Most Americans know that politicians lie, even though they live as though certain fictions were true: the value of the dollar, the sacredness of entitlements, and the integrity of public health officials and regulatory authorities.
Most Americans assume that criminal defendants and defense attorneys will lie. Some are willing to accept such perjury, even in the Oval Office, at least on some subjects by politicians who give them what they want.
Lies may be acceptable if necessary for the greater good: the defeat of the Nazis, the detection of a terrorist plot, or the apprehension of serial killers.
Some feel that lies may be tolerable if the intentions are good enough: protecting the public against bad doctors, winning compensation for victims of malpractice, stopping drug dealers, or perhaps even maintaining public confidence in vaccines. That is apparently why the AMA and its Federation support absolute immunity even for bad-faith peer review, and why the public isn’t outraged if a plaintiff’s expert witness invents a convenient “standard of care.”
Most Americans, however, still believe in the integrity of the criminal justice system. They also think that prosecutors are hamstrung by the exclusionary rule and other legal technicalities. With respect to certain unambiguous crimes that involve a body or damaged property, this may be true.
The idea being reinforced by numerous “law and order” television dramas, people believe that 95% of federal defendants end up pleading guilty or being convicted because, as The New York Times stated, “only the cases with the most compelling evidence ever make it to the indictment phase.” Even in the scientific literature, the fact of a jury conviction or a confession is taken to confirm, for example, the pretrial diagnosis of “shaken baby syndrome” in the absence of any direct evidence that the only person on the scene actually abused the child.
If a defendant decides to plead, as Dr. Jeri Hassman did (see AAPS News, June 2003), she must assert her guilt in public after the judge instructs her in all the rights she is giving up, as well as the standard of proof (“beyond a reasonable doubt”). Such “acceptance of responsibility” can shave years or decades off prison time under the 1988 federal sentencing guidelines that drastically limit judges’ discretion. If the defendant takes the stand to state her innocence, as Marla DeVore did, and the jury convicts, she can expect a sentencing enhancement because she is then presumed guilty of perjury.
Marla DeVore and her husband, Robert Mitrione, M.D., (AAPS News, May 2003 and March 2004) are now both incarcerated in federal prisons, serving terms of 15 and 23 months, respectively, for fraud proved at trial amounting to $75.25. Ms. DeVore must live in a 12 ft x 14 ft cell, into which 10 women are crammed owing to prison overcrowding. Meanwhile, Malcolm “Tadd” McVay, the former chief financial officer of HealthSouth, accused of $2.7 billion in accounting fraud, was sentenced to six months of home detention, a $10,000 fine, and forfeiture of $50,000. U.S. District Judge U.W. Clemon took into account McVay’s admission of guilt and cooperation with the investigation (Wall St J 6/3/04).
Defendants are held to a very high standard. Dr. Sergius Rinaldi was accused of misrepresentation for saying he “was a Medicaid provider,” meaning he “had been,” whereas he now treats Medicaid recipients without charge (Telegraph 1/24/04).
Prosecutors, however, frequently use witnesses with a history of fabricating testimony. Three key witnesses in an allegation of conspiracy to commit murder against Charles Thomas Sell, D.D.S., (AAPS News, June 2004) have such a record (St. Louis Post-Dispatch 3/21/04). They haven’t been cross-examined yet, as Dr. Sell has been imprisoned without trial for nearly 7 years.
Lying by wired undercover investigators is a favorite tactic for entrapping physicians. Some recommend that physicians purchase a radio-frequency (RF) detector and wear it while seeing even long-standing patients, especially if they prescribe controlled substances. (An RF detector responds to cellular telephones, but that signal is intermittent rather than constant.)
Prosecutors conceal or distort the truth with impunity, as extensively documented by investigative reporter Bill Moushey (“Win at All Costs,” available at www.post-gazette.com ). And under a new Court standard, defendants who prove perjury also have to prove that a jury would have acquitted in the absence of perjured testimony (Mitrione v. U.S.A.), contravening 75 years of precedents in the Seventh Circuit, the law in at least four other Circuits, and Supreme Court teachings. Evidence for criminal intent by the Mitriones depended on the false testimony of a member of the prosecutorial team.
As Andrew Schlafly writes in a petition for Writ of Certiorari, “the implications of the new standard…would be catastrophic for the integrity of the criminal justice system, sacrificing rights of due process and fair trial.” He notes that had the Mitriones been convicted in the Fourth Circuit, they would have obtained a new trial. If the Seventh Circuit’s decision stands, “the fate of defendants victimized at trial by lying witnesses thereby becomes subject to the happenstance of where the trial occurred.” The scourge of conviction by lies, already rampant, will be worsened by the inconsistent standard.
With a jury tainted by false testimony on counts later dismissed, the Mitriones were convicted of “substitute billing,” which is legal under a formally promulgated federal regulation but not allowed under an informal state handbook, and of “mail fraud” on a disputed $25 claim a “derivative crime.”
“Show me the man, and I will find his crime,” said the KGB. Shall American jurisprudence say: Show me the man, and I will create his crime, and manufacture the evidence?
Robert Moffit is Director, the Center for Health Policy Studies at the Heritage Foundation, Washington, D.C.
Volume 60, No. 7 July 2004