Desai lawyers challenge criminal charges in hepatitis C case

Lawyers for Dr. Dipak Desai have filed court papers challenging his criminal indictment in the hepatitis C outbreak.

Lead defense attorney Richard Wright seeks to dismiss an array of criminal charges against Desai, arguing prosecutors made a shotgun presentation to the indicting grand jury that violated the physician's constitutional rights.

"It appears that the state has taken a throw-it-on-the-wall-and-see-what-sticks approach to prosecution without regard for fundamental principles of criminal law and due process," Wright wrote in his court papers, filed late Friday.

Wright also argued that "aside from mere conjecture and the inflammation of emotions," prosecutors failed to present sufficient evidence linking the hepatitis C infections of patients to the actions of Desai and his clinic staff.

"This insufficiency of evidence cannot be lightly swept aside," Wright wrote.

Prosecutors will get a chance to respond in writing.

The indictment challenge is the first of a series of pretrial motions Wright expects to file in the coming weeks, including one seeking a change of venue for the trial because of the publicity surrounding the 2007 hepatitis outbreak.

Wright could not file the motions earlier because the case against Desai by law was put on hold for about 18 months until his competency to assist his lawyers was determined.

Two strokes left Desai with some cognitive impairments.

Desai, 62, and nurse anesthetists Keith Mathahs, 75, and Ronald Lakeman, 64, were indicted in June 2010 on 28 felony charges, including racketeering, insurance fraud and neglect of patients. They are to stand trial Oct. 22 before District Judge Valerie Adair.

The charges, the result of one of the biggest investigations ever conducted by the Metropolitan Police Department, revolve around seven people who authorities have alleged were infected with the hepatitis C virus at Desai's clinics. Health officials concluded that unsafe injection practices involving the sedative propofol led to the infections.

Wright argued in his court papers that the seven criminal neglect charges against Desai are "vague, imprecise and confusing," leaving the doctor unable to prepare a proper defense.

"The lumping together of multiple defendants in a single count without delineating what acts or omissions each committed raises due process concerns," Wright wrote.

"The defendants are left to guess who did what and by what means and what known risks were consciously disregarded by whom."

Wright described the central racketeering charge against Desai as "loosey-goosey," arguing it fails to sufficiently state the crimes in the racketeering scheme and how each defendant committed those crimes.

In January 2011, former District Judge Donald Mosley, who previously handled the high-profile criminal case, denied a bid by Mathahs and Lakeman challenging the indictment. Mosley ruled that prosecutors had met their burden when presenting evidence to the grand jury.

Desai also faces a May 22 federal trial with his former clinic manager, Tonya Rushing, but the case is expected to be delayed.

Each of the two are charged with one count of conspiracy and 25 counts of health care fraud.

A federal indictment alleges the pair carried out a scheme from January 2005 through February 2008 to inflate the length of medical procedures and overbill health insurance companies.

Contact reporter Jeff German at jgerman@reviewjournal.com or 702-380-8135.