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The Trial

Because all of Dr. Cheek’s property was frozen by the US Attorney, she had nothing to use to hire a lawyer. So she was appointed a Public Defender. The first public defender appointed was Randy Cargill in the Public Defender’s office. However, with her first meeting with him, Dr. Cheek was put off. He immediately ignored the fact that she was innocent, and told her she was stupid if she didn’t go for a plea agreement. He stated “a blind monkey could win this case”—meaning that the government was in the position to win, not her. Since she was innocent, she wanted a lawyer who would fight for her innocence, so she requested a different attorney and Mr. Cargill removed himself from her case. She was then appointed a private attorney, Rhonda Overstreet. She thought this would be better, thinking that a private attorney would be more interested in winning the case. That was a mistake as well. Ms. Overstreet spoke a good line, but in court did not do anything she had promised. For example, she suggested to Dr. Cheek that they use the same expert witness for their case, Dr. Mark Swanson, as the government used. But when Dr. Swanson was on the witness stand, she did nothing to ask him questions for the defense. When asked why not, Dr. Cheek got the answer from Shaun Potter, Rhonda’s assistant, that “we don’t want him to be on the witness stand any longer than necessary”. So how were they planning to use him to be her expert witness if they had no intention of asking him defense questions?

Dr. Cheek expressed to Ms. Overstreet the fact that the government broke the law in their actions following the visit of a CS (confidential source or someone coming into the office pretending to be a patient, but wearing a wire). Dr. Cheek did not accept this person as a patient for herself or Dr. Schultz, and yet a prescription for Lortab was called in by someone in the government pretending to be Dr. Cheek’s nurse. Ms. Overstreet just shrugged her shoulders and said “What do you expect?” She didn’t act surprised or know what could be done about it. Finding out on her own through investigation of the law while in prison, this constitutes gross government misconduct. Every criminal lawyer should know this, and put it before the court at the time of trial. Ms. Overstreet did nothing about that, or any other action of the government that constitutes gross government misconduct—the forced perjuries, the lies on the witness stand by government agents. She let is all pass by and didn’t even point it out in her closing.

Another problem Dr. Cheek faced was not being given time in the course of the trial to even have a defense. At the time the trial was set, the prosecution allowed 2 weeks on the court calendar. Then when the trial commenced, they stated it would take 3 weeks, but there were only 2 weeks allowed. The prosecution took up 8 days out of the 9 that were on the calendar for their case. Having to give time for closing remarks and jury deliberation, there was no time left for the defense. If they had started presenting a defense, the judge would have had to have a continuance mid-trial, and come back at a later date. Since all of the evidence presented even by the prosecution showed that nothing had been done by Dr. Cheek that could be considered criminal, she thought that making the jury come back at a later date would be worse than having them make a decision with what had been presented by the prosecution. She did not know that juries consider the defendant guilty until proven innocent, and that if the defendant doesn’t testify, he/she must be guilty. That was another problem—Ms. Overstreet recommended to Dr. Cheek that she not testify. Dr. Cheek agreed, thinking that the trial had gone so much in her favor that her testimony wasn’t needed. It did not occur to her that her own lawyer would not be working in her best interest.

Perjury on the witness stand was committed by the DEA agent Steven Tomaziefski. He had also committed perjury in the Grand Jury in order to get Dr. Cheek indicted. Then the main government witness, Kathleen Schultz, DO, committed the unforgivable sin of giving the false testimony she had been taught by the government agents. She stated on the witness stand that Dr. Cheek had never communicated with her for the prescriptions that were called in. Dr. Cheek’s lawyer was informed of that being a lie, and that Dr. Cheek had the phone records to prove it. But Ms. Overstreet did nothing in cross examination, and let that perjury remain. She also refused to admit the phone records in the record with some lame excuse that the time we spent on the phone was too short. But it did show that we talked on the dates of the prescriptions being called in, and would have proven that Dr. Schultz, the main witness, was a liar. As a result of the fiasco of her trial and lack of a defense, Dr. Cheek proposes that federal public defenders get paid more for convictions than they do for winning. Maybe through kickbacks, maybe through deals where other defendants they get paid better for get lighter sentences. But something isn’t right about a lawyer not defending her client in court to the best of her ability.

When the jury returned the verdict of guilty to the 172 counts of oxycodone distribution, Dr. Cheek was floored in surprise. She was also heartbroken because it was her misunderstanding that minimum mandatory sentencing of 5 years per count was still in effect. That meant, to her, that she was going to spend the rest of her life in prison. She just sat there at the table with her head in her hands.  Later she learned that mandatory minimums had been stopped, and the sentence was up to the judge.  She said “the sentencing hearing is as important as the trial”. The fact that the jury found Dr. Cheek innocent of the last charge of using her office to commit a crime shows that they probably convicted her not on the facts presented in the case, but just on the stigma that “oxycodone distribution” hangs on anyone being charged.

At the forfeiture hearing the Judge confiscated the office building anyway, in spite of the jury’s finding Dr. Cheek innocent of using it to commit a crime. Obviously that was the point of the entire proceeding. The judge couldn’t let the office building go, or the work would be for nothing.

In preparation for the sentencing, Ms. Overstreet gave Dr. Cheek the instruction to get witnesses of character. She even gave her permission to talk to Dr. Schultz and the nurse that up until the trial were off limits because they were government witnesses. That was something else she didn’t do as a lawyer. She stated she tried to communicate with these two witnesses so we could meet with them before the trial, but she really never did that, per the witnesses after the trial. She never intended to meet with them.

Based on Ms. Overstreet’s instruction, Dr. Cheek proceeded to talk with the nurse and Dr. Schultz to get character witnesses for the sentencing. At the time of the visit with Dr. Schultz, she found out how the government forced her to commit perjury. Dr. Schultz was 78 years old at the time and was beginning to suffer some dementia. She stated at the time of the visit, “They visited and talked with me so many times, I forgot what the truth was.” So what they had done was plant in Dr. Schultz’s head the lies they then got her to say on the witness stand. When she testified she spoke so hesitantly and questioning that anyone could tell she was being led by the prosecution. But somehow the jury still bought the bill of goods.

The government didn’t like the fact that Dr. Cheek found out about the perjury. When Dr. Schultz agreed to testify for her, Dr. Cheek emailed her with a summary of their conversation one week after the fact. Immediately, Ms. Overstreet got a email notification from Ms. Waering the US Attorney, that Dr. Cheek was “forcing herself on the witnesses”. They were obviously hacking into either Dr. Cheek’s or Dr. Schultz’s emails. But they made the mistake of saying Dr. Cheek did this at a time when she had a perfect alibi. She was sitting in her living room with her probation officer. Otherwise she would have had other charges filed against her.  At the time of the sentencing, though, the government still got the extra charge of obstruction of justice filed. Supposedly the pre-trial bond that prevents defendants from communicating with government witnesses lasts beyond the trial to the sentencing date. Even though Dr. Cheek’s lawyer gave her permission written in an email, the judge told Dr. Cheek “You should have asked me about doing that. I would have told you No!.  When trying to get the email from her lawyer admitted in the record, her own lawyer stopped it by declaring client-lawyer privilege. So for finding out that the government breaks the law to convict the innocent, Dr. Cheek got an additional 6 months added to her sentence.

The trial occurred in February, 2013. The sentencing occurred in October, 2013. Because her husband was handicapped physically with cerebral palsy and blind with retinitis pigmentosa, Dr. Cheek thought that maybe her sentence would be carried out on home confinement. But that didn’t happen. Judge Glen Conrad sentenced her to 33 months in prison which would become 28 months with good time. He didn’t even allow her to go home and settle her affairs, selling her belongings. And Dr. Cheek’s lawyer didn’t prepare her for going straight to jail either. But that is what happened. Immediately after the sentencing she had to kiss her husband goodbye in the courtroom and she was escorted to the city jail.

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