I agree, the debate is over how much. However, the general tone, to my ear, in this thread seems to imply that the frequency of wrongful prosecution is insignificant —across the trial case gamut. I can accept this tenet when it includes qualification. For example, in his declaring very few innocent people being indicted, **Bricker** uses qualifiers: *in his experience; public defender cases; higher percentage of actual guilt being with the lesser charges*. To me, this sounds reasonable, believable and comprehensive. From this, I can conclude that there is probably nothing that needs fixing with regard to wrongful prosecution in public defender cases—these type of cases skew toward accurate prosecution of guilty parties.
At the other end of the spectrum, however, are the type of cases that I have researched and have personal experience with—health-care fraud and abuse. I conclude that prosecution in these types of cases does need fixing, because a significant percentage of them involve a miscarriage of justice—they skew toward wrongful prosecution of innocent parties. I believe the reason for these cases skewing this way rests primarily with the slipshod manner in which Operation Restore Trust was/is executed from the very beginning—a very wide scale federal initiative, involving great sums of money, politics and power, practically begging for a rush to justice. And with rush come errors and negligence, exceptionally damaging to those affected by it, willful or not. I give the benefit of the doubt to those prosecutors who have wrongfully prosecuted innocent people under ORT and suggest that most of them have done so because of non-malicious negligence—being spread too thin to build cases properly and comprehensively.
As for trial cases that are neither public defender cases nor medical fraud and abuse cases, I have no idea how they skew. My guess is that some trial case areas could use fixing while others are fine as they are. The average trial case wrongful prosecution ratio probably falls somewhere between those parameters—higher than those in Bricker’s experience; lower than those in my experience. So, it’s a system that needs some fixing, but not an overwhelming amount (think mama bear in Goldilocks).
Not to beat a dead horse, but to give a couple more examples of prosecutorial negligence in my case and offer a lay persons partial “fix” to the problem:
How about something like this, for a partial fix:
Minor tweak to the adversarial system of law: I have no problem with this system in general—can’t think of a better one, anyway. But what if it were significantly less adversarial at the very beginning of case building? I would have appreciated the opportunity for a proffer agreement, especially if I knew that the prosecutor was at an early stage of building my case and presumably less crystallized in his presumption of guilt toward me. I believe defendants should have the right to a proffer, but only if they want one. I understand many/most defendants not wanting one—the guilty ones, in particular—since their proffered statements may be used against them indirectly, following new leads, and advancing the prosecution’s case, but if a defendant wants one, they should get one. My understanding is that proffers are typically not worth the risk for defendants and then only are when contemplating a plea agreement, not as a tool to convince the prosecution of innocence and drop plans to indict. But, this could be a new, improved, friendly proffer, geared specifically for that purpose. Hell, they should even provide wings and a keg at the meeting…maybe even some tunes…
The defendant should be allowed to have any or all of his defense team present at the proffer, and the prosecution should be required to have at least one qualified expert witness in attendance and approachable (if it’s a case that benefits from expert witness’s)—and law enforcement agents should not attend, unless requested by the defendant (they tend to be buzz-kills).
In my case, I would have presented the video and paper at this initial proffer, instead of having to wait over two years to do so. I would have also offered other pieces of evidence of an exculpatory nature, like my patient charts* and signed patient statements** testifying that I did indeed perform the procedure in question on them and that their pathology improved as a direct result. I’d also have offered to take a prosecution sanctioned polygraph (since I passed ours with flying colors)—so long as both sides could bring a polygraph expert.
After this initial period of détente, the prosecution team should meet, weigh all evidence anew, factoring in the proffered data, and only then decide whether or not to proceed forward with the case. If they do go forward, then both sides may then retreat to their trenches and the adversarial legal war of attrition may proceed as always.
- Charts—another instance of prosecutorial negligence, IMO: At the very beginning of my case, my attorneys told me to expect seizure of my patient charts. "It’s definite and imminent”, they warned, “and they probably won’t return them anytime soon.” So, for the next three days and evenings, our consultants (one a physician, the other a former hospital administrator cum P.I.—both intimately knowledgeable of proper charting protocol and CPT coding) read, analyzed and made copies of hundreds, perhaps thousands, of my patient charts, and they both came to the same conclusion. “You’ve got nothing to worry about with respect to your charts, doc, they’re complete, meticulous and clearly demonstrate indication for the office procedures you’ve done.” Followed by, “But, when this is all over with, you’re going to have to hire me to teach you how to bill properly for the services you render. You’re not over-charging Medicare, you’re under-charging them—you should be making a lot more money than you are.“ He wasn’t telling me anything I didn’t already know. For a number of reasons, I did not try to maximize my billings, even when it was justified and legal to do so. (BTW, the administrator/P.I. became a good friend and champion of my cause, even waiving his fees for the second year of my defense (a boatload of money). And I’m eternally grateful for his urging me to go with a new and improved law firm).
So, I was ready and willing to hand my charts over to the government. In fact, I was looking forward to having them look them over; surely they would understand the documentary evidence for what it was, exculpatory. So we waited…and waited. But, they never came. They seized no charts. Not one. ~One third of the evidence (physical evidence of doing the procedure; appropriate documentation via patient charts; appropriate CPT coding/billing analysis) that should have been obtained and used to weigh guilt, they just didn’t bother with. They didn’t do so good with the other two thirds, either.
**Patient encounters—yet another instance of prosecutorial negligence, IMO. FBI agents visited many of my patients on whom I performed the procedure in question. They visited patients in their homes, nursing facilities, domiciliary rooms—lots of patients, all over the place. The agents were rude, obtrusive and intimidating, but what they were not was professional, thorough, or in any way properly trained to know what exactly they were looking for or at. They asked no clinical questions and pretty much just took snapshots of nothing at all. Had they known to “reflect this off of that” before snapping the photos, they would have at least shown something of interest.
I’m glad that many of my patients, mainly the older ones nearer our rural office, did not buckle to intimidation and gave the agents a good deal of sass. Country farmer patient, who used to get a kick out of showing kids his stump after one of his hogs bit off his thumb: * “I told those idjits you fixed my problem just fine, no I ain’t gonna let ya take no pictures of me, and you can get the hell out of my trailer now”
*
Agreed, but they can’t be expected to reasonably assess guilt if they are rushed into negligent evidence gathering and analysis. I got the feeling in my case that they simply filled in the many holes in their case with a presumption of guilty practices, figuring I could be bullied into a quick, but high-paying plea bargain, expending as little effort on their behalf as possible, freeing them up to pick the next “guilty” doctors’ pocket.
I’m reasonably sure they thought I was guilty, but they should have tried harder to make certain.
