Category: Pain Treatment

Science in the Courtroom

Tuesday, January 24th, 2012

I’m currently working on a piece for Huffington Post on the latest prescription painkiller hysteria. In researching the piece, I found this 2010 Time piece by Maia Szalavitz on how post-mortem overdose diagnoses may be overstated.

The problem is that it’s difficult to isolated a particular drug as cause of death. So the rise in opioid-related overdose deaths that the CDC and numerous media outlets have been screaming about for the last few months could be the result of lots of people ODing on painkillers, or it could merely be that because more people are taking painkillers, more people are likely to have painkillers in their systems when they die. Hence, the use of the term “opioid-related” to describe these deaths. That allows panic-sowing without the need to establish any causal connection. (It’s similar to the way the government calculates “marijuana-related emergency room incidents.)

But the problem gets more urgent when we start using these diagnoses in court, as the government has done in the trials of doctors accused of contributing to a patient’s overdose death.

It’s here that the opinions of one of  Szalavitz’s sources seem particularly troubling.

Given the state of the science, then, should it be used in court? Ed Cheng, a professor of law at Brooklyn Law School and expert on scientific testimony, says, yes, noting that more research is still needed. “If we were to require studies and statistical assessment on every assertion, almost nothing would be able to be used in court. My view on this is that the question here is not throwing the baby out with the bathwater,” says Cheng. “It’s clear that the forensic sciences do not have as much of an empirical basis as we would like them to have. The question becomes how do we motivate them sufficiently to come up with the empirical basis that we want?”

In the Schneider case, which entered jury deliberations on Wednesday, the defense team sought and failed to prevent the jury from hearing testimony that it believed did not have sufficient scientific foundations. But according to Cheng, it may be preferable to let the jury hear both sides of the scientific dispute and make up their own minds. “I myself have floated between the poles on this,” he says. “I’m currently more on the ‘Let the jury hear it’ side. I’m not convinced that good science and bad science is always cut and dried.”

“Let the jury hear it” sounds great on its face. But there’s more to it than that. If the science linking a particular drug to a particular overdose isn’t established–if the scientific community is split over whether you can make that connection–then the jury shouldn’t hear it. (If nothing else, that would seem to establish reasonable doubt.)

Yes, we do have an adversarial judicial system. But lay juries aren’t trained scientists. Most people don’t know what to look for  when evaluating the veracity of some science-based claim. Get two scientific-sounding witnesses pitching the jury competing or mutually-exclusive theories, and the winner will more often be not who advocated the best science, but who was a better expert witness. Or more bluntly, who was a better salesman.

We’ve seen this over and over again with bite mark testimony. Frauds like Michael West have sold crap science to juries for years, sometimes unopposed, but often opposed by more credible experts. Even now, with a solid consensus in the forensics community that you can’t “match” bite marks in skin to one person to the exclusion of everyone else, we still see appeals courts shoot down post-conviction petitions on the grounds that the defense already challenged the state’s expert at trial, and the jury found the prosecution’s witness more convincing. It doesn’t seem to matter that we now know the prosecution’s witness was spewing pseudo-science hokum.

I think you could make a strong case that West was able to persuade juries because he didn’t sound scientific. I’ve read more than a few trial transcripts where West and the prosecutor would actually use an opposing expert’s credentials against him, contrasting him as a fancy out-of-town hired gun with a bunch of letters after his name with West, the local dentist just trying to do the right thing, helping put bad guys away with intuition, common sense, and some self-taught expertise. The scary thing is that when you see West in action, he sounds convincing, even when you know he’s a fraud.

Of course, West is only one example (although he is one of the most egregious). I don’t know the best way to determine what science has reached enough of a consensus to be used in a courtroom, but leaving the decision to individual juries on a case-by-case basis seems like a bad idea. In the federal courts, and in much of the country, challenges to scientific evidence are currently resolved by the judge in what’s called a Daubert hearing. From my understanding, while those hearings have done a decent (but far from perfect) job keeping junk science out of civil cases, the process has been less successful at keeping it out of criminal cases.

Skeptical as I am of blue ribbon commissions, this may be one area where we’re best off having an established, accredited panel of specialists set policy.

Lunch Links

Monday, January 16th, 2012

Morning Links

Wednesday, January 4th, 2012

Morning Links

Wednesday, December 28th, 2011
  • Not The Onion: Californians will vote on whether porn stars should be required to wear condoms.
  • It’s all just going to get dumber and dumber until November.
  • Gene Healy: the five worst op-eds of 2011. His delightfully Friedmanesque closer: “And so, my friends, we roll up our sleeves and limp forward, hunkered down to face what 2012 holds, our boats borne back ceaselessly into the past, yet always, always, twirling toward freedom.”
  • Alternet publishes article calling for government monitoring of doctors and their pain patients, a crackdown on prescription painkillers, and generally expanding the drug war, all because . . . corporations are evil. And Florida’s governor loves the Tea Party. Or something.
  • A list of all the new reasons for which governments will send you to jail, starting on Sunday.
  • Woman says she was arrested, had her phone confiscated after trying to record a police beating in North Carolina.

Siobhan Reynolds, RIP

Monday, December 26th, 2011

I’m saddened to learn this morning that Siobhan Reynolds was killed over the weekend in a plane crash.

I met Reynolds several years ago when I attended a forum on Capitol Hill on the under-treatment of pain. Her story about her husband’s chronic pain was so heartbreaking it moved me to take an interest in the issue. I eventually commissioned and edited a paper on the DEA and pain treatment while I was working for Cato.

Reynolds was tireless and fierce. She ran her advocacy group the Pain Relief Network on a thin budget. She often used her own money to travel to towns and cities where she felt prosecutors were unfairly targeting a doctor. Then she’d fight back. And sometimes she’d win. The DEA and federal prosecutors she fought weren’t really accustomed to that. They were accustomed to holding self-promoting press conferences where they’d hold up big bags of pills, thus winning glowing write-ups from doting, unskeptical journalists. Reynolds put those bags of pills into context. She talked about the lives made livable with opiate therapy. She encouraged pain patients whose lives these doctors saved to speak up and speak out. And she educated journalists.

There aren’t very many people who can claim that they’ve personally changed the public debate about an issue. Reynolds could. Before her crusade, no one was really talking about the under-treatment of pain. The media was still wrapped up in scare stories about “accidental addiction” to prescription painkillers and telling dramatic (and often false) tales about patients whose lazy doctors got them hooked on Oxycontin. Reynolds toured the country to point out that, in fact, the real problem is that pain patients are suffering, particularly patients with long-term chronic pain. And because of the government’s harassment, there are increasingly fewer doctors willing to treat them. Thanks to Reynolds, the major newsweeklies, the New York Times, and a number of other national media outlets began asking if the DEA’s war on pain doctors had gone too far.

Reynolds’ passion stemmed from watching her ex-husband agonize from his pain, and later her belief that his death was due to his inability to get treatment. She was haunted by the prospect that her son could inherit the same condition and face the same obstacles. What infuriated her  most was that this was never a problem of not knowing what relieves chronic pain. This wasn’t about the need for more research. Her husband had found relief in high-dose opioid therapy. The problem was that in its ceaseless efforts to stop people from getting high, the government had blocked that relief, imprisoned the doctor who administered it, and thus condemned her husband to suffer. (Watch The Chilling Effect, the movie Reynolds produced about her ex-husband’s fight here.)

Reynolds was admirably persistent. I often thought she was often a bit too idealistic, or at least that she set her goals too high. She told me once that she wouldn’t consider her work done until the Supreme Court declared the Controlled Substances Act unconstitutional. That’s an admirable goal, but not a particularly practical one. She often frustrated efforts to build a coalition on the issue because she’d grown weary of medical organizations and academics who, while concerned about the issue, she thought were too cowardly to take a more aggressive stand.

But Reynolds did begin to win her battles. She deserves a good deal of the credit for getting Richard Paey out of prison. She got some sentences overturned, and connected accused doctors to attorneys who know the proper way to fight for them in court. That led to some acquittals.

Of course, the government doesn’t like a rabble-rouser. It’s especially wary of rabble-rousers who start to accumulate victories. And so as Reynolds’ advocacy began to move the ball and get real results, the government hit back. When Reynolds began a campaign on behalf of Kansas physician Stephen Schneider, who had been indicted for over-prescribing painkillers, Assistant U.S. Attorney Tanya Treadway launched a blatantly vindictive attack on Reynolds’ right to free speech. Treadway opened a criminal investigation into Reynolds and her organization, attempting to paint Reynolds’ advocacy as obstruction of justice. Treadway then issued a sweeping subpoena for all email correspondence, phone records, and other documents that, had Reynolds complied, would have meant the end of her organization. Treadway wanted records of Reynolds’ private conversations with attorneys, doctors, and pain patients and their families. It was unconscionable. The government was demanding that she turn over all records of her conversations with suffering patients. (Some of whom undoubtedly sought out extra-legal ways to relieve their pain, since the government had made it impossible for them to find legal relief.)

So Reynolds fought the subpoena, all the way to the U.S. Supreme Court. And she lost. Not only did she lose, but the government, with compliance from the federal courts, was able to keep the entire fight sealed. The briefs for the case are secret. The judges’ rulings are secret. Reynolds was barred from sharing her own briefs with the press. Perversely, Treadway had used the very grand jury secrecy intended to protect Reynolds as a gag to censor her. The case was a startling example not only of how far a prosecutor will go to tear down a critic, but of how much power they have to do so.

The sad thing is that it worked. The Pain Relief Network went under. Reynolds also lost a good deal of her own money. She was never charged with any crime. But that was never the point. It was a transparent and malicious effort to neutralize a pestering critic. And it was successful.  (I wrote a piece for Slate on Treadway’s vendetta against Reynolds.) Despite all that, the last time I spoke with Reynolds she working on plans to start a new advocacy group for pain patients.

Reynolds was an unwearying, unwavering activist for personal freedom. She not only became a martyr for the rights of pain patients, but also for free expression and political dissent.

And she died fighting.

Rest in peace.

UPDATE: More tributes to Reynolds from Jacob Sullum, David Borden, and Robert Higgs. Higgs quotes from an email he sent to Reynolds two days before her death:

You have had no way to have known, but you have been one of my heroes (and I have very few) ever since I learned, more or less by chance, about your efforts on behalf of people denied pain relief by the whole congeries of sadistic government laws, functionaries, and activities aimed at keeping them in pain. I have the greatest respect for you and the few others who have the courage to do something concrete to fight the power.

Please accept my very best wishes for a happy Christmas and for better days to come. And please know, too, of the great esteem in which I hold you.

UPDATE II: Richard Paey’s wife Linda left this in the comments:

Siobhan, an amazing force focused on defending the rights of people in pain and their doctors, she was relentless in this pursuit. My husband and I owe her a debt of gratitude, one that we could never repay. Siobhan was responsible for moving the nation to support the release of my husband, Richard Paey from a Florida prison. Her impact on pain patients and the issue of undertreatment of pain is her legacy. We will all miss her loud and strong voice. My heart and my prayers goes out to her son.



Morning Links

Monday, November 28th, 2011
  • The Bernie Fine story keeps getting stranger. His wife apparently had an affair with one of his accusers. Another accuser’s father says he’s lying, and the accuser is himself facing sexual assault charges. Two of the accusers are also step-brothers. None of which means Fine is innocent. It just means we should probably wait a bit longer before assuming he’s guilty.
  • Fed gave biggest banks billions in secret, low-interest loans.
  • With the exception of the last one, I’m fairly sure every category of ads in this article has been run against a prominent male politician.
  • Tennessee constables get kickbacks from the state for writing citations.
  • Heard an ad for the site on Sirius the other day. Your thoughts? Disgusting, or just a more transparent way of dating? Both?
  • Emma Sullivan, hero of the week.
  • Washington State law to take effect next month is likely to make it yet more difficult for pain patients to find doctors who will treat them.

Oxy Babies and Crack Babies

Tuesday, November 15th, 2011

In this hysterical USA Today piece about infants born addicted to prescription painkillers, Florida Attorney General Pam Bondi says, “I’m scared to death this will become the crack-baby epidemic.”

I agree. I hope this doesn’t turn into an excuse to pass a bunch of dumb laws that will restrict personal freedom and impose draconian sentences on people who commit nonviolent offenses, all in response to a hyped-up, non-existent problem drummed up by the media and drug warriors. The “Oxy baby” narrative has the added potential to further chill the treatment of chronic pain.

It may well be that this is a huge and growing problem. But I don’t find the USA Today piece all that convincing. In 2009, the New York Times looked at recent studies of what has happened to “crack babies.” Turns out, the consensus seems to be that the biggest hurdle they’ve had to overcome is the fact that they’ve been called “crack babies” all their lives.

Morning Links

Thursday, April 28th, 2011

Morning Links

Friday, February 25th, 2011
  • It’s still legal, for now, to grow your own tobacco in Brooklyn. What’s sad is that New York has imposed the phalanx of restrictions that make an article like this contemplatable. (Yes, I’m pretty sure I just made that word up.)
  • Jury nullification advocate is indicted in federal court for jury tampering. I have a feeling we’re going to be hearing much, much more about this case in the coming years.
  • Huge wave of pain clinic raids in Florida. Note that the USA Today couldn’t find room in a very long article to quote even one critic of these crackdowns.
  • In Esquire, a long profile of exoneree Ray Towler.
  • Why liberals should support eminent domain reform. This is a pretty important credibility issue for the left. We aren’t talking about public use, here. If you can’t bring yourself to support laws barring the government from taking land from poor people to give it to rich developers, it’s pretty darned clear that your priority isn’t protecting or advocating for the poor, it’s preserving government power. Or just opposing property rights because you don’t like the people who support them.

Another Pain Doctor Raided

Saturday, January 15th, 2011

I don’t know any more than what was reported by the local paper. But this editorial sounds familiar:

[M]any of us know Kim Rotchford and his family. Rotchford is known as the physician who has taken into his care people with chronic pain or addictions for which others may have no good answer. He takes cases that others would choose not to take.

He is also the local physician who has put his time and his expertise into the service of our homeless and dispossessed through the founding and volunteer staffing of the JC MASH free medical clinic. Other docs help out, but everyone knows that clinic is the product of Rotchford’s calling to help the down and out.

We know that Rotchford and his family have been good citizens and good volunteers in this community for many years. Without pre-judging the investigative findings, we believe that Rotchford deserves the benefit of doubt from the justice system and from us as he proceeds into the legal ordeal ahead.

Unfortunately, taking cases that others choose not to take is often enough in itself to get yourself investigated. And of course all of Rotchford’s pain patients are now out of luck.

Those of you who think we need more government healthcare might keep in mind that when the feds can’t prove a case for drug distributionthey often fall back on Medicare fraud, which appears to be the impetus for this investigation. That is, they argue that billing Medicare for pain scripts DEA cops don’t think patients need becomes a criminal offense. That kind of intimidation will only get worse with more government oversight.

The Grand Jury Farce

Thursday, December 30th, 2010

“Ken” at Popehat, himself a former Assistant U.S. Attorney, reacts to the government’s silencing of pain patient advocate Siobhan Reynolds:

Let me pause and offer you a dark confession. I miss the grand jury. When I want documents or evidence now as a criminal defense attorney, I have to ask the government for it, wait for them to laugh and refuse, and then run to court and try to convince a judge to order the government to abide by its obligations. As a civil litigant, I have to write long, complicated demands for documents and information, wait a month for a response, get a response refusing most of what I asked for, engage in a letter-writing campaign, and eventually go to court seeking an order making the other side give me the documents, often months later.

Oh, to use the grand jury again! As a federal prosecutor, I could just issue grand jury subpoenas. I could refuse extensions at my whim. I could ask for whatever the hell I wanted based on the most remote suspicion that it might be relevant to a federal investigation. I could demand compliance with confidence, knowing that it is extraordinarily rare for a federal court to grant a target’s motion to quash or limit a subpoena. And I could do all of this under the ridiculous fiction that I was acting on behalf of a grand jury so long as, occasionally, I stepped into the grand jury room and had a federal agent testify briefly that “Hey, we’ve got an investigation going into [vague subject], we issued subpoenas in your name, we got these documents, the investigation continues.” 99% of the time, the grand jurors wouldn’t look up from their newspapers, hoping they’d get let out early that day. Were the grand jurors a check on government abuse of the subpoena power? Don’t make me laugh until I throw up.

The Government Wins

Wednesday, December 29th, 2010

Siobhan Reynolds, on Facebook:

[V]ery sad to be announcing the closure of Pain Relief Network. The government and the federal judiciary have succeeded in silencing the lone organized effort on behalf of tens of millions of American, vets, children, cancer patients, people born with congenital painful conditions who cannot get their pain controlled. Power wins. Suffering humanity, decency itself, and the rule of law lose.

My summary of what led to this here.

Morning Links

Wednesday, December 22nd, 2010

Me on the Siobhan Reynolds Case

Tuesday, December 21st, 2010

I have a piece in Slate today on Assistant U.S. Attorney Tanya Treadway’s use of the grand jury to harass pain patient advocate Siobhan Reynolds.

Supreme Court Lets Slide DOJ Intimidation, Silencing of Siobhan Reynolds

Monday, November 15th, 2010

I’ve got nothing here. Call it outrage fatigue, I guess.

It’s just sad.