Michael Arnold Glueck, M.D., and Robert J. Cihak, M.D.
Tuesday, Aug. 12, 2003

Attack on Civil Liberties

There is another group of trial lawyers that has been left alone to go about their dirty work with few restrictions – and all at taxpayers' expense.

This abuse is a justice issue, a taxpayer issue, a privacy issue and a civil liberties issue.

The Issue

There are government prosecutors who abuse their positions to further their careers and power while spending your money.

They use high-publicity cases, such as those involving the hot "drug du jour" such as OxyContin, as career stepping-stones on the backs of the defendants rather than to serve the public or justice.

A recent study by the Center for Public Integrity found that prosecutors stretched, bent or broke rules so badly that appeals court judges have dismissed criminal charges, reversed convictions or reduced sentences in more than 2,000 cases since 1970.

And these are only the cases that went to trial – about 20 times as many defendants plead guilty than ever go to trial. And it's in the pre-trial period that the misconduct is the most hidden and the most abusive, including legal extortion.

Other Concerns

Aside from concerns about individual civil liberties, the impact is felt throughout the country and various industries. Take, for example, privacy issues. Medical records and other personal files are fair game in these fishing expeditions.

The targets are often white-collar professionals or foreign-born blue-collar workers, who make easy targets because they don't fight back the way real criminals do.

The situation became so blatant that at one point the Department Of JusticeA issued a memo to U.S. attorneys to back off on prosecutions. But it didn't help and the legacy of abuse continues.

How many times have you heard of a judge sending a prosecutor to jail? We haven't heard of any! This is one arena where we would agree with the ancient justice dictum "an eye for an eye, a tooth for a tooth."

Prosecutors' Dirty Tricks

Defendants are held without trial – sometimes for years – through various stalling tactics, a favorite trick to bring defendants to their knees. Prosecutors know that the more time passes, the more the defendant is unable to earn a living at the same time the legal fees mount, the better the chances are that the victim will make a bad deal just to bring the nightmare to an end. As the Center for Public Integrity puts it, "the prosecutor becomes the judge and the jury."

Sometimes they seem to be in a hurry, as in the current case of Dr. Jeri Hassman, a Tucson, Ariz., pain-treatment specialist whom we've written about before – but then turn around and say they want more time to add another specialist to testify for their side. In this case, they also withheld a large number of important documents until two weeks before the trial was scheduled to start.

St. Louis dentist Dr. Charles Sell continues to languish in prison after more than five years awaiting trial on fraud charges that carry only about a four-year sentence and after the U.S. supreme court told the prosecutors they couldn't force mind-altering medications into him without his consent.

Sometimes dozens of unrelated charged are piled on in the hope that the frightened defendant will plead guilty to something to make most of the charges "go away." This pile of charges is also used to confuse jury members who want to please both sides and mistakenly think that coming in with a "Not Guilty" decision on 37 out of 38 charges will be kind to the accused. Yet being found guilty on one count in these criminal cases can cause the judge to jail and fine the accused person.

Drug-dependent patients are arrested, then promised drugs if they will testify against a doctor. Psychiatric patients are threatened with involuntary confinement; senile geriatric patients are coached to change stories.

The Center for Public Integrity describes the case of St. Louis prosecutor Nels C. Moss Jr. Missouri judges cited him for misconduct in at least 25 cases. Yet this prosecutor has never faced a disciplinary action, much less jail time or fines, for doing injustice to others. The Center Web site includes a tabulation and examples of prosecutorial abuse from all 50 states [http://www.publicintegrity.org/pm/].

A New Coalition

Kathryn Serkes, a Washington, D.C.-based health and Public Relations consultant, is establishing the Coalition Against Prosecutorial Abuse (CAPA).

Serkes is planning a congressional briefing, and those who want to sign up for alerts and information should e-mail her at: kaserkes@att.net.

There are some courageous former prosecutors and defendants willing to tell their stories. You need to share your own account. We must end this legal abuse through public education, judicial reforms and the prosecution of law-breaking prosecutors.

Michael Arnold Glueck, M.D., is a multiple-award-winning writer who comments on medical-legal issues. Robert J. Cihak, M.D., is a former president of the Association of American Physicians and Surgeons.

Contact Drs. Glueck and Cihak by e-mail.

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