The judge presiding over the criminal case against two Kokomo doctors expressed concerns Friday there won’t be enough unbiased jurors in Howard County to try Don and Marilyn Wagoner.
But those concerns weren’t enough for Howard Superior Court 1 Judge William Menges to grant the Wagoners a venue change.
Menges also turned back defense suggestions that he’d be biased because one of his relatives by marriage was a patient of the Wagoners about six or seven years ago.
“I think it’s more problematic that there are 40,000 [current or former] Wagoner patients in the area,” Menges said during Friday’s hearing. “It may be tough getting a jury.”
Attorneys for the Wagoners, and for Gary Hartman, a former physician’s assistant at the Wagoner Medical Centers who is facing charges stemming from the same investigation, referred to the media reporting on the case as “pervasive” and “a huge amount of publicity” but failed to persuade Menges to move the trial.
Indianapolis attorney James Voyles also asked Menges to dismiss the charges against both doctors, saying they were acting within the scope of their profession when they prescribed to patients. Both doctors, along with Hartman, doctors Robert Brewer and William Terpstra and several others connected with the Wagoner clinics, are facing felony drug dealing charges, after police and prosecutors alleged they were running what amounted to a narcotics distribution network.
That motion was also dismissed, along with a motion to dismiss the charges against Don Wagoner because he saw patients in Carroll County rather than in Howard County.
Howard County Deputy Prosecutor Ron Byal said the Wagoners were charged based on where prescriptions were filled by the patients named in the police investigation. Prosecutors and attorneys with the Indiana Attorney General’s office are blaming the Wagoner clinic doctors’ prescribing practices for as many as 27 overdose deaths.
Voyles said the charges, if any, should have been filed based on where the prescriptions were actually written. Byal countered by saying the harm wasn’t caused to the victims until the prescriptions were filled and the drugs were ingested.
Menges rejected calls for dismissal based on the supposition the doctors were acting within the protected scope of their profession, saying the jury would have to decide.
Hartman, who also was in court Friday seeking a venue change, had his motion denied as well.
Menges did, however, leave open the possibility of defense attorneys raising the issue of changing the venue again during jury selection, if it appears they won’t be able to find an unbiased panel.
Scott Smith can be reached at 765-454-8569 or at firstname.lastname@example.org