The Pain Relief Network

Standard governing subpoenas for speech activities remains unknown

By Kristen Rasmussen

AP Photo The U.S. Court of Appeals in Denver (10th Cir.) upheld a subpoena for records belonging to pain-relief advocate Siobhan Reynolds. The U.S. Supreme Court declined Reynolds’ petition to hear the case.

Siobhan Reynolds said she has been living “in a constant panic” for the past few years — a difficult-to-describe “madness” she never thought would come at the hands of her government.

The rural New Mexico resident has lived under the threat of a federal indictment and faced court fines that ultimately bankrupted her nonprofit organization, the Pain Relief Network — the lifeblood of her existence since the early 2000s, years before her ex-husband died of a brain hemorrhage.

Reynolds said she believes the hemorrhage was caused by years of abnormally high blood pressure brought on by debilitating joint pain her husband suffered as a symptom of a congenital connective tissue disorder.

The terror was exacerbated by the fact that she endured it, not as a punishment for criminal activity or other wrongdoing, but for speech and other constitutionally protected expressive activities, Reynolds said.

“I thought prosecutors understood that they have to abide the criticism of political opponents,” Reynolds, 49, said, while also noting the upside of her situation. “I’ve stood up for these patients, and we’ve made a big difference in a lot of cases, and I’m proud of that. I hope [my case] brings awareness to the issue.”

Reynolds’ case centers around her outspoken opposition to the federal government’s crackdown on physicians who allegedly over-prescribe painkillers and her ardent advocacy on behalf of these targeted doctors, including a Virginia pain specialist whose high-dose drug therapy provided some relief to her late ex-husband.

That physician, Dr. William Hurwitz, was convicted on 16 counts of drug trafficking and sentenced to five years in federal prison.

The federal Drug Enforcement Administration began cracking down on physicians it believed were over-prescribing opioid painkillers in the late 1990s and early 2000s, when OxyContin abuse began devastating small towns in Appalachia and rural New England, according to a June 2007 New York Times Magazine article about untreated pain. In 2005, according to the government’s National Survey on Drug Use and Health, 6.4 million Americans, many of them teenagers, had abused prescription drugs recently, the article reported, adding that most got the drug from friends or family — often, in the case of teenagers, from their parents’ medicine cabinets. In response, the DEA launched investigations of doctors, 71 of whom were arrested in 2006 for crimes related to “diversion” — the leakage of prescription medicine into illegal drug markets, the Times Magazine reported. The agency also opened 735 investigations of doctors, and both figures — arrests and investigations — have risen steadily since, the article added.

Reynolds’ efforts were targeted most recently at the prosecution of Dr. Stephen Schneider and his nurse-wife, Linda, who operated a Kansas general practice that provided pain management as part of its medical services. Reynolds organized patient protests outside the pair’s closed clinic and encouraged them to speak out about how the Schneiders’ treatment improved their lives. She also provided information and commentary to the media about the case and the issue of untreated pain. She even took out and paid for a billboard proclaiming the Schneiders’ innocence. Despite this advocacy, the pair was convicted in federal court in Wichita for conspiring to profit from the allegedly illegal prescription of painkillers. Last October, the judge sentenced Dr. Schneider to 30 years in prison and his wife to 33 years. An appeal is pending.

The prosecutor in the Schneiders’ case, Assistant U.S. Attorney Tanya Treadway, alleged Reynolds — by her statements to the media — was trying to taint the jury pool and asked a federal judge to issue a gag order against her. After the trial judge denied that motion as an unconstitutional prior restraint, the prosecutor launched a grand jury investigation into Reynolds’ actions.

As part of that investigation, the prosecution issued a sprawling grand jury subpoena with nearly 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 [the] billboard . . . and a documentary film [she created] called . . . ‘The Chilling Effect.’”

Reynolds fought the subpoena, but lost at the trial and appellate levels, and she and the Pain Relief Network were hit with a $200 fine for contempt for each day they did not comply. She also lost her battle to release to the public the subpoena and any proceedings related to it. Because the docket remains sealed, the rationale behind the decision by the U.S. Court of Appeals in Denver (10th Cir.) to uphold the subpoena is unknown.

Reynolds then asked the U.S. Supreme Court to hear her case. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of her request. The petition asked the high court to decide when those exercising their First Amendment rights should be protected from overreaching subpoenas and when a prosecutor’s demand for information could be found to be in less than “good faith.” It would also have required the Supreme Court to address the issue of how much secrecy is tolerated in filings before the court.

The court declined to weigh in on the issues.

“To me, it’s stunning that they refused to hear it,” Reynolds said. “It is tacit approval of the government’s tactic to silence me. I thought the court would stand up for free speech, but it didn’t.”

In the landmark 1972 case Branzburg v. Hayes, the U.S. Supreme Court refused to hold that the First Amendment protects journalists from testifying before grand juries. But it noted that “news gathering is not without its First Amendment protections” and, thus, grand jury investigations that implicate the First Amendment must be conducted “in good faith.” Despite this protection against prosecutorial harassment the court seemingly extended to those, like Reynolds, engaged in activities protected by the First Amendment, it has never laid out the standard courts should use in making that determination. The court has never indicated the specific type of conduct that would fall short of that undertaken pursuant to a “good faith” investigation or what the government must show when it wants to subpoena expressive materials like the advocacy video Reynolds made about pain management and the government’s prosecution of physicians.

And making the issue even more difficult is the conflict about the standard among the lower courts. One jurisdiction may require a prosecutor trying to subpoena expressive materials from an advocate there to prove more than a prosecutor seeking similar information from another person engaged in First Amendment-protected activities in another state.

“These issues are really beyond ripe for a decision by the Supreme Court to clarify what the standard of review is when a grand jury process or investigation is used for abusive purposes, particularly when First Amendment-protected activities are involved,” said Bob Corn-Revere, the Washington, D.C., media lawyer who represented Reynolds at the Supreme Court. “You can’t really read anything into a denial of [a request to hear a case] except that for whatever reason, the court was not ready to address the issue; this was not the vehicle in which they wanted to address it.”

Reynolds and her attorney are not the only ones to call attention to what has been described as a “wide, sweeping, almost unrestricted power” of the grand jury — a power that is “virtually in complete control of the prosecutor, and is pretty much left to his or her good faith” and “the cause of much of the criticism.”

“The original purpose of the grand jury was to act as a buffer between the king (and his prosecutors) and the citizens,” according to a “Frequently Asked Questions” section of the website for the American Bar Association, a professional association comprising more than 400,000 lawyers worldwide. “Critics argue that this safeguarding role has been erased, and the grand jury simply acts as a rubber stamp for the prosecutor.”

Reynolds agreed, alleging that during her years of advocacy on behalf of targeted doctors, she observed within the Department of Justice a vindictive atmosphere that encourages obtaining indictments and convictions at any cost.

“There is no substantial effort to try and turn that organization into something we could all be proud of,” she said.

A spokeswoman for the Department of Justice referred calls to Treadway’s office, where a spokesman declined to comment on Reynolds’ case.

In the meantime, Reynolds is devoting her time to herself and her 19-year-old son because she no longer has the financial means to carry on her advocacy efforts.

She said she regularly receives e-mails and phone calls from the thousands of pain patients she organized over the years, including a woman who identified herself only as Barbara, one of 10,000 patients the Schneiders treated before their conviction and sentencing. She contacted Reynolds by e-mail.

“You would have to look long and hard to find a doctor around [Wichita] to prescribe any pain medication to a chronic pain patient. Most doctors are very scared that they will end up in the same shape as the doctor that went to prison,” Barbara said in her e-mail to Reynolds.

“As a result, there are many suffering patients. When this doctor’s practice was dissolved, all his patients had to find other doctors. No other doctors wanted to care for his many pain patients so many were forced to go into immediate withdrawal from their medication and suffer in pain. It was very sad. I personally am a Lupus patient and myself have chronic pain. I do understand the fight. Thank you for all you have done to try to help those who need pain relief.”

Reynolds said she stood up for these people because they could not stand, metaphorically and, in many cases, physically, for themselves. Although she took on the federal government and was punished for doing so, at least she was able to fight in opposition — a basic right her ex-husband and thousands like him will never have the opportunity to exercise, she said.

“I’m lucky they didn’t indict me,” she said. “They destroyed my entire life, but I’m still alive.”

http://www.rcfp.org/news/mag/35-1/high_court_refuses_to_hear_case_involving_prosecutors_invest_30.html

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

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

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

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 20.2010

By ROXANA HEGEMAN Associated Press

A Kansas doctor who ran a clinic linked to dozens of overdose deaths was sentenced Wednesday to 30 years in prison while his wife got 33 years in a case the judge said was an “avoidable tragedy motivated by greed.”

Dr. Stephen Schneider looked grim and his wife blinked back tears as their sentences were pronounced in U.S. District Court in Wichita.

The Haysville couple were convicted in June of unlawfully writing prescriptions, health care fraud and money laundering. Jurors convicted them of a moneymaking conspiracy that prosecutors linked to 68 overdose deaths.

U.S. District Judge Monti Belot told the 57-year-old physician that the evidence showed that he earned and deserved the nickname “Schneider the Writer” because in many cases writing scripts was his only form of medical care.

“For whatever reason, Steven Schneider utterly failed to live up to his oath to ‘do no harm,’” Belot said.

The judge said the doctor was put on every possible notice that the controlled substances he was prescribing _ particularly the potent painkiller Actiq _ was addicting, harming and killing his patients but did nothing to stop it.

Belot reserved some of his most scathing comments for Linda Schneider, 52, who he characterized as more culpable for creating and perpetuating the clinic as a generator of income rather than a place for competent medical care. He blamed the doctor for knowing that the clinic was mismanaged and doing nothing to stop the practice.

“Had she not been involved in the operation of the clinic, or had she approached her role there in a professional and responsible way, none of us would be here today,” Belot said. “That doesn’t excuse Stephen Schneider’s wrongful acts, but it may somewhat explain them.”

Besides conspiracy, the Schneiders were found guilty on five counts of unlawfully writing prescriptions and 11 health care fraud counts. Linda Schneider was found guilty of 15 money laundering charges while Stephen Schneider was convicted of two.

Although the doctor has no criminal record, his wife has a previous felony conviction for fraud.

“I believe the evidence has shown Linda Schneider is a scheming, manipulative, uncaring criminal who believed, erroneously, that she was smart enough to ‘get away with it,’” Belot said. “A big mistake on her part.”

The government contends losses for clinic services and prescriptions was more than $20 million, with some 93 insurance programs and more than 500 patients defrauded.

Belot did not immediately rule on the restitution issues.

The judge dismissed defense arguments that harsh sentences will deter other doctors from prescribing to chronic pain patients, saying that sounded like “irresponsible propaganda” of the Pain Relief Network, a group that has opposed what it sees as federal efforts to crack down on chronic pain treatment

The judge used the phrases “Bozo the Clown” and “ship of fools” to describe the outfit and said he hoped the outcome would help curtail its activities.

When the people leading it 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,” the judge said.

The group’s president, Siobhan Reynolds, did not immediately return messages for comment left on her cell phone and home.

“The Schneiders put money before medicine,” U.S. Attorney Barry Grissom said in a news release. “They illegally dispensed prescription pain killers without a medical purpose and without regard to the fact their patients were suffering from physical and mental conditions that made them vulnerable to the risks of addiction, overdose and death.”

The government had asked for a life sentence noting that jurors found that the Schneiders’ conduct resulted in serious bodily injury to 14 people, and the deaths of 10 patients. The defense had asked for the minimum mandatory 20 years in prison.

“It wasn’t what we asked for, but we were pleased with the sentencing being less than what the government requested,” said Lawrence Williamson, the doctor’s defense attorney. “But we still maintain he is innocent of these charges and will be filing an appeal pretty soon.”

Kevin Byers, the attorney representing Linda Schneider, said they were grateful the couple did not get life sentences and that the judge gave the wife just three years more than her husband.

“The way it was going during the judge’s pronouncement, we were concerned that maybe he was going to double her sentence or something because obviously he was buying into the theory she was the black widow or the mastermind,” Byers said.

The Schneiders had been prepared to hear life sentences, he said.

“It still wasn’t comfortable to sit through it but i don’t think any of were surprised,” Byers said. “But I am surprised he went after the Pain Relief Network.”

Robert Wick was emotional as he talked about his late wife, Robin Geist-Wick, died at age 45 in May 2007 of an overdose after she went to the clinic for severe migraines. She was prescribed Actiq, a potent, highly addictive painkiller approved only for end-of-life cancer patients.

“It is over with. His peers tried him and convicted him and I am glad they found him guilty,” Wick said outside the courtroom. “It is pretty much a life sentence. I am satisfied with 30 years _ that is a big chunk out of a person’s life.”

http://www.ksro.com/news/article.aspx?id=2559575