The Pain Relief Network

The secret silencing of a pain treatment activist

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

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/

By Adam Liptak
Nov 1, 2010
The New York Times

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.”

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

Oct 28, 2010
By: Jacob Sullum
Reason.com

Last week Kansas physician Stephen Schneider and his wife, Linda, who worked as a nurse in his practice, were sentenced to 30 and 33 years, respectively, for painkiller prescriptions the Drug Enforcement Administration considered inappropriate. Also last week, the Supreme Court let Siobhan Reynolds, a pain treatment activist who argued that the Schneiders were railroaded, share the petition (PDF) in which she seeks a hearing for her First Amendment challenge to a vindictive intimidation campaign waged against her by Tanya Treadway, the assistant U.S. attorney who prosecuted the Schneiders. Reynolds, founder of the Pain Relief Network (PRN), needed permission to share her own Supreme Court petition because the entire case—including the district court decision, the appeals court ruling upholding it, the briefs submitted by both sides, and even the amicus briefs filed in support of Reynolds—has been sealed. Hence my headline exaggerates only slightly: This is a First Amendment case in which all the key documents are secret.

The case has been sealed because it grew out of a grand jury investigation of Reynolds that Treadway instigated because she was irritated by Reynolds’ advocacy on behalf of the Schneiders. Supposedly looking for evidence of obstruction of justice, Treadway obtained subpoenas that demanded, among other things, communications between Reynolds and the Schneiders, a PRN-produced video on the conflict between drug control and pain control, and documents related to a PRN-sponsored billboard in Wichita that proclaimed, “Dr. Schneider never killed anyone.” This investigation followed Treadway’s unsuccessful attempt to obtain a gag order prohibiting Reynolds from talking about the Schneiders’ case.

Reynolds unsuccessfully challenged the subpoenas on First Amendment grounds in the U.S. District Court for the District of Kansas, then appealed that decision to the U.S. Court of Appeals for the 10th Circuit. At that point, the Reason Foundation (which publishes this website as well as Reasonmagazine) and the Institute for Justice filed an amicus brief on her behalf. The 10th Circuit ruled against Reynolds in April, and she was hit with daily contempt fines that she and her organization paid until they ran out of money last summer, at which point she surrendered the material that Treadway wanted rather than go to jail. Now she is asking the Supreme Court to clarify how the First Amendment constrains grand jury subpoenas, including the standards for determining when an investigation is a good-faith effort to find evidence of a crime (as opposed to, say, a vendetta against a critic) and when it is permissible to demand material that implicates freedom of speech. The petition, prepared by First Amendment specialist Robert Corn-Revere, also asks the Court to consider the extraordinary secrecy surrounding this case, which has proceeded all the way to the highest court without a published opinion or publicly available briefs.

This level of secrecy, which the Associated Press says “has alarmed First Amendment supporters” who see it as “highly unusual” and “patently wrong,” is clearly not justified by the need to protect the confidentiality of grand jury proceedings. The 10th Circuit decided to seal even the Reason/I.J. amicus brief, which is based entirely on publicly available information. More generally, the gist of the case could have been discussed without revealing grand jury material, as Reynolds’ Supreme Court petition shows. Although the court-ordered redactions make the 10th Circuit’s reasoning as described in the petition hard to follow at times, the details generally can be filled in with information that has been reported in the press (which shows how silly the pretense of secrecy is). 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 more openness and it’s the government that is trying to hide information. As Corn-Revere argues, such secrecy turns the intended role of the grand jury on its head, making it an instrument of oppression instead of a bulwark against it.

I discussed Treadway’s vendetta against Reynolds in a 2009 column. I noted the Schneiders’ convictions in June. I’d like to show you the Reason/I.J. brief defending Reynolds’ First Amendment rights, but I’m not allowed to!

http://reason.com/blog/2010/10/28/a-first-amendment-case-you-can

An advocate for chronic pain patients who is under investigation for obstruction of justice has challenged grand jury subpoenas in a rare case that climbed secretly through the judicial system to the U.S. Supreme Court.

Siobhan Reynolds, president of the Pain Relief Network, has asked the nation’s highest court to quash subpoenas issued to her and her nonprofit group and make public the proceedings against her. The usually public court docket — which includes court documents, hearing dates and other case information — has been sealed in her case in a federal district court in Kansas and 10th Circuit Court of Appeals.

Even at the U.S. Supreme Court, there was scant public record showing her case existed until last week, when the court agreed to make a redacted version of her appeal available while it decides whether to take the case.

Reynolds’ attorney, Robert Corn-Revere of Washington, D.C., said the case is unusual because most secret proceedings involve some kind of national security and this one does not. Federal prosecutors have declined to talk about their reasons for pursuing the case in secret.

Reynolds, 49, also stands out in wanting her case made public when most people under investigation want to keep it quiet. But Lucy Dalglish, executive director for The Reporters’ Committee for Freedom of the Press, said Reynolds’ request isn’t surprising.

“The more political the issue, the more likely you are to say, ‘Hey, the feds are investigating me,’” Dalglish said.

Reynolds, who lives in Santa Fe, N.M., attracted the government’s attention by supporting Dr. Stephen Schneider and his wife, Linda, who were convicted earlier this year of a moneymaking conspiracy linked to 68 overdose deaths. Schneider was sentenced last week to 30 years in prison, and his wife received a 33-year sentence tied to their operation of a Kansas clinic prosecutors described as a “pill mill.”

Last year, Reynolds, who believes a federal crackdown on prescription painkillers has left chronic pain patients needlessly suffering, paid for a highway billboard sign proclaiming: “Dr. Schneider never killed anyone.”

Weeks after it went up, Reynolds said she got a subpoena from a federal grand jury seeking, among other things, documents related to her ad. The Associated Press obtained a copy of the subpoena, which also asks for Reynolds’ communications with numerous lawyers, patients, the Schneiders and their relatives along with financial and telephone records and an advocacy video she made.

Reynolds’ initial refusal to turn over the materials cost her and her nonprofit group $39,400 in fines before the money ran out. Faced with imminent jailing, she gave prosecutors the documents weeks before the Schneiders’ summer trial began.

The activist has acknowledged she is a target of a grand jury investigation and wants her case made public.

“They beat me up in the dark and then they sealed their rulings from public scrutiny,” Reynolds told the AP. “This is not the America I thought I was living in.”

Acting Solicitor General Neal Kumar Katyal has opposed unsealing the case or even making her full petition to the Supreme Court available. The document contains confidential grand jury material, he said in a written response to the court.

Reynolds’ case has alarmed First Amendment supporters who say the secrecy shrouding it is “highly unusual, and patently wrong” — reminiscent of the secrecy surrounding the roundup and detention of hundreds of foreigners after the Sept. 11, 2001, terrorist attacks.

The Reporters’ Committee attempted to intercede in the case but was rebuffed by the Supreme Court last week.

“We are just offended at the notion that something can make it to the U.S. Supreme Court and it is secret,” Dalglish said.

A 2006 investigation by the AP found more than 5,000 people were prosecuted secretly in federal courts between 2003 and 2005, most involving drug-related conspiracies. But Dalglish, whose group did a similar study of federal cases in Washington, said few secret ones reached the Supreme Court.

While grand jury proceedings are secret, the subpoena challenge by former New York Times reporter Judith Miller, for example, was conducted in open court without getting into the underlying grand jury investigation.

“I think it is rare you see a case that entire dockets through the appellate process are subject to this kind of secrecy,” said Corn-Revere, Reynolds’ attorney. “And that, of course, is one of the issues we are asking the court to address.”

Reynolds’ case also raises the question before the Supreme Court of whether grand juries can be used to silence dissent, he said. Her petition says people should be able to criticize the government without fear and asks the court to set standards for lower courts allowing grand juries to subpoena materials protected by the First Amendment.

The Supreme Court is expected to decide whether to review the case sometime in December, Corn-Revere said.

http://www.npr.org/templates/story/story.php?storyId=130859494