'You're supposed to be adversaries on a level playing field,' Judge Samuel
Wilson said

JUDGE CRITICIZES PROSECUTORS IN PAIN SPECIALIST CASE

The Hearing Marks The Latest Instance When The Question Of The Fairness Of
The Charges Has Been Raised.

A federal judge questioned whether more than 250 new charges leveled
against a Roanoke pain specialist and two of his former employees were an
abuse of the grand jury system and said he was considering dismissing the
new charges.

At a hearing in federal court Wednesday, Chief U.S. District Judge Samuel
Wilson asked if it was appropriate for federal prosecutor Rusty Fitzgerald
to seek new charges against Cecil Byron Knox, 53, Beverly Gale Boone, 43,
and Tiffany Durham, 28.

"You're supposed to be adversaries on a level playing field," Wilson said.
"It seems to me, Mr. Fitzgerald, like you are driving the ship. And I can't
let that happen."

In a rare criticism of a federal indictment, Wilson said he might consider
dismissing the second superceding indictment in the case but reserved
ruling until attorneys for both sides file written arguments.

The hearing marks the latest instance when the question of the fairness of
the charges against the five defendants, who face trial in January, in the
case has been raised.

Knox, Boone and Durham face charges of conspiracy, health care fraud, mail
fraud, obstruction of justice, payment and receipt of kickbacks, illegal
drug distribution that resulted in the death or serious injury of patients,
and prescription of drugs for no legitimate medical purpose. Knox and
Boone, both of Roanoke, also face racketeering charges. The new indictment
also alleges that Knox traded OxyContin prescriptions for marijuana.

William Newbill James Jr., 57, of Roanoke and Kathleen O'Gee, 54, of
Pulaski also face racketeering and health care fraud charges.

The new indictment, which came down in Charlottesville last week, is the
second time the prosecution has sought additional charges against the
defendants. The first superceding indictment, which came down in May and
replaced the first indictment, contained 58 charges. The most recent
indictment includes 313 charges, most of them drug distribution charges
leveled against Knox, Boone and Durham. Prosecutors present evidence to
grand juries; and the grand juries decide whether or not to charge people.

The issue of the new charges arose after Fitzgerald responded to a court
order seeking the specific dates of the drug offenses the prosection
alleged with seeking the new indictment.

Wilson questioned why Fitzgerald chose to seek a new indictment instead of
obeying his order.

Fitzgerald responded that "once the court found that there was a defect in
the indictment, the only remedy available was to return to the grand jury."

"Perhaps you're correct," Wilson replied. He also expressed concern that
the fraud allegations might contain the same problems because they are
missing dates.

Wilson referred back to a ruling he made in a 1992 case on the question of
whether Fitzgerald's seeking of the new indictment was fair. "At least in
theory, the grand jury stands as a buffer between the people and the
government ..." the opinion read. "It is a deliberative body, not the
domain or province of government investigators and prosecutors."

Wilson expressed concern that seeking indictment again might be perceived
as a way for the prosecution to try to leverage an advantage in the case.

"Use of the grand jury for such purposes makes a mockery of the balance
that is struck in the advocacy system between the accused and his accuser,"
the opinion continued.

In another development, two friends of Knox's, Roanoke oncologist William
Fintel and Jan Wilkins, who owns a public relations firm in Roanoke, have
agreed to serve as trustees for a new legal defense fund for Knox .

Fintel, who said he described himself as a friend and colleague of Knox's,
and who is also treating him for cancer, said that he agreed to serve as
trustee of the fund at the Knox family's request because Knox's legal fees
are enormous and his assets have been frozen as part of the investigation.

"It seems like we need to presume innocence," Fintel said. "He deserves a
fair trial."