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.
Category: Pain Treatment
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.
- Tanya Treadway is now trying to prevent Kansas pain doctor Linda Schneider from getting a public defender for her appeal. Remember, Treadway tried to prevent the couple from getting a public defender during their trial, too. The problem is, given that nearly all of their assets are subject to forfeiture, it’s hard to find attorneys willing to take these cases.
- Earmark in new spending bill provides $600,000 to digitize Grateful Dead paraphernalia. Also note that former House Speaker Dennis Hastert gets $440,000 for a private office. More on that scam here.
- Photos of abandoned London.
- Who will benefit from Net Neutrality regs? Lobbyists!
- New Jersey town spends $17,000 defending $5 records fee.
- War on Christmas lands ACLU on Tennessee state agency’s terrorism map.
- Niagara Falls, without water.
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.
I’ve got nothing here. Call it outrage fatigue, I guess.
It’s just sad.
Jacob Sullum has the latest.
This case ought to outrage anyone who claims to give a damn about the First Amendment. It’s hard to think of a more dire example of government censorship than for it to (a) use the criminal justice system to harass someone who speaks out against what she believes to be government abuses, and then (b) use the same system to silence her and her advocates from publicly discussing the harassment.
Seems like there’s a parallel here with the state secrets cases. The Obama administration has gone beyond arguing that the initial acts are well within the government’s power. It’s also arguing that the government should have the power to prevent anyone from talking about or knowing about them.
- New Haven mayor agrees that maybe it was a bad idea to use a SWAT team for an underage drinking inspection. I guess that’s a start.
- This Onion piece could almost be a straightforward news story.
- Slate looks at Senate “vanity walls.”
- Little Billy’s Letters to Famous People.
- The New York Times on the Siobhan Reynolds case.
- Federal prosecutors in Washington State look to seize assets of online payment service that works with poker sites. Good to Obama’s DOJ has straightened out the priorities of the previous administration.
Quick addendum to yesterday’s post on the federal government’s persecution of Siobhan Reynolds. This is the video AUSA Tonya Treadway subpoenaed, along with a host of other documentation, then tried to have silenced. It’s about an hour long.
Siobhan also noted on my Facebook page that she’d like to hire an assistant, but the fines she faced for defying Treadway’s subpoena depleted her finances. If you’re interested, you can make a contribution here.
I posted here last year on Assistant U.S. Attorney Tonya Treadway’s vendetta against pain patient advocate Siobhan Reynolds. Reynolds’ transgression was to publicly question Treadway’s prosecution of Kansas pain specialist Steven Schneider and his wife.
Treadway, no slouch at playing the media herself, first sought a gag order preventing Reynolds from criticizing the state’s case in public. She then sent federal agents to intimidate the patients speaking out on Schneider’s behalf. When all that failed, she launched a grand jury investigation into Reynolds, demanding Reynolds turn over a mountain of documents related to her advocacy. Treadway then sought, and was granted, an extraordinary seal on any and all documents related to the case. Reynolds isn’t permitted to share documentation from her case with anyone. She had to get permission just to let Reason and the Institute for Justice access the documents so they could submit an amicus brief on her behalf.
Reynolds’ case has now reached the U.S. Supreme Court, and the government is claiming some chilling powers. Here’s my colleague Jacob Sullum:
This level of secrecy, which the Associated Press says “has alarmed First Amendment supporters” who see it as “highly unusual” and “patently wrong,” is clearly not justified by the need to protect the confidentiality of grand jury proceedings. The 10th Circuit decided to seal even the Reason/I.J. amicus brief, which is based entirely on publicly available information. More generally, the gist of the case could have been discussed without revealing grand jury material, as Reynolds’ Supreme Court petition shows. Although the court-ordered redactions make the 10th Circuit’s reasoning as described in the petition hard to follow at times, the details generally can be filled in with information that has been reported in the press (which shows how silly the pretense of secrecy is). Furthermore, one of the main justifications for grand jury secrecy—that it protects innocent people who are investigated but never charged—does not apply in a case like this, where the target of the investigation wants more openness and it’s the government that is trying to hide information. As Corn-Revere argues, such secrecy turns the intended role of the grand jury on its head, making it an instrument of oppression instead of a bulwark against it….
I’d like to show you the Reason/I.J. brief defending Reynolds’ First Amendment rights, but I’m not allowed to!
Bonus points in this case for its ability to attract bipartisan authoritarianism: Treadway is a Bush appointee, and this all got rolling under his watch. But the Obama administration is not only continuing the case against Reynolds, it’s also arguing in favor of keeping the case hidden from public scrutiny. There are no national security implications, here. There are no government informants to protect (I guess we don’t know that for sure, but I can’t imagine why there would be, or why their names could be redacted). This is an obstruction investigation into a woman who has criticized the government for what she feels are wrongful prosecutions. It’s telling that Treadway, a federal prosecutor with a history of promoting the hell out of her cases, doesn’t want to anyone to know about this one.
But let’s recap: Treadway tried to censor Reynolds from criticizing her, Treadway, a federal prosecutor. She then tried to intimidate patients of the doctor Reynolds was advocating for from defending him. She then retaliated against Reynolds with a criminal investigation. And she has now gagged Reynolds and barred the public from knowing anything about that investigation. And thus far, on the latter two actions, the federal courts have backed her up.
This is scary stuff.
Wow, is this ever a terrible idea.
Sheriffs in North Carolina want access to state computer records identifying anyone with prescriptions for powerful painkillers and other controlled substances.
The state sheriff’s association pushed the idea Tuesday, saying the move would help them make drug arrests and curb a growing problem of prescription drug abuse…
Sheriffs made their pitch Tuesday to a legislative health care committee looking for ways to confront prescription drug abuse. Local sheriffs said that more people in their counties die of accidental overdoses than from homicides.
For years, sheriffs have been trying to convince legislators that the state’s prescription records should be open to them.
“We can better go after those who are abusing the system,” said Lee County Sheriff Tracy L. Carter.
In addition to the obvious privacy, doctor-patient privilege, and Fourth Amendment concerns, a policy like this is likely to exacerbate the undertreatment of pain. The sheriffs argue that giving them access to the database will help them catch doctors who over-prescribe and patients who shop from doctor to doctor when they’re denied access to painkillers. I’m sure there are examples of both misbehaving doctors and patients. But in the past, law enforcement officials’ definition of over-prescribing has sharply diverged from that of pain professionals. High-dose opiate therapy, a promising new treatment for chronic pain, has basically been cut off at the knees because of high-profile cases in which DEA officials, U.S. attorneys, and state and local law enforcement with no medical training have taken it upon themselves to decide what is and isn’t appropriate treatment.
And the problem is self-perpetuating. As more doctors leave pain management out of fear, those left feel pressure to take on more patients. And the fewer doctors willing to prescribe pain patients the meds they need, the more doctors legitimate patients need to see to find one who will give them proper treatment. Both are consequences of bad policy. And both are then considered by law enforcement to be signs of abuse.
Letting cops go fishing in patient databases for these “red flags” is only going to make it all worse. Sure, they may well find a few unscrupulous doctors, and perhaps some people who are using doctors to feed an addiction. But one thing that’s almost certain to happen is that doctors are going to become even more fearful that every script is going to be scrutinized. Which means fewer of them will be willing to write them. Which means more pain patients are going to suffer, despite the fact that there are drugs available to help them.
My archive of pain treatment posts here.
Jacob Sullum has an update on Assistant U.S. Attorney Tonya Treadway’s efforts to silence pain patient advocate Siobhan Reynolds.
Spoiler: The bad guys are winning.
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.