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Prosecutors want to include lesser offense of reckless homicide in Husel jury instructions

Husel’s defense team has argued against including the instruction for reckless homicide and claim he is immune from prosecution under Ohio law.

COLUMBUS, Ohio — Prosecutors want to be able to include the lesser offense of reckless homicide for jurors to consider in the upcoming murder trial of Dr. William Husel.

Husel is accused of ordering potentially fatal doses of fentanyl to be given to patients under his care. All 35 identified by Mount Carmel hospital died, but prosecutors initially chose to focus their case on 25 patients who received 500 micrograms of the powerful painkiller. 

However, last week, a judge agreed to dismiss 11 of the counts.

Prosecutors now appear to have their case centered on 14 patients who received larger doses of fentanyl – most of whom received 1,000 micrograms or more.

Husel’s defense team has argued against including the instruction for reckless homicide and claim he is immune from prosecution under Ohio law. They have argued Husel was providing comfort care in their final moments of life.

In a separate motion filed last week, lawyers for Husel alleged he is immune from prosecution under a state law that provides immunity to physicians providing comfort care “even though the medical procedure, treatment, intervention, or other measure may appear to hasten or increase the risk of the patient’s death.”

“Dr. Husel cannot be charged with any lesser-included offense … because the immunity statute requires the state to prove that Dr. Husel caused the deaths of the charged patients. Thus, evidence of any lesser-included offense of murder is irrelevant to the determination of whether Dr. Husel purposely caused the death of the charged patients,” Husel’s attorneys Jose Baez and Diane Menashe wrote last week. “Even assuming… Dr. Husel acted negligently or recklessly in providing comfort care to the patients in the indictment, he would be immune from criminal prosecution pursuant to Ohio’s immunity law.”

But in a motion filed Thursday, prosecutors have argued that Husel’s attorneys are misinterpreting the immunity law and that the state has every right to include the lesser offense of reckless homicide for jurors to consider.

“The only difference between reckless homicide and purposeful murder is the offender’s intent. Defendant’s motion to exclude evidence on lesser-included offenses is without merit because by definition, no additional evidence is necessary to support lesser-included offenses of the charged crime,” Franklin County Prosecutor David Zeyen wrote in his response.

With the issue of immunity, prosecutors allege that Husel’s attorneys are misinterpreting that rule and should have asserted that claim sooner, rather than “on the eve trial.”

The Franklin County Prosecutor’s Office is asking Judge Holbrook to deny the defense’s motion in limine and proposed jury instruction to exclude reckless homicide.

In a Jan. 18 email to Judge Michael Holbrook, Zeyen explained the prosecution’s opposition to Husel’s claim of immunity and included the potential of reckless homicide, writing: “should the evidence warrant it, and the State believes it will, we will be asking the jury be instructed on the lesser included offense of “reckless homicide” for each of the charged offenses in the indictment. It is well established that reckless homicide is lesser included offense of purposeful murder, and we find nothing in the law that carves out a special exception for doctors in this regard."

Husel has pleaded not guilty to the charges. His trial is expected to start Feb. 14t.

Next week, 325 prospective jurors have been summoned for Wednesday, Thursday and Friday where they will be questioned about their availability for what could be a seven to eight-week trial. 

They’ll also be expected to be asked about pre-trial publicity with the case.

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