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Aug 30, 2007
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IN THE DISTRICT COURT OF THE VIRGIN ISLANDS

DIVISION OF ST. THOMAS AND ST. JOHN 

UNITED STATES OF AMERICA, )

                                    )

                  Plaintiff,  ) Criminal. No. 03-CR-0143-F-01

                                    )

            v.    )

                                    )

PAUL V. MAYNARD,   )

                                    )

                  Defendant.  )

_________________________________ ) 

OPPOSITION TO GOVERNMENT’S MOTION TO QUASH

_________________________________________ 

      COMES NOW, Dr. Paul V. Maynard, Defendant herein, by undersigned counsel, John P. Flannery, II, to oppose the Government’s Motion to Quash a Subpoena ad testificandum, seeking the testimony of AUSA Kim Chisholm, to elaborate upon the facts of her alleged disqualifying conflict and bias; in support of its opposition Defendant Maynard states as follows:

ARGUMENT

A. The prosecutor suffered a disqualifying conflict

      In Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), the Court declared:

      In the past, the Justice Department applied to its attorneys the ABA Model Code, 28 CFR § 45.735-1(b).

      Rule 1.7 of the American Bar Association (ABA) Model Rules of Professional Conduct states that a “concurrent conflict of interest exists” if “there is a significant risk” that the representation of the government “will be materially limited by … a personal interest of the lawyer.” 

      The personal relationship of AUSA Chisholm with the estranged wife and family of the defendant’s former in-laws raise serious questions about the “personal interest of the lawyer” in the conduct of this prosecution.  This therefore involves a question of the fair administration of justice as bias for the family of Dr. Maynard’s estranged wife may have been the motive that drove AUSA Chisholm to pursue this case and to disregard indications of innocence, and alternative theories supporting innocence, that were in abundance in this case – as reflected by the jury’s split verdict.

      In addition, AUSA Chisholm’s attendance as a patient of Dr. Maynard makes Ms. Chisholm a witness and Rule 3.7 prohibits a lawyer “acting as advocate at a trial in which the lawyer is likely to be a necessary witness.” 

      The disqualifying conflict that confounded AUSA Chisholm’s participation as a prosecutor and her office visit to Dr. Maynard are an adequate basis to call her as a witness to illustrate to the jury her animus in this prosecution. 

      It is rudimentary that an advocate may not continue as counsel when her testimony undermines the interest of her client.

      ABA Rule 1.16 states that a lawyer shall withdraw from representation when “the representation will result in violation of the rules of professional conduct or other law.”  In this case, there is no question that AUSA Chisholm could have withdrawn “without material adverse effect on the interests of the client [the US Government].”  Id.

      The requirement of a disinterested prosecutor is consistent with our recognition that prosecutors may not necessarily be held to as stringent a standard of disinterest as judges. “In an adversary system, [prosecutors] are necessarily permitted to be zealous in their enforcement of the law,”  Marshall v. Jerrico, Inc., 446 U.S. 238, 248, 100 S.Ct. 1610, 1616, 64 L.Ed.2d 182 (1980). 

      While there are instances that might justify deference to prosecutorial zeal, the facts of this case do not justify such deference. We hasten to underscore that the determination whether there is an actual conflict of interest is distinct from the determination whether that conflict resulted in any actual misconduct.

      The requirement of a disinterested prosecutor is the preferred course since any other schema impermissibly injects “a personal interest, financial or otherwise, into the enforcement process [that] may bring irrelevant or impermissible factors into the prosecutorial decision.”  Marshall v. Jerrico, Inc., 446 U.S. 238, 249-250, 100 S.Ct. 1610, 1616-1617, 64 L.Ed.2d 182 (1980).

      We respectfully submit that the error in this case is “so fundamental and pervasive” as to require reversal.  Compare Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986).  An error is fundamental if it undermines confidence in the integrity of the criminal proceeding.  Rose v. Clark, 478 U.S. 570, 577-578, 106 S.Ct. 3101, 3105-3106, 92 L.Ed.2d 460 (1986); Van Arsdall, supra, 475 U.S., at 681-682, 106 S.Ct., at 1436-1437; Vasquez v. Hillery, 474 U.S. 254, 263-264, 106 S.Ct. 617, 623-624, 88 L.E
d.2d 598 (1986).   And that’s what we have here.

      It is a fundamental premise of our society that the state wield its formidable criminal enforcement powers in a rigorously disinterested fashion, for liberty itself may be at stake in such matters.   We have always been sensitive to the possibility that important actors in the criminal justice system may be influenced by factors that threaten to compromise the performance of their duty. While the standards of neutrality for prosecutors are not necessarily as stringent as those applicable to judicial or quasi-judicial officers, see Jerrico, 446 U.S., at 248-250, 100 S.Ct., at 1616-1617,  there is no real difference when a conflict is discovered.

      This court may therefore not disregard a circumstance where the prosecutor is subject to influences that undermine confidence that a prosecution can be conducted in disinterested fashion, in a proceeding in which this officer plays the critical role of preparing and presenting the case for the defendant's guilt.

      Prosecutors “have available a terrible array of coercive methods to obtain information” such as “police investigation and interrogation, warrants, informers and agents whose activities are immunized, authorized wiretapping, civil investigatory demands, [and] enhanced subpoena power.” C. Wolfram, Modern Legal Ethics 460 (1986).

      The misuse of those methods “would unfairly harass citizens, give unfair advantage to [the prosecutor's personal interests], and impair public willingness to accept the legitimate use of those powers.”  Id.

      A concern for actual prejudice in such circumstances misses the point, for what is at stake is the public perception of the integrity of our criminal justice system. “[T]o perform its high function in the best way [,] ‘justice must satisfy the appearance of justice,”  Offutt v. United States, 348 U.S. 11, at 14, 75 S.Ct. 11, at 13 (1954). 

      A prosecutor with conflicting loyalties presents the appearance of precisely the opposite.  Society's interest in disinterested prosecution therefore would not be adequately protected by harmless-error analysis, for such analysis would not be sensitive to the fundamental nature of the error committed. 

B.  The prosecution was “selective” – against a citizen from Nevis – and “vindictive” based on the prosecutor’s association with Dr. Maynard’s former wife.

      1. Selective

      Under the equal protection component of the Fifth Amendment's Due Process Clause, the decision whether to prosecute may not be based on an arbitrary classification such as race or religion, and that includes the fact that Dr. Maynard came from Nevis and was not born or accepted in St. Thomas as were AUSA Chisholm and Ms. Cleque. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505-506, 7 L.Ed.2d 446 (1962).

      We allege that the prosecutorial policy was directed at Dr. Maynard because he was from Nevis, that the policy had a discriminatory effect and was motivated by a discriminatory purpose. Id.

      Defendant Maynard further asserts that similarly situated individuals from St. Thomas were not prosecuted. Ah Sin v. Wittman, 198 U.S. 500, 25 S.Ct. 756, 49 L.Ed. 1142 (1905). Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985).

      2. Vindictive

      In cases in which action detrimental to a defendant has been taken after the exercise of a legal right, in this case, the right to treat patients and to be treated, the presumption of an improper vindictive motive has been found where a reasonable likelihood of vindictiveness existed. Compare North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); cf Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). 
 Combining the disqualifying conflicts of the prosecutor and the chief investigative agent, there is a reasonable likelihood of vindictiveness.

      The Department of Justice invoked 28 CFR Section 16.23(c), as the pertinent regulation, that it insisted Dr. Maynard had to satisfy, as a prerequisite in order to summon any DOJ Attorney to testify. 

      That regulation, in relevant part, requires: “a statement [either oral or written] by the party seeking the testimony or by the party’s attorney setting forth a summary of the testimony sought must be furnished to the Department attorney handling the case or matter” (emphasis supplied).

      Dr. Maynard, by counsel,
gave notice to “the Department attorney handling the case”, that is, to AUSA Chisholm, as to the basis of our claim on April 19, 2007 in our motion for a new trial based on newly discovered evidence including:

      Dr. Maynard, by counsel, asked on the record in a conference with the Court for Ms. Chisholm to appear as a witness and she refused to agree to appear voluntarily (transcript excerpt attached as Exhibit A in the government’s motion).

      Following that, Dr. Maynard, by counsel, submitted various affidavits detailing what was set forth in the motion for a new trial (see Exhibits B through D, also attached to the government’s motion).

      In other words, Dr. Maynard, by counsel, both orally and in writing gave good and sufficient notice of what testimony was expected and was otherwise unable to confirm what Ms. Chisholm’s version of the facts might be, in conformance or disagreement with the assertions of others, because she has refused to discuss what happened.

      There is no other witness who can set the record straight.

      This not a frivolous request and there is no privilege that may be interposed that constitutes a legitimate objection to this request. 

      The U.S. Attorney does not not have the right at law, by rule or regulation or statute, including 28 CFR Section 16.23(c), to withhold the testimony of a witness in the face of a duly issued subpoena; indeed, the U.S. Attorney’s stonewalling refusal is constitutionally impermissible absent some valid objection, in the way of a privilege, that Dr. Maynard plainly stated he would be glad to consider and to accommodate – if there truly was some legitimate concern that the U.S. Attorney could articulate.

      Rule 17 of the Federal Rules of Criminal Procedure places no such restrictions on summoning any relevant witness and that includes summoning a federal prosecutor. 

      The Executive “Housekeeping Act” that the U.S. Attorney relies on, to withhold Ms. Chisholm’s testimony, is Title 5, United States Code, Section 301, and that does not grant authority to withhold testimony. 

      A review of the statute, particularly the last line, states that whatever regulations the head of an Executive Department may enact, including the ones referenced by the U.S. Attorney, Congress was not authorizing the head of any Department from “withholding information”.

      In addition, the authority cited, from the Supreme Court, United States ex rel Touhy v. Ragen, et al., 340 U.S. 462, at 467, 71 S.Ct. 416, at 419 (1951), overlooked the actual holding in the case. 

      In Touhy, Associate Justice Reed, speaking for the majority, said: “We find it unnecessary, however, to consider the ultimate reach of the authority of the Attorney General to refuse to produce …”  The dissent by Justices Black and Douglas only agreed with the majority opinion insofar as the question, whether the Attorney General had a duty to disclose, “are matters not here for adjudication.”  Id., 340 U.S., at 471, 71 S.Ct., at 421.  

      In the case of United States v. Reynolds, 345 U.S. 1, at 8, 73 S.Ct. 528, at 532 (1953), only a few years later, Chief Justice Vinson wrote that this decision to exclude evidence was reserved for the court as “[i]t is the judge who is in control of the trial, not the executive.” 

      Lest there be any confusion on this matter, the court made it crystal clear: “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”  Id., 345 U.S., at 10, 71 S. Ct., at 533. 

      It was in 1958, that the Congress added the last sentence to the statute that I referenced above and Professor Wigmore stated: “Any question … left open by the … statute and consequent regulations was put to rest in 1958 when Congress added the sentence, ‘This section does not authorize withholding information from the public’ …”  8 Wigmore on Evidence (McNaughton rev. 1951), Section 2378. 

      There is no question that the U.S. Attorney could interpose a legitimate privilege, such as a privilege concerning state or military secrets, as the court held in Reynolds, supra.   B
ut the Justice Department cannot create, nor does it enjoy, an unspecified executive privilege to bar information to an adverse litigant on the say-so of some agency head. 

      In the much more complicated civil litigation involving the Exxon Valdez oil spill, Exxon Shipping Co. v. United States Dept. of the Interior, 34 F.3d 774 (9^th Cir. 1994), the Interior Department tried to require the litigants to run an administrative gauntlet to get the necessary discovery in the pending civil case.  The court concluded that the courts, and not some collateral administrative proceeding, should review subpoena requests as part of the primary litigation.  Exxon Shipping, 34 F.3d at 779.

      FOR THE FOREGOING REASONS, based on the pleadings and proceedings had herein, Dr. Maynard urges this Honorable Court to deny the government’s motion to quash the subpoena, and for such other relief as this Court deems fit and just.

RESPECTFULLY SUBMITTED, 

 
________________________________

JOHN P. FLANNERY, II, appearing pro hac vice

VA Bar No. 22742

CAMPBELL MILLER  ZIMMERMAN, PC

19 East Market Street

Leesburg, VA 20176

(703)  771-8344

Facsimile: (703) 777-1485

e-mail: JonFlan@aol.com 

CERTIFICATE OF SERVICE

Apr 18, 2007
By: Siobhan Reynolds
Pain Relief Network

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Motion for Bail for Dr. Paul Maynard