By Nate Raymond
BOSTON (Reuters) - Prosecutors on Monday said a quirk in the trial verdict of a Massachusetts pharmacist cleared of murder for selling fungus-ridden steroids that killed 64 people in 2012 meant that a judge could still consider the murder allegations at his sentencing.
A federal jury in March found Barry Cadden, the co-founder and ex-president of New England Compounding Center, guilty on racketeering and fraud counts but cleared him of the most serious charges, second-degree murder, for his role in a meningitis outbreak that sickened 753 people in 20 states, killing 64.
But when the 12 jurors filled out their verdict slip, rather than just checking findings of "guilty" or "not guilty," they filled in numbers that prosecutors now say reflected vote counts showing a majority found Cadden guilty on 21 of 25 murder counts.
The U.S. Attorney's office in Massachusetts argued in a motion filed on Monday that the verdict form showed jurors believed Cadden was guilty of murder and want the judge to consider that fact in determining his sentence on June 26.
Former prosecutors said they had never seen a verdict slip quite like it.
"While they failed to reach unanimity on these racketeering acts, the jury's verdict confirmed that the murder racketeering acts were proven by a preponderance of the evidence in this case, and can be properly considered at sentencing," prosecutors wrote in the filing.
Their argument might work since judges at sentencing can consider conduct proven by a standard lower than what jurors are instructed to follow to convict someone, said David Schumacher, former deputy chief of the health fraud unit of the U.S. Attorney's office.
"They have a very good argument," he said. "They actually have documentary evidence prosecutors never have in criminal cases."
A conviction on any of the 25 acts of second-degree murder Cadden faced under a racketeering law could have exposed him to life in prison. He could still face decades behind bars.
A lawyer for Cadden did not respond to a request for comment. In court papers, his lawyers have disputed that the jury did not clearly acquit him and said prosecution claims to the contrary were "wishful thinking."
Cadden, 50, was one of only two out of 14 people indicted in 2014 connected to the scandal at the Framingham, Massachusetts-based New England Compounding Center to face murder charges. The other murder defendant, former supervisory pharmacist Glenn Chin, is scheduled go on trial on Sept. 19. He has pleaded not guilty.
Prosecutors said that in 2012, the compounding pharmacy sent out 17,600 vials of steroids labeled sterile that were contaminated with mold to 23 states and that Cadden ignored the rules and put profits before patients. Cadden denied wrongdoing.
(Reporting by Nate Raymond; Editing by Scott Malone and Tom Brown)