Jewish World Review March 5, 2004 /12 Adar, 5764

Drs. Michael A. Glueck & Robert J. Cihak

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Consumer Reports

Fraudulent use of fraud laws — by government | Some wag once said that the liberal definition of paradise is a place where everything good is a right and everything bad is a crime. We've written often enough about the dangers of making medical care a right.

We've also written of the dangers of making medical mistakes a crime. No, we don't mean malpractice on patients. We mean drawing the increasingly arbitrary and ludicrously draconian ire of the federales.

Recently, Judge Jeanne E. Scott of the United States District Court for the Central District of Illinois sentenced Dr. Robert Mitrione to 23 months in prison (Case # 00-30021). Dr. Mitrione's crime: $75.25 worth of "proven fraud."

Judge Scott's crime? Not just an obscenely stiff sentence for very minor offenses, which may have been inadvertent - honest variations in the interpretation of incomprehensible Medicaid regulations, regulations another federal judge labels "a morass of bureaucratic complexity."

And not just the fact that she, a federal judge, relied on Illinois state interpretations of federal Medicaid regulations, contrary to the Supremacy Clause of the U.S. Constitution.

And not just the fact that she permitted the use of a billing dispute and mail fraud laws to deeply criminalize a petty matter.

The real crime here is the government's justice system's complicity with a federal prosecutorial zealousness gotten way out of hand, including the prosecutor allowing a government employee and witness, Deanne Statler, to lie to the court under oath.

Dr. Mitrione is a psychiatrist who, until the legal system stripped him of his ability to practice his profession, provided much-needed services to the poor of Springfield, Illinois, a city with a population over 110,000. He was, in fact, the only area psychiatrist willing to serve patients relying on Medicaid.

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To run his practice, he hired bookkeepers, billing clerks, and assistants: all quite legal under federal Medicaid regulations. But Illinois regulations (Medicaid is a federal/state partnership) don't allow billing the program for assistants' work, in conflict with the federal regulations and with the Supremacy Clause of the U.S. Constitution.

Judge Scott chose to enforce the state regulations, even though they were contradictory and subject to conflicting interpretations, and even though such enforcement is unconstitutional under the Supremacy Clause.

Dr. Mitrione was, in effect, convicted for obeying federal law rather than breaking it.

The conduct of the prosecution was also reprehensible.

First, such petty differences in interpretation of often petty regulations should have been settled as a civil matter, at far less expense to everyone concerned, including the taxpayer, the prosecuting attorney, the court system, Dr. Mitrione and especially the patients he once served.

Second, the criminal case should never have been brought at all because of the constitutional aspect, not to mention the virtual impossibility of anybody fully complying with conflicting sets of complex instructions. As a federal court once reiterated "no one may be required at peril of life, liberty, or property to speculate as to the meaning of criminal statutes."

Further, at the last minute during the initial trial, the prosecution brought in a certain Deanne Statler, who falsely testified about 1,178 billings not previously mentioned, unethically ambushing the defense.

After the original trial, Dr. Mitrione's defense team discovered that Statler had lied under oath. When this perjury was exposed in court, Judge Scott threw out all the convictions save for one count of mail fraud and one count of filing a false claim, totaling $75.25, then sentenced Dr. Mitrione to 23 months in jail.

It should be noted that, in another case, this same Judge Scott sentenced a defendant who pled guilty to stealing $69,929.31 from the Illinois Bank while working as a branch manager to five months in jail, followed by five months of house arrest.

And what of the perjurer Deanne Statler, the government employee and witness? What consequences has she suffered? None that we know of. Yet perjury is itself a federal offense carrying prison penalties which, for example, caused the courts to imprison Alger Hiss, the Soviet spy.

How can we reform this corrupt system? Here are a few ways:

1. Require a "criminal" to be the perpetrator of any federal "crime" in the dictionary sense of "serious wrongdoer," such as persons inflicting violence on the innocent or weak. Adjudicate billing and paperwork disputes and other Catch-22s under civil law. This would help put "civility" back in "civil" law.

2. Require judges to routinely educate jurors about their right of jury nullification, and encourage use of common sense. Currently, judges' warnings often causes juror to check their wits (in addition to their guns) at the courtroom door. Jury nullification, as in the case of John Peter Zenger in Pennsylvania in 1735, helped establish freedom of the press on this continent, laying the foundation for our First Amendment rights.

3. Require penalties for breaking the law to be proportional to the seriousness of the offence instead of the current "use no common sense" prosecutions.

4. Diffuse the power and ability of federal courts to make big mistakes by having states legislate and prosecute non-constitutional crimes.

5. As citizens, be aware of these depredations. Lawsuits can change some court rules but elected officials are ultimately responsible. Let sitting judges, prosecutors and lawmakers know that you insist on justice. And let judges and lawmakers know you vote for just lawgivers who respect and enforce human and civil rights.

Editor's Note: Robert J. Cihak wrote this week's column

Michael Arnold Glueck, M.D., is a multiple award winning writer who comments on medical-legal issues. Robert J. Cihak, M.D., is a Discovery Institute Senior Fellow and a past president of the Association of American Physicians and Surgeons. Both JWR contributors are Harvard trained diagnostic radiologists. Comment by clicking here.


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