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The Worst Kind of Ham Sandwich

1:40 am in U.S. DOJ vs. Medicine by Tami

The vindictive grand jury investigation of pain-relief advocate Siobhan Reynolds.

Dec. 21, 2010

By Radley Balko

Grand juries are supposed to act as a buffer between prosecutors and those they accuse of committing a crime. They’re intended to protect us from having our reputations ruined by reckless and meritless allegations. In reality, grand juries have been captured by prosecutors. The American Bar Association notes that, particularly at the federal level, grand juries have come to possess “wide, sweeping, almost unrestricted power,” which is “virtually in complete control of the prosecutor.” In the wrong hands, grand juries can even become a tool for harassing a prosecutor’s political enemies. The feud between Assistant U.S. Attorney Tanya Treadway and pain patient advocate Siobhan Reynolds is a good example.

Over the last decade, the federal government has been targeting doctors who treat pain patients with prescription drugs like Percocet and Oxycontin. Advocates like Reynolds argue that doctors who overprescribe painkillers should be disciplined by medical boards if they are sloppy or unscrupulous, not judges and prosecutors. Dumping them into the criminal justice system puts drug cops in the position of determining what is and isn’t acceptable medical treatment. One promising treatment of chronic pain known as high-dose opiate therapy, for example has all but disappeared because doctors are too terrified of running afoul of the law to try it.

Siobhan Reynolds entered this fray when her late ex-husband, Sean, began suffering the symptoms of a congenital connective tissue disorder that left him with debilitating pain in his joints. After trying a variety of treatments, he found relief in a high-dose drug therapy administered by Virginia pain specialist William Hurwitz. But Hurwitz was later charged and HYPERLINK “http://reason.com/archives/2007/07/18/pain-medication-keep-chilled”convicted on 16 counts of drug trafficking. The judge acknowledged that Hurwitz ran a legitimate practice and had likely saved and improved the lives of countless people. His crime was not recognizing that some of his patients were addicts and dealers. Meanwhile, Reynolds’ husband died in 2006 of a cerebral brain hemorrhage, which she believes was the result of years of abnormally high blood pressure brought on by his pain.

Reynolds had to get special permission just to share information about her case with the Institute for Justice and the Reason Foundation (which publishes Reason magazine, my employer). When the organizations submitted an amicus brief on her behalf, that brief was also sealed, even though it’s based on publicly available information. New York Times Supreme Court reporter Adam Liptak was able to read a portion of the sealed 10^{th Circuit ruling on the sealing of the Reason and Institute for Justice briefs.}^{In November}^{, Liptak reported that the court said one of its reasons for keeping the brief secret was to keep IJ and the Reason Foundation from discussing Reynolds’ pain advocacy agenda in public.}

That’s an astonishing thing to read in a federal appeals court opinion. All of the information in the brief is publicly available. Yet the courts are preventing Reynolds and these organizations from releasing the briefs or the court rulings, at least in part to stifle public discussion about Reynolds’ criticism of government policy.

Reynolds appealed the 10th Circuit rulings on both the subpoena and the seal to the Supreme Court, but it declined to take the case. That means Treadway’s deployment of a grand jury investigation to silence Reynolds will stand. The demands of the subpoena have broken the Pain Relief Network. Reynolds is shutting it down because she’s out of money. Federal law allows criminal defendants who are acquitted to be reimbursed for their legal expenses. But Reynolds has been neither indicted nor cleared. There’s no deadline for ending the grand jury investigation.

Can this possibly be how the system is supposed to work?

http://www.slate.com/id/2278244

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by Tami

Chilling Her Softly

8:13 pm in Political by Tami

The secret silencing of a pain treatment activist

Nov 17, 2010

Jacob Sullum

By publicly defending Stephen and Linda Schneider, a Kansas doctor and nurse accused of running a “pill mill,” pain treatment activist Siobhan Reynolds irked the prosecutor assigned to the case. Assistant U.S. Attorney Tanya Treadway was so annoyed that in April 2008 she sought a court order telling Reynolds to shut up. Concluding that such an order would be an unconstitutional prior restraint of speech, U.S. District Judge Monti Belot said no.

But by the time Belot sentenced the Schneiders last month, he was so irritated by Reynolds’ advocacy on behalf of the couple that he could not contain himself. He said he hoped the harsh sentences—three decades each—would “curtail or stop the activities of the Bozo the Clown outfit known as the Pain [Relief] Network, a ship of fools if there ever was one.”

Reynolds, who founded the Pain Relief Network (PRN) in 2003 to highlight the chilling effect of drug law enforcement on the practice of medicine, evidently has a talent for getting under the skin of people in power. But that is not a crime. By treating it as such, Treadway has used grand jury secrecy to cloak an unconstitutional vendetta.

After Treadway failed to obtain a gag order silencing Reynolds, she instigated a grand jury investigation of her for obstruction of justice, obtaining subpoenas that demanded material related to PRN’s activism, including its finances, media strategy, and organizational techniques. Among other things, the subpoenas covered communications with the Schneiders, their lawyers, and their patients; a PRN video about the conflict between drug control and pain control; and records regarding a PRN-sponsored billboard in Wichita that proclaimed “Dr. Schneider never killed anyone.”

Reynolds unsuccessfully challenged Treadway’s fishing expedition on First Amendment grounds in U.S. District Court and the U.S. Court of Appeals for the 10th Circuit, and this week the Supreme Court declined to hear her appeal. Perhaps the Court was impressed by the 10th Circuit’s reasoning. We can’t judge for ourselves, because the appeals court’s decision is sealed, like almost every other document related to Reynolds’ case.

The extraordinary secrecy is far broader than necessary to protect the confidentiality of grand jury proceedings, extending even to a friend-of-the-court brief, based entirely on publicly available information, that was filed last December by the Institute for Justice and my employer, the Reason Foundation (which publishes Reason magazine). Furthermore, one of the main justifications for grand jury secrecy—that it protects innocent people who are investigated but never charged—does not apply in a case like this, where the target of the investigation wants transparency and the government is trying to hide what it’s doing.

In a brief supporting Reynolds’ Supreme Court petition, the Reporters Committee for Freedom of the Press questioned the 10th Circuit’s decision to “order the complete sealing of a record in which the facts are already publicly known and the traditional grounds for secrecy carry no force.” It also urged the Court to clarify the limits that the First Amendment imposes on grand jury subpoenas and the standards for distinguishing a “good faith” investigation from a vindictive campaign of intimidation.

“A strong case can be made that the government tried to silence Siobhan Reynolds’ speech not because it suspected her of any criminal wrongdoing but because the prosecution found her troublesome,” the group said. “The government should not be able to frighten citizens into refraining from exercising their First Amendment rights of expression, advocacy and association by threatening them with compulsory process—at least not without first satisfying a heightened standard of scrutiny.”

Reynolds, who resisted the subpoenas until contempt-of-court fines exhausted her resources and left her organization “in ruins,” says “the Supreme Court has decided to participate in the establishment of secret courts that fleece and abuse dissenters at the whim of a disgruntled prosecutor.” Such abuse of the grand jury process turns what is supposed to be a bulwark against arbitrary government power into an instrument of repression.

http://reason.com/archives/2010/11/17/chilling-her-softly

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

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by Tami

If We Unsealed the Brief, You Might Talk About It

2:26 am in U.S. DOJ vs. Medicine by Tami

Nov 8, 2010
By: Jacob Sullum
Cato

Last week New York Times legal writer Adam Liptak noted the bizarre pseudo-secrecy enshrouding the First Amendment case brought by pain treatment activist Siobhan Reynolds. As I explained two weeks ago, Reynolds is challenging a grand jury investigation stemming from her advocacy on behalf of Kansas pain doctor Stephen Schneider and his wife, Linda. This week the Supreme Court may decide whether to hear her appeal. In the meantime, it has permitted her to share an expurgated version of her petition (PDF), but all other documents in the case remain sealed—including the amicus brief filed on her behalf by the Institute for Justice and the Reason Foundation (publisher of this website and Reason magazine). Liptak opens his column by describing the peculiar position in which this court-ordered concealment puts Reynolds’ supporters:

Last week, I asked a lawyer from a libertarian group for a copy of a brief it had filed in a First Amendment case. Sounding frustrated and incredulous, he said a federal appeals court had sealed the brief and forbidden its distribution.

“It’s a profound problem,” said the lawyer, Paul M. Sherman, with the Institute for Justice. “We want to bring attention to important First Amendment issues but cannot share the brief that most forcefully makes those arguments.”

Liptak, who has seen part of the secret 10th Circuit order that keeps the amicus brief sealed, says one reason the appeals court gave for its decision is that allowing distribution of the brief would help I.J. and Reason publicly make their case that Reynolds is being persecuted for exercising her First Amendment rights. One of their goals, the Court said, “is clearly to discuss in public amici’s agenda.” Obviously, we can’t have that.

It bears emphasizing that the I.J./Reason brief is based entirely on publicly available information. It does not divulge any confidential grand jury information, protection of which is the rationale for sealing the documents related to Reynolds’ case. The only purpose served by sealing it is to make talking about the case harder.

Discouraging public dissent, of course, is how this case got started. Tanya Treadway, the assistant U.S. attorney who prosecuted Stephen and Linda Schneider, was so irked by Reynolds’ public defenses of the couple that she unsuccessfully sought a gag order telling Reynolds to shut up. Later Treadway initiated a grand jury investigation that resulted in subpoenas demanding documents related to Reynolds’ activism as head if the Pain Relief Network (PRN), including a Wichita billboard defending the Schneiders and a PRN documentary about the conflict between drug control and pain control. Those subpoenas, supposedly aimed at finding evidence of obstruction of justice, are the subject of Reynolds’ First Amendment challenge.

Even Monti Belot, the judge who turned down Treadway’s request for an order silencing Reynolds, ultimately could not contain his irritation at her outspokenness. Three weeks ago, when he imposed what amount to life sentences on the Schneiders, he went off on an extraordinary tirade (PDF) against Reynolds and PRN, neither of which was a party to the case:

There is one aspect of deterrence I hope this case achieves and that is to curtail or stop the activities of the Bozo the Clown outfit known as the Pain Control Network [sic], a ship of fools if there ever was one. A ship of fools is an allegory in Western literature which depicts a ship with deranged passengers without a pilot who are seemingly ignorant of their own direction. When persons leading or involved in an organization such as the Pain Control Network [sic] are so stupid that they support what occurred in this case, they demean the efforts of legitimate medical providers to help persons suffering from chronic pain.

Is Belot really saying that one function of the heavy sentences imposed on the Schneiders is to deter Reynolds and like-minded activists from speaking out against such prosecutions in the future? That’s certainly what it sounds like. Reynolds seems to have a real talent for getting under the skin of people in power. But that is not a crime—or at least it shouldn’t be.

http://reason.com/blog/2010/11/08/if-we-unsealed-the-brief-they

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by Tami

More on the Siobhan Reynolds Case

1:16 am in Political by Tami

Nov 3, 2010
By: David Rittgers
Cato

Building on Ilya Shapiro’s post on the sealed grand jury proceedings against Siobhan Reynolds, founder of the Pain Relief Network, and the sealed Reason Foundation/Institute for Justice amicus brief, here is some more background on the Wichita witch hunt:

The U.S. Attorney’s Office in Wichita, Kansas, indicted physician Stephen Schneider and his wife, Linda, a nurse, for illegal drug trafficking in December 2007. Reynolds found an eerie parallel between Schneider’s case and the prosecution that denied her husband pain medication, so she took action. Her public relations campaign on behalf of Dr. Schneider so annoyed Assistant U.S. Attorney Tanya Treadway that Treadway sought a gag order to bar Reynolds’s advocacy. The presiding judge denied the gag order.

When the judge denied Treadway’s gag order, Treadway instead subpoenaed Reynolds for records related to Reynolds’s PR campaign against the prosecution of the Scheiders. Ms. Reynolds resisted the subpoena and tried to challenge it in court, but the $200 daily fine intended to ensure compliance with the subpoena has left Reynolds pretty much bankrupt.

This case represents the worst of government excesses in federal overcriminalization and overzealous prosecution. The federal government continues to treat doctors as drug dealers, as Ronald Libby points out in this Cato policy analysis. The grand jury, intended as a check on prosecutorial power, instead acts as an inquisitorial bulldozer that enhances the power of the government. My colleague Tim Lynch examined this phenomenon in his policy analysis A Grand Façade: How the Grand Jury Was Captured by Government.

Cato Adjunct Scholar Harvey Silverglate examined the case of Dr. William Hurwitz in his book, Three Felonies a Day: How the Feds Target the Innocent. The DEA turned a few of Hurwitz’s patients into informants and prosecuted Hurwitz. When Hurwitz shuttered his practice, two of his patients killed themselves because they could not get prescriptions for necessary painkillers. Siobhan Reynolds’s husband, another of Hurwitz’s patients, could not get essential medication and died of a brain hemorrhage, likely brought on by the blood pressure build-up from years of untreated pain.

Ninja bureaucrats continue to treat doctors that prescribe painkillers as tactical threats on par with terrorist safehouses. When the DEA raided the office of Dr. Cecil Knox in 2002, one clinic worker “thought she and her husband, who was helping her in the office that day, would be shot. She looked on in horror as an agent put a gun to his head and ordered, ‘Get off the phone! Now!’” Radley Balko chronicles this unfortunate trend in Overkill: The Rise of Paramilitary Police Raids in America, and the Raidmap has a separate category for unnecessary raids on doctors and sick people (sorted at the link).

http://www.cato-at-liberty.org/more-on-the-siobhan-reynolds-case/

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by Tami

Outspoken Activist’s Case Becomes Tangled in Secrets

4:26 am in News, Political, U.S. DOJ vs. Medicine by Tami

By Adam Liptak
Nov 1, 2010
The New York Times

The brief was filed in support of Siobhan Reynolds, an activist who thinks the government is too aggressive in prosecuting doctors who prescribe pain medications.

The Institute for Justice does not represent Ms. Reynolds, and it is not a party in the case. Its submission, made with a second libertarian group, Reason Foundation, was an amici curiae — or friends of the court — brief. It relied only on publicly available materials.

But it was sealed by the United States Court of Appeals for the 10th Circuit, in Denver, citing grand jury secrecy rules. The court then denied the groups’ motion to unseal their own brief. That ruling itself is sealed, too, but I have seen parts of it.

Among the reasons for keeping the brief secret, the court said, was that the groups’ goal “is clearly to discuss in public amici’s agenda.” Well, yes.

The brief paints an unflattering picture of the United States attorney’s office in Kansas, which may have overreacted to Ms. Reynolds’s adamant public defense of two medical professionals, Stephen J. Schneider and his wife, Linda K. Schneider, who were indicted in 2007 for illegally distributing prescription painkillers to patients who overdosed on them.

In 2008, Tanya J. Treadway, a federal prosecutor, asked the judge in the Schneiders’ case to prohibit Ms. Reynolds, who is not a lawyer and had no formal role in the case, from making “extrajudicial statements.” In the vernacular, Ms. Treadway asked for a gag order.

Judge Monti L. Belot of Federal District Court in Wichita denied that request, saying Ms. Treadway was seeking an unconstitutional prior restraint on speech.

Then Ms. Treadway tried another tack. She issued a sprawling grand jury subpoena to Ms. Reynolds.

It had almost 100 subparts and sought documents, e-mails, phone records, checks, bank records, credit card receipts, photographs, videos and “Facebook communications (including messages and wall posts)” concerning contacts with dozens of people, including doctors and lawyers, along with information about a billboard supporting the Schneiders and a documentary film called, perhaps presciently, “The Chilling Effect.”

“It was a nuclear bomb of a subpoena,” Ms. Reynolds said in an interview from Santa Fe, N.M., where she lives. “I was viscerally terrorized. I was genuinely physically frightened.”

Mr. Sherman, of the Institute for Justice, said the subpoena to Ms. Reynolds smelled of prosecutorial payback. “As far as we can tell,” he said, “she was targeted because of her outspoken criticism.”

Ms. Treadway did not respond to a request for comment, and a spokesman for her office declined to comment.

Ms. Reynolds, represented by the American Civil Liberties Union, moved to quash the subpoena and lost. When she refused to comply with the court’s order, Judge Julie A. Robinson of Federal District Court in Topeka imposed fines on Ms. Reynolds and her group, the Pain Relief Network, of $200 each a day.

“By early January, I was completely destitute,” Ms. Reynolds said. “My organization was ruined, and so was I.”

In secret proceedings, the 10th Circuit affirmed Judge Robinson’s rulings.

After paying almost $40,000 and facing the possibility of jail time, Ms. Reynolds folded, turning over thousands pages of documents. Judge Robinson refused to refund the fines.

The case has now reached the Supreme Court, and the justices are likely to decide next week whether to hear it. The publicly available version of Ms. Reynolds’s petition seeking review is studded with blacked-out passages.

Grand jury secrecy often protects important interests, notably the reputations of people under investigation. But Ms. Reynolds’s lawyer, Robert Corn-Revere of Davis Wright Tremaine in Washington, said the usual rules had been turned upside down in this case.

“The grand jury was created to be a buffer between the government and the people and to be a check on tyranny,” Mr. Corn-Revere said. “The problem in this case is that it was misused by a prosecutor to silence a government critic and then to hide those actions in secret proceedings.”

Ms. Reynolds is in her way quite effective. She seems to have the ability to drive the judicial system nuts.

When Judge Belot sentenced the Schneiders to 30 years in prison last month, he digressed to take a swipe at Ms. Reynolds and her group, though he did not get its name quite right.

Judge Belot said he hoped the prison sentences would “curtail or stop the activities of the Bozo the Clown outfit known as the Pain Control Network, a ship of fools if there ever was one.” He added that the group and its leaders were “stupid” and “deranged.”

Ms. Reynolds said she could live with the insults. The grand jury subpoena was another matter.

“We absolutely need voices speaking out,” she said. “I’m afraid of the chilling effect this will have on activism in general.”

http://www.nytimes.com/2010/11/02/us/02bar.html?_r=1

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The Pain Relief Network

You are browsing the archive for 2010.

The Worst Kind of Ham Sandwich

Chilling Her Softly

If We Unsealed the Brief, You Might Talk About It

More on the Siobhan Reynolds Case

Outspoken Activist’s Case Becomes Tangled in Secrets

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