Licensed To Lie
Book Review and It’s Application to the WAR ON DOCTORS
We are using the book Licensed to Lie to evaluate how the Department of Justice is using these same tactics in the War Against Doctors and Chronic Pain Patients. Through independent study and/or discussion on the Facebook group Chronic Pain Rights Support, each participant will share their “breakthrough moments” and experiences with the now completely illegal conduct being committed by the US and state attorneys to attack doctors using the misinterpretation of law in the Controlled Substance Act.
If you want to join the discussion, go to Facebook and join the group Chronic Pain Rights Support. We will then take the discussion, condense it, and write the summaries on this page. Feel free also, if you don’t want to put comments on Facebook, to write comments here. I will use editor discretion to either add the comments or not, depending on whether they add to the discussion.
You can get a copy, hard-copy or digital, of Licensed to Lie and read it along with us. We will discuss one chapter at a time. There will also be opportunities for interested participants to do independent research and report your findings to the group. We are especially interested in having people from the legal profession attend this group discussion. It is important to learn from this endeavor and do what can be done to make our Judicial System legal and lawful again. If not, our country is doomed.
Location of Discussion: Facebook Group Chronic Pain Rights Support
Date Starting: Monday, November 14
Leader of Discussion: Linda Cheek, MD
Independent Research Needed on: TBA
Where Did They Go Wrong?
In his forward to Licensed to Lie, Michael Adams, PhD, states:
“The greatest human ideal of Justice is only as good as the character of those who administer it, existing only if its guardians are devotees to integrity and fairness.”
Alexis de Tocqueville stated in the 1800’s:
“America is great because she is good. If America ceases to be good, America will cease to be great.”
Well, the governing body of America is no longer devoted to integrity and fairness. America is no longer good, and we can all see that she is no longer great. We, the people, need to put virtue and integrity back into our government. Only knowledge can do that. This is one attempt to educate people about the evils existing in our government today.
Discussion Topic #1: Forward by Michael Adams.
Quote: The greatest human ideal of Justice is only as good as the character of those who administer it, existing only if its guardians are devotees to integrity and fairness.
As you read Licensed to Lie, you will see that the US Attorneys involved in this farce of injustice had no interest in integrity or fairness. My question: Was this the start of this loss of integrity in the DOJ, or is there an earlier precedent that these prosecutors just emulated? As you read chapter one, if anyone is interested, pick some of the task force leaders and do some research on them: their rise to their position, and what has happened to them since. My hypothesis: that their illegal approach to interpreting the law was rewarded by the DOJ through promotions, judgeship appointments, etc.
Nov 15, 2016
This is the beginning of the discussion (I hope) of Licensed to Lie by Sidney Powell. Through discussing the facts of the case as presented by Ms. Powell in Licensed to Lie, I will try to increase people’s knowledge on the illegal practices being used by the Federal government. These practices are being flaunted in the area of pain management in their attacks on good, caring, compassionate physicians. If you listened to Dr. Ibsen on the radio show Medical Freedom yesterday, you understand that EVERY doctor who writes even a single opioid prescription can now be a target. You can promote knowledge to America by sending this discussion to all of your friends on FB. We must stop the illegal interpretations going on in court, making pain management more and more unavailable to the general population.
“The greatest human ideal of Justice is only as good as the character of those who administer it, existing only if its guardians are devotees to integrity and fairness.” Michael Adams, PhD.
The characters of the individuals who have been administering the laws over the last 15 years have definitely been lacking. They found out they could get away with doing illegal things to convict a target and get promoted in their field.
Alex Kozinski, Chief Judge United States Court of Appeals for the Ninth Circuit states in his forward:
“Prosecutors are subjected to a variety of powerful incentives that serve to reward zealous advocacy: favorable media coverage, career promotions, appointment to judgeships, and the allure of high political office.”
For that reason, prosecutors MUST be of the highest moral principles. And there’s the rub. We have lost morality in this country. Any comments?
Judge Kozinski goes on to say that there is a growing practice among prosecutors of over-charging, particularly with crimes of dubious validity.
“One of the bedrock principles of our criminal law is that citizens are entitled to fair notice of what is criminal and what is legal. People can then avoid prosecution by engaging in lawful activities. The right to do what the law does not prohibit, without fear of harassment or punishment, is one of the hallmarks of a free society.
“One of the fundamental responsibilities of a prosecutor is to charge defendants only with conduct that is clearly criminal. And yet, time and again, the US DOJ charged multiple defendants with crimes that simply weren’t crimes.”
In my case, I wrote repeatedly to the DEA stating what we were doing in the office with another doctor taking care of the pain management patients, and they refused to answer. Here is an example of what I wrote to DEA agent Steven Tomaziefski after being frustrated by his stonewalling:
“To demonstrate my attempts to be law-abiding, I will explain to you my program. Again, I reiterate, my attempt is to help the patients that you have thrown to the streets in search of pain management. I am in no way doing any unlawful act knowingly. If in the explanation of my program, you identify an action that the government would interpret as illegal, it is your responsibility to inform me of that. If you do not, I hold you and the DEA, and ultimately the United States Government, accountable. For if someone knows an illegality is occurring and does nothing, are they not therefore responsible? If you then later charge me with breaking the law, of which I know nothing but you do, are you not guilty of contributing to the act?”
Judge Kozinski continues in the forward: “Another problem is that these innocent people are forced to start serving their time behind bars even as they appeal their conviction.”
Now the reason for that is that the Appeals Courts usually support the conviction. Especially if the defendant can’t afford to hire a big name attorney like Ms. Powell. Since doctors have all their possessions, savings, cars, and even their homes forfeited by the government through the Controlled Substance Act, they have no chance at appeal. Examples of that are Dr. Cynthia Cadet and Dr. Joseph Castronuovo.
Nov. 16, 2016
Continuing the discussion of the forward written by Judge Alex Kozinski, Judge Kozinski writes:
“Another important responsibility of prosecutors is to disclose to the defense any exculpatory information of which the government is aware. This is a constitutional requirement per the 1963 Supreme Court case of Brady v. Maryland.”
“Most fundamental is the fact that the government is not an ordinary litigant whose interest lies in convicting only those defendants who are proven guilty beyond a reasonable doubt.”
But instead of being a litigant for justice, the prosecutors now have an attitude of “win at all costs”. They do not release “Brady material” willingly. In fact, they can, and often do, threaten to charge witnesses as accomplices or co-conspirators if they testify favorably to the defense.
“Many prosecutors see the Brady rule as a thorn in their sides—an obstacle to overcome rather than a welcome responsibility to be scrupulously observed.”
Judge Kozinski points to the case against former Senator Ted Stevens, who was convicted in 2008 after federal prosecutors concealed evidence and lied about it in court. The truth only came out after an honest FBI agent broke ranks and disclosed the government’s willful Brady violations and lies and the judge ordered an investigation, stating “The United States Government has an obligation to pursue convictions fairly and in accordance with the Constitution, and when the Government does not meet its obligation to turn over evidence, the system falters.” Now, judges support the prosecution’s lies and illegal activities.
In my case, I identified the following infractions of the constitution:
- 5th amendment rights of due process, both substantive and procedural.
- 4th amendment rights of unreasonable search and seizure.
- 6th amendment rights of trial by impartial jury and assistance of counsel for her defense.
- 14th amendment rights of loss of liberty and property without due process.
I have experienced personally what Judge Kozinski says next:
“What happened in Stevens’s case is vanishingly rare. Prosecutors know that if they fail to produce exculpatory evidence, no one is likely to find out. Even when evidence is disclosed, judges are very reluctant to order a new trial, so they sweep the evidence under the rug. Sanctions against prosecutors who violate Brady are practically unheard-of and professional discipline is non-existent. As a consequence, there is an epidemic of Brady violations abroad in the land.”
At the end of his forward, Judge Kozinski states:
“This book should serve as the beginning of a serious conversation about whether our criminal justice system continues to live up to its vaunted reputation. As citizens of a free society, we all have an important stake in making sure that it does.”
Our criminal justice system is not only cracked, it has sunk to the depth of rampant injustice. In the arena of government overreach into medicine, we have to stop the criminality of medicine. Nothing about patient treatment should be placed in the realm of criminal prosecution. The only way to stop this government overreach is to stop the conviction of doctors in the court. Stop the gravy train.
Tomorrow we will start reviewing Chapter 1.
Nov 17–Chapter 1
Chapter 1 starts with the 2010 suicide of 37 y/o US prosecutor Nicholas Marsh. Then a flashback to 6 weeks earlier with the unexplainable crash of a private airplane in Alaska in which former Senator Ted Stevens was on a fishing trip with some friends. The plane was equipped with a terrain awareness warning system that would have notified the pilot if he was too close to the terrain. The TAWS had been “inhibited”.
“Ted Stevens, a decorated World War II hero, a former US attorney, and living legend in Alaska, had lost his seat of more than 40 years in the US Senate after being found guilty for failing to report alleged gifts on senate forms. It turned out Senator Stevens was innocent, and the prosecutors from the Public Integrity Section of the DOJ had broken ethical rules, disregarded court orders, and violated constitutional law while they hid evidence favorable to his defense.”
US District Judge Emmet Sullivan acted out of the ordinary, not ignoring the DOJ’s misconduct. He appointed a special prosecutor, DC attorney Henry Schuelke III, to investigate the prosecutors for possible charges. This was unprecedented.
Former Senator Stevens had been advocating for new legislation that would require the government to produce Brady material to a defendant in every case and to impose clear penalties for failure to do so. The DOJ vehemently opposed Steven’s proposal.
Nick Marsh, the gentleman who committed suicide at the beginning of the chapter, had been one of the youngest attorneys in the Public Integrity Section of the Justice Department. These attorneys were the best of the best, supposedly adhering to the highest standards since they investigated public officials for corruption. At the same time, there was extreme pressure to win.
In the prosecution of former Senator Stevens, Matthew Friedrich (Enron Task Force prosecutoràacting assistant attorney general of the Criminal Division of the DOJ) and his deputy, Rita Glavin took over, but when things fell apart, Nick Marsh took the flack while they walked.
“Lawyers know all too well that prosecutors are almost never punished in any way—regardless of how egregious their conduct is. It is extremely difficult for a wronged defendant to sue a prosecutor. They have immunity from lawsuits because they work on behalf of the “sovereign”. They can hid evidence of a defendant’s innocence with impunity. They have little concern that it will ever be discovered, and even if it is, they know they will suffer no consequences. Judges routinely believe prosecutors.
Special Prosecutor Schuelke and his partner, William Shields, worked on the exposure of the DOJ.
“Ultimately Schuelke would reveal shocking facts with ramifications of their own. As thorough as Schuelke was, he was barely scraping the surface. The illegal and unethical tactics that unseated Senator Stevens, changed the balance of power in the senate, and had now claimed two lives were orchestrated above Nicholas Marsh. Narcissistic and terrifying tacticians were ascending to great power on a foundation and legacy of lies, corruption, and injustice that would take years to uncover. They had long practiced to win at any cost and skillfully buried the truth deep.”
The insinuation in the beginning of this chapter was very quiet, but for those of us who know how evil the DOJ is, it jumps out like a lightning bolt. The DOJ is so evil that they will orchestrate the death of their target through whatever means is at their disposal. The TAWS in Stevens’ airplane was “inhibited”. That means it was disabled so that the Senator’s plane would crash.
The same thing is believed, by those of us who understand this evil, to have happened to Siobhan Reynolds, the founder of Pain Relief Network. Her plane crashed on a clear night Christmas Eve, 2011, to the side of the runway they were trying to land on in Ohio. An accident? We don’t think so. Government manipulation of the instrumentation? Probably. She had created an enemy in US Attorney Tanya Treadway due to her advocacy on the part of Dr. Stephen Schneider. More of that story can be found here: “Pain Patient Advocate Siobhan Reynolds Dies in Plane Crash” – where are pain advocates now? 11/03/2014 by Nancy Sajben MD
Please read this article if you do nothing else today. Please understand that the DOJ is evil to the core. This article shows how injustice and constitutional rights were violated all the way through the ranks of the courts, including the Supreme Court, just as in my case and so many others.
Another article on Siobhan: http://healthland.time.com/2012/01/03/champion-of-pain-relief-siobhan-reynolds-dead-in-plane-crash/
I’m curious. What has happened to Tanya Treadway. How high up the ladder has she moved as a result of her attack on Dr. Schneider? What about other DOJ personnel involved in the attack on Ms. Reynolds? This is an assignment for anyone interested in doing research.
Nov. 18: Chapter 2
Chapter 2 is the actual beginning of the story behind Licensed to Lie. It is the history of the Enron Corporation. The characters in the scenario are:
Jeffrey Skilling, CEO
Andrew Fastow, CFO
Ken Lay, Chairman
Jeff McMahon, treasurer
Ben Glisan, treasurer #2
Michael Kopper, Fastow’s protégé
Cliff Baxter, Vice Chairman, left 6 months before collapse.
Arthur Andersen LLP, Enron’s accounting firm
Bethany McLean, Fortune reporter
John Emshwiller, Wall Street Journal reporter
Rebecca Smith, Wall Street Journal reporter
The Story Goes:
Enron treasurer McMahon and CEO Fastow butted heads regularly over policies and deals. Skilling sided with Fastow. They were extremely narcissistic and fed each other’s weaknesses. Fastow created a separate private equity fund, LJM, which he and his protégé Michael Kopper, completely corrupted for their own gain. He repeated the process with an even bigger fund, LJM2.
A partnership was formed with Merrill Lynch.
McMahon was concerned about Fastow’s dual roles and possible conflict of interest, made mention to a Merrill manager. Upon hearing, Fastow removed McMahon as treasurer, replacing him with a younger, more flexible Ben Glisan.
Enron reached a stock price of $90 a share in August 2000. But a Fortune reporter, Bethany McLean, wrote an article in which she started an avalanche. Enron lived in a glass bubble.
Wall Street Journal reporter John Emshwiller and his associate Rebecca Smith dug deeper, reported what they found, and in 2001 Skilling stepped down as CEO and Ken Lay had to step back in. Enron’s stock price had fallen to $40 in just a few months. After 9/11, the bottom fell out. Emshwiller and Smith reported on Fastow’s personal gains in lieu of Enron’s gargantuan losses. Enron stock fell to $29 a share.
The SEC requested information from Enron about its dealings with Fastow’s partnerships. Stock fell to under $20. Lay supported Fastow in his public appearances. But then Fastow was replaced by McMahon. By November 29, Enron’s bonds were downgraded to junk status. Enron stock was $0.61 a share. Lawyers swarmed, alleging a conspiracy to conceal Enron’s problems while insiders profited by selling stock at an inflated price.
On Dec 2, 2001, Enron declared bankruptcy. With Enron’s downfall, other Houston businesses collapsed and the public was screaming for heads to roll. The Department of Justice assembled the Enron Task Force, a joint effort with the SEC, FBI and IRS. Deputy Attorney General Larry D. Thompson handpicked prosecutors from across the country. The Task Force was separate from the DOJ and was given unlimited resources.
New government characters:
Larry E. Thompson, Deputy Attorney General
Michael Chertoff, Asst. Attorney General, head of the criminal division
Leslie Caldwell, head of task force, chief criminal division San Francisco US Attorney’s office.
“She [Leslie Caldwell] and the handpicked team of Ivy League pit bulls set to “send a message to Wall Street.”
They put everyone who had anything to do with Enron under scrutiny: thousands of people, 120 banks including J.P. Morgan, Citibank.
“Business professionals who had always been highly regarded and prominent in their communities were now surrounded by federal agents.” “Their offices were searched, and their documents were subpoenaed or seized. They were hauled in front of Congress and grand juries, and they were threatened with indictment and imprisonment. Most of these business people had led stellar lives, done their jobs honestly, supported their churches and communities, and volunteered with charities. They had always believed in the American system of justice and confidently believed that the system would recognize their innocence.”
In January 2002, Arthur Andersen accountants admitted shredding documents from their Enron files.
Enron’s former Vice Chairman, Cliff Baxter, had agreed to testify to the senate committee. He had left before the Enron collapse, making $22 million selling his stock. Riding high, he had only a good future in front of him. But on January 25, his body was found with a bullet hole in his head, and a gun in the open palm of his right hand laying in his lap.
Chapter 3: The Task Force Annihilates Arthur Andersen
Cliff Baxter’s death had all the hallmarks of a “hit” with vague police reports and inconsistencies and a lot of unexplained questions. It was especially a terrifying open to anyone who thought about testifying. Baxter’s testimony would have rivaled that of John Dean’s in the Watergate scandal.
The job of the Enron Task Force was to determine if the wrongs were civil or criminal and who was legally responsible for them. Within 60 days they began their first attack—on Arthur Andersen LLP—Enron’s auditor and one of the nation’s big five accounting firms. The grand jury had charged Arthur Andersen LLP with obstruction of justice “for destroying literally tons of paper documents and other electronic information related to the Enron inquiries.” The indictment alleged “widespread criminal conduct…charging that the firm sought to undermine our justice system by destroying evidence relevant to the investigations.”
The Deputy Attorney General Larry Thompson said ironically “it was a crime that attacks the justice system itself by impeding discovery of the truth.” He also said, “It would be unfortunate for our criminal justice system if any individual or any entity could say that he or she or it was too big or too important, so as it couldn’t be indicted.” But in actuality, the people in the Department of Justice causing innocent people to be convicted and innocent businesses to be destroyed, is in a position of power where just that scenario is in effect.
In this particular case, there was a question of the law about shredding documents. Andersen had stopped destroying as soon as the subpoena arrived. But Thompson squeaked by the law by stating the position that “an official proceeding does not have to be pending in order for someone to come within the ambit of the obstruction-of-justice statute.” That opens the door for any American to be charged with obstruction of justice by doing something unknowingly even before the questionable illegal act is brought to attention. That, my friends, is extreme government power overreach, and is the reason why we are now in a prison-making nation. Even though we are only 5% of the world’s population, we house 25% of the incarcerated.
In walks Andrew Weissmann, former prosecutor for the Eastern District of New York, responsible for the prosecution of Mafia bosses. Weissmann had developed special tactics in these prosecutions where he was convinced the end justified the means. Weissmann became the driving force behind the indictment of Arthur Anderson and began the investigations of Fastow and Glisan. Helping him was Matthew Friedrich. Within 9 weeks of the indictment, they had achieved conviction of Arthur Andersen LLP of obstruction of justice.
Arthur Andersen then came to Sidney Powell for help. She writes:
“As a former assistant US attorney of ten years…I knew how prosecutors were supposed to proceed. Doing the job right required a strong sense of honor, integrity, objectivity, and fairness. A federal prosecutor has immense, unbridled power along a broad spectrum of discretion. In the hands of the wrong people, the damage that power can cause is beyond measure. A prosecutor does play God.”
Problems she saw with the case:
|They had indicted the entire firm—the company itself—instead of just the individuals allegedly involved.
|Sent message to everyone that failure to cooperate with the Task Force would be met with an indictment. This put everyone under pressure to even throw people under the bus and violate their constitutional rights.|
|Rewording of the obstruction of justice statute and the alleged conduct didn’t fit.||Creating “laws” through vague wordage to fit the purpose of attack, even where those laws don’t exist.|
|Judge favoritism toward the prosecutors. She didn’t allow the defense to introduce the hundreds of thousands of documents Andersen had retained||The jury got only half of the picture—all bad.|
|Press reports during the trial were damning.||Probable prejudice in jury|
|Andersen partner David Duncan pleaded guilty and testified for the government.||Gives message that if he was guilty, so were the others.|
|Judge Harmon left out the most important element of a crime in the jury instructions per request of the task force—the intent to commit a crime. Instead she said “you may find Andersen guilty” even if they “honestly and sincerely believed that its conduct was lawful.”||The basis of our justice system is that criminal intent is required.|
|There had to be a close link to an “official proceeding” which there wasn’t in this case.||This changed the structure of the case from civil to criminal.|
The wording of the “crime” was to “knowingly…corruptly persuade another person…with intent to cause” that person to “withhold” documents from, or “alter” documents for use in an “official proceeding.” But at the time the supposed “crime” took place, there was no official proceeding. The company’s only legal duty was to comply with a duly issued subpoena—and it did so. Andersen had simply followed its own “document retention policy.”
When the argument went to the Appeals Court, they met unexpected opposition. The fundamental tenet that the law is supposed to give the citizen “fair warning” of conduct that is criminal fell on deaf ears. The judges were more sympathetic to the government.
Following this win, the task force then targeted other corporations. Merrill Lynch was next on Weissmann’s list. To avoid the death sentence dealt to Andersen, Merrill Lynch agreed to a non-persecution agreement which would later come to haunt the four executives the task force singled out for criminal indictment.
The task force added Kathryn Ruemmler from the DOJ DC office and John Hemann from the San Francisco US attorney’s office (compatriot to Leslie Caldwell).
Enron executives Richard Causey (Chief Accounting Officer), Skilling and Lay were indicted. Fastow pleaded guilty and began cooperating with the task force. Then suddenly Leslie Caldwell resigned and Weissmann, “the madman” became the director of the task force.
In June, 2004, the 5th Circuit Court of Appeals approved this means of criminalizing innocent citizens by affirming the conviction of Arthur Andersen LLP. Judge Higginbotham wrote:
“This case is all about a group of partners at Andersen who knew that the law was coming and did what they could…to hinder the law”
With that decision, the Fifth Circuit affirmed the jury instruction that eliminated criminal intent.
Points to note from this are:
1. The expansion of “obstruction of justice” to include innocent actions that took place prior to the crime actually being named.
2. DOJ personnel are in a position of power—Godlike—where they can’t be indicted for what they do.
3. The power of the DOJ is being abused by those in power.
4. Belief by the DOJ personnel that “the end justifies the means”. “The end” becomes simply to convict whomever they target, regardless of whether a crime has actually been committed.
5. “Laws” are being created by prosecutors through vague wordage to fit the purpose of attack, even where those laws don’t exist.
6. The basis of our justice system is that criminal intent is required. That requirement has now been taken out of the court system by their own action, and not through legislation where law is supposed to be decided.
The End of Chapter 3: The Merrill Lynch Case
The defense moved on to a petition for certiorari to the US Supreme Court based on Andersen’s conviction for witness tampering because the jury instructions failed to require the jury to find each of the elements of the offense. If what Andersen did was really a crime, the law at the time did not give them “fair warning”.
Sidney Powell received a call in the late fall, 2004, asking her to come on board the defense team for a Merrill Lynch executive who had been convicted in Houston and help with the appeal. In her own words, she didn’t represent a criminal defendant unless she was convinced that he or she was innocent.
Through her experience as a US attorney, she believed that
“it was rare for someone to be innocent of federal criminal charges. Neither I nor any of the many US attorneys or assistant US attorneys with whom I had worked would put someone through the life-changing ordeal and anxiety of criminal charges unless we were sure they were guilty and the evidence was strong. There were more than enough cases with clear evidence of guilt of clear crimes to prosecute without looking for problems on or beyond the fringes.”
She did realize that the government did make occasional mistakes, and for some reason, the DOJ seemed to be making them more and more frequently.
The Merrill Lynch executive was Jim Brown, Merrill Lynch’s managing director and head of its Global Asset and Leasing Division on Wall Street. He had been convicted for conspiracy, wire fraud, perjury, and obstruction of justice for a business transaction involving Enron called the “Nigerian Barge case”. He was a wreck with his and his family’s life turned upside down and now facing prison time.
In 2002 Mr. Brown had voluntarily testified in front of the SEC, the Enron Grand Jury, and the bankruptcy examiner. He was sure that if he just told the truth everything would be fine. That is the pie-in-the-sky that all of us in America believe, until we become government targets. Then and only then do we learn the truth. Instead of everything being fine, Mr. Brown was indicted and fired.
The charges in the indictment of Jim Brown and his codefendants were absurd. He had been convicted of wire fraud for depriving Enron of the “intangible right” of the “honest services” of Andrew Fastow and falsifying Enron’s books and records—allegedly by Jims tangential involvement in a business transaction between Enron and Merrill.
In actuality, Brown had told Merrill not to participate in the deal. He had not taken any money or any property from Enron or anyone else in the deal as must be proved in a typical wire fraud case. There were no bribes or kickbacks. The amorphous concept of “honest services” that Congress had added years earlier to broaden the crimes of mail and wire fraud was meant to apply only to employees and people who corrupted them by bribes, kickbacks, or self-dealing in betrayal of their employer. There was none of that in this case.
The trial itself was a farce. In spite of all the appropriate motions by defense, the task force ran the courtroom with the judge ruling for the government on nearly every important issue. The defense had received virtually no discovery and the government denied having any Brady material. No witnesses would talk with the defense because the task force had either indicted them, named them as unindicted coconspirators, or threatened to indict them. But still, chances for a reversal of a jury conviction were very slim. Judges are loath to overturn any criminal conviction, and this was a high-profile, Enron-related case.
But in spite of the negatives, Ms. Powell took on the case of appeal. And so we move on to:
Chapter 4: The Nigerian Barge Deal: No crime here, but people are going to prison.
Federal Express delivered 800 boxes in two trucks to her small two-person Asheville, North Carolina office.
In January, 2005, a ray of sunshine broke through when she was notified that the Supreme Court had granted the petition for certiorari in Andersen.
Meanwhile, in going over the indictment of Jim Brown and his colleagues, she noted that there were no real criminal offenses in the indictment. Instead, it cobbled together parts of different statutes to make up some kind of new crime that didn’t even make sense. The law is generally supposed to make sense. This is especially true for criminal law. “The Supreme Court has long insisted that ‘because of the seriousness of criminal penalties and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity.’ Justice Oliver Wendell Holmes Jr wrote that US citizens are entitled to ‘fair warning…in language that the common world will understand of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible, the line should be clear.’”
“Since when was it illegal for an employee to seek business for his company? When did the law require someone at Merrill Lynch to be responsible for the bookkeeping at Enron?”
Federal judges, especially at the district court level, want and expect to be able to believe that what the prosecutors say is true. The Supreme Court’s rule of Berger demands that the US attorney seek justice. Federal judges are loath to reverse a criminal conviction, and they rely on the prosecutors to do the right thing.
The whole point of this conviction hinged on a telephone conversation between Merrill Lynch and Fastow (but not including Jim Brown) in which Fastow supposedly got Merrill to back the purchase of some Nigerian barges, with the assurance that Enron would “use its best efforts” to get another party to purchase the barges within 6 months.
The “crime”, according to the prosecutors, was that Enron “guaranteed” a buy back which was ratified in that phone conversation through “code”. That made the sale a sham, and Enron could not legitimately book a “gain”. So in other words, they “cooked the books” According to the prosecutors, it didn’t matter that no one profited, or that none thought their conduct was unlawful. In a conspiracy charge, it didn’t matter that Brown wasn’t on the phone call. The situation would be laughable except for that fact that lives and futures of these families were being destroyed.
In the grand jury, Weissmann had told Jim Brown to share his personal understanding, whether it was “accurate or not”, then indicted him for perjury and obstruction of justice for his answer.
In preparation for trial, the defense attorneys repeatedly asked for Brady material. The prosecutors produced only summaries of their witness interviews and repeatedly said they didn’t have any Brady material. Nothing they provided was admissible at trial and it would be years before anyone would uncover what they were hiding.
The Barge trial was the task force’s next move toward convicting others and was one of the underpinnings of the Skilling-Lay (Enron) indictment. The ultimate prize would be their conviction.
Prosecution witnesses: Tina Trinkle, of Merrill Lynch, testified falsely that the phone call promised Merrill Lynch a buy-back. Michael Kopper, Fastow’s protégé at Enron, made a deal with the prosecution for his testimony. He had destroyed his computer (obstruction of justice) and had stolen millions with Fastow, but received no charges. He also testified that the deal was a promise, not a “best-efforts”, even though he had told the FBI otherwise in their earlier questioning. Kopper was doing what he had been directed in order to avoid a prison term himself.
The prosecution’s star witness was Ben Glisan, former Enron Treasurer. He had gone to prison for refusing to cooperate, and had been put into solitary confinement—the hole—a bug-infested cage barely big enough to stand in, with only a slit for light. From there he was moved to a high-security facility which he wasn’t expecting. When he was brought to the grand jury, he was ready to join the task force orchestra—first chair. He also testified to the “promise” rather than a “best-effort”.
Kathy Zrike, Merrill Lynch’s corporate counsel, had not been interviewed by defense counsel because she had refused to talk to them. She was under threat of indictment by Weissmann. But she was called as a defense witness. During her testimony, Weissmann sat in front of her, glaring and taking notes. She had agreed to the non-prosecution agreement that obligated her to testify consistently with the government. Led by the prosecution during their cross, Ms. Zrike put the icing on the inevitable cake.
So here we have a “parting of the way”. Prosecutors had been trusted to do what is right and legal, only charging people who were definitely guilty of knowingly committing a crime. And now we have a group of overzealous US attorneys on this task force who are using that screen to create laws and charge innocent people for breaking them. It didn’t matter that what the person did wasn’t even illegal, or that they didn’t know they were breaking any law.
This has now become the rule in the courts, especially pertaining to the area of medicine and the prescribing of controlled drugs. Doctors are prescribing without realizing that the DOJ has created “laws” in the courtroom for which the doctors will be charged. Doctors believe the actual law as written by the legislature, that as long as they are prescribing medicine in their office for a documented medical problem, that they are safe. But they aren’t. We have to change that, through every means available:
1. Stop convicting doctors in court
2. Get the legislature to state unequivocally that a doctor is exempt from criminal attack based on Title 21, the Controlled Substance Act.
Another problem evidenced here: the elimination of defense witnesses by the prosecution.
I don’t know how long these practices have occurred. They probably go back decades. But we need to change this. Prosecutors are threatening witnesses until they commit perjury. Or, like in Mr. Glisen’s case, they are treated so harshly they cave.
In the case of doctors, everyone who works in the office is declared a “government witness”. That means that the doctor can’t even talk about the case with his own employees or associates. The people in the office are threatened to give testimony that the prosecution wants, or they face indictment.
In my case, my nurse was grilled in interrogation for 6 hours, threatened with prison if she didn’t testify to the lies they told her to. She was strong, even though she suffered from fibromyalgia herself, and the stress really caused her health to crash. She refused to commit perjury. But I still couldn’t use her as a witness either. The government just put her on the stand as their witness, got her personal information, and let her go. So she ended up not saying anything that hurt me, but couldn’t say anything to help either. That was because my defense attorney was in the prosecutor’s pocket. She never talked to any of their witnesses (even though she told me she tried to—she lied), so at cross she just said “No questions”.
The only way that I can see to change this is that the defender in any case should have first dibs at the witnesses. Then, once they are defense witnesses, the prosecution can only talk to them in the presence of the defense attorney (just like it is now with prosecution witnesses, but reversed.) That would prevent the forcing of witnesses to lie by prosecutors or their agents through threats or intimidation. Hopefully the truth would win.
However, the doctor working in my office to take care of the pain patients needing controlled drugs did cave under threat. Not being able to talk to her before or during the trial, I didn’t know. After the trial my lawyer gave me permission to talk to her (and other witnesses) to prepare for the sentencing by getting their character references. In talking to Dr. Schultz, I found out that the government agents continuously visited with her, coached her on what to say, forcing her to lie under threat of indictment. So she perjured herself. Upon finding out that I had talked with her and found out what the prosecution did, my judge (Glen Conrad) got angry, and actually charged me with obstruction of justice, increasing the points to determine my sentence. He said, to cover up the fact that the prosecution forced a witness to lie, that I was not to talk to witnesses until after the sentencing, that a pre-trial bond does not stop at the trial, but extends to the sentencing. Even though I had the email from my lawyer showing she had given me permission, she declared client/attorney privilege, and the judge refused to look at it. They all cover each other’s butt.
Chapter 5: Nailing the Coffins
The judge made the following errors:
- At the prosecutors’ request, he expanded the already broad definition of conspiracy (which requires an “agreement”) beyond all prior boundaries by adding “or understanding.”
- He did not give the requisite instructions as to the elements that create criminal intent: “knowingly” and “willfully”.
- He refused to give an instruction that the defendants were acting in good faith in relying on their counsel.
- He refused to give an instruction that would explain the best-efforts or remarketing agreement as the theory of the defense.
With the criminal intent element missing, the prosecutors maintained that they only needed to show that these defendants intend to accomplish an objective. They do not have to show that the objective is illegal. This new definition of “conspiracy” alone had no basis in law. If something is not illegal, it is not a crime to do it. But that was a minor detail to the prosecutors or the judge. Judge Werlein gave the jury instructions that effectively guaranteed a conviction. The word “understanding” by any defendant was now criminal.
Jim Brown was also charged with perjury and obstruction of justice based on his answers to three questions in the Enron Grand Jury. Weissmann had instructed him to share whatever his “personal understanding” was—whether it was accurate or not. Then they indicted him for testifying that his personal understanding was “inconsistent with” Enron’s belief that it was obligated to get Merrill out of the deal. Brown was not on the telephone call, but the prosecution, using an email written more than a year later in an entirely different context, was able to exclude defense evidence that provided the context, and excluded hundreds of pages of Brown’s testimony to the SEC, grand jury, and bankruptcy examiner.
This was extreme unjust manipulation of the legal system to convict an innocent man. To what end? Justice? Of course not. Because they could? Obviously. It is just this abuse of power that the American people have to recognize and swing the pendulum away from believing what prosecutors present and believe more that what they present is slanted illegally toward conviction. As our forefathers stated, the law is supposed to be so strict that it ensures the innocent are not convicted, even to the point that some guilty go free. It is not to be so slanted that the innocent are convicted. But that appears to be more the case today. The prosecutors in this case and cases following must make us believe more in the philosophy of:
Fool me once, shame on you. Fool me twice, shame on me.
Then, as a final act of power, upon Jim Brown’s conviction, Weissmann and his task force pressured Merrill Lynch to stop paying the legal fees for the defense of the executives. The task force even put a supervisor in at Merrill to review all attorney bills, so they knew exactly what they were doing. Zwefach, Brown’s lawyer, informed him that he was no longer being paid by Merrill, and Jim owed him hundreds of thousands of dollars.
This chapter exposes the court system for what it is today—a legal railroading job. A Goliath out of control. In the case of doctors being attacked, the government goes after the low-hanging fruit—doctors that are solo practice, scraping by so that they can’t afford expensive lawyers. That makes them easy kills. Add that fact to the fact that judges work to the favor of the prosecution, and doctors don’t have a chance—that is—until the American people are educated as to the evil being done in the courtroom, and the decisions by juries not to fall for these illegal actions.
A participant sent in the following:
“Over the past two decades, we have witnessed a nationwide rise in prosecutorial misconduct. U.S. prosecutors have engaged in unethical and illegal behavior and rarely are held accountable. Less than 2 percent of the prosecutors found to be engaged in misconduct are ever held accountable, and that’s wrong. Suborning perjury, suppressing evidence, extorting testimony and outright lying to the court for the sake of a conviction, or victory is wrong.”
Chapter 6: Facing the Firing Squad
Jim Brown and his family were now faced with potential life in prison (30-35 years) as an innocent man. This is a really hard pill to swallow. I know, because I was there too. Thoughts of fleeing the country or even suicide went through his mind. But, being innocent, he knew that either of those would point to his being guilty, and he couldn’t give in to that. He had to fight. He had followed the rules, opposed the deal he was now being convicted of, and the Merrill counsel Zrike, who committed perjury under prosecutorial direction, was the actual proponent for the deal. Brown felt that he had to believe that the system would work. I remember that feeling as well, as I sat at my sentencing.
Criminals at sentencing are supposed to acknowledge their wrongs, apologize, and be completely contrite. Naturally, that idea is based on the concept that only the guilty are convicted. If a person does not act in this manner, the judge may impose a harsher sentence, or deny a recommendation for a particular level prison such as, in this case, a camp due to the fact that these defendants were not a security risk.
During Bayly’s sentencing, the prosecutor Ruemmler finally spoke the truth: “Mr. Bayley presents himself to you as a victim, as a victim of an overzealous prosecution, as a victim of bad executives at Enron.” But then she fell back into the lies of the prosecution. Friedrich picked up the torch used by the prosecution during the trial, calling the actions criminal when they weren’t, and asking for a greater amount of imprisonment than what the guidelines recommended. He asked that the sentence “send a message to Wall Street.”
But as usual in court, the judge’s mind was already made up. He sentenced Bayly to 30 months in prison, restitution of $492,500 and a fine of $250,000. He also, against prosecutorial argument, allowed him to self-report to prison.
Bayly left the courtroom with his family and friends. But they all knew that at some point he would have to spend 30 months in a federal prison for simply doing his job.
Next it was Jim Brown’s turn. After Jim’s heartfelt statement, the prosecution continued to create law where there was none, trying for a harsh sentence by creating criminal activity where there was none. Brown was sentenced to 46 months, fine of $250,000 and restitution of $442,500. He was also allowed to self-report, but was denied release pending appeal.
I remember to this day what it was like sitting in that defense chair hearing “Guilty” read 172 times by the jury chairman. “How can that be?” I asked myself. “The prosecution had no evidence of guilt. There was no evidence of “willingly” or “intentionally”, which is paramount in convicting a person of a crime. The only statement throughout the trial that spoke to any intention or willingness was in the prosecutor’s closing statement where she said, simply on her own, “Dr. Cheek knew what she was doing”. But the jury receives instructions at the beginning that prosecutor’s closing arguments are not to be considered as fact. They are supposed to determine guilt by the evidence. And the evidence, which the prosecution presented, including my letter to the DEA agent Steven Tomaziefski, showed that I was working completely in the dark, requested assistance from the DEA, did not receive any answers, and yet was charged with criminal conduct. All of this was based on the inaccurate belief in this country that you must be guilty if you are sitting on the left side of the courtroom (the defense chair).
No longer is that true, and people need to recognize that fact and stop believing the hype being presented by US and state prosecutors. We must take back our government, take away the actual immunity that these lawbreakers have, and put the real criminals in prison.
I was lucky. With all the charges thrown at me, I could have received a life sentence. At 5 years possible per charge, I was looking at a potential 1225 years in prison. I got 33 months. The judge did recognize my attempt to communicate with the powers that be. But that should have made him reverse my guilty verdict on the 172 charges. After all, the 173rd charge was that I used my office to commit a crime. That charge is so that the government can confiscate my office building—the entire point of all of these attacks on doctors—money. The jury found me innocent of that charge, which basically shows that in their heart, they knew I was innocent. Because if I didn’t use my medical office to commit the other 172 guilty verdicts of prescribing controlled drugs, how else was it done? But instead, the judge reversed the one innocent verdict—so the government could confiscate my office building.
An interesting point—the government sold my office building to the area hospital—Pulaski Community Hospital—HCA owned, the CEO of which came and acted as an expert witness at my trial, even though I wasn’t an employee or even associated with that hospital. But due to the fact that I helped people heal, did not have to order expensive imaging studies, and basically kept people out of the hospital, I was not a wanted medical professional by the hospital administration. Now my office is filled with their doctors that do add to the costs of medical care.
Chapter 7: Supreme Reversals
April 27, 2005. Ms. Powell was invited to sit in on the oral argument before the Supreme Court by Maureen Mahoney. Assistant Solicitor General Michael Dreeben argued the case for the government. The Supreme Court included Chief Justice Rehnquist (now deceased), Justices Scalia (now deceased), Kennedy, O’Connor (now retired), Ginsburg, Souter (now retired), Thomas, Breyer, Stevens (now retired).
Maureen presented her argument very succinctly and clearly—that a person cannot be convicted of a crime that doesn’t exist, and that the government, in their handling of the case, had stripped the law of any mens rea or criminal intent, and that they went even farther by stating that “even if the Andersen employees had a good-faith belief that their conduct was lawful, it was still a crime.” She based her argument on the 100+ year old Pettibone rule, “that the destruction and other kinds of acts of potential obstruction in advance of a proceeding were not a crime.”
It became clear to the Justices that the government had stretched a statute (§1512 or witness tampering) to cover shredding documents—fitting a square peg into a round hole—and it wasn’t going to fly. “The DOJ had destroyed an eighty-nine-year-old accounting institution and eliminated 85,000 jobs by distorting the law, denying the defendants a fair trial, and taking intent out of the jury instructions—and all for what purpose?”
“After Andersen’s conduct, Congress had enacted a law (Section 1519) to require the retention of documents, but that just proved that there wasn’t such a law in place at the time. That new law proved the task force was wrong. Prosecutors can’t make up laws, piece laws together, and create new ways of criminalizing business behavior. That power is entrusted only to Congress.”
The Supreme Court Justices were just as aghast at the government’s chutzpa of creating a crime where there wasn’t any. The defending attorneys left the Court in anticipation of a reversal.
On May 31, only five weeks later, the Supreme Court unanimously reversed the Fifth Circuit’s decision, and with it, Judge Harmon’s jury instruction that eliminated criminal intent. At the same time, however, the Fifth Circuit had refused Jim Brown’s appeal for bail pending appeal.
The Fifth Circuit had a record of reaching the correct result on hard facts and doing what the law required regardless of public opinion. So based on the Supreme Court reversal, Ms. Powell applied for a rehearing for Mr. Brown by the Fifth Circuit, confident that the bail pending appeal would be granted.
This shows that, just ten years ago, the Supreme Court was interested in safeguarding the laws of our ancestors. Only four of the justices are still on the court: Kennedy, Ginsburg, Thomas, and Breyer. The problem with getting the Supreme Court to rule on the illegalities of what is happening against doctors is, in my opinion, a case of money. Since the government confiscates everything the doctor owns, he is left stripped of the resources to hire a lawyer. And, as I found out, even though the law-breaking of the Department of Justice needs to be reviewed, they don’t pay any attention to pro se petitions. I spent almost a year doing the research for my petition, and I think I put together a pretty good one (found HERE). But I was denied a hearing.
Another possibility that I really don’t want to accept is that the Supreme Court has become corrupted also “for the money”. Since that is the point of attacking doctors, and as long as the actions are not ruled unconstitutional or the legislature doesn’t do its job of strengthening the exemption of physicians, these attacks will continue. And as prosecutors win over and over, they are developing an easy track to pass on to other prosecutors, so that it becomes easier to attack physicians. Now the attacks are moving into the states as well.
Chapter 8: The Longest Year Part 1
Two weeks later Jim Brown’s son Chris, driving up a Colorado mountain road unable to think straight or sleep well, drove off the mountain road in a massive thunderstorm. At the same time, Jim was given a date to report to prison on July 5. Upon hearing about the wreck and Chris’s status in intensive care, a request was made to extend his report date. The government, in their still unbelievable role as bad guy, only agreed to a 30 day extension.
As is so often the case with innocents who go to prison, Jim made a pledge for his family. “God, if you could just please let Chris live, I promise you I will go to prison with the best attitude I possibly can. I’ll use the time I have to spend there to do good things and try to help everyone I meet. Please, God, please let Chris live. I’ll try not to ever ask for anything else. Amen.”
However, the Fifth Circuit denied the request for bail. They noted that the denial was “not a comment on the merits of the appeals.” Jim had to report to prison on August 5. But Chris was alive and would eventually recover. Jim said that was all that he could ask for. He would deal with prison with a positive attitude.
Back in Houston, the Enron Task Force was on the attack again—the Enron Broadband case.
Task force members: Weissmann is still director. Then Benton Campbell, Lisa Monaco, and Cliff Stricklin.
Defendants: 5 of 7 indicted on 170 counts of conspiracy, wire and securities fraud, insider trading, and money laundering: Joe Hirko, Rex Shelby, Scott Yeager, Michael Krautz, and Kevin Howard. Kenneth Rice and Kevin Hannon, both previous presidents of the broadband division, had pleaded guilty.
The purpose of the broadband division was to develop a market in broadband technology—common today but at the cutting edge back then.
The trial was so infected with prosecutorial misconduct that even the pro-prosecution Houston Chronicle began reporting on the problems. The prosecutors elicited false testimony from Ken Rice (who had taken a plea). Two brave defense witnesses, Beth Stier and Lawrence Ciscon, testified that the task force had threatened to indict them if they testified for the defense. Typical for intimidation, they called Ciscon three times the night before his was to testify to remind him that he was “a target”. They also showed a video that the judge had specifically order not to be shown, and claimed it was an “accident”. The armor of the “invincible” task force was cracking. While the jury was in deliberation, Andrew Weissmann resigned from the task force on July 18, 2005. Two days later, the jury returned, hung. No one was convicted. The task force announced they would prosecute again. After all, they had the unlimited resources of the taxpayers, and they couldn’t possibly admit that they were wrong.
Back to Jim Brown…
Jim reported to Fort Dix, a low-security but not the camp, prison in New Jersey on August 14. Jim promised his wife Nancy he would take care of himself and not let this ruin his life. They knew the truth—that he had done nothing wrong, and that knowledge, their faith, and their friends would keep them going.
Ms. Powell prepared for her argument to the Fifth Circuit in a group of prestigious lawyers who didn’t give her the credit or respect she deserved. The four defendents involved were Bayly, represented by Larry Robbins; Fuhs, represented by Seth Waxman; Furst, represented by Ike Sorkin; and Brown, represented by herself. She knew the three judges that would sit on the panel, having worked with them before. What she found in the courtroom, however, was abject hostility from the judges who believed the government’s case in spite of the facts being wrong. And there was not enough time to get the facts right. One of the Judges, Judge DeMoss, did get it, however.
In three days, the panel ordered that Fuhs be released on bail. He had spent over 5 months in a maximum security prison in Oklahoma. It looked like he was going to be acquitted. The 5 months were lost from his and his family’s lives. Nothing could ever make up for that. Had the judges ever even considered or cared about what their wrong decision had done to this young man and his family?
Things had begun to unravel. But at the same time, the task force prosecutors were being promoted, honored, and lauded for their work. Leslie Caldwell was heading the practice at Morgan Lewis. Friedrich was climbing the later of the DOJ. Weissman landed a position at Jenner & Block. Ruemmler was prosecuting Lay and Skilling in Houston.
Bayly, incarcerated at Petersburg, Furst at Seagoville, and Jim Brown at Fort Dix, lived in daily fear of being attacked—by the guards as much as by the inmate population. There was no privacy. The filth and bugs were everywhere. Prison was total sensory deprivation and daily degradation. They didn’t “fit in” with the population. The Court’s decision dragged on.
In this discussion, I’m going to try to explain to you firsthand what it feels like to go to prison as an innocent person. Someday I plan on writing a book about my experiences, but right now I have a more important mission—to stop this from happening to others. Because of the prosecutorial misconduct rampant in the DOJ now, I would say that 25% of the people incarcerated are innocent of “knowingly and willingly” committing a criminal act.
First feel the emotion. As I simply stood at my kitchen sink preparing to write this discussion, my heart started to pound, my throat got tight, and tears exploded from my eyes. As I sit here, I find it hard to breathe. I’m sure many of you know what I am experiencing, as you sit in your doctor’s office wondering if your meds are going to be cut. So you see, I can relate. Different circumstance, but the flight or fight response is the same no matter what the underlying stress.
As I sat in the courtroom and the jury chairman passed the decision to the judge, I prayed to God that justice would be done. I was innocent. The prosecution had not proven that I had done anything illegal. The prescriptions I was being charged with ordering were ordered by another doctor with a DEA certificate. To say that I had “used the DEA certificate of another doctor without her knowledge” had not been proven. Granted, the doctor was forced to commit perjury and said on the witness stand that I had not communicated with her, but her whole testimony reeked of forced testimony as she stumbled through her statements, her eyes glued on the US Attorney, like she was asking, “Am I saying that right?” And the letters that I wrote to the DEA asking for guidance, the prosecution showed to the jury. I thought that proved that I was trying to do everything I could to follow the law.
When the first “guilty” was read (I had to listen to 172 “guilties”), my heart was crushed. “Why, Lord?” was all I could think. I had a handicapped husband (almost blind with RP and physically handicapped with cerebral palsy). I was innocent. Nothing put before the jury pointed to any guilt. Even the patients they put on the witness stand could only testify that I had discharged them because they were found to have a dirty urine or failed a pill count. I could only assume that they found me guilty only because of the underlying belief in the American people that only guilty people go to trial.
Well, this book, my case, and thousands more just like it show that that is not the case anymore.
But at the reading of that jury decision, my life was ruined. An innocent doctor, and my family, destroyed because of the greed and corruption of our government entity we call “Justice”.
I still had hope that at sentencing, the Judge would do the right thing. If he listened at all to the trial proceedings, surely he knew that I was innocent. He knew that my husband was handicapped, and should understand that I would not do anything intentionally illegal. After all, I only made $24,000 income at most in any given year since becoming a physician, due to the fact that I took care of the expendable population, who most of the time didn’t pay for my services. So I surely wasn’t doing anything illegal “for the money”. But I found out that the judge is just a much a part of this charade as the US Attorney’s office and DEA is. They all work together. First, I found it unusual that the Judge met with the US Attorney alone at the beginning of the sentencing hearing.
Then, when I was charged extra for “obstruction of justice” because I talked with the two “government witnesses”: Dr. Kathleen Schultz who committed perjury, and my nurse who didn’t commit perjury as ordered but was still “their witness”, and I tried to show the email from my lawyer that I could do so, the judge sustained my own lawyer’s objection on the grounds of attorney/client privilege, I could see they all work together, including the defense lawyers. Notice that most of the prosecutors in the cases in this book get hired by prominent private law firms. No one in the legal profession has a problem with breaking the law, because they all cover for each other. If any profession needs to be hauled before the wrecking ball, it is the legal profession.
Let’s look at the conduct of my defense attorney, Rhonda Overstreet, in Bedford, VA.
1.She recommended to me that I not testify. Thinking that she was working in my best interest, I agreed. Problem: a defendant is considered guilty in this country until proven innocent. Again, this is because of the basic premise that you wouldn’t be sitting in the defense chair if you weren’t guilty. NO ONE, charged with a crime, should go without a defense. To depend on the court instructions that the prosecution must prove “beyond reasonable doubt”, is fooling yourself.
2. She said she tried to communicate with Dr. Schultz and my nurse, and they never returned her call. Problem: That was a lie. Both witnesses told me they never heard from my lawyer. Since that was after the trial, I believe them, especially my nurse, who was on my side. By not talking with these important witnesses, my lawyer had nothing to ask them on cross. If we had talked to Kathy, for example, we would have uncovered the perjury before the trial. I believe that was on purpose. I believe that defense attorneys get a piece of the pie of a conviction. So if they are paid more for a conviction, why should they work for their client? I know mine didn’t.
3. I informed her of the actual law-breaking of the US Attorney’s office. They called in a script in my name for a CS (confidential source) that I did not accept as a patient. The government sent in 6 fake patients trying to get controlled substances. I didn’t know they were wired, but do to my ability to screen patients, I knew they were drug-seeking and I didn’t accept them as patients. The government, I guess, got tired of doing that, so they just took it upon themselves to call in a script in my name. When I told my defense attorney about it, she shrugged her shoulders and said “What do you expect?” Well, what I expect, and I hope the rest of the country, is that our government justice upholders are law-abiding. The fact that they aren’t, and everyone else in the system knows it, accepts it as “normal”, and does nothing is alarming. What is our country coming to?
4. I provided phone records of my calls to Dr. Schultz on the dates of the phoned in prescriptions to my lawyer. Her response was: “You don’t talk to her long enough for these to help.” Naïve as I was, I bought her lousy excuse to not present me a defense against the only statement in court that hurt me. Had I known then what I know now, I would have figured out she was playing both sides of the court. Any proof of communication with Dr. Schultz would have shown the jury that her testimony was perjured. But I trusted my lawyer to do what was right. Silly me!!
That’s enough for today. I’ll cover more about my experiences going to prison as an innocent person tomorrow.
Discussion 4: My Sentencing Hearing
I was looking at a possible life sentence for the 172 charges I was found guilty on—5 years per charge =860 years. I was luckier than some doctors, but still not lucky enough. I was sentenced to 33 months. Any time away from my handicapped husband was going to be torture for him. I just couldn’t see how the judge could do that. He had other options—home confinement, probation, etc. But he said he wanted to “send a message to the doctors”. There was one problem with that.
Doctors don’t know the Controlled Substance Act—why it was formed and what it says. The only wordage they can use with these attacks on doctors is “distribution of oxycodone”. So when a doctor reads in the newspaper (or anyone else for that matter), “Doctor Convicted for Distribution of Oxycodone”, they automatically think that the doctor passed out pills illegally to someone on the street. That’s because that is the intent of the CSA. Doctors are supposed to be exempt from prosecution for treating patients in their office and only be prosecuted if they take the drugs out of the office and start “distributing” them like a street pusher. That’s why, when the prosecutors say something to the media about a doctor they are persecuting, they always use those words, that the doctor is “acting like a street pusher” The only problem is, they aren’t. They are in the office evaluating and treating a patient as they are supposed to do in their job, and they should be exempt from criminal charges.
None of the prescriptions I was charged with prescribing were oxycodone. They were mostly Lortab, with a few nerve pills, like Xanax, because Dr. Schultz prescribed that, I didn’t. I hated Xanax, as it has the most addiction potential. Lortab was the only pain medicine she could prescribe by phone that could be called in. Most of the prescriptions were for a few days of medication, because she only prescribed enough until she could see the patient as she only came in once per week. All of this, according to the rules of practice in the state of Virginia, was legal, covered by their definition of a doctor/patient relationship through another doctor in the practice. That is how one doctor can cover for another on call.
Anyway, sending me to prison was not going to get any message out to doctors that they better not prescribe opiates. Of course now, as more innocent physicians are going to prison all over the country, doctors are scared and many won’t write for controlled drugs. But it is not because they understand the law—they’re just scared.
Then the judge did something I wasn’t prepared for at all. He had me taken into custody right there. Since I didn’t even think God would allow me to be taken away from my husband at all, I was in shock. I hadn’t done anything with my house or my belongings in my medical office. Bill was handicapped, so he couldn’t do anything either. My lawyer had told me that repossession of my home by the bank could take years, so I just hoped it could wait. Bill wasn’t able to do anything to get it ready for sale either.
I was given a minute to give my husband a kiss. I looked back at Dr. Schultz. She had come to the sentencing, obviously out of guilt. I glared at her. She had the “deer in the headlights” look. She knew she had committed perjury to save herself, and had been lied to by the prosecution. You see, when I spoke with her after the trial, this was our conversation:
“Kathy, why did you lie on the witness stand? That is going to send me to prison.”
“You won’t go to prison. They will just slap your hand and you will be able to go on. They don’t send doctors to prison.”
“Why did you say what you did when it wasn’t the truth?”
“I wasn’t sure what the truth was anymore. They came to talk to me so many times, I just didn’t know.”
It was at that point that I knew they had banked on her dementia. She was 75 years old, and mentally stressed, so they used some form of mental waterboarding to strip her of her memory and plant in her fake testimony. That was why she was so faltering on the witness stand. And they had lied to her, saying I wouldn’t be going to prison. So she felt safe giving the testimony they told her to give. Now, with me going to prison, she realized what she had done. I haven’t seen or spoken with her since. But she will be spending eternity in hell. False testimony is an unforgivable sin. I’m sorry about that, but it was her choice.
The US Marshals walked me out the door to the elevator to take me down to the basement where I had my mug shot picture taken and was fingerprinted. I was in a daze. They then handcuffed and shackled my feet. That hurt because I had stockings on, and the iron really banged on my ankles when I walked. They don’t give you enough room to do more than a shuffle when you walk. That is really humiliating. A few minutes ride in the back of a van, and I was taken into the city jail.
A reader contributed the following story:
I was convicted with a DUI for being positive on my medications even though I was under the therapeutic limits. I explained that I was not ever told I couldn’t drive, and the bottles said simply to “use caution “. I spent 60 hours in jail even though two doctors wrote letters telling them of my conditions and said if they could not accommodate me in jail they should allow me to do it at a hospital or even home. My attorney appealed my case, but I still had to report to jail. I was advised to bring all my meds when I surrendered, only to have them confiscated and I was charged with possession. Later they added introduction of contraband. These charges were dropped and expunged but the fact that any of this happened and cost me thousands of dollars was ridiculous. Just something that might give insight into others problems when faced with being a chronic pain patient.
This is a common problem with chronic pain patients. The term “narcotic” is actually a law enforcement term, not a medical term. And by definition, a narcotic causes mental alteration and drowsiness. Now in reality, the side effect of drowsiness or any mental slowness ends after a few weeks of being on an opioid. But that doesn’t matter to the law. You are still “under the influence” if you have an opiate in your system.
Anyone with chronic pain knows that they are more of a risk to people if they are driving in pain, than if they are treating their pain with opioids. But that knowledge has not made it into the law enforcement world. It needs to be. Bills are being designed to make doctors take classes in prescribing opioids. Well, law enforcement need to take classes in the medical applications of opioids as well, so they stop charging people with DUI simply because they have opioids in their system.
In small towns, chronic pain patients have been targeted by law enforcement. They will sit outside pain management clinics and take down drivers’ license numbers. Then when they run across these people in the town, they will stop them for ridiculous reasons, and sometimes charge them with an infraction. It is all simple abuse of power and discrimination, and needs to be stopped.
Chapter 8 Part II
Meanwhile, in Houston, the trial of Skilling and Lay…
Task force prosecutors Kathryn Ruemmler and Sean Berkowitz. Skilling’s attorney Daniel Petrocelli and Lay’s attorney Mike Ramsey with Judge Slim Lake. Once again it was the task force’s show. The defense request for Brady material was met with a FBI form 302—a report of an interview, that had been edited repeatedly, and the original destroyed. The judge adopted the procedure of having the task force give him the handwritten notes (notebooks full), which he said he would look at during trial, and if any Brady material presented itself, he would provide it to the defense. This was a complete win-win for the task force and a complete “screw you” for the defense. The defense wouldn’t be able to ask about something they didn’t know about. They could do nothing meaningful in cross-examination.
It appeared that the Fifth Circuit was waiting to make its decision on the verdict of the Lay-Skilling trial. The verdict came on May 25, 2006, finding Lay guilty of all six counts against him, and Skilling guilty of nineteen out of twenty-eight counts. On June 7, the Fifth Circuit ordered the release of Bayly and Furst, but denied Jim Brown’s motion.
Personally and professionally, Ms. Powell was crushed, losing respect for a court she had previously admired. How could they become so grudging in protecting individual freedom against blatant abuses and overreaching by the government?
Meanwhile, Jim took on the job as prison plumber. He also volunteered to teach a class on basic financial skills and taught inmates how to read. Educational programs in prison were a farce.
Ms. Powell communicated regularly with Jim. In the process she learned one critical thing—there is no attorney-client privilege enforced in prison. All conversations are monitored. She had to fight with the administration every time she talked with him.
On July 25, Ken Lay died of a heart attack while vacationing in Colorado. In essence, the government had gotten the death sentence for Ken Lay.
The Fifth Circuit finally issued its opinion in Brown. They reversed twelve out of the fourteen counts, affirming only the perjury and obstruction charges against Jim. The other three defendants were acquitted. After all of the times that Jim and Nancy had believed that the Justice System would decide justly, this was a hard pill to swallow. And now Jim was even more in danger from the guards, because he should be released with the new decision on time-served. Nancy went to visit him, warned him to watch his back, and not do anything stupid. Jim was, as is usually the case with an inmate, feeling completely hopeless. “The court will come up with something or the prison will. I know I’m stuck. Someone’s got to take the fall for this. It’s me.”
But lucky for Jim, the government agreed to the resentencing. However, the prison blocked her attempts to communicate with Jim, and he was cut off from calling his wife. The US Attorney at the office near Fort Dix scheduled a hearing on August 11.
Page 158 needs to be read by every citizen in this country. It is a description of the standard treatment prisoners receive from guards because of the abuse of power the Federal Bureau of Prisons (FBOP) demonstrates every day. Jim was bullied, room searched, handcuffed and shackled, and thrown into the cage of a prison van without any explanation. He had not been informed of his eminent release, or allowed to talk to his attorney or his wife.
When Ms. Powell saw Jim she was shocked. He was a shell of the man she knew a year earlier—head shaven, eyes sunken, 30 pounds lighter, and so pale he looked dead. He couldn’t believe he was being released. He was shell-shocked, unable to process being free, seeing the daylight, feeling the sunshine, and face a crowd of people. On the way home, he had to stand by the car while Nancy and Chris went in McDonald’s for a hamburger.
Four weeks later on September 12, 2006, the Department of Justice met at Constitution Hall in DC for the attorney general’s 54th annual awards ceremony. The purpose was to recognize the extraordinary accomplishments of DOJ employees, as well as individuals outside the department. Deputy Attorney General Paul J. McNulty and Attorney General Alberto R. Gonzales gave the highest award to the “outstanding members of the investigative and trial team of the Enron Task Force” for their “exceptional service to the American public in the investigation and successful prosecution of the individuals most responsible for the Enron fraud.”
A month later, Ruemmler appeared before Judge Lake and argued for life imprisonment of Jeffrey Skilling. All of the prosecutorial misconduct, defective indictment, witness intimidation, and failure to disclose Brady evidence was completely overlooked.
In 2007 Ruemmler and Berkowitz left the DOJ to join the prestigious Washington office of Latham & Watkins, where the defense attorney Maureen Mahoney worked. You see, they all work together. The “job” of all attorneys is to maintain a judicial system where everyone works—prosecution and defense. And the reward for prosecutorial misconduct is prestigious position, increased wealth, and government awards. Where is the concept of just prosecution and fair trial? Buried.
Discussion: FBOP (Federal Bureau of Prisons) doesn’t follow policies
This section of Chapter 8 brings out truths about prison. I will try to reinforce these truths without running at the mouth. Suffice it to say that everything Ms. Powell says negative about prison is true, and she is, in actuality, kind.
Jim makes a point of saying that he was going to go to prison with a positive attitude. I tried to do that as well. All I could think at the time of my sentencing was that God had a plan for me in prison. Maybe I could teach the inmates how to heal, possibly teach them about the REAL cause of drug abuse, so they could get back home and never return. Saving other people from destruction would be a good thing. Well…that thought lasted about 2 months. I found out that prison administrators don’t want the inmates taught the truth about drugs. Their use of a program called RDAP (residency drug abuse program) in which they get paid for the participants, is money in the bank. And since it doesn’t teach anything that will stop the abuse or addiction, the inmates return to prison after release, which means more money. The whole point of prison is to keep the beds full, not helping people succeed on the outside, but return.
Prisons, at least in my case, do not use the inmate resources at their disposal. Jim was able to teach a financial class. At Alderson the administration is so short on education themselves, they don’t want to be shown up by inmates. It’s a power thing. For example, my counselor, Mr. Chris Quesenberry, was so inept he had to type with two fingers. Anyway, they wouldn’t let people teach in the field they were trained. So my idea of using my knowledge to help others came to a screeching halt.
My first prison was FPC Alderson, a Federal Prison Camp in Alderson, West Virginia. In camps, everyone has to work. But the work is ridiculous. At Alderson, for example, everyone starts out for 60 days working in the dining room. You report at 9:30 AM for your “lunch”, since you’ll be working during the regular lunch hour. The job is to serve the food, and then clean the cafeteria after the meal. You work maybe 3 hours, covering lunch and supper. But you have to be in the cafeteria from 9:30AM to 6:30 PM. For the time you aren’t working, you have to sit at a table with nothing to do. That’s part of the abuse of power with humiliating punishment they like to enforce. You can’t read, do crafts, or even write letters. You just sit there hour after hour. After your stint at the dining room, you can apply for jobs elsewhere. I became a teacher in the education department, teaching ESL and pre-GED.
But that job ended after 1 month. I suffered from a bad viral episode (not flu) in January 2014, and my mind was taking a vacation. I missed a call out to pick up some legal mail and got a shot. [A shot is a disciplinary report where you receive punishment way over and above the crime]. I made the mistake of saying I liked my job in education, and being busy with my student in spite of my illness, I forgot the callout. When my housing director decided on my punishment, it was, among other things, to take my job away. That was the end of my “positive attitude”. I knew her decision was simply to drive home her omnipotence and my lower-than-the-dirt status. At that point I decided I would do the least for the camp as I possibly could. I landed a job at the Rec, where I just had to pick up trash for 10 minutes. At least there I was able to do crafts during the 6 hours I had nothing to do, and eventually I taught the class on nutrition.
As. Ms. Powell states, classes in prison are a farce. If you go on a website of a prison, they have tons of classes listed. But more times than not, those classes aren’t available anymore. Maybe they were at one point, but when they don’t have an instructor, the class ends but they don’t take it off the list. People are supposed to be able to do apprenticeships in vocational areas so that they can find work when they get released. Those apprenticeships are a farce as well. More times than not, they aren’t available. And when they are, they are ridiculous in not teaching anything.
Another problem she mentions is the lack of client-attorney privilege in prison, which is a constitutional right, but prisons obviously don’t have to observe the constitution. That needs to be changed. In prison ALL conversations are supervised. The inmate talks to his/her client in the counselor’s office with the counselor present. Even when the attorney visits the prison, the conference is in the presence of an officer. Now since prisons are based on people being in them, it seems to me to be a conflict of interest to have a government employee listening to your defense strategy. According to the written FBOP policy, attorneys are to be allowed to meet with their client confidentially. This is just one of a multitude of cases where the FBOP doesn’t follow their own policy. And, they don’t have to. The failure to meet policy is supported up the ladder. I was the queen of complaints through protocol. Over 28 months in prison, I submitted about 20 complaints, only one of which was ever treated appropriately, and that one wasn’t the most important.
Discussion on Page 158—abuse of prisoners by guards
The abuse of power is notorious in prison. In male facilities, it becomes physical, as described here. In female prisons, it is mental. We might not get beat up as much, but we are still abused. And there was one case at Alderson where a guard did physically lift an inmate that had fallen on the ice by her shirt collar when she didn’t respond to his yelling at her, causing her to bang her head on the sidewalk and have a whiplash injury. And one problem is that it does no good to complain.
Since the government can lie without repercussions, it is the usual practice for guards to lie on discipline reports. This was especially bad at Alderson, where they do everything they can to take away your good days (the 15% of your sentence that you can be released early). I think they actually have a contest to who can come up with the most fabricated story. And, as my unit director said, “Rule Number One—the guard is always right and rule Number Two—the inmate is always wrong.” So it does no good to complain about the lies and rule-breaking that goes on by the guards, because the administration will cover it up. One guard at Alderson had a restaurant on the outside. He was seen by an inmate loading up his truck with meat, chicken, and vegetables, stealing from the dining hall. He stole to the tune of hundreds of thousands of dollars. What did the administration do when it was reported? They made the dining hall area off limits for walking by the residents after supper. What we didn’t see, we couldn’t report. Did anything happen to the guard? Nope.
The treatment Jim Brown received when he was released—not being informed of his release, treated badly, and being hauled off without any word of what was going on is too common a practice. Again, it’s a case of abuse of power. In my case, it was failure to report to me my husband’s heart attack. I had been transferred to SFF Hazelton Dec 17, 2014 because of a lying b____ guard who wrote up a discipline report on me after she treated my handicapped husband like s____ in the visitor’s room. I now know that they set the scenario up to move me because of my complaints against her and my counselor, Mr. Quesenberry, who treated everybody like s___. At Alderson, instead of disciplining the staff, they simply transfer the inmate. Anyway, because they moved me without due process, I was at SFF Hazelton for 6 weeks in Segregation (locked in a one-man cell all day without even exercise). They did not tell my husband when he tried to reach me at Alderson what had happened. The stress on him was too much. He had a heart attack. He called Hazelton and asked them to tell me. They didn’t. Two days later I finally found out about it because he got our Congressional House Representative involved who communicated with the prison and got the call through.
I could go on and on about how prisons are designed to keep people prisoners, not help them rehabilitate to good citizens, but it would be a long read. I think you get the idea. Prisons, like the Department of Justice itself, are designed to make money for the people employed there. They therefore keep people from fitting back into society, so the recidivism rate is 65%.
There really isn’t a need to convict innocent people. As. Ms. Powell said earlier, there are enough real criminals out there to keep the attorneys busy. So why are they now spending so many of our tax dollars attacking innocent physicians? I think we see that in the promotions and fantastic jobs at prestigious firms that the lawyers in this book received. Even though it became clear that these men were innocent and their lives ruined from overzealous, illegal prosecution, the legal profession just shrugged their shoulders, said “What a fantastic job you (the prosecutors) did,” and here’s your reward.
Chapter 9: Bohica
On March 19, 2007, the Fifth Circuit issued its decision in Regents, a civil suit against several large banks that had done transactions with Enron, including Merrill Lynch in the Barge transaction. The Fifth Circuit reversed the decision and held that the banks had no civil liability to Enron or its shareholders.
How could the same court hold that the Merrill defendants should be prosecuted criminally when they did not have civil liability? Meanwhile, the prosecution planned on re-trying the defendants, using the same flawed indictment as before. The new prosecutor was Arnold Spencer, assistant US attorney from the Eastern District of Texas. He was over his head, unable to run the show like the previous prosecutors.
Ms. Powell requested Brady material from the prosecution—the Brady material that had never been received in the previous Barge trial.
Spencer ratcheted up the pressure on Jim to give a guilty plea and force him to testify in the second trial against Bayly and Furst. Jim would not “cooperate” in spite of the threats to be sent back to prison. He wouldn’t even consider pleading guilty to a crime he didn’t commit, so Spencer played his trump card. He filed a motion to send Jim back to prison for the remainder of his forty-six month term. His action was unethical. A hearing was set with all defendants present, but Jim was the only one with immediate imprisonment hanging over his head. The US Marshalls were present in the courtroom to add extra anxiety. There is a special acronym for this situation: BOHICA. It means “Bend Over, Here It Comes Again.”
Jim Goes Back to Court
Spencer begins with his motion to send Jim back to prison. Ms. Powell states:
“At some level, I must have thought he really wouldn’t go through with it. I never thought I would hear anyone representing the United States of America stand before a federal judge and flat-out ignore the law in such a blatant abuse of power.”
The prosecutor had just requested that Jim Brown be sent back to jail to serve another three years on counts of conviction that had been reversed. Ms. Powell was livid with anger.
It ended with no decision made. Ms. Powell started asking herself why the government was going to re-try Mr. Brown. The millions of tax dollars already wasted. Why would they continue to spend money and pursue this case—unless—they were protecting someone—but whom? They were fighting way too long and too hard. They were covering up something.
At this point former task force director Weissmann was at megafirm Jenner & Block, heading up its white-collar defense practice. You see they all work together for the betterment of themselves, not for their clients. Prosecution—defense—it doesn’t matter. They are all cut from the same cloth and work for the same goals. They often even go to lunch together, or defense and prosecutor lawyers are married.
Matthew Friedrich’s climb up the ladder was even more prestigious. He became special counsel to Attorney General Alberto Gonzales, and was smack in the middle of the action in that department, including Gonzales’s firing of US Attorneys across the country. After Gonzales resigned in 2007, Friedrich became Michael Mukasey, the new attorney general’s deputy chief of staff. It was at this point that Spencer was trying so hard to send Jim Brown back to prison.
“Little did anyone know that Friedrich would soon be deep into manipulating another extremely high-profile case, to which he would apply all the dirty tricks he, Weissmann, Ruemmler, and others had used so effectively to achieve wrongful convictions on the Enron Task Force.
The point of discussion from this chapter is how these prosecutors get rewarded now for these illegal prosecutions. No longer are they interested in observing the law or seeing that justice is done. Instead, they’ve seen how rewards are handed out to prosecutors who achieve convictions, no matter what tactics are used—legal or illegal. Now it appears that “win no matter what the method” is the going Prosecutor 101 lesson.
Let’s look at the Eastern District of New York, the home base of Loretta Lynch, current U.S. Attorney General. The Eastern District of New York US Attorney’s Office includes 200 attorneys. Loretta Lynch was the US Attorney for this district from 1999-2001when she started out as a drug and violent-crime prosecutor and 2010-2015. From 2001-2010 she was a partner at Hogan & Hartson (later Hogan Lovells). She became the U.S. Attorney General in 2015.
Roslynn Mauskopf preceded her in New York and was US Attorney from 2001-2007, when it would appear the attacks on doctors began. Then she became a U.S. Judge.
From 2007-2010, Benton Campbell was the U.S. Attorney for the Eastern District. Then he became a partner at Latham & Watkins in NYC. Latham & Watkins wrote the following when Campbell joined them in 2010: “Campbell also served as a member of the Enron Task Force, where he handled the three-month fraud trial of senior executives from Enron’s Broadband Services Unit. Ben is widely respected in the New York Bar and he has earned a stellar reputation for his trial skills, legal acumen and leadership.” So his Enron experience, which we are currently reading about as prosecutorial misconduct, launched his career, but the law firm considered his work a positive, not a negative.
A few doctors were attacked during the reign of both Mauskopf and Campbell, but they really took off during Loretta Lynch’s second tenure, from 2010 to 2015. Probably current cases started being investigated under her watch. So far, doctors identified as being attacked in the Eastern District of New York number 19. Gee, I wonder if her success at confiscating doctors’ assets had anything to do with her making U.S. Attorney General.
You will find all of the cases against doctors that I have found so far listed by district on this page of the website:
Feel free to take a district and investigate what has happened to the U.S. Attorneys in charge of those districts that attack doctors the most. I think we will see a pattern.
Chapter 10: More Surprises
The not knowing made the holidays extremely stressful for the defendants and their families. But finally, on January 7, 2008, Judge Werlein denied Spencer’s motion to remand Jim into custody. He punted the case back to the Fifth Circuit, to ask them if it would be double jeopardy to try them again on the same indictment.
Finally, the defense received the Brady material of the raw notes of the interviews of Andrew Fastow. In them were astonishing revelations that clarified why the prosecutors fought so hard to keep them away from the defense attorneys.
Fastow had told the government very clearly that there was no guarantee in the Barge deal. He had simply told the Enron folks that there was to light a fire under them to remarket the barges. But the government used these Enron people who thought it was a guarantee to testify in the trial, knowing they had been misinformed by Fastow intentionally. This shows that the government doesn’t care if people are innocent. If they think they can win something, they will still create a case to charge you with.
More Brady material kept from the defense: Jeff McMahon, the Enron Treasurer and President, had written to the DOJ and SEC stating that he had never made a guarantee in the Barge case. Even more shocking was that McMahon had told the Task Force that he had reviewed Ben Glisan’s testimony in the Barge trial, and that he had lied about McMahon having made a guarantee. This was Brady material that the government is constitutionally required to produce. Their failure to do so raised a question—whether the Task Force had knowingly induced perjury.
The government had been told by one of the people they never indicted that Glisan had liked, that there never was a guarantee. They concealed that crucial fact while 4 innocent people went to prison. They hid the Fastow notes that corroborated that information. And then they vehemently opposed release pending appeal and told two courts there was “no substantial issue for appeal.”
But these revelations didn’t seem to matter to the DOJ. Matthew Friedrich got promoted to acting Assistant Attorney General for the Criminal Division. No one seemed to notice or care that Friedrich had played a significant role in causing the errors while wasting millions of taxpayer dollars and causing substantial harm to countless people. No one was paying any attention to the fact that these prosecutors had hidden evidence from the defense.
It probably didn’t hurt Friedrich that he was married to Dabney Langhorne, assistant US attorney in the Eastern District of Virginia, from the wealthy and politically powerful Langhorne-Astor families. She was associate counsel in the White House from 2003-2006. She was appointed to the Sentencing Commission in 2006, reappointed by President Obama in 2010.
Friedrich brought in Rita Glavin to be his deputy. This was ironic because she began her career in the Public Integrity Section. But only 10 years into her career, she was second in command. There was no adult supervision of the new command of the criminal division.
Friedrich and Glavin got busy in the Public Integrity Section (PIN) and their investigation of public corruption cases in Alaska. Several convictions had already taken place at the hand of PIN attorney Nicholas Marsh. They became especially interested in the indictment of US Senator Ted Stevens. Senator Stevens was a heavily decorated World War II pilot, a legend and a hero to most Alaskans. He was a senator for 40 years, and had helped build Alaska.
A meeting of Friedrich, Glavin, Alaska Assistant US Attorneys Joseph Bottini and James Goeke, PIN Deputy Chief Brenda Morris, PIN Chief Bill Welch, and PIN trial attorneys Nick Marsh and Edward Sullivan took place on July 14 to discuss the case against Senator Stevens. Marsh’s casual presentation of the case negatively impressed Friedrich and Glavin. He was replaced as trial lawyer two days before the trial by Morris, who didn’t want the assignment. It was too late to change roles, and was terrible for morale. Two days later Friedrich read the charges against Stevens to the media.
Senator Stevens was defended by Brendan Sullivan and Rob Cary of Williams & Connolly in DC. They demanded a speedy trial—before the November 4th election. The judge assigned was Emmet Sullivan. Judge Sullivan cared about justice and legal ethics. He had no tolerance for criminals, but had great respect for the rule of law. He expected those entrusted with the powere of the sovereign to be correct on the law and the facts when they threatened someone’s life and liberty.
In an earlier case, Berger, the Supreme Court set the standard for the conduct of US attorneys:
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Judge Sullivan believed that all lawyers should practice by that code—especially federal prosecutors whose only real job was to see justice in the highest sense.
The charges against Senator Stevens were for gifts he received from a builder remodeling his house. The prosecution said he failed to report the true value of the gifts as required by senate ethics rules, and that they were really bribes. But they didn’t charge him with bribery. They, as in the Enron cases, charged him with offenses they couldn’t prove, depending on the jury to find him guilty simply because he was charged with something that just “smelled bad”.
Throughout the trial, the defense caught the prosecution in one “mistake” after another. Judge Sullivan got boiling mad. In spite of everything, the jury returned a guilty verdict. The prosecution gloated. Friedrich had orchestrated another conviction, and no one would ever know.
So this shows that government prosecutors have no problem with breaking the law to convict an innocent person. And when the high level prosecutors do it, that sends a message down the chain of US Attorneys that it is okay for them to do it as well—that that’s the way to get promoted in the ranks. Win the case. Show your power by putting an innocent person in prison. And the higher in prominence that innocent person is, the more prestige there will be when you win.
My entire case was fabricated by the prosecution. From the lies on the search warrant to gain access to my office, to the perjury before the grand jury by the DEA agent, to the actual breaking of the law to call a prescription in in my name for a wired informant, to the forced perjury of Dr. Schultz and attempted forced perjury of my nurse. It was all pure fabrication. For what purpose? I think this chapter shows that there doesn’t really have to be a purpose anymore. It’s just the way things are done now. Can we trust any prosecution of any American anymore? I don’t think so. I don’t think I could even believe bloody fingerprints on the murder weapon if I was a juror.
There simply are no morals in our government figures any more. We can’t trust them to do anything that is right or just. How do we fix this? I don’t have a clue. In my opinion, it is the beginning of the end for our country. History repeats itself. In all great powers—Egypt, Persia, Rome, and Greece—the government was brought down by their own greed and immorality. I personally think America is heading down the same track. If anyone has a solution, please send it to me.
Chapter 11: The Department of INjustice: Polar Pen Melts
In late 2008, young FBI agent Chad Joy filed a complaint with the Justice Department’s Office of Professional Responsibility claiming that the prosecutors hid evidence in the Stevens “Polar Pen” case. He had to request protection of “whistle-blower status” within the FBI.
One of his main complaints was that prosecutor Marsh had concocted an excuse to keep witness Rocky Williams, who was sent back to Alaska for “health reasons”, from being cross-examined because he wouldn’t be able to bear up under it with his testimony. He also said Marsh deliberately hid evidence favorable to the defense.
The Department of Justice tried to keep Joy’s complaint under wraps, but couldn’t. About the same time, Friedrich left the department. Kathryn Ruemmler returned to be second in command behind the attorney general. In the middle of the meltdown, Eric Holder was sworn in as Attorney General.
Judge Sullivan held PIN Chief Bill Welch, lead trial counsel Brenda Morris and Appellate Section Chief Patty Stemler in contempt. A new team had to be appointed. The new team found notes of the interview with key government witness Bill Allen that were exculpatory to the defense.
Holder marched in on his supposedly “white horse” (his action was completely political to try to save face). On April 1 he announced he was dismissing the case against Senator Stevens “in the interest of justice,” and pledged a “thorough review by OPR”.
Brendan Sullivan, Stevens’ attorney, stated to the press, “This jury verdict was obtained unlawfully. The government disregarded the Constitution, the Federal Rules of Criminal Procedure, and well-established Supreme Court case law. In stunning misconduct, the government presented false evidence” “In essence, the government tricked the jury into returning a tainted verdict against the senator based on false evidence.”
“Noting how truly dangerous and destructive prosecutorial misconduct is, Mr. Sullivan said, ‘This case is a sad story and a warning to everyone. Any citizen can be convicted if prosecutors are hellbent on ignoring the Constitution and willing to present false evidence.”
The media jumped on the bandwagon with “The government’s lawyers likely miscarried justice and should be held to account.”
Attorney General Eric Holder made political but false statements like “He wanted ‘to prevent those kinds of mistakes from happening again.’” He wanted ‘to tell the world’ that ‘this is not the way in which this Justice Department will conduct itself.’
First a moment of personal reflection. One year ago today WOULD have been my first day home from prison had it not been for the abuse of power, lies and administrative cover-up of the DOJ FBOP. Instead, I had to stay in prison another 14 days so that THEY made more money. Back to Licensed to Lie.In this chapter, the DOJ gets caught with its pants down. Only because of the morality of one FBI agent, who then had to protect himself from attack within his own ranks by declaring a “whistle blower status”. In further research, Mr. Joy was a member of the Anchorage FBI, and he stated later that he was denied the whistle blower status. As of 2012, FBI agent Mary Beth Kepner, one of those doing misconduct, was still working for the FBI, still investigating cases. Robert Burnham, second on command at the Anchorage office, described Kepner as “dogged and determined and so creative in developing cooperating witnesses, cooperating subjects.” So, in other words, the offending perpetrator of prosecutorial misconduct gets accolades for doing whatever it takes to win, while the moral member gets the boot. Mr. Joy, on the other hand, was informed that he was to be taken off of criminal cases on June 22, 2009, effectively ending his career, according to those who understand the way the FBI works. Less than seven months later, on Jan. 2, 2010, he resigned, sold his house, and left the state.Senator Stevens was basically one lucky SOB. How many other cases are won through prosecutorial misconduct that don’t get caught? Probably most of them. I believe that a greater majority of cases now being criminally prosecuted aren’t guilty of any criminal conduct. Putting people in prison now is big business. The Department of Justice has grown so big and has so many hungry mouths to feed, that they will continue to attack innocent people until we, the people, do something to stop it.The fact that there was a moral FBI agent and a moral judge, who believed in the way the Justice Department is supposed to be run is just a small crack in the wall. It gives us a glimpse of the evil behind the door. But as soon as the evil was exposed, the powers that be, Eric Holder, the Justice Department, and the FBI proceeded to hide what was going on and continue their growing habit of prosecuting the innocent for reward. And the American people are oblivious to what is happening. The greater majority of us still believe that only criminals are prosecuted. We have to change that perception, bring it back to reality, and get our government to return to the concepts of justice that the fathers of our country espoused when they wrote the constitution. We need to “blast through the wall of INjustice.”Mr. Sullivan’s statement about how truly dangerous and destructive prosecutorial misconduct is should have been a warning received by the DOJ and they should have taken it on to clean up their ship. As Mr. Sullivan said, this is a warning to everyone. Any citizen in this country CAN and IS being convicted, because prosecutors ARE hellbent on ignoring the Constitution and willing to fabricate a crime themselves in order to win. They did it with me, they are doing it with every doctor being prosecuted, and my guess is they are doing it throughout the country in every area imaginable.
Is there anyone in the DOJ with any integrity or morals? I don’t think so. Attorney General Eric Holder made political but false statements like “He wanted ‘to prevent those kinds of mistakes from happening again.’” When what he really meant was that he didn’t want the government caught again. The prosecutors could do whatever they wanted to win a case, just don’t get caught at it. So the DOJ protects itself from disclosure of illegalities, straight through the OPR.
How evil is our government? They are so evil that they will attack an innocent doctor dying of cancer in order to make money and gain promotions. Check out my post on Dr. Austrian here:
Chapter 12: The Mother of All Hearings
April 7, 2009—a momentous day in legal history—especially for anyone who cares about individual rights. The prosecutorial misconduct in the Stevens case was before Judge Sullivan.
He began with “In twenty-five years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case.” He then shared his thoughts about what the legal community needed to do to safeguard the integrity of the criminal justice system. “When the government does not meet its obligations to turn over evidence, the system falters.” The fair administration of justice depends on the government meeting its obligations to pursue convictions fairly and in accordance with the Constitution.” “These cases, together with earlier cases condemning the knowing use of perjured testimony, illustrate the special role played by the American prosecutor in the search for truth in criminal trials.” Quoting Berger, he said, “the United States Attorney is the representative, not of an ordinary party to a controversy but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” “We must never forget the Supreme Court’s directive that a criminal trial is a search for the truth.”
He then urged all judges on every trial court to be vigilant and enter an exculpatory evidence order at the beginning of every criminal case. He urged the new attorney general, Eric Holder, to require Brady training for all prosecutors in the country. He urged the president, attorney general and senate to consider this issue in the appointment of new US attorneys.
Brendan Sullivan raked the prosecutors over the coals. “I don’t think there is anything worse than our government presenting false evidence, manufacturing evidence to suit the occasion in order to get the upper hand.” The frightening part was how close the prosecutors came to succeeding. “My reaction was sic, I was sick to my stomach. How could they do this? How could they abandon their responsibilities?” “There is the failure of leadership. It’s to prosecute to win at all costs, and wrongdoing can flourish when that’s the attitude of a leader.”
Little did Brendan Sullivan know even then how much evidence was still buried within the department, how it would be uncovered, how far back it went, and how many cases Friedrich and his cronies had corrupted.
Clearly, once the senator was indicted, the trial team had to win. Jobs depended on it. And so they abandoned all decency to win a conviction. “The fear of loss drove them to do what they did. The chances of being caught were small.” “If the government is not honest, it can trump even the best efforts of those of us who work in the system.”
Then Senator Stevens was allowed to speak. He was very gracious. To note, he mentioned his wife and family who stood by him through the whole process. And he spoke to how close he came to being completely destroyed.
Senator Stevens said “Until recently, my faith in the criminal system was unwavering, but what some members of the prosecution team did nearly destroyed that faith. Their conduct had consequences for me that they will never realize and can never be reversed.”
“Main Justice” as insiders called the DOJ, had descended to inbreed arrogance and political abuse of power, with disregard for the rule of law.
So has there been a change in the way the DOJ conducts their business since this case hit the fan in 2009? Not a bit. In fact, things are worse. 2009 was when I was trying to communicate with the DEA over how I was conducting my business with another doctor taking care of the pain patients while I waited on my certificate. Instead, the DEA stonewalled my questions refusing to answer them and targeted me with the DHHS and US Attorney’s office. They concocted lies to get a judge to issue a search warrant. They then raided my office in 2010, broke the law with one of their wired informants, and literally created a case against me that was complete fabrication. All because they could.
The way in which the FBI treated the one person with morals in the Stevens case, forcing him out of the office instead of recognizing that he did them a favor and holding his morality in esteem is just abhorrent. Naturally the word to the rest of the FBI agents was to conform with the way things were done illegally, or look for another job.
Targeted because I was a whistleblower
I’ve always wondered why they targeted me. I was a really small fish in a small pond, with only 300 patients in a small backwoods part of Virginia. I think part of the reason was because I was also a whistleblower, and I had no protection either.
I had blown the whistle on a hospital group that was in my county, Pulaski, VA. At the time it was called Pulaski Community Hospital. Then its name changed to reflect the Hospital Group to Columbia/HCA of Pulaski. This hospital group was owned by Thomas Frist, brother to Senator Bob Frist of Tennessee. My whistleblowing letter was written in 1996 near the end of my tenure at the hospital. I turned them in for requiring doctors to upcode patients in the hospital for conditions that weren’t proven with testing, and for giving doctors in the area secret kickbacks by bringing in associates into their office. I was one such associate for a Dr. James Hylton. Nothing came of my whistleblowing, or so I thought.
UNBELIEVABLE I just found out, doing the research on Mr. Frist, that my whistleblowing did something. Look at the information on Wikipedia about HCA hospitals: https://en.wikipedia.org/wiki/Hospital_Corporation_of_America. The government investigated them for exactly what I turned them in for, and heads rolled. I never knew. As a whistle blower, I was supposed to get a monetary reward. Someone in the government kept it quiet and I got nothing, except a target on my back. I will need to investigate this further. Why was I cut out? Anyway, Pulaski Community Hospital kept this real hush-hush and no one knew. But somehow my letter moved through the government back to HCA, and just like what happened to Chad Joy, I became the target. I always wondered why, and now I know. Because the administrator of this hospital became a government witness against me at my trial, even though I had not worked for them in 15 years, I knew there was a connection. WOW!! It just goes to show you that they all work in it together.
Notice also, that the chairman of HCA during the fraud, was Rick Scott—now governor of Florida. Fraud didn’t hurt him any, but reporting it destroyed my life.
Another piece of evidence that they are all playing in the dirty pool together is that in 2006 I wrote a letter to President Bush about my first attack. The government used the excuse they can use against every doctor in the country to raid their office and gather information—Medicare fraud. I wrote the letter at the bottom of this discussion to President Bush. I had been given the instructions by my attorney not to talk to anyone. Was I surprised when I got a call from him with the question, “So you wrote to President Bush?” I answered sheepishly, “Yes. How did you find out?” His answer: “The US Attorney told me.” So President Bush’s underlings (I’m sure he never saw it) sent the letter through the chain to the DOJ, and it landed in the US Attorney’s office. So basically, they all work together to criminalize whoever they want.
Letter to President Bush:
October 15, 2006
Dear Mr. President:
I am a 57 year old 2nd career physician in Southwest Virginia. I am a graduate of UT Austin for my BA and UTHSCSA for my MD. In my previous career I was a teacher for 20 years, 10 of which was spent in Texas, mostly in San Antonio, where I lived with my then, Air Force husband. I came to SW Virginia to be of help to the rural underserved population. Why, then, sir, would I ever consider committing Medicare or Medicaid fraud? I am the most unfraudulent individual you could ever care to meet. I have instead, saved the government probably hundreds of thousands of dollars in my health care in the past 5 years. And yet US Attorney, John Brownlee, appointed by you, is prosecuting me.
Most of my patients are government insured. That is because no other doctor in the area will serve them. You see, sir, I treat pain. I am a family practice physician, but in my study of alternative medicine, I can validate pain that conventional doctors can’t. I can also treat it conventionally and alternatively, which is what I have been doing. The conventional treatment does nothing for the patient but maintain the pain. The alternative treatment that I have done has healed conditions that conventional medicine has no treatment for. I have taken patients that were on disability and helped them to the point that some of them now work two jobs. I have seen psoriasis covering the body be completely gone in 1 month without drugs.
Once in this country there used to be a saying “Build a better mousetrap and the world will beat a path to your door.” Not so anymore. Do something different and the government (your government) charges you with fraud. If we don’t allow individual physicians to demonstrate what they can do in the alternative world, we will be stuck with an ever-increasing cost of health care with a society that continues to get sicker and sicker.
Now why was my office raided February 28th by 20 federal, state, and local drug enforcement and Health Services agents? The first reason was the fact that I treat pain. The government, run by your appointed US Attorneys, is closing down doctor’s practices all over the country for treating pain. Mr. Brownlee, in particular, has targeted SW Virginia for this action. Here he is, the son of your Undersecretary of the Army, creating fear in the hearts of every doctor for prescribing a pain pill. All over SW Virginia you will find notices in doctor’s offices “WE DON’T TREAT CHRONIC PAIN”. So what we have here is a catch 22. You are sending our young men over to a foreign land against a formidable enemy to get their legs and arms blown off, only to come back to a country that refuses to treat their pain.
Why am I writing this letter now? I consider it God’s timing, not mine. I just received in the mail today a denial by Medicare of $12,400.00 worth of claims of patient visits from May through August. The reason given for the denial was that the visits were not deemed a “medical necessity”. Included in this transmission is a copy of the Medicare EOB. Now since most of these visits were for evaluation and treatment of pain, I would like for you to hear from the patient that the visit was not medically necessary. Since I am opposed to the use of acetominophen because it clogs the liver and blocks its detoxification action, I prescribe mostly schedule 2 opiates. Due to the fiasco of the DEA since November 2004, opiates have to be prescribed every month. So why are these visits being called “not medically necessary”? I have been seeing Medicare patients for the last 6 months without being paid because I have been under review as a result of your attorney’s raid. I believe that the transmission I just received is an indication that Medicare has decided that I am not a physician they want to do business with. So I guess that means the government does not want me to save them any more money, or heal their insured. It would appear that the government wants their patients to remain sick, die early (probably thus saving money in the future with SSI), and continue to fund the hospitals, pharmaceutical industry, and insurance companies. Is that your underlying plan for the country’s health care?
Since I run an immaculate practice of pain management, the prosecutors have nothing to charge me with there. So with that as a dead end, they are turning to my alternative practice of cleansing. I have been cursed with the fact that I am usually ahead of my time. In the 1960s I fought the dress code that did not allow pantsuits on Virginia college campuses. In the 1970s I was one of the first officer’s wives in the US Air Force that worked at my own career, teaching, instead of playing bridge. And now I can see that in health care, alternative medicine is the true medicine of the future. Allopathic medicine will someday be looked back at like we look at bloodletting of the 1700’s. Did you know that conventional doctors, bleeding him for pneumonia, killed our first president? Today people are dying every day because of conventional medicine. The medicine I have learned, for which I travel to Toronto to learn from the master, Dr. Gueniot from Belgium, is the future of true health. I provided this medicine to my patients through their office visits, getting them off drugs, and saving thousands of dollars per patient in not doing expensive tests and procedures that matter “nada” in the real scheme of things. So what does the government do but charge me with fraud. Instead of being charged with fraud, I should be hired by the government to teach others what I know and save this country from severe incapacitating chronic disease. The chronic diseases are hitting younger and younger people, all because of our diet and lifestyle, in addition to the evils of conventional medicine. I just had a patient show a compression fracture of her 9th thoracic vertebra at the age of 46. Osteoporosis is going to hit younger and younger people. And just look at the rheumatoid diseases, lupus and fibromyalgia, and how they are showing up in younger and younger people. Instead of being afraid of alternative medicine, the government should be embracing the knowledge provided by doctors such as myself, as that is what can save our country from eventual health care collapse.
The next week Dublin is home to the Moving Wall—the recreation of the Vietnam Veteran’s memorial. The location is directly across from my office. How ironic that it should be here the same week that I find out that the government is refusing to pay for my services. There is an international airport in Dublin as well, that would accommodate your plane. Might I suggest that you come personally and tell the veterans that I see that they can no longer receive pain management? I invite you to come to my office and see the kind of work that I do, and the people that I serve. We’ve already suffered the elimination of Virginia Premier, the HMO for Medicaid. They told me in April that they no longer wanted my services. 300 patients were thrown to the wind to find another physician on their own. As no one treats pain here, most were unable to do so. Most didn’t want to do so. So most of them have continued to see me as private paying patients for the last 6 months. Supposedly they can change to regular Medicaid in November, but since this is the second time they have been told they can change, and then it was reneged on, I won’t hold my breath. I invite you to come to my office and explain to those patients why the government has created such a financial hardship on them.
Again, I consider the timing of this action, and this letter, the work of God. I work under the message in Isaiah 61:1-4:
The Spirit of the Sovereign Lord is on me because the Lord has anointed me to preach good news to the poor. He has sent me to bind up the brokenhearted, to proclaim freedom for the captives and release from darkness for the prisoners, to proclaim the year of the Lord’s favor and the day of vengeance of our God, to comfort all who mourn, and provide for those who grieve in Zion—to bestow on them a crown of beauty instead of ashes, the oil of gladness instead of mourning, and a garment of praise instead of a spirit of despair. They will be called oaks of righteousness, a planting of the Lord for the display of his splendor. They will rebuild the ancient ruins and resort the places long devastated; they will renew the ruined cities that have been devastated for generations.
I was sent to SW Virginia for a purpose. Right now my purpose is to lead the fight against pain management prosecution and for the recognition of alternative medicine as the medicine of the future. The timing of this letter, 3 weeks before elections, was not my doing. But I do believe it is newsworthy, and will be forwarding a copy to the major news media.
I wrote to you years ago when you were running for office, letting you know of the plight of rural physicians trying to make a living serving the government insured. I never heard from you then, and I don’t expect you to take my offer of a visit now. After all, it is your US Attorney that is prosecuting me, so it must be your health care program.
Linda S. Cheek, M.D., D.A.A.P.M.
Chapter 13: Move Over, DOJ: There’s a New Sheriff in Town
Judge Sullivan announced that there would be criminal contempt proceedings against the original prosecution team: William Welch, Brenda Morris, Joseph Bottini, Nicholas Marsh, James Goeke, and Edward Sullivan. This was unprecedented.
He also appointed a nongovernment, disinterested attorney to prosecute the matter. He chose highly respected DC attorney Henry Schuelke III to investigate and ordered the department to preserve all of its files and correspondence.
For good reason, the trial prosecutors were traumatized. This investigation into what they do was really unthinkable. Prosecutors being prosecuted? Prosecutors had immunity. Judges rarely pushed back at all. Bar associations usually just dismissed any complaint as a maneuver by a disgruntled criminal who was rightly convicted. The DOJ furnished the prosecutors with defense attorneys on the taxpayers’ dime, and they hired the best.
Other cases won by Marsh were scrutinized for Brady violations. He and Sullivan were transferred to the DOJ’s Office of International Affairs where they could not try cases.
Meanwhile, a new prosecutor, Patrick Stokes from the Eastern District of Virginia, was assigned to the Barge case after Spencer’s debacles. He had been handpicked by Friedrich, and was a Friedrich “wanna-be”.
The Brown defense team went to the DOJ building to meet with Stokes, but found out they would be meeting with Deputy Assistant Attorney General Rita Glavin. The meeting was non-productive, as the government was very ugly, ignoring the purpose of the visit, to get Brown a dismissal. Within a few weeks, Glavin left the department for private practice.
Stokes continued to press the re-prosecution of Jim and denied there was any Brady material. Judge Werlein continued to ignore defense motions. Then on June 18, 2009, the Supreme Court handed the Enron Task Force its third reversal out of four cases—the Enron Broadband cases of Yeager and Hirko. The prosecutors under investigation began leaving the main office for other positions—the proverbial rats fleeing the sinking ship of the “Public Integrity” Section because of their own lack of integrity.
In December, 2009, Ms. Powell went to the Supreme Court review of another “honest services” fraud case in the Polar Pen fiasco. The question put before the Court was whether the statute used by the prosecution was unconstitutional. In Andersen, Maureen Mahoney had argued that the law requires “fair warning” on what conduct is criminal. The Court was finally dealing with a twenty-seven year-old problem of a law so vague no reasonable person could tell what it meant. It had been used for years by overly aggressive, headline-seeking, or politically motivated prosecutors to send people to prison for transactions and conduct that were not crimes at all.
And that is the crux of the problem in the courts today—the misrepresentation of a statute for political gain. The statute in question is Title 21 §1306.04:
Title 21 Code of Federal Regulations
PART 1306 — PRESCRIPTIONS
§1306.04 Purpose of issue of prescription.
(a) A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. The responsibility for the proper prescribing and dispensing of controlled substances is upon the prescribing practitioner, but a corresponding responsibility rests with the pharmacist who fills the prescription. An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. 829) and the person knowingly filling such a purported prescription, as well as the person issuing it, shall be subject to the penalties provided for violations of the provisions of law relating to controlled substances.
(b) A prescription may not be issued in order for an individual practitioner to obtain controlled substances for supplying the individual practitioner for the purpose of general dispensing to patients.
(c) A prescription may not be issued for “detoxification treatment” or “maintenance treatment,” unless the prescription is for a Schedule III, IV, or V narcotic drug approved by the Food and Drug Administration specifically for use in maintenance or detoxification treatment and the practitioner is in compliance with requirements in §1301.28 of this chapter.
[36 FR 7799, Apr. 24, 1971. Redesignated at 38 FR 26609, Sept. 24, 1973, and amended at 39 FR 37986, Oct. 25, 1974; 70 FR 36343, June 23, 2005]
About the same time prosecutors were “constructing” laws using vague statutes in the Enron scandal, they were also misrepresenting this statute against doctors.
First, as stated in Andersen, the law requires “fair warning” on what conduct is criminal. According to this statute, if the doctor is evaluating and treating a patient, he is exempt from prosecution by the Controlled Substances Act. Any reasonable man would interpret this statute that way. And yet, prosecutors and courts have maligned this statute for 16+ years now, without any legislative regard. The legislature knows what is happening, and they do nothing because it is bringing money to the government coffers and supporting the extensive employment opportunities in Washington. We, the people, will have to force the legislators to do something to stop this and get the law clarified. If not, chronic pain patients and the doctors who serve them will have their heads on the chopping block more and more.
Just one of the ways the prosecutors malign this statute is that they send in a wired informant pretending to be a “patient”. The “patient” even lies about having a pain issue. But then in the court, the doctor is accused of not having a “legitimate medical purpose” because the informant didn’t really have pain, but they got a prescription. How is the doctor supposed to know that the complaint isn’t real? But jurors buy it.
The first thing people have to do is educate your legislator that opioids do not cause drug abuse. Many laws are coming before Congress, one actually this week, that will make it worse for the chronic pain patient, not better, because of the ignorance of the legislators and their believing the government propaganda.
I have had my DVD on the REAL Cause of Drug Abuse available on my website for 4 months now, and have told people on chronic pain Facebook groups about it and how they need to learn and tell their legislators about it. No one has availed themselves of this knowledge. I’ve also offered a short version in webinars, and for the first time I had someone show up December 1.
Really!! And yet they gripe and complain about what is happening. Wake up! Smell the coffee! If you don’t learn this and teach it to your legislators, when you get cut off of your meds you can’t blame anyone but yourself.
Here is the link if you are interested in getting this amazing knowledge to help correct the misinformation that is being used to persecute doctors and their patients:
For a short time there is a fantastic discount (#4) available on three DVD’s that everyone can learn from. You can find all discounts on the right sidebar.
I will soon be writing all of the legislators about the REAL Cause of Drug Abuse in a letter writing campaign. I hope the people reading this post will join me. You can see example letters and information to use under Call to Action on this website, www.doctorsofcourage.org. Click HERE to go to that page. Even if you don’t get the DVD or attend the webinar, at least use the information in my letters to inform the legislators about this knowledge.
Chapter 14: Another Try
Ms. Powell received denials on their motions of double jeopardy for Brown and their petition for writ of certiorari to the Supreme Court. So they were looking at going to trial again for the same indictment. She then reached out to Deputy Solicitor General Michael Dreeben in hopes of him considering the prosecutorial misconduct as grounds for dismissal but he refused. Then she tried to get a Supreme Court rehearing, since they had already reversed 3 similar cases.
The fallout from the Stevens case created negative publicity. But it did not appear that Holder was going to keep his word of cleaning up the DOJ. Attorney General Ogden issued a formal memorandum before he left, for prosecutors to review files and turn over any Brady material to the defense. But it did not provide any enforcement mechanism or deadlines for production. It was not enforceable by the defense, and it still allowed prosecutors to decide how important the evidence might be to the defense, so they could still hide it.
On Jan 8, 2010, the government dismissed all counts against Dan Bayly. So how could they continue to prosecute Brown, when he wasn’t even involved in the agreement that Bayly was accused of making with Fastow?
At this same time, Kathryn Ruemmler moved from her position as the Attorney General’s deputy over to become deputy White House counsel. Then the Supreme Court denied the rehearing petition.
Meanwhile, Hank Schuelke was drilling deeper into the bunkers of bureaucracy in the Justice Department in his investigation of the Stevens case.
On March 1, 2010, Ms. Powell attended the Skilling argument before the Supreme Court. Then a week later, Furst was offered a “deferred prosecution agreement”. That meant that as long as Furst doesn’t commit another crime for one year, all charges would be dropped. Also, Brown’s case had long passed the requirement of the Speedy Trial Act. Under the act, the government is to bring a defendant to trial within seventy days. It had been over seven months. Someone had to do something.
There’s not a lot of interest to discuss in this chapter. It’s just legal mumbo jumbo. The only thing I come out of this chapter is how much work these defense lawyers put into these cases. Does the average American get this kind of treatment? Of course not. That’s why so many innocent people are incarcerated.
There is a saying that a Grand Jury would indict a ham sandwich, and that is the case because the only presentation before them is that of the government, and they commit prosecutorial misconduct to do it.
The last line of this chapter is the absolute truth, and what we need to get out of it:
Someone has to do something!!!!
Chapter 15: The Big Oops
In late March 2010, the Brown defense got a letter from the third team of Barge case prosecutors with a small package containing a disk of witness statements, notes, and grand jury transcripts which formed the basis of the government’s 2004 disclosure letter.
Pressuring Stokes for dismissing the indictment, they were called in to a hearing before Judge Werlein. They thought that the hearing would be a clean way for Judge Werlein to wash his hands of the retrial. Instead, they met with hostility. The Judge didn’t even mention their Speedy Trial Motion, obviously denying it by his action regardless of the law. Through the course of the hearing it became obvious that the Judge was covering up something for the government. Trying to pressure the defense into agreeing to things not in Brown’s best interest, the judge began to threaten Brown with continuing his prison sentence from the previous trial. Ms. Powell stood up to the judge, but nothing changed. The trial date was set, but at least they had that.
A month later the deferred prosecution agreement with Furst was agreed on.
As they prepared for trial, they looked at the disk Stokes had provided and made an astonishing discovery. There was yellow highlighting on some of the documents. The highlighting was the government’s own identification of Brady material—marked for Judge Werlein to review, but defense never received. In this material was the interview of former Enron treasurer, Jeff McMahon, and it was totally exculpatory. Many of the statements directly contradicted the prosecutors’ entire case. Now it was clear why the task force had threatened McMahon so intensively, keeping him in fear of indictment, to keep him from testifying. It was also obvious now why he was never indicted for making the alleged guarantee for which the four Merrill executives were convicted.
Ms. Powell knew something was very wrong in this case. They had worked way too hard to make something a crime that wasn’t, and fought against producing the real documents. This was cold, hard evidence that the government knew exactly what they were doing—and deliberately hid the evidence from the defense. This misconduct and Brady violation was even clearer than in Stevens—and four men had gone to prison because of it.
In this chapter the long awaited Brady information was finally received by the defense, after 3 prosecutor groups had kept it secret. It showed, beyond a shadow of a doubt that Brown was innocent of committing any crime. So why was he prosecuted?
Overaggressive prosecutors is the rule now in the DOJ rather than the exception. Everyone knows that in order to advance in their career, they have to behave illegally. This is a basic movement, in my opinion, throughout the government. This is why we, the people, need to clean house in Washington. We can’t depend on Trump to do it. We failed to do it in this past election, with only 11 new legislators voted in, and most incumbents winning 60-70% of the votes. We need to start now with our representatives, informing them of the truth, and if they don’t work for us, in the next election they need to be fired.
That is why all of the chronic pain community—doctors and patients—need to start communicating (if you aren’t already) with your legislators now. Tell them about the REAL cause of drug abuse, and that they need to stop the attacks on doctors and patients. Then, if they don’t, fire them.
Today, Dec. 12, 2016, is a day marked for communicating with your legislator. Per a friend on several chronic pain support Facebook groups:
Mark your calendars!!! On December 12th we would like all pain warriors to call their congressman’s office with complaints about opioids. Several people have asked for examples here are a few reasons (examples) you might use. My opiates have been decreasing to a point where I can no longer function. I cannot get the medications that I need because I do not have Cancer or other approved diagnosis. Because I am no longer receiving opiates I’m in so much pain life is not worth living. I’m unable to perform simple household duties….etc.
I would request that you ask them to immediately draw up a resolution to stop the persecution of doctors using Title 21. Doctors are exempted from that law by statute. But the DOJ still uses the statute to incarcerate innocent physicians. If this resolution is not written and voted as law, then every legislator that gets this message needs to be fired. I am going to start my campaign now. Will you join me? I am putting the contact information on the website on pages under Call To Action—Letter Writing Campaign. When you get the contact information for your legislators and their Health Issues Representative, please send me that information through a comment here or the Contact Us page.
Chapter 16: Truth Be Told
Long before the Barge trial, Ruemmler, Friedrich, Weissmann, and Hemann knew exactly what evidence the Merrill defendants needed for their defense. They knew that a “best-efforts” agreement to remarket the barges was lawful. These prosecutors knew that the defense was built on that. As the defense team went through the highlighted pages, it became obvious that the prosecutors had deliberately, and with great care, kept the precise words out of the summaries of the crucial witnesses that would have proved the defense. The highlighted evidence they hid directly contradicted their witnesses and arguments. Then their protégés Spencer and Stokes, continued the fight throughout the appeals and impending new trial, to conceal the sworn statements. They had repeatedly denied the existence of Brady material. Ms. Powell now had the proof.
When Judge Werlein ordered the prosecutors to produce summaries of the exculpatory evidence, they further redacted even the Brady material they had highlighted. Not even he, the most pro-government judge she had ever seen, could ignore this. Even he should be outraged. They had thumbed their nose at his order.
The evidence showed that multiple agents’ notes independently corroborated each other confirming that McMahon himself had said clearly, definitively, and unequivocally: “No—never guaranteed to take out Merrill Lynch with rate of return.” “Never made representation to Merrill Lynch that Enron would buy them out.” “Andy said—Enron would help remarket in six months.” “Discussion between Fastow and Merrill Lynch was that Enron would use best efforts to help them sell assets.”
All along, the prosecutors knew and were hiding the evidence that Zrike had sworn as true in the grand jury. As Merrill’s in-house counsel, she had sworn that any attempt to a guarantee by Merrill was thwarted by Enron as inappropriate. But she was threatened by the possibility of an indictment, and Weissmann sitting in front of her as she testified, drove home that she better not vary from her planned testimony, and reveal the truth. Then they hid her sworn grand jury testimony which they had highlighted. It took six years for this evidence to be uncovered.
What they did to Bill Fuhs was even worse—putting him in a filthy bug-infested segregation prison cell, as a “taste” of things to come if he didn’t cooperate.
All of these pages of missing Brady documentation had been allowed by Judge Werlein. Why would these prosecutors repeatedly refuse to produce these documents if not strategically to engineer the defendants’ convictions? Why else would they have gone to so much time and trouble? It was standard procedure for that kind of disclosure to be made by prosecutors who seek justice. And these weren’t just your run-of-the-mill prosecutor—these were the cream of the crop. The truth was that the withheld material undercut their entire case and they knew it and hid it.
Now they were armed for the hearing. Werlein couldn’t ignore this evidence. Brown would get a new trial, possibly the case would be dismissed for this egregious conduct.
Bringing this egregious conduct out in the open is truly amazing! Those of us that have suffered at the hand of law-breaking prosecutors know what they do. But the majority of Americans don’t. This chapter is a must read by everyone. It will prove, beyond a shadow of a doubt that we cannot trust any witness the prosecution puts before the jury. The Department of Justice, instead of rewarding these prosecutors for their work, and holding them up as “exemplary” for other prosecutors to emulate, should be hanging them by their toenails and making sure no other US Attorney follows their example. But they aren’t doing that. Instead, it has become routine for this egregious behavior to be used to convict innocent people—me, for example.
In my case, my employees were threatened to lie as witnesses. If they didn’t lie for the prosecution, they would be “put in prison” (the agents’ words as they threatened the staff). My colleague, Dr. Schultz, caved and did what they told her, which resulted in my conviction and prison term. In her own words, “they came and talked to me so many times, I forgot what the truth was”. At the age of 75 at the time, I believe they used her early onset dementia to change her thinking processes. Her testimony was a lot like Ms. Zrike’s was described. She spoke haltingly, constantly looking at the prosecutor for direction. To me it was obvious her testimony was untrue. But for some reason, the jury bought it. We have to drive home to people sitting in jury boxes that government witnesses can no longer be trusted to speak the truth.
We also have to remove immunity from government prosecutors. If they break the law to convict an innocent person, they need to do time in segregation. Having spent 6 weeks there myself, I can’t think of a better place for them.
Chapter 17: The Beginning of the End
Judge Werlein refused to dismiss the double jeopardy prosecution and denied the Speedy Trial motion. They still looked forward, however, to a new trial on counts four and five—the perjury and obstruction charges. Until those were reversed, Jim would always be a convicted felon—unable to shoot skeet with his son, vote, or work in his lifelong profession again.
The defense team worked like Trojans on the case, covering every aspect of reversal from Attorney General Holder down to the trial judge, Judge Werlein. But they met closed doors with every attempt. With the statute of limitations run out, a key witness, Jeff McMahon got onboard with his testimony that agreed with Brown’s: there was no guarantee in the Barge case. This witness was a key to Jim’s vindication and exoneration. Meanwhile, the Supreme Court reversed another task force case against Skilling, but only the conspiracy count. The rest of the case was remanded back to Fifth Circuit.
Everything coming out of the Supreme Court torpedoed the government’s case against Brown. But at the pretrial hearing, Werlein showed that he was in bed with the government, and was not going to bend on the case. He backed all the government’s motions and denied the defenses. Instead of being dismissed, the case was dragged on.
Chapter 18: The End of the Beginning
The defense team prepared the 15 page brief ordered by Werlein. They spelled out all the egregious government misconduct. They got the usual treatment from the court—the defense motion for a new trial was denied, the defense was rebuked, and the prosecutor’s briefing was credited as “laudable”. He completely ignored the highlighting of the Brady material that the prosecutors kept from the defense. The defense arguments had “no merit”. So the defense team prepared for trial.
By this time, their claims threatened the law licenses of very powerful people—Ruemmler, Friedrich, Weissman, and Hemann. But no one had the integrity to admit the wrongdoing and dismiss the charges against Brown. They were confident that Judge Werlein would protect them from exposure and the truth. And they were proved right.
The Brown defense team found out that the government had not prepared for trial—had not contacted a single witness. The government applied for a continuance. So they had to go before Werlein again. At that point, the government admitted it would not re-try Brown on Counts One through Three, and it became obvious that Judge Werlein already knew that.
With the eight years of suffering and persecution of the Browns, dragging out threats as long as they possibly could, the government just walked away. There was not going to be the opportunity to prove Brown’s innocence and their prosecutorial misconduct.
These chapters bring out the collusion between the US Attorneys’ offices and the Court judges. They are in bed together. Such was the case with me as well. My case was handled by Judge Glen E. Conrad, Chief Judge of the Western District of Virginia. How do I know this? Because if Judge Conrad listened to the testimony, he knew I was innocent. My letter to the DEA explaining what I was doing to treat patients and asking them for guidance that was stonewalled, the decrepit testimony of Dr. Schultz, the lack of testimony from other staff, the only testimony from patients were those that had been discharged for breaking their controlled drug agreements all pointed to my innocence. And then the jury found me not guilty of using my office to commit a crime. But because the whole point of the attack on me was to drive me out of the area so that the HCA hospital could have my office and refer patients to their hospital instead of Carilion where I sent mine, and make money on the sale of my building, Judge Conrad reversed the not guilty verdict. He should have instead, reversed the 172 guilty verdicts of prescribing, since there was no proof that Dr. Shultz didn’t prescribe them, as she did.
Another point I want to make here, is that most defendants don’t get the dogged determination of their lawyers fighting for what is right, as Ms. Powell did. The fact that the government broke the law in my case, when I pointed that out to my worthless, in the government’s payroll, lawyer, Rhonda Overstreet, all she did was shrug her shoulders and say “What did you expect?” You see, it is well known in the legal profession that the government can break all the rules, commit crimes, and put innocent people in prison illegally, and no one cares, much less fight back. There really isn’t any point in having a defense lawyer, except for the fact that they are all in the club together, and if you don’t pay the fees to hire one, the judge is even harder on you.
Chapter 19: The Last Chance
They filed an appeal of Judge Werlein’s denial of a new trial on the perjury and obstruction convictions. A few weeks later, Nicholas Marsh committed suicide, as already mentioned in Chapter One. That brought the prosecutorial misconduct and the department’s incompetence to the forefront again.
On June 2, 2011, Kathryn Ruemmler moved up to White House counsel—the primary legal advisor to President Obama. He praised her as “an outstanding lawyer with impeccable judgement.” In spite of the reversal of her cases, Huffington Post described her as “a fierce member of the legal team that brought down” Lay and Skilling and reported that she had received the Attorney General’s Award for Exceptional Service for her work on the Enron case. Bad lawyers get rewarded in this system. So how do we think they are going to clean things up? They aren’t.
Oral argument on the new trial appeal with the Fifth Circuit was scheduled for July 5, 2011. Ms. Powell still had high hopes in the system, and believed that the three judges—Jerry Smith, Leslie Southwick and James Graves—would be offended by the misconduct. Wrong again. They denied the motion. They did state that the prosecutors “plainly suppressed” evidence “favorable to the defense”, but said it “was not material” to Brown’s defense. Naturally that was just a boldfaced lie. But what can a person do after a decision like that? Absolutely nothing. They hold people’s lives in their hands and have no qualms about supporting the illegal activity of their colleagues. They even covered their tracks by revising the opinion of the LaCaze case which had held a quote on the Brady point that they wanted to use, so it was no longer there.
Petition for rehearing was denied. Meanwhile, Weissmann moved to the FBI as deputy director. So all of the instigators in this fiasco had rocketed to the top of the government from a launch pad of corrupted convictions.
Chapter 20: Inside the Department of INjustice: The Calculated Corruption of Justice:
Schuelke’s report on the Stevens case misconduct was released on March 15, 2012. On the same day, Alaska Senator Lisa Murkowski, Texas Senator Kay Hutchison, and four others introduced a bill to clarify the Brady rule and give it some teeth: Senate Bill 2197 “Fairness in Disclosure of Evidence Act”. This bill would make producing Brady evidence enforceable.
Attorneys and judges across the country signed a Call for Congress to Reform Federal Criminal Discovery, written by the nonprofit and bipartisan Constitution Project in support of this legislation, explaining the problems with the DOJ’s practices. It was even signed by former Deputy Attorney General Larry Thompson, who had authored some of the department practices under question, and helped pick the Enron Task Force prosecutors. The DOJ, however, vehemently opposed the legislation.
The chapter then backtracks to the investigation of the Stevens case, as uncovered by Schuelke, immaterial to our discussion, so I will pass over it. To conclude, Schuelke found “evidence which compels the conclusion that Brady information was intentionally withheld from the attorneys for Senator Stevens and which “challenged the very integrity of the prosecution.”
Schuelke’s report exposed how Friedrich and Glavin usurped the entire prosecution of Stevens from the time they took office, specifically ordered the withholding of exculpatory information. They, just like with Merrill, masterfully and corruptly orchestrated the convictions. The Steven and Brown cases were carbon copies.
The Brown defense hoped that the timely release of the Schuelke report would help them with their Supreme Court petition for certiorari, based on evidence that the prosecutors “plainly suprressed” was really material to his defense.
Too much politics, I guess, for them to buck the system. Just hide it under a barrel and hope it will go away. Little did they know that Ms. Powell was going to write a book exposing it all.
But just think of all the cases where prosecutorial misconduct is allowed by higher courts either looking the other way, or just rubber stamping the action as okay. I know my case was. I wrote up all the prosecutorial misconduct done in my case and sent it to the 4th Circuit, and they still maintained the conviction. Basically in this country, if the government points a finger at you, guilty or innocent, your ass is grass, and they mow you down.
The Fairness in Disclosure of Evidence Act was introduced to the Senate by Senator Murkowski on March 5, 2012. It was placed in the Judiciary Committee on June 6, 2012, and there it sits. Nothing has been done since its introduction.
Chapter 21: BOHICA? Or Just Over?
The defense team had support for their petition for certiorari to the Supreme Court in an amicus brief written by significant national and state legal organizations and prominent law professors. But at the same time, Oestreicher, the new prosecutor, filed a new motion to the Fifth Circuit to withdraw its mandate from the original 2006 decision, and they again sought additional time in prison for Jim. The Fifth Circuit granted the government’s motion, and denied the defense’s motion that the mandate make clear that Brown was to be resentences to time served. So Judge Werlein scheduled Brown’s resentencing for April, 2012. By law, the resentencing should be for time served.
As typical for court, Werlein sustained all of the government’s objections and denied all of the defendant’s objections. But after dragging things out, he finally pronounced the sentence to be time-served. It was finally over. No more threat of more prison time. After nine long years, it was finished. But Brown was still a convicted felon, with his life irreparably changed.
On April 23, 2012, the Supreme Court denied their petition. All hope in the system rendering justice was gone. Now the only remaining possibility was that state bar associations would investigate each prosecutor as an ethics violation.
Chapter 22: The Bar At Its Lowest
Neither the government nor the courts ever acknowledged or discussed the highlighting of crucial exculpatory statements as Brady material. No court ever required the politically powerful former prosecutors to answer for their conduct. No court cared that they capitalized on their misconduct repeatedly.
But ethics rules required that they report the conduct of these prosecutors. Bill Hodes, co-counsel and a former law professor, was adamant that the violations be reported, and he took the lead.
They started with Kathryn Ruemmler, since she was now White House counsel, a position of extreme trust, power, and influence. Then followed reports on Friedrich and Weissmann. They also sent a letter to the Justice Department’s Office of Professional Responsibility against Hemann.
These ethics charges are serious. Although far too rare, other prosecutors have been fired, suspended from the practice of law, or disbarred. When anyone other than a prosecutor hides evidence or makes false statements in court or to a government agent, it is a federal crime: perjury, obstruction of justice, false statements to a federal agent, subornation of perjury, witness tampering, etc.
The complaints were covered up. The Texas Bar replied to the complaint against Friedrich saying “this office has determined that the information alleged does not demonstrate professional misconduct or an attorney disability”, and the complaint was dismissed.
These bald conclusions were flatly incorrect under the Rules, and bore no resemblance to justice. Bill repeatedly tried to get the bar’s attention. “Serious prosecutorial misconduct and abuse of power eat at the heart of the justice system and undermine the rule of law.” But courts are loath to overturn convictions, and prosecutors have absolute immunity from suit by a wronged citizen. A stern but fairly administered disciplinary system is society’s best hope. But the Texas State Bar did not have the integrity, the fortitude, or the conscience to do what was required by the ethical rules. No one was willing to take on these powerful people. It was much easier to pretend it was nothing.
The complaints to the other bars followed suit. “So the bar says it’s up to the courts to find a Brady violation—which requires reversal of a criminal conviction—while the courts apply the wrong legal standard and are loath to reverse convictions, the department claims nothing is material unless the department says so, and corrupt prosecutors run rampant.”
The charges against Weissmann in the New York Bar were “referred” to the OPR (Office of Professional Responsibility) in the DOJ. This was interesting, because it was the DOJ defending Weissmann on the New York charges. That’s like giving the fox the key to the chicken house. His defense by the DOJ was that the ethical rule does have a materiality requirement and must be read coextensive with the Brady rule. But that position cannot be squared with the text of the ethical rule itself.
“In fact, the DOJ now seeks to impose that rule nationwide. That is the reason for its opposition to the new legislation to codify Brady that has sat in Congress for the last four years. The DOJ wants the sole discretion to withhold whatever evidence it wants to withhold. It wants to be the sole arbiter of what is material to the defense. It wants an unlimited and unchecked License to Lie.”
The complaint against Weissmann was dismissed. Then in early 2014, he quietly left the FBI and joined the faculty at NYU. The dismissal cleared the way.
In her final words, Ms. Powell writes:
“Our system of justice is crying for a culture change. We must return to a system in which prosecutors seek justice more than headlines and in which judges are willing to judge. Our Founding Fathers created three separate but equal branches of government. They intended the courts to serve as a check and balance on the executive branch, which runs the prosecutions, and on the legislative branch, which makes the law. Judges are the only immediate and most meaningful check on wrongful prosecutions and the misconduct of prosecutors. Judges are the only ones who can spare a defendant the stress and anxiety of a trial on bogus charges or concocted facts. When judges hold prosecutors to the highest standards and provide a fair trial, they do justice.”
“One court remains over which the government, the Department of Justice, and the current and former prosecutors still have no control—the court of public opinion.”
“There is no telling how many others have been or will be wrongly convicted. What happened to the defendants in this book can happen to anyone. Blind judges do not render blind justice. If it were your husband, your sister, your child on trial, what should the rules be? Should the prosecutor be required to disclose everything that only he possesses that is favorable to the defense? Should those who are supposed to enforce the laws be required to abide by them?”
Senate Bill 2197, the Fairness in Disclosure of Evidence Act is still sitting in Congress. It would create a clear rule that federal prosecutors must produce all evidence favorable to the defense. Citizens, judges, lawyers need to make their voices heard on this issue.
The prosecutors in the cases exemplified here are not only unscathed but flourishing. “As long as they are free from accountability, the innocent are at risk and the public can have no confidence in our legal system. The rule of law has to apply to everyone.”
“The collateral damage from a wrongful prosecution is beyond measure. Marriages are shattered, children left parentless, careers ended, families devastated, financed ruined—all for what? To advance the career of a headline-grabbing, ethically, morally and legally corrupt prosecutor? An indictment and corrupt criminal prosecution fracture lives forever.”
“When an innocent person is imprisoned, either the guilty person is still free or there is no guilty party at all because no actual crime has been committed. The administration of justice is robbed of any validity and society loses from all sides.
Ms. Powell then goes into listing where each of the players in this story are at the time the book was printed, and how the innocent defendants of cases still had to accept guilt in the proceedings. Ms. Powell questioned her ability to continue to practice law considering her loss of trust and faith in the system. The various bar associations have abdicated all responsibility regarding violations by prosecutors. “The only ‘change’ in the Department of Justice has been for the worse.”
Meanwhile, misguided, ignorant, overzealous, ambitious, narcissistic, or dishonest current and former prosecutors, some of whom destroy innocent people, are making daily decisions that affect all of our lives and the very future of this country. Much more must be required of those who represent us in the courts. They hold in their hands the very lives of citizens while wielding the unbridled power of the Sovereign—to seek Justice or deal egregious Injustice.
Ms. Powell states “It is beyond ironic that Jim Brown is still a felon convicted of perjury and obstruction of justice while the prosecutors hid evidence of the truth; and these prosecutors likely suborned perjury.”
Basically these last two chapters and the epilogue state unequivocally that our Justice Department is in shambles, no longer adhering to the Constitution or the creeds of our forefathers. I quoted all the phrases in the chapters that I agree with and believe that we have to get the public to realize. I don’t think I need to reiterate them here.
I just want to state that I am one such innocent citizen who has had her life shattered by illegal prosecution. I, and the hundreds of other doctors in the country, have suffered at the hand of a system willing to create crimes where they don’t exist in order to further their own careers. I can only fall back on God’s promise—that the evil ones will not succeed, and will eventually receive their “reward”, and those of us that have been persecuted in His name will be blessed.
In addition to the doctors, I also want to mention a lot of other areas of criminal prosecutions of innocent people going on today. Probably half of the prisons are filled with people for drug crimes. Many of those people never committed a crime, but are charged with distribution or conspiracy and had to take a plea because they couldn’t afford a trial. Another quarter of the incarcerated were never guilty of the crime they were charged with. I met many secretaries doing time for the mortgage company fiasco of 2008, where they were charged with conspiracy based on sending out emails for their bosses, while their bosses are still sitting pretty in the offices.
Also, many people are in prison for tax crimes or Medicare fraud, and they didn’t even know what they were doing were crimes.
There are two things I want to see happen in our Justice Department.
1. Write laws that, as stated in our Constitution, the common man can understand. Laws are currently being created with the sole purpose to charge people with crimes to fill the prisons. And they are written so vaguely or convoluted, so that only a lawyer can possibly understand. They are written by lawyers for the express purpose of forcing people to hire them.
2. If the government thinks a crime is being committed intentionally, first inform the person of such and give them a chance to make amends. Then, if it continues, charge them. No one should be convicted of a crime they did not know they were committing. As is stated in Three Felonies a Day, another good book by Harvey Silverglate, currently every citizen in this country commits three felonies a day. So it is just by chance that you are not doing time in prison.
3. Reverse all convictions of all doctors charged with distribution or any other aspect of Title 21, the Controlled Substances Act. Exonerate us and give us back our licenses without having to jump through all the hoops set up by the Boards of Medicine.
If you are interested in communicating with your legislators about the egregious conduct now accepted as normal in our justice department and get some laws on the books to correct it, please join my letter writing/calling campaign. You will find contact numbers and emails for the legislators here on the website on the pages under Call to Action/Letter Writing Campaign on the menu. Just follow the submenus to the section you want. This is still under production, but is my next priority to finish. One government source for this information is: https://www.congress.gov/members.