STEROIDS TARGETS CLAIM BIAS

Lawyers for accused dealers accuse Albany prosecutor of "highly prejudicial" conflict

BRENDAN J. LYONS SENIOR WRITER
Section: Capital Region,  Page: D1

Date: Friday, August 13, 2010

ALBANY -- Five pharmacy operators from Florida have asked an Albany judge to dismiss their criminal case, in part, because they are suing Albany County prosecutors for federal civil rights violations.


The case involves a steroids-distribution investigation that drew national attention three years ago when it was revealed celebrities, pro athletes and others had been obtaining performance-enhancing drugs and other controlled substances from the Orlando-based pharmacy.


Attorneys for the five defendants filed motions this week in Albany alleging prosecutors have a "highly prejudicial" conflict of interest because they are being sued in a related federal lawsuit. The motions also accuse prosecutors of botching the case as it was presented to a grand jury. The defense lawyers said the charges should be thrown out for the second time in two years.


The dismissal request comes 23 months after the defendants had a similar criminal indictment thrown out by Albany County Judge Stephen W. Herrick, who cited a series of prosecutorial missteps. Earlier this year a state appellate court overruled Herrick and said prosecutors could present new charges to a grand jury, which they did.


On June 22 the former pharmacy operators flew to Albany from Florida to be arraigned on a new 33-count indictment that includes allegations of enterprise corruption and illegal drug sales. The defendants, all Florida residents, are: Naomi Loomis, 37, her husband, Robert "Stan" Loomis, 59, both; Kenneth Michael Loomis, 62, who is Robert's brother; former business manager Kirk Calvert, 40; and former business manager Tony Palladino, 34.


Their attorneys allege the new charges are personally motivated by Albany County District Attorney David Soares and assistant District Attorney Christopher Baynes, who is the lead prosecutor. The prosecutors are defendants in a federal civil rights lawsuit filed by the pharmacy operators in Orlando.


In the federal lawsuit the plaintiffs and their attorneys accuse Soares, Baynes and other law enforcement agencies of undertaking the investigation to ruin the pharmacy operators while garnering national media attention. The client list of the former pharmacy, Signature Compounding Pharmacy, included celebrities and numerous professional athletes who were later disciplined by their respective leagues.


Several doctors and more than a dozen people affiliated with so-called "wellness center" that did business with the pharmacy pleaded guilty to related criminal charges in Albany County Court. Some of the doctors admitted in court they sold their signatures for money or approved pre-filled prescriptions for steroids and other drugs to people with no legitimate medical need. In many instances, the "patients" said they never spoke directly to a physician and were rarely, if ever, evaluated in person by a doctor.


The pharmacy operators have fought their criminal charges. In October 2008, a month after their first indictment was thrown out of court, they filed the federal lawsuit that seeks millions of dollars in damages.


They claim they broke no New York laws and that their reputations and business were destroyed by their arrests.


In a motion filed this week by William J. Dreyer, an attorney for Robert and Naomi Loomis, he cites what he characterizes as a series of "prosecutorial improprieties" underlying the new indictment.


"The public's confidence in the criminal justice system would be enhanced by a dismissal," Dreyer wrote. "Such a dismissal would clearly show the public at large that ill-motivated and biased prosecutors cannot ignore their obligations and limitations."


Dreyer did not respond to a request for comment.


The federal lawsuit was filed against Soares, Baynes, a former state Department of Health investigator, Mark Haskins, and the Orlando Police Department, a partner in the investigation. The lawsuit alleges malicious prosecution and false arrest.


Two months ago a federal judge in Florida issued an order that the federal lawsuit had merit and should be scheduled for trial. However, days later the judge threw out the lawsuit against Haskins, who is a key witness in the criminal case because he was the lead New York investigator.


Attorneys for Soares, Baynes and an Orlando detective named in the federal lawsuit have filed pre-trial appeals with the 11th Circuit Court of Appeals in Atlanta, seeking to have the lawsuit dismissed.


Sarah Spain Holt, a Troy attorney who represents Calvert, Palladino and Kenneth Loomis, filed a motion similar to Dreyer's seeking dismissal of the indictment against her clients. Holt, like Dreyer, said the case also should be dismissed because the grand jury presentation was flawed. For instance, she said Baynes mislead the panel when he told them Haskins retired from his state investigator's job last year.


Grand jury minutes are not normally provided to defense attorneys and it is unclear how the attorneys in this case obtained them.


"The grand jury was at no time informed that Haskins was in fact forced to resign from his position with the bureau after being suspended for alleged wrongdoing," Holt wrote.


Holt, who works for the law firm of E. Stewart Jones, and Jones, could not be reached for comment. Claire Pospisil, a Health Department spokeswoman, on Thursday said Haskins was not forced to resign. "He resigned voluntarily," she said.


Haskins, who court records indicates works as a "private consultant," declined comment.


Soares also declined comment on the defense motions. His office is expected to file response papers in the coming weeks.


The five defendants remain free on bond.


Brendan J. Lyons can be reached at 454-5547 or by e-mail at blyons@timesunion.com.