiner ruled was "acute combined drug intoxication."
Anna Nicole Smith died in 2007 from what a Florida medical examiner ruled was "acute combined drug intoxication."
  • NEW: Judge considers but rejects giving defense lawyers another chance to address jurors
  • NEW: Jury deliberations are to begin Tuesday
  • Howard K. Stern and 2 doctors are charged with feeding Smith's drug addiction
  • Defense lawyer argues Smith was not an addict, but needed drugs for chronic pain

Los Angeles, California (CNN) -- The judge in the Anna Nicole Smith drug trial scolded the prosecutor for "misrepresenting what was testified" during her closing rebuttal Friday and said his remedy could be to allow the defense to have another chance to address jurors.

"I'm not there yet, but I'm very concerned," Los Angeles County Superior Court Judge Robert Perry said.

In the end, however, Perry opted not to have the defense make another presentation.

Instead, after Deputy District Attorney Renee Rose concluded her closing rebuttal, he gave the jurors in the two-month-long case their instructions and told them they would begin deliberations on Tuesday, after Monday's Columbus Day holiday.

Smith's boyfriend-lawyer Howard K. Stern and Drs. Sandeep Kapoor and Khristine Eroshevich are accused of conspiring to feed the reality TV star and Playboy model's drug addiction and using false names to obtain the drugs. They are not charged in Smith's February 2007 death.

Video: Smith appears drugged in video
Video: Anna Nicole Smith trial may set precedent

When Perry interrupted Rose's rebuttal and sent jurors on a mid-afternoon break Friday, he told Rose some of her arguments to the jury were "distressing to the court."

"My concern is I have a prosecutor who is misrepresenting what was testified," the judge said.

Stern's defense lawyer turned the tables on the deputy district attorneys in his closing arguments Thursday and Friday by accusing them of prosecutorial misconduct.

"The prosecution's overreaching in this case knows no bounds," Steve Sadow, who represents Stern, told jurors.

Instead of seeking justice, as is their duty, their "sole purpose is gaining a conviction" even if it demands presenting testimony they knew was false, Sadow said.

Prosecutor Rose turned around in her chair and glared at Sadow at one tense point in his closing arguments.

"I sat here for nearly two months and listened as the prosecution trashed Anna as an out-of-control drug addict," Sadow said.

Sadow, an Atlanta lawyer with a southern drawl, delivered a fiery speech that seemed directly aimed at the prosecutors and not the Los Angeles jury.

"How dare you degrade and disparage Anna's life in such a critical, condescending way," he said. "Enough is enough."

Sadow reminded jurors of the tragic turn in Smith's life after the "most joyous moment for Anna," the birth of her daughter on September 7, 2006.

"Three days later, Anna lost her 20-year-old son, who had come to see his new sister," Sadow said. "He was found dead in the hospital."

Smith died five months later in a Florida hotel from what a Florida medical examiner ruled was an accidental overdose of a sleep aid, a mix of prescription drugs and a viral flu.

"The best of times became a horrible nightmare, a nightmare that Anna never escaped," Sadow said.

Deputy District Attorney David Barkhurst "trivialized and belittled Anna's heartbreaking loss" by arguing Smith's physical and emotional pain after a C-section delivery and her son's death did not justify the drugs she was given, Sadow said.

"Life happens," Barkhurst told jurors in his closing. "People suffer losses."

Sadow face turned red and his voice grew louder when he addressed prosecution testimony that Smith's newborn daughter was "fussy" soon after her birth.

Their intention was "to leave the impression that the baby was born drug dependant and was going through drug withdrawal," Sadow said.

Prosecutors knew Dannielynn was "a healthy, beautiful baby with no drug dependency," he said.

Sadow pointed to the prosecution's use of photos of Smith with bruises under her eyes, which he said were shown "to give you the impression that Howard has done something to Anna."

Prosecutors conceded later the bruises were the result of Botox injections given to Smith days earlier.

"They knew it wasn't true," Sadow said. "It's just wrong."

The prosecution contends that instead of treating Smith's pain, Kapoor and Eroshevich were feeding her addiction.

Smith depended on drugs to relieve chronic pain, migraine headaches, depression and anxiety, but she was not a drug addict, said Ellyn Garofalo, who defends Kapoor.

"Our laws are designed to stop prosecutors and law enforcement from second-guessing medical physicians," Garofalo said in her closing. California law protects doctors who give drugs to addicts if they believe in good faith that the prescriptions are for a medical purpose, she said.

Although Smith voluntarily entered the Betty Ford Center in 1996, medical records showed no doctor ever diagnosed her as an addict, Garofalo said. Every doctor recognized her chronic pain, depression and anxiety, she said.

"One thing should not be in dispute in this case, and that is that Anna Nicole Smith suffered from pain," Garofalo said.

Kapoor inherited Smith as a patient when he took over the medical practice of Dr. Victor Kovner in 2004. Kapoor worked off the files and notes given to him by Kovner, she said.

"Dr. Kapoor prescribed exactly what Dr. Kovner prescribed in exactly the same amounts," Garofalo said.

The prosecution targeted Kapoor's prescriptions of Dilaudid, a powerful painkiller, given to Smith repeatedly starting with her first visit to him in April 2004.

"Anna Nicole Smith liked Dilaudid," Barkhurst said. "She asked for what she liked."

Garofalo argued that Kapoor actually undertreated Smith's pain after she broke ribs in a Jet Ski accident in May 2004, citing an expert who testified that the recommended Dilaudid dosage should have been higher.

Prosecutors suggested that Smith may have exaggerated her rib injury pain to get drugs from four doctors over the next several months.

"Is this pain legitimate?" Deputy District Attorney Rose asked.

Smith was swimming and playing at a summer camp for children with AIDS just three months later, Rose said.

She jumped on a full-size trampoline in her home, evidence that her chronic back pain may have been faked, Rose said.

The defense lawyer, however, saw Smith's activities as evidence she was doing "exceedingly well" under Kapoor's care.

"If Anna Nicole Smith was on a trampoline and cavorting with kids at Camp Kendall, it was because the medicine was working," Garofalo said.

Kapoor and Eroshevich are also charged with using false names to write prescriptions that were intended for Smith. Prosecutors argued they wanted to hide them from the state's computer system that monitors drug usage.

The defense said it is a common practice in Hollywood, used to protect celebrities' privacy from prying tabloid reporters.

A long list of other doctors who treated Smith wrote prescriptions in other names, including physicians who treated her at Cedars-Sinai Medical Center seven months before her death, Garofalo said.

Kapoor used the two names Kovner used before him, Anna N. Smith and Michelle Chase, Garofalo said.

Her stage name, Anna Nicole Smith, was used when she wanted her Screen Actors Guild insurance to pay for a drug, she said. Michelle Chase was used for most painkiller prescriptions to protect Smith's privacy, she said.

The pharmacist who filled all but one of the prescriptions testified he knew all of the drugs were for Smith.

Kapoor's lawyer also challenged the prosecution argument that he gave into Smith's demands for drugs because he wanted to be the celebrity's friend. She said the doctor had seen Smith only one time in a social setting.

Prosecutors showed the jury photos of Kapoor riding with Smith in a gay pride parade in 2005 and later "nuzzling" with her at a restaurant.

"I was making out with Anna, my patient, blurring the lines," Kapoor wrote in a personal journal that night. "I give her methadone, valium. Can she ruin me?" he also wrote.

Stern invited Kapoor, who is gay, to ride in the West Hollywood parade, Garofalo said. Kapoor became "somewhat inebriated." He never saw Smith socially again.

"If he had not spent an afternoon with his shirt off, partying at a gay pride parade, he would not be sitting here," she told jurors Wednesday.