State Supreme Court hears arguments in doctor’s case

Nevada Supreme Court justices heard arguments Thursday in the case of a Las Vegas doctor who was convicted of murder in the overdose death of one of his patients in 2005.

Using a state law designed to target drug dealers and not doctors, Chief Deputy Attorney General Conrad Hafen successfully prosecuted Dr. Harriston Bass following the death of Gina Micali, to whom he provided hundreds of pain pills and anti-anxiety medications from his mobile doctor's office. Micali was 38.

A jury convicted Bass in March 2008 on one count of second-degree murder, 49 counts of selling a controlled substance and six counts of possession for sale of a controlled substance. He was sentenced to 25 years to life in prison.

The conviction was appealed on several fronts.

The state Supreme Court panel, consisting of justices Michael Cherry, Mark Gibbons and Nancy Saitta, must decide several issues raised by attorneys Alan Johns and Paul Sorenson. Specifically, the attorneys seek a new trial for Bass based on their claim that the jury was improperly instructed about the law and their client was prejudiced to the point of being denied a fair trial.

They question the constitutional validity of the state law used to prosecute Bass. They claim some of the charges are redundant. Perhaps most importantly, they question whether District Judge Jackie Glass acted properly when she denied Bass a new trial.

Bass was a licensed physician who essentially ran his doctor's office from his car. He made house and hotel room calls to patients and routinely sold for profit painkillers and other types of medication. He was not certified as a pharmacist through the state pharmacy board, however, and was not authorized to sell or dispense controlled substances.

Hafen told the court there are 230 doctors in Nevada who are certified pharmacists; Bass never applied for certification. Hafen also noted Bass sold Micali roughly 900 hydrocodone and Soma painkillers and the anti-anxiety drug Xanax -- and wrote out prescriptions for an equal number for the woman to have filled at a pharmacy.

Johns argued the state never proved the pills provided by Bass are what resulted in Micali's death. He faulted the deputy coroner for destroying potential evidence: the bottles that contained the pills and the pills inside them. Hafen did not dispute that the evidence was disposed of, but said at the time authorities were considering the case an overdose death.

"The cause-of-death factor is important," Johns said. He said the state focused on a single bottle of hydrocodone that was missing 51 pills.

Johns said Bass' patient records reveal he instructed Micali to take four hydrocodone pills per day, but the destruction of the bottles prevented a defense to be mounted.

Johns also noted there were empty bottles of Imitrex found at Micali's Henderson home. Imitrex is a migraine medication linked to heart attacks in women. Johns, prompted by Gibbons, said it was also possible Micali was killed by a lethal combination of hydrocodone and Xanax or some other drug "cocktail."

The toxicology report found only trace amounts of hydrocodone. It is unclear what, if any, other drugs were tested for. Johns noted it's impossible to know what quantity of drugs Micali took.

Hafen offered four reasons the state high court should affirm Bass' conviction. He said the law the state relied on to prosecute the doctor is not vague; that the destruction of the medicine bottles did not prejudice the jury, that the conduct of Judge Glass and prosecutors did not negatively impact Bass and, finally, that Glass' decision not to grant a retrial was not an abuse of the court's discretion.

"Murder statutes are very plain and concise," Hafen said. If a person dies as a result of ingesting controlled substances provided by someone unauthorized to distribute them, that is murder.

The state Supreme Court will render its decision on whether to grant Bass a new trial or affirm his conviction in the coming weeks.

Contact Doug McMurdo at dmcmurdo@reviewjournal.com or 702-380-8135.