Jul 19, 2006 By: David Angier The News Herald (FL)

Dr. Thomas Merrill knew his fate well before he was sentenced Monday: life behind bars.

But that did not stop his attorney from fighting all day for probation.

U.S. District Judge M. Casey Rodgers sentenced Merrill, 70, of Apalachicola, to life in prison for 98 counts, including illegally dispensing controlled substances with five cases in which a death resulted, defrauding health-care benefit programs and wire fraud.

His lawyer, John P. Flannery II of Leesburg, Va., filed motions last week asking Rodgers to give Merrill probation, even though he expected the life sentence and asked the judge to release Merrill on bond pending appeal.

“We make this appeal at the time of sentencing in light of the pending motions relating to sentencing, the prosecutor’s overweening influence on the court’s decisions and the anticipated outcome at sentencing; the likely imposition of a life sentence that the defendant hotly contests as undeserved but nevertheless signaled by the court’s past decisions in this case,” Flannery wrote in a motion filed Friday.

Ten witnesses were called, five each by the defense and prosecution, to testify at Monday’s sentencing. The hearing went well into the afternoon.

Flannery also argued several issues he detailed in filings last week.

He wrote that the trial was a “sham” and Merrill was railroaded by a government “that disapproves of opioids,” the drug found in the powerful and addictive painkillers oxycodone and hydrocodone.

“The government has led this court and other federal courts into error and thus has compromised the treatment of chronic pain patients across Florida and across the nation,” Flannery wrote. “We have a pandemic of untreated pain patients because the government disapproves of opioids.”

He wrote that Rodgers was in “error right from the start” in this case “with the wrongful and prejudicial transfer of this trial from the community where the defendant lived and made his living to Pensacola.”

Flannery said the change of venue, which trial defense attorney Jim Appleman protested, was done for the judge’s convenience in handling the rest of her docket and placed the trial in a jury pool that would “favor the prosecution.” Juries from the Pensacola area have put more state defendants on death row than any other area in Northwest Florida.

Flannery also objected to the prosecution seeking to claim Merrill’s retirement benefits as a part of sentencing.

“Not only does the government seek to impose a life sentence for the questionable findings at the trial herein it seeks to seize the modest retirement that is the defendant’s entitlement,” he wrote, “and - in the corrupt bargain - to compromise his spouse’s right to those needed funds.

“While most of us observe the maxim that quality of mercy is not strain, for the Justice Department heartlessness comes more easily.”

Jurors deliberated for three days before convicting Merrill of 98 of the 100 charges against him, including 18 counts of wire fraud, five counts of defrauding health-care benefit programs including two counts that charged a death resulted from the violation and 75 counts of dispensing controlled substances.

Prosecutor Stephen Kunz told jurors that Merrill’s practice became a destination for drug seekers throughout Florida.

Kunz said Merrill wrote 33,000 prescriptions from January 2001 to May 2004 and 81 percent of those were for controlled substances.

“This defendant is accountable for the drugs he prescribed and for these patients’ deaths,” Kunz said.

He called Merrill “a drug dealer with an osteopathic license.”

Merrill had worked at the Magnolia Clinic in Apalachicola since 1994. The state suspended his license in May 2004 after the Florida Department of Law Enforcement began an investigation of the clinic in early 2003. A federal grand jury indicted him in August.

Jurors found Merrill’s actions led to the deaths of Bridgette Persinger, 53, in Panama City on July 10, 2002; Leslie Dyer, 39, in Gulf County on June 14, 2003; Deanna Hayes, 58, in Franklin County on July 29, 2003; Kenneth Noles, 38, in Panama City on Aug. 30, 2003; and Katharine Seay, 47, in Franklin County on Nov. 3, 2003.

The jury heard from 70 witnesses and received 544 exhibits in evidence.