Ex-pharmacist's sentence at issue in drug-diluting case

ST. LOUIS -- An attorney for a former Kansas City pharmacist who diluted cancer drugs asked a federal appellate court Tuesday to throw out the man's 30-year prison sentence, calling the punishment unfair.

Robert Courtney's attorney, J.R. Hobbs of Kansas City, told a three-judge panel of the 8th U.S. Circuit Court of Appeals his client had agreed to serve 17 1/2 years to nearly 22 years behind bars under a plea deal with the government.

But that agreement also allowed federal prosecutors to argue that Courtney, 50, get at least three decades behind bars -- the punishment U.S. District Judge Ortrie Smith imposed last December in Kansas City.

On Tuesday, Hobbs told the 8th Circuit "the scope of the departure is inappropriate" in the case of Courtney.

Assistant U.S. Attorney Gene Porter countered that Courtney got what he deserved and the punishment should stand.

"I don't know if there's ever going to be a defendant like Mr. Courtney; I certainly hope not. If there's ever been a defendant worthy of a 30-year sentence ... it's Mr. Courtney," Porter said.

In sentencing Courtney, Smith said four factors caused him to impose the 30-year sentence. The judge ruled Courtney endangered the public health, subjected his victims to extreme psychological injury and should be held responsible for crimes he admitted but was not charged with. He also said some of the counts against Courtney were incorrectly grouped together under the guidelines.

"Mr. Courtney, your crimes are a shock to the civilized conscience," the judge told Courtney then, his voice wavering. "They are beyond understanding. I believe you when you say that you don't understand them."

On Tuesday, Hobbs argued all four factors cited by Smith "are in error." Among other things, Hobbs suggested his client's wrongdoing perhaps did not constitute a public health concern, which he said may apply more to the deadly 1983 Tylenol tampering cases or someone threatening public water systems.

The government has argued Courtney's drug-dilution convictions represent a fraction of his product tampering.

Though she did not attend Tuesday's hearing, Kim Comfort said by telephone from Kansas City that Courtney "should feel very blessed" he got three decades behind bars -- and lives. Comfort's mother, former Courtney customer Adelia Atwood, was 62 when she died of cancer on Feb. 10, 2001.

"He robbed her of her life and withheld the medications that were supposed to give her a complete recovery. He didn't give her a choice; he sentenced her to death," said Comfort, who said she plans to spend part of her 44th birthday on Friday at her mother's grave.

"The last year of my mother's life was unbearable, extremely miserable for her. She wanted to live. She wanted to be at her grandson's college graduation and to be planning her granddaughters' weddings. But he robbed my father of the woman he loved and his best friend, and he robbed us of our best friend."

Comfort called Courtney's sentence "extremely fair."

"If the judges who heard the appeal were to change the sentence and reduce it, they'd be murdering my mother all over again, just like Robert Courtney did," she said.

The 8th Circuit's ruling on Courtney's sentence could take months.