Mary Beth Buchanan’s expensive, high-profile, politically-loaded pursuit of Pittsburgh-area medical examiner Cyril Wecht has finally come to an end.

The Pittsburgh Post-Gazette says it’s time for her career to do the same.

When it finally came time to acknowledge the inevitable and seek to dismiss the charges, the U.S. attorney couldn’t resist taking one last stab at vindication, saying of Dr. Wecht, “He wasn’t acquitted of anything. It was a hung jury. However, in our society, everyone is innocent until proven guilty.”

Indeed. And as Ms. Buchanan spectacularly failed to prove Dr. Wecht’s guilt, that last insinuation of guilt was inappropriate. It is time for Ms. Buchanan to take responsibility for her failure and resign before President Barack Obama asks for her resignation, which he could not now be blamed for doing.

If President Obama is reluctant to pursue any sort of sanctions against the people who politicized the Justice Department for fear of appearing vindictive, he should at least take the time to review possible incidences of wrongful prosecution by the Bush administration’s more bloodthirsty U.S. attorneys.

He could start with Buchanan and the case of Dr. Bernard Rottschaefer.

A couple of weeks ago over at Hit & Run, Jacob Sullum blogged about a case in Kansas where the government seems to be targeting not only Stephen Schneider, a physician specializing in pain treatment and his wife Linda, but also Siobhan Reynolds, who heads up the pain patient advocacy group the Pain Relief Network.

Reynolds has become a sort of shoestring-budgeted PR machine for doctors under investigation whom she believes are getting railroaded. She educates local media on pain treatment, including the sometimes very high doses of medication needed to treat patients who have built up a tolerance to opiods. Her efforts in the Schneider case have resulted in some refreshingly balanced coverage. And that apparently has Assistant U.S. Attorney Tanya Treadway steaming.

As Sullum noted, last year Treadway tried to impose a gag order on Reynolds. She was denied. Several of Schneider’s patients who had spoken out on his behalf say shortly after, federal agents forced their way into their homes, in one case confiscating a letter Schneider had written from prison.

So Treadway is now calling Reynolds the “subject” of a grand jury investigation into possible obstruction of justice. Treadway has asked Reynolds to turn over all of her correspondence with pain patients, attorneys, the Schneiders, and just about everyone else in any way associated with the case. Reynolds is fighting the subpoena, and is now represented by the ACLU.

Last year, Treadway also attempted to bar the Schneiders from obtaining court-appointed counsel, citing their considerable wealth. The problem is that everything the Schneiders own is subject to forfeiture, meaning any attorney who agreed to take their case would do so knowing there would be a pretty good chance he’d never get paid. The government essentially argued that the accused couple should have no counsel in court (unless they could find someone to take the case pro bono), and be barred by law from having anyone defend them in public. When all of that failed, they asked for a change in venue, claiming that patients and Reynolds speaking out for the Schneiders had tainted the jury pool.

Treadway’s efforts are particularly egregious given that it has become pretty standard practice for U.S. attorneys to issue press releases and sometimes even call press conferences to announce when a physician has been indicted for over-prescribing painkillers—as they did in the Schneider case. The government can work the media and jury pool all it likes. But when a suspect gets an advocate who knows how to work the media, they first try to shut her up with a gag order, then intimidate her with a grand jury investigation.

But Treadway’s aggressiveness may well come back to bite her. Her office originally tried to link the Schneiders’ practice to 56 alleged patient overdose deaths. U.S. District Judge Monti Belot balked, and threw out all of the deaths but four. He then sternly warned Treadway not to appeal his decision. Belot also instructed the government not to use inflammatory descriptions like “pill mill” in front of the jury, another common tactic in these cases.

Treadway appealed anyway, delaying the Schneiders’ trial by months. The interesting thing is that her appeal allowed the defense to file a cross-appeal that will challenge not only Treadway’s attempt to link the Schneiders to the four remaining deaths, but also the government’s entire methodology of using “red flags” and questionable links to patient deaths to prosecute pain doctors. Reynolds, who has seen a lot of these cases, says it’s the first case she can recall where a federal appeals court will hear arguments on whether the government’s system of identifying what it says are drug diverting physicians is scientifically sound enough to be admitted into evidence.

One red flag the government uses, for example, is to look for physicians who simply prescribe a raw number of pills that investigators say is too high, a practice pain advocates say has made doctors afraid of engaging in the high-dose opiate therapy course of chronic pain treatment that’s been so effective. Other red flags include doctors who spend what investigators say is too little time with patients to make an accurate diagnosis, a problem pain advocates say has become increasingly common not because more doctors are selling scripts to addicts and drug dealers, but because the few doctors who do still treat chronic pain are overwhelmed with patients whose former doctors have been arrested, stripped of their licenses, or run out of business by investigations.

The Schneiders’ brief also argues that the government’s practice of linking deaths to opioids is problematic because such deaths often include patients who merely had high concentrations of opiates in their systems and died unexpectedly. Several of the patients who died of heart attacks, for example, weren’t checked for signs of heart disease. The heart attack plus a high concentration of opiods in their system was enough for the government to link the opiods to the heart attack.

The government’s argument that the Schneiders were causing a disproportionately high number of deaths also rests on comparing the number of clinic patients who died to the population at large, instead of to the number of patients undergoing treatment at a clinic not suspected of any wrongdoing. It isn’t all that difficult to see how patients undergoing treatment for chronic pain might have a higher mortality rate than the general population.

The federal government has been using these arguments to prosecute doctors for years, but to this point, there has never been a formal hearing to determine if there’s any actual science behind them. Pain specialists are skeptical. The general consensus is that red flags are fine for identifying potentially problematic doctors by, say, a medical board, but they’re simply not enough to find a doctor guilty of criminal wrongdoing. Pain specialist and pain organizations have also long decried the arbitrariness with which the red flags and ambiguous links to patient deaths are applied. Today, the U.S. Tenth Circuit Court of Appeals will hear their complaints.

There would be some poetic justice here if Treadway’s aggressive tactics in the Schneider case were to result not only in a fatal blow to her own cause, but in the Tenth Circuit becoming the first federal appeals court to call into question the very foundation of how the government builds its case against pain physicians.

My prior coverage of the pain issue here.

Remember, it’s not a war on pain doctors or their patients. Except that it really is.

New readers might want to check here for a primer. Or browse here if you have more time.

…of violating federal marijuana laws.

Maybe some right-winger can explain to me the wisdom of having a bullying, overbearing federal government forcing the states to deny sick people the medication that gives them relief. I’d also like someone on the right to explain to me why federalism should prevail when it comes to allowing the states to arrest gay people, ban dildoes, or to trample all over civil rights, but when it comes to letting sick people use marijuana to keep their medication down, we ought to genuflect before the power of the federal government.

Federal prosecutors painted a legitimate business owner who was operating with the consent of his state and local government as a “common drug dealer.” The federal judge then barred the defense from introducing evidence that he wasn’t, in fact, Marlow Stanfield. That is, he prevented the jury from hearing the truth. He prohibited the defense from mentioning that Lynch’s business was legal under state law, and he prohibited them from calling sick patients who benefited from Lynch’s business to testify on Lynch’s behalf. The trial, like all of these medical marijuana trials, was rigged for federal prosecutors from the start (and yeah, I know what the law says, and I know what the Supreme Court said in Raich. It’s wrong. And they’re wrong).

Lynch could get 100 years. “Compassionate conservatism,” my ass. Weep for your country.

PS: Nullify. Spread the word.

Here’s the most recent piece on the Lynch case from reason.tv:

Jack Shafer explains why the latest report on overdose deaths attributable to prescription drugs is mostly exaggerated.

We’ve seen this all before. Shafer debunks a media account of a study on prescription drug overdoses in Florida. Florida is also where the OxyContin panic started back in 2003–due in part to drug warriors and the media making the very same mistakes about a similar report from same Florida Medical Examiner’s Commission. People who died of drug overdoses with OxyContin in their systems were marked up as overdoses attributable to OxyContin. Never mind whatever they myriad other drugs that may have been present.

Because Oxy scripts had taken off at the time (do to its effectiveness, not to a glut of corrupt, drug-dealing doctors), naturally there would be an uptick in people visiting emergency rooms with OxyContin in their systems. There would also be an uptick in plumbers, city workers, and TV repairment with Oxy in their systems. Nevertheless, the narrative that emerged was that Oxy was “accidentally” addicting people, then killing them.

This led to full-blown media hysteria, a series in the Orlando Sentinel that was later retracted, legislative hearings, and all sorts of onerous legislation and investigations and regulatory and legal harassment of legitimate pain doctors and their patients. The lingering result is that it’s more difficult for pain patients to get a drug that actually works at the dosages they need.

Point being, these lazy media reports can have dramatic, real-world consequences.

Former U.S. Attorney David Igelsias says Mary Beth Buchanan’s decision to send FBI agents out to question members of the Wecth trial “smells of intimidation.” It’s also odd that federal prosecutors immediately announced they’d retry the case without polling the jury in the courtroom.

Also, we learn from the Pittsburgh Post-Gazette that the judge in the case gave attorneys from both sides strict orders not to record the names of the jurors. If that’s the case, how did Buchanan track them down to send FBI agents to their homes?

The lingering question, if this case show’s that Buchanan’s office is overly aggressive, driven by politics, and will bend (or break) the rules to win, why should she be given the benefit of the doubt in other cases? For example, one of the key points of contention in the post-trial action in the Rottschaefer case is the defense’s contention–and the prosecution’s denial–that the witnesses against the doctor were given deals. If Buchanan and her subordinates have proven themselves to be less than trustworthy in the Wecth case, oughtn’t that cause the courts to take a look at other cases, too?

You may remember her from such hits as "the persecution of Dr. Bernard Rottschaefer," "the first federal obscenity case in 20 years," and "the railroading of Tommy Chong."

Now it seems U.S. Attorney Mary Beth Buchanan may have finally stepped in it but good. This week, a federal jury hung on the 41 public corruption charges Buchanan brought against Pennsylvania medical examiner Dr. Cyril Wecht. A majority reportedly voted to acquit. This after a two-year investigation, a very sympathetic judge, and a bizarre trial in which the defense rested without calling a single witness. A loss or even a hung jury is rare for a U.S. attorney. Their conviction rate is over 95 percent.

Wecht’s attorneys—including former GOP Attorney General Dick Thornberg—say the case was entirely driven by politics (Wecht is an outspoken Democrat). They point out that the trial itself cost about $200,000, while the total amount of money Wecht is alleged to have used from his public position to aid his private practice amounts to about $1,700.

In one post-trial interview, the jury foreman seemed to agree. The feds immediately announced plan to try Wecht again.

What I’m wondering is how the Department of Justice can see fit to spend two years and likely seven figures in taxpayer dollars to investigate a medical examiner for sending personal faxes on his publicly-owned machine, but thus far has seen no reason to look into Mississippi’s Dr. Steven Hayne.

I’ve argued before that the real scandal with this Justice Department is not that it fired a bunch of prosecutors who didn’t share the administration’s priorities and political agenda. The real scandal is just how screwed-up those priorities and that agenda actually are.

After first attempting to deny them the right to counsel, the government is now seeking a gag order to prevent a defendant pain physician, his wife, their family, and his advocates, supporters and former patients from even talking to anyone about their case.

Steven Schneider of Kansas is the latest doctor in the federal government’s crosshairs for over-prescribing painkillers. Schneider ans his wife (who was also arrested) have enlisted the help of pain activist Siobhan Reynolds and her organization, the Pain Relief Network. Reynolds has mounted an aggressive counter-campaign on behalf of Schneider and his patients (who overwhelmingly support him) that goes so far as to question the constitutionality of the Controlled Substances Act (a move that’s admirable, but not likely to be successful).

State and federal authorities have responded by threatening Reynolds with criminal penalties for practicing law without a license. Schneider’s patients now say federal investigators are illegally entering their homes and intimidating them.

Now several Schneider patients say federal agents are forcing their way into their homes without warrants, asking a lot of questions, and even taking items that don’t belong to them.

“They grabbed the door and jerked it open,” says one patient who spoke to KAKE News on a condition of anonymity. “And then they grabbed my left arm and pulled it up behind me. They said we can do this the easy way or the hard way.”

This patient says the agents even took a hand written letter that Schneider wrote her from prison.

The US Attorney’s Office says they can’t comment on specific cases, but they say a warrant is required in order to search someone’s home or to force a person to hand over something that belongs to them. However, a warrant is not needed to talk to someone or to ask for something.

Schneider’s former patients now can’t find doctors to treat even their ailments not related to pain because of the taint that comes with being the patient of an indicted doctor. No doctor wants to risk his own federal investigation. And merely seeing the patient of a doctor under indictment–particularly a pain patient–is enough to get federal authorities sniffing around your office.

The federal government has been particularly underhanded in this case. Early on, they argued against allowing the Schneiders to have a court-appointed attorney, citing the couple’s $700,000 in assets. Problem is, the government was simultaneously attempting to seize those assets under forfeiture laws, meaning any lawyer who took the case stood a good chance of not getting paid. Which meant the couple’s only real hope was a lawyer willing to take the case pro bono.

As with all of these prosecutions of doctors, it’s entirely possible that there were drug addicts among the couple’s patients. The questions here are (1) are addicts allowed to be treated by doctors, too? (2) should doctors who get duped by addicts be held liable for being gullible? (3) should they be held criminally liable? (4) should drug cops and political appointees with no medical training be dictating the difference between acceptable medical treatment and the criminal prescribing of opioid pain medication?

You can probably guess how I’d answer those questions. Meanwhile, it becomes increasingly difficult for people in chronic pain to find doctors willing to treat them. Everybody is scared. And a promising new treatment–high-dose opioid therapy–is being held hostage by overly aggressive cops and prosecutors.

Looking back through old emails, I found one from Dr. Bernard Rottschaefer’s son, which outlined the problems with the government’s expert in the criminal trial. Those problems are numerous. Remember, this is the “expert” the government used to supplement the five patient witnesses, all of whom later admitted in civil suits that they gave false testimony.

The guy knew very little about pain management, particularly the management of chronic pain.

• Dr. Clough was unable to read electronic medical charts.• Dr. Clough admitted to not receiving all the medical records.• Dr. Clough admitted to only reviewing parts of the records he did receive.

• Dr. Clough admitted to post dating controlled substance prescriptions (which was illegal at the time of the trial for under both Pennsylvania and federal law).

• Dr. Clough admitted to having few patients on chronic pain medications (5 in total).

• Dr. Clough admitted to not knowing or having a working knowledge of the blackbox warning of Oxycontin within the Physician Desk Reference. This publication is the gold standard on the proper measures in prescribing a medication and the black box is the strongest warning offered.

• Dr. Clough admitted to having both limited education in pain management and having limited continuous education in pain management.

• Dr. Clough recommended Oxycontin on an as needed basis within his opinion (this is contrary to the FDA approval of the medication and the generally accepted standard). Basically, Dr. Clough recommended taking Oxycontin, a long-acting pain management medication, like a tylenol for a headache.

• Dr. Clough inferred that monthly follow up and monitoring of patients on chronic pain medication is not the medical community standard.

• Dr. Clough admitted that there is no requirement to run tests in order to prescribe Oxycontin to a patient.

• Dr. Clough never met or reviewed the patients in person. He merely reviewed the charts.

• Dr. Clough described and referred to Duragesic (Fentanyl) as “pharmaceutical heroin” before the jury. This is slanderous and wrong.

• Dr. Clough viewed 20 mg of Oxycontin as an excessively high dosage. This is the second lowest dosage for which the medication is available. Oxycontin comes in 10mg, 20mg, 80mg, and 160mg.

• Dr. Clough viewed .5mg of Xanax as an excessively high dose; however this is the second lowest dosage for which that medication is available.

• Dr. Clough admitted to not being familiar with the medical procedure know as air acupuncture.

The full patient records revealed that the women for which the government says Dr. Rottschaefer was wrongly prescribing these medications were getting similar or identical medications from other doctors, none of whom were prosecuted. For this “expertise,” the government paid Dr. Clough $11,000 of your tax dollars so they could put put Dr. Rottschaefer in prison.

The Third Circuit has denied Dr. Bernard Rottschaefer’s appeal.

For background, read my column on the initial prosecution of Rottschaefer here.

The justices declined to hear oral arguments in the case and, judging by the curt opinion, it looks as if they didn’t bother to read the briefs, either. Rottschaefer’s lawyers put together a compelling appeal with new evidence that every government witness against Rottschaefer gave false or misleading testimony. The Third Circuit dismissed those claims in all of two-and-a-half pages.

Incidentally, U.S. Attorney Mary Beth Buchanan’s star witness in the case against Rottschaefer, Jennifer Riggle, is currently a fugitive from justice for other crimes. The career criminal admitted in letters to her boyfriend that she lied on the stand during Rottschaefer’s trial as part of a plea for leniency on her own charges. To this day, Buchanan maintains that despite all of that, Riggle was telling the truth on the stand and Rottschaefer–a doctor with no prior record whatsoever–was lying.

Meanwhile, instead of prosecuting Riggle for her admitted perjury in Rottschaefer’s case, Buchanan has taken to more important matters, like prosecuting a woman for writing fictional (though admittedly depraved) stories on the Internet. Even a former Republican attorney general has called for her to resign, due to her baldly political prosecution in another case. Buchanan also brought the absurd bong case against Tommy Chong, and the first federal obscenity case in 20 years. She may not give a damn about justice, but she’s got a nose for the headlines.

She won’t resign, of course. It’s no secret in Pennsylvania that Buchanan’s angling for a career in politics. She certainly seems to have the moral compass for it.

Over at Reddit, someone reposted this old Stanton Peele piece on Cindy McCain. It’s worth revisiting:

McCain was investigated by the Drug Enforcement Administration after the agency was approached by a former staff member of her charity. The investigation resulted in no charges or prison time for her, and she entered a diversion program. While these records were not made public at the time, Mrs. McCain eventually confessed her drug use when she learned that a reporter was investigating the story.

Is Mrs. McCain to be judged as a pitiable victim or as a criminal felon? This debate is at the heart of the discussion of American drug policy. Should we deal with illicit drug users as victims or as criminals?

Let’s examine Mrs. McCain’s position in these terms. She was the privileged wife of a prominent family and spouse of an important politician, a person who had her own position of prestige and power. Should she not be held at least as accountable for her actions as an uneducated inner-city drug user? After all, she could enter drug treatment at any time she chose, unlike many drug users who find themselves in prison.

Moreover, Mrs. McCain was violating a position of trust by stealing from a charitable organization, using its money and medical expertise to fuel her drug use. Is this not morally more reprehensible than simply purchasing drugs illegally?

Finally, Mrs. McCain was the mother of four children at the time she admits to using drugs–between 1989 and 1992. Her children were born in 1984, 1986, 1988 and 1991. In other words, Cindy McCain was using drugs while raising small children, one of whom she adopted while she was an addict. In most states, family services will remove children from a woman who is known to be an active drug addict, and she would certainly not be allowed to adopt a child while addicted.

John McCain is a hawk in the drug war. He advocates stricter drug laws, penalties and enforcement against drug sellers. He has had nothing to say about redressing our punitive approach toward drug users. Of course, McCain also supports family values. Yet if John and Cindy McCain were not well-off and influential, they might not have a family at all. McCain’s lack of concern for street drug users contrasts sharply with the support and understanding his wife received.

McCain’s condescending, dismissive attitude toward medical marijuana patients only exacerbates the hypocrisy. Cindy McCain’s powerful husband and high profile probably had something to do with the fact that she didn’t get the Richard Paey treatment. But as with Rush Limbaugh, prosecutors likely laid off of her also because she played the drug war game—she admitted she was an “addict,” repented, and sought treatment. Paey had the audacity to insist that he oughtn’t go to jail for treating his own pain, and that he wasn’t an “addict,” but a chronic pain patient who was dependent on the medication in order to lead a normal life.

Contra my friend Jeremy Lott, the problem with the hypocritical practice of letting politicians’ family members get off for drug crimes that land normal people in prison is that it doesn’t seem to do much in the way of making them more sympathetic. It just hardens them into more militant drug warriors. We have to throw Richard Paey in prison so we don’t get any more Cindy McCains. See the logic?

Before you vote, be sure to read up on the candidates below. A couple of caveats: Since this is the first year of what I’m sure will (unfortunately) be an annual award with many deserving candidates, some of the transgressions committed by this year’snominees extend back to before 2007. I’m also taking two candidates out of consideration. The first is Alberto Gonzalez, mostly because he’d be the overwhelming winner if I included him. The other is Mike Nifong, who while certainly deserving, has at least been held accountable for his transgressions. The prosecutors below have not.

The nominees are…

Horan retired in September. Ebert won reelection this year.

DEA Administrator Karen Tandy is retiring. She’ll be taking an executive position with Motorola, also the chief corporate sponsor of the DEA’s traveling exhibit that attempts to link drug use to September 11 (also a company I won’t be patronizing anytime soon).

Tandy’s tenure got off to an awkward start when medical marijuana activist and post-polio patient Suzanne Pfeil attempted to give her a letter at her confirmation hearings in 2003. Pfeil became an activist after she was awoken in 2002 by DEA agents raiding the treatment facility where she was staying. She opened her eyes to see assault weapons pointed at her head. When the agents ordered her to stand, Pfeil, a paraplegic, replied that she couldn’t. So they cuffed her hands behind her back and left her on the bed for hours.

When Pfeil tried to give Tandy a letter detailing her ordeal, Tandy rather ungracefully ducked out a back door, then fled down a Capitol Hill hallway as Pfeil followed in her motorized wheelchair.

Tandy also presided over much of the DEA’s painkiller witch-hunt. Her tenure included the debacle where the DEA graciously agreed to post a set of guidelines doctors could follow when prescribing opiods to ensure they were complying with the law, but then pulled the guidelines down when lawyers for pain specialist Dr. William Hurwitz attempted to use them in his defense against drug trafficking charges. Under Tandy, pain patients and their doctors would get no quarter. The law would be whatever the DEA said it was, and the agency reserved the right to change what the law would be on a case-by-case basis.

Tandy once sent a letter to the editor in reply to an op-ed I wrote on the painkiller issue. I took apart her reply line-by-line here.

But if I had to name just one "highlight" of Tandy’s reign at the DEA, I’d have to go with her spirited defense of alcohol prohibition, which in itself says a lot about how she approached the drug war.

Given the nature of the job, I doubt the next DEA administrator will be any better than Tandy. But you really couldn’t do much worse.

One other notable item from the Washington Post article linked above—we now have DEA agents in 85 countries around the world.

His clemency hearing is tomorrow, and should things go well, he could be released.

Let’s hope it goes well. Then it’s time to get started on changing Florida’s odious painkiller statutes.

Last year, I linked to a local news report about Penny Spence. Hers is yet another case of painkiller hysteria from the same state that brought you Richard Paey’s 25-year prison sentence, and Mark O’Hara’s felony conviction for possession of Vicodin tablets for which he had prescription.

Spence was arrested when, after a 2005 car accident, a police officer reached into her purse and found 48 Percocet pills for which Spence did not have a prescription (Spence was not driving under the influence of the medication at the time). The total weight of controlled narcotic in the pills amounted to less than half a gram. But as was the case in the state’s pursuit of Richard Paey, for purposes of charging and sentencing, Florida law counts the total weight of all the medication in which the controlled substance is contained. In this case, prosecutors threatened to charge Spence for the full 49 grams of pills in the bottle, even though they were 99 percent Tylenol.

Spence admitted at the scene she was self-medicating with the Percocet. She’d begun to suffer severe back pain after serving as the primary caretaker for her mother, who had recently died of Lou Gherig’s Disease. The Percocet had originally been prescribed for her mother. Spence had no prior criminal record, and there was no evidence she has distributed the medication to anyone else.

Nevertheless, prosecutors threatened her with a 25-year sentence unless she plead to a felony. Spence didn’t want to plea, because she had hopes of becoming a nurse, which she wouldn’t have been able to do with a felony on her record. Prosecutors showed no mercy:

…prosecutor Daus expressed amazement that anyone would criticize the house arrest deal he offered Spence—something not all narcotics defendants receive.

"If I had said, ‘She’s getting 25 years in prison, there’s no deal,’ you’d have a good story,’ " Daus said. "But I think I made her a fair deal. She would have no prison time. It shows the system does work. I think [FAMM] should be giving me an award."

Spence, he said, "just wants to have her cake and eat it too."

I first wrote about this case on my personal blog last year. Last week, I found Spence’s sister on an email forum about the painkiller issue. Spence’s sister says that because Spence feared she’d get the same 25-year, maximum-security-prison sentence given to Richard Paey, Spence agreed to plea no contest to drug trafficking. For possessing less than half a gram of Percocet without a prescription, she was sentenced to a year of house arrest and three years of probation. She’s also now a convicted felon.

If you’ve ever taken a friend or family member’s prescription pain medication to self-medicate, take note.