Anatomy of a Physician Prosecution

Over the last several years, I have been reviewing hundreds of physician prosecutions, trying to answer a simple question.  How does the federal government get members of a grand jury to indict an innocent doctor? It turns out to be really simple.  You feed them false information.  I’m not talking about differences of opinion; I’m talking about allowing government witnesses to go in front of a grand jury and say things that records in the government’s possession prove are false.  I refer you to a recent case where the DEA was pursuing a specific physician after their algorithm had flagged his practice.  This doctor worked at the confluence of four states, so avoiding “out of state” patients was nonsensical.  One of the four states was Texas, and the city the doctor practiced in was about an hour and a half drive from any other similar sized city.  This means that patients in between these cities will need to drive at least sixty miles at 75mph one way: Thereby exceeding the 25-mile trigger point noted in multiple prosecutions of physicians and used as evidence of a “pill mill” at trial.

Once targeted the government placed agents at intersections around the clinic, pretending to be advocates of medical cannabis, asking patients who stopped at the lights to sign a petition, filling out their names and addresses.  Using this and license plate information they then scanned the doctor’s patients for anyone with a criminal record or who was on probation.  Once these patients were identified they were pulled over by local police working with the federal authorities on pretext stops, and their cars searched.  If you are on probation, you lose your right to deny the search, if someone is not on probation and refuses consent the officer can “smell marijuana” and use that pretext to call a canine unit and search the car.

Now it is not impossible that many chronic pain patients who are advocates of medical cannabis have experience informing their advocacy and may perhaps have something in the car of a contraband nature.  Now the agents have a compromised patient, one who is more fearful of jail than most, knowing that their chronic pain will be ignored on the inside, and that they will suffer terribly.  Then they take the patient downtown for questioning by federal and state authorities.  This is not to see if the doctor is good or bad, in the relevant case above a patient later said during his interrogation that when he said the doctor was a good physician trying to help people the agents got angry and shouted, “No, he’s not.”  So this is not a search for truthful evidence, this is a manufacturing process, designed to produce the desired outcome, which has been predetermined as surely as any convicted by the Spanish inquisition.

The desired product of the patient is a familiar litany of canned statements that we have seen in hundreds of prosecutions.  Patients drove “great distances” to see the doctor who took “no vital signs” and was known as “Doctor Feelgood” etc.  In the above case, the witness who went before the grand jury was desperate.  He had indeed been caught trading or selling his medication.  It may seem contradictory that a patient with true severe chronic pain would do so, but don’t be mistaken, this is not uncommon.  Disabled patients must often choose between having food or paying the rent, as disability payments are far below any reasonable level of subsistence and selling a few of their pills means a little more agony but not being on the street or starving.  It is a choice only the chronically comfortable would fail to understand, even if it can not be condoned, as it places everyone at risk.

This patient was looking at a decade or more behind bars which, with his medical condition, would be almost certainly fatal.  He was going to be the government’s star witness against the doctor but there was one small problem.  Prior to the government’s targeting of this patient, he had tested positive for an unprescribed narcotic, and had received the following notice from the practice. “It has come to our attention that you may be using your medication in an unsafe manner.  We will taper and discontinue your medication over a reasonable period of time and offer you opiate treatment to help you through this transition.  We understand that you have a medical condition that warrants pain management but do not feel that you can continue to safely use your medication at this time.  We will offer you a treatment program that will, over time, allow you to discontinue all dangerous narcotics.  If you choose to seek medical care elsewhere, we will offer a referral.  Please understand that this action is taken out of concern for your health and safety.”

The patient did indeed want to be seen elsewhere and, at least until recently, a second opinion was considered reasonable care.  Now when two doctors have a difference of opinion the DEA thinks one or the other of them needs some prison therapy, but I digress.  The patient was referred to a pain specialist and was eventually continued on opiate pain medications.  So, after his arrest and with full access to his medical records what did the federal government let him say to the grand jury?  First, that he had stopped seeing the doctor on his own after the doctor had “killed his friend”.  Second, that the doctor never took vital signs, despite the government having the medical records showing clearly that vital signs were taken every visit without fail, and third, that the doctor, “handed out prescriptions in the waiting room”, without seeing patients, despite the fact that the government had been told in virtually all the patient interviews that the doctor took up to thirty minutes seeing each patient, which made for long waits.

But isn’t it a crime to give false sworn testimony in a US court? Perjury? It is indeed.  But you invariably find that witnesses only get prosecuted when they say something the government doesn’t like, and the only people with the power to prosecute a federal attorney or witness is a federal attorney.  For some reason, these people rarely choose to prosecute themselves.  But what about the records proving this witness’s statements were false?  And the taped statements from patients supportive of the doctor? The government had those.  Wouldn’t they have to be turned over to the defense?  No.  In a grand jury, there is no defense, the government is allowed to say and present anything they want.  At the grand jury they don’t even need to pretend to be fair, with the assumption that any falsity will be exposed at trial.

But I’ve already told you that the government has absolute control over the evidence and witnesses at trial.  Witnesses can be pressured, threatened, and rewarded by federal agents and attorneys but somehow this is not considered “coercion”.  In the above case recorded statements made supporting this doctor were not turned over to the defense and prior false statements to the grand jury did not prevent the government from putting a witness on the stand at trial.   Now before you tell me that they “can’t” do this because it would be illegal, I will remind you that while they shouldn’t do it, there is no mechanism to ensure that they do not, or to punish them when they do.  I draw your attention to a recent case where two federal attorneys were caught withholding exculpatory evidence from a grand jury and the defense, resulting in an innocent man spending five years in federal prison.  In a rare attempt at accountability, the trial judge tried to suspend these attorneys from practice for six months, only to have the appellate court rule that this would be “too harsh”, overturning even this meager punishment.  And federal attorneys have absolute immunity from civil action, leaving them essentially above the law.

But can’t judges correct things?  Willfully withholding evidence favorable to the accused would be considered a Brady violation, so named for the famous case of Brady v. Maryland, where the prosecutor had withheld evidence indicating an alternative perpetrator was involved, thereby blocking the defense from raising this possibility to the jury, and this is the crux of the matter. State courts and police are justly held to account when they violate the constitution, but who has the power and will to hold federal prosecutors accountable?  The answer is no one.  The federal prosecutors have complete access to all the evidence and witnesses.  And in the case of evidence, no one knows what will be relevant to any specific jury much less an individual juror.  Life and liberty can hinge on facial expressions and biases.  By restricting the defense’s access to these, the prosecutor is able to obviate the very possibility of  raising a defense, leaving the physician exposed to any claim by the government’s paid witnesses.  No matter how contrary to evidence based medical science.

We say that our judicial process is adversarial, but this is impossible when your opponent possesses all the ammunition and gets to dole it out to his “opponent.”  By allowing government witnesses to give false testimony, testimony the government knew, should have known, or were willfully blind to being false, while at the same time allowing the prosecutor to be the arbiter of what evidence the defense is allowed to have, puts the accused not just at a disadvantage, but on a playing field so tilted in favor of the government that it looks like El Capitan.

Now before you think the US Supreme Court will step in and correct this behavior, I must refer you to a case from 2017, when a divided court ruled that the defendant proving that a Brady violation had occurred was itself insufficient to overturn the conviction.  They also had to prove that the suppressed evidence would “undermine confidence in the outcome of the trial”, creating a “reasonable probability” that there would have been a “different result”.  An impossible standard without direct access to the jurors, as noted by the dissenters, Justices Kagan and Ginsburg, who noted that if the withheld evidence “had a reasonable probability of changing a single jurors vote” then relief should be granted.