FEDERAL COURT OVERTURNS DOCTOR BOB'S CONVICTIONS: PINELLAS COURTS MUST ALLOW EXPERTS TO BE CROSSEXAMINED

Three days ago the Federal Appeals Court with jurisdiction over Florida overturned a Doctor's conviction in US v. Ignasiak because the government at Trial failed to produce witnesses for autopsy reports and handwritten testimony. The Doctor, known to his friends and family as 'Dr. Bob' in over twenty years of practice wrote hundreds of prescriptions for vicodin, oxycondin and other drugs and according to the government at trial contributed to the deaths of at least five of his patients, while causing many others to become addicted to powerful painkilling drugs. 

But your Clearwater Criminal Attorney believes every American deserves a fair trial even Florida Pain Doctors who must manage chronic pain of their patients while avoiding the potential penalty of a life time in prison.

From the opinion: During Ignasiak’s trial, the government introduced the autopsy reports of five of Ignasiak’s former patients in which the cause of death was determined to be, at least in part, intoxication from controlled substances... defense counsel objected based upon the Confrontation Clause...

Astonishingly, at trial the government failed to bring in the actual doctors who wrote the autopsy reports. Recently this blog noted the trend toward greater scrutiny of the Confrontation Clause which requires the government at trial to produce the actual witnesses who conduct laboratory and forensic evidence rather than merely producing the reports generated by the witnesses. If you're a Doctor falsely accused of medical fraud,  pain mismanagement or dispensing controlled substances call a Clearwater Drug Attorney for an immediate consultation.

The purpose of a trial should always be to find the truth. The truth can be found by a jury only if the Defense is allowed to question the expert authors of reports which are based on opinions and conclusions. This decision furthers the argument that it's unconscionable that the government was allowed to introduce expert opinions at a criminal trial without being required to subject those opinions to cross-examination. All the Courts in Florida - State and Federal, including those in Tampa, Clearwater, St. Petersburg and Pinellas are bound by this decision.

Synopsis of the Case (Full U.S. v. Ignasiak Opinion): The Defendant was a doctor licensed in the State of Florida who appeals his convictions for dispensing controlled substances in violation of the Controlled Substances Act (CSA), 21 U.S.C. 801 and for health care fraud. The Defendant contends that the district court at trial abused its discretion by allowing the introduction of autopsy reports and handwritten medical reports without requiring testimony by their authors. 

The Federal Appeals Court for the 11th Circuit reversed defendant's convictions because the admission of the autopsy reports and testimony about those reports, without live in-court testimony from the medical examiners who actually performed the autopsies, violated the Confrontation Clause under the facts of the case and that because the government's case was not overwhelming the violation of the Defendant's right to cross-examine witnesses was not harmless error in this case.

Is Justice just a game? The purpose of a Criminal Trial is to find the truth - maybe it's hiding behind black's King...Checkmate!

Daumier, The Chess Players, 1863.

PHYSICIAN'S CONVICTION STANDS - GOVERNMENT NOT REQUIRED TO SHOW DOCTOR'S CONDUCT WAS THE PROXIMATE CAUSE OF DEATH MERE FACT THAT THE VICTIM USED DRUGS IS ENOUGH FOR ENHANCEMENT OF SENTENCE

Here in a new Federal case of interest to every medical professional, the Court determines that enhancement of a sentence for a doctor under the Federal statute requiring a cause-in-fact connection between the victim's ingestion of the drugs and death, does not require that the defendant's conduct proximately caused the death.  Be careful Doctors, you're at risk every time you write a script if this case holds.

United States v. David W. Webb, No. 10–10574 

(September 12, 2011) Appeal from the United States District Court for the Northern District of Florida Panel: Hull, Black and Stapleton, Circuit Judges. 


Per Curiam: Affirmed Defendant–Appellant David W. Webb, a Florida-licensed physician, was convicted of 130 counts of wire fraud, health care fraud, and unlawful dispensing of controlled substances, including three counts charging that a patient's death resulted from the use of controlled substances dispensed by Webb, or from his health care fraud violation. In two related issues of first impression, the Eleventh Circuit held that no foreseeability or proximate cause requirement is contained in the enhanced penalty under § 841(b)(1)(C) which applies whenever “death or serious bodily injury results from the use of” the controlled substance. That is, the government is not required to prove a defendant's conduct proximately caused the victim's death or that the death was reasonably foreseeable to the defendant. Rather, under § 841(b)(1)(C), the government must prove only that the death “results from” the victim's use of a controlled substance charged in the indictment. Put yet another way, the statute requires a cause-in-fact connection between the victim's ingestion of the drugs and death. It does not require that the defendant's conduct proximately cause the death. 


Next, the Court held that Congress did not insert a foreseeability or proximate cause requirement into § 1347(a)’s penalty enhancement, either. This enhanced penalty applies if “the [health care fraud] violation results in death.” The Court stated that there was no principled way to distinguish between the “results in” language in § 1347(a) and the “results from” language in § 841(b)(1)(c). The lack of foreseeability or proximate cause language in § 1347(a) was telling, the Court wrote, because Congress has included such language in numerous other criminal statutes, including statutes where the required connection is between the defendant's offense conduct and death or bodily injury. Third Circuit Judge Stapleton, sitting by designation, concurred with the first result but dissented from the second, agreeing with the conclusion of the Sixth Circuit on this issue that proximate cause is the appropriate standard to apply in determining whether a health care fraud violation “results in death,” writing that Section 1347 . . . does not deal with a discrete problem arising from products involving an inherent risk of serious injury or death. Rather, it provides an enhanced penalty for health care fraud if the fraudulent scheme of the defendant resulted in death or serious bodily injury. Section 1347 thus applies to a wide variety of economically motivated health care activities and focuses on the relationship between the defendant's conduct and the consequences thereof. The full text of the decision can be found here: http://www.ca11.uscourts.gov/opinions/ops/201010574.pdf 


Drug Crimes Trial Lawyer & Criminal Defense Attorney in Clearwater, FL
Federal Crimes Trial Lawyer & Criminal Defense Attorney in Florida

MAN MURDERS 13 PEOPLE & ASKS FOR AN "AUTOPSY OF MY BRAIN" IN HIS SUICIDE NOTE--AUTOPSY REVEALS STUNNING REASON FOR THE MURDERS

When is someone responsible for criminal behavior? Should a person be punished for doing a heinous act if he has lost the ability to fully control his actions? This article is from the excellent writer, David Eagleman (and many thanks to Fred & CD for lending me a copy of his latest book, Incognito, which I highly recommend especially for his portrayal of sentencing solutions geared toward individual responsibility). This article was excerpted in the Atlantic Magazine.

The Brain on Trial

Advances in brain science are calling into question the volition behind many criminal acts. A leading neuroscientist describes how the foundations of our criminal-justice system are beginning to crumble, and proposes a new way forward for law and order.

By DAVID EAGLEMAN

ON THE STEAMY first day of August 1966, Charles Whitman took an elevator to the top floor of the University of Texas Tower in Austin. The 25-year-old climbed the stairs to the observation deck, lugging with him a footlocker full of guns and ammunition. At the top, he killed a receptionist with the butt of his rifle. Two families of tourists came up the stairwell; he shot at them at point-blank range. Then he began to fire indiscriminately from the deck at people below. The first woman he shot was pregnant. As her boyfriend knelt to help her, Whitman shot him as well. He shot pedestrians in the street and an ambulance driver who came to rescue them.

The evening before, Whitman had sat at his typewriter and composed a suicide note:

I don’t really understand myself these days. I am supposed to be an average reasonable and intelligent young man. However, lately (I can’t recall when it started) I have been a victim of many unusual and irrational thoughts.

By the time the police shot him dead, Whitman had killed 13 people and wounded 32 more. The story of his rampage dominated national headlines the next day. And when police went to investigate his home for clues, the story became even stranger: in the early hours of the morning on the day of the shooting, he had murdered his mother and stabbed his wife to death in her sleep.

It was after much thought that I decided to kill my wife, Kathy, tonight … I love her dearly, and she has been as fine a wife to me as any man could ever hope to have. I cannot rationa[l]ly pinpoint any specific reason for doing this …

Along with the shock of the murders lay another, more hidden, surprise: the juxtaposition of his aberrant actions with his unremarkable personal life. Whitman was an Eagle Scout and a former marine, studied architectural engineering at the University of Texas, and briefly worked as a bank teller and volunteered as a scoutmaster for Austin’s Boy Scout Troop 5. As a child, he’d scored 138 on the Stanford-Binet IQ test, placing in the 99th percentile. So after his shooting spree from the University of Texas Tower, everyone wanted answers.

For that matter, so did Whitman. He requested in his suicide note that an autopsy be performed to determine if something had changed in his brain—because he suspected it had.

I talked with a Doctor once for about two hours and tried to convey to him my fears that I felt [overcome by] overwhelming violent impulses. After one session I never saw the Doctor again, and since then I have been fighting my mental turmoil alone, and seemingly to no avail.

Whitman’s body was taken to the morgue, his skull was put under the bone saw, and the medical examiner lifted the brain from its vault. He discovered that Whitman’s brain harbored a tumor the diameter of a nickel. This tumor, called a glioblastoma, had blossomed from beneath a structure called the thalamus, impinged on the hypothalamus, and compressed a third region called the amygdala. The amygdala is involved in emotional regulation, especially of fear and aggression. By the late 1800s, researchers had discovered that damage to the amygdala caused emotional and social disturbances. In the 1930s, the researchers Heinrich Klüver and Paul Bucy demonstrated that damage to the amygdala in monkeys led to a constellation of symptoms, including lack of fear, blunting of emotion, and overreaction. Female monkeys with amygdala damage often neglected or physically abused their infants. In humans, activity in the amygdala increases when people are shown threatening faces, are put into frightening situations, or experience social phobias. Whitman’s intuition about himself—that something in his brain was changing his behavior—was spot-on.

For the rest of this brilliant article from the The Atlantic Magazine, please go to the following:

The Brain on Trial - Magazine - The Atlantic