Verdict slip in meningitis outbreak trial creates confusion

Barry CaddenThe Associated Press
FILE - In this March 16, 2017, file photo, Barry Cadden, president of New England Compounding Center, arrives at the federal courthouse in Boston. On March 22 he was acquitted of murder charges but convicted on other counts in a fungal meningitis outbreak from tainted steroids manufactured by the pharmacy, which killed more than two dozen and sickened hundreds of people in 2012. Some legal experts are questioning whether the vote by the jury was unanimous, as required in all federal criminal trials. (AP Photo/Steven Senne, File)

People who lost loved ones in a fungal meningitis outbreak traced to tainted steroids were stunned when a pharmacy executive was acquitted of murder charges in 25 deaths, and some legal experts are questioning whether the vote by the jury was unanimous, as required in federal criminal trials.

The verdict found Barry Cadden guilty of conspiracy, mail fraud and other charges but acquitted him of the most serious charges he faced under federal racketeering law: second-degree murder.

But on the verdict form , the jury wrote numbers next to "guilty" and "not guilty" on those counts, leading some observers to suspect the jury was divided. For example, for many of the murder acts, 8 was written on a line next to "guilty" and 4 was written on a line next to "not guilty," making it appear as if eight jurors voted to convict Cadden and four voted to acquit him.

Complicating that is a handwritten notation that appears on some pages of the verdict form, indicating a check mark means "unanimous." The jury put check marks next to "not guilty" on all 25 second-degree murder counts.

Some legal experts believe the numbers could represent an earlier division among jurors before they reached a unanimous decision. But others believe the numbers show the jury remained divided on those counts.

"The numbers are so quizzical — it is just out of left field," said David Schumacher, a formal federal prosecutor in Boston who was deputy chief of the health care fraud unit that prosecuted Cadden. "I've never seen anything like it."

Cadden was the president and co-founder of the New England Compounding Center in Framingham. A 2012 outbreak of fungal meningitis and other infections in 20 states was traced to contaminated injections of medical steroids made by NECC. The tainted drugs killed 64 people and sickened about 700 others. Indiana, Michigan and Tennessee were hit hardest.

When the verdict was read aloud in court March 22, only Judge Richard Stearns and his clerk had seen it. Neither prosecutors nor Cadden's lawyers saw the form until after the verdict was entered into the record.

Once that happened, it was too late to do anything about it, said Daniel Medwed, a professor of law and criminal justice at Northeastern University. Medwed said it would be highly unlikely for prosecutors to try to challenge the not guilty verdicts now.

"Once someone is acquitted of a charge and that is formally entered, then double jeopardy attaches and you can't be tried again for the same crime," he said.

A spokeswoman for federal prosecutors wouldn't comment on whether they've considered challenging the not guilty verdicts. Cadden's lawyer, Bruce Singal, also declined to comment.

The only people who know for sure what the numbers mean are the jurors, and their identities haven't been released.

The verdict form has baffled the families of people who died in the meningitis outbreak.

When they saw that the verdict form seemed to indicate that a majority of jurors had voted "guilty," they were confused, upset and hurt, said Ray Gipson, whose wife of 45 years, Gayle Gipson, died after receiving an injection for back pain at a Michigan pain clinic.

"We couldn't make heads nor tails out of it," he said. "It was so confusing to us that we had no idea what the hell they were talking about."

Before deliberations, the judge told jurors their verdict "must be unanimous as to whether Mr. Cadden is guilty or not guilty on each of the charges."

Just before the verdict was announced, the judge looked at the verdict form and noted aloud that in some places "the jurors indicate how they voted in terms of a division."

"That need not be read, just the verdict itself," he said.

After the verdict was read, the clerk first asked the jury foreman, then the jury, to affirm it was correct, which they did.

Schumacher, the formal federal prosecutor, said the judge may have assumed the jury rendered all unanimous verdicts, despite the handwritten numbers.

The jurors were not polled individually, leaving some to wonder.

"At the end of the day, only the jurors know for sure what they were intending to communicate with respect to those numbers," Schumacher said. "Who knows what it means?"