special to Drug War Chronicle by investigative journalist Clarence Walker, [email protected]

Part 4 in a series, "Prosecutorial Misconduct and Police Corruption in Drug Cases Across America."

In what could become an historic case, a Florida doctor acquitted of drug dealing charges over his prescribing practices is asking the US Supreme Court to reinstate a $600,000 award made to him by a lower court after federal prosecutors were found to have engaged in misconduct that was "vexatious, frivolous, or in bad faith." That language comes from the Hyde Amendment, enacted in 1997, which gives federal judges the power to force the government to pay attorney's fees to acquitted defendants if the actions of those prosecutors met that standard of misconduct.

[inline:dr-shaygan.jpg align=right caption="Dr. Ali Shaygan"]The case of Florida physician Dr. Ali Shaygan has been closely watched by pain-management doctors -- an area in which the federal government has waged a fierce "war on prescription doctors" -- a war fueled by a rising death toll in recent years from prescription drug overdoses in America, but also preceding that rise. Since 2003, according to DEA, hundreds of physicians across the nation have been charged in federal or state court for illegally dispensing narcotic pain medicine to patients.

This past August, the 11^th US Circuit Court of Appeals overturned the trial court decision awarding the money to Shaygan, who had operated a Miami pain clinic. He was acquitted in March 2009 of 141 counts of illegally distributing narcotics to patients, including one case where a patient died of an overdose.

Shaygan's attorneys charged that two Assistant US Attorneys, Sean Cronin and Andrea Hoffman, as well as a DEA agent, had acted "vexatiously" and withheld materially important evidence after Shaygan was originally charged in a 23-count indictment. US Circuit Court Judge Alan Gold, who presided over the high-profile trial, agreed that prosecutors violated disclosure requirements by withholding information from the defense and the court and ordered the cash award.

Judge Gold also accused the government of launching a separate "tactical" effort to disqualify the doctor's attorney, David Markus, shortly before the trial began. In that effort, which Gold characterized as part of a scheme to undermine the defendant's rights to a fair trial, the prosecutors failed to notify the defense that the DEA had attempted to manipulate two witnesses in the case into trying to entrap Markus into paying off witnesses to give favorable testimony at the trial to help the doctor beat the rap.

Following a sanction hearing after the doctor's acquittal in 2009, Judge Gold issued a scathing ruling against the prosecutors. The government conduct was so "profoundly disturbing that it raises troubling issues about the integrity of those who wield enormous power over the people they prosecute," Gold concluded.

After Gold requested that the Justice Department investigate the government's misconduct, prosecutor Cronin conceded to the Miami Herald, "We should have done a better job," but insisted that "at no time was I acting in bad faith."

He said he authorized secret recordings of attorney Markus because a witness, Courtney Tucker, had told a DEA agent the defense might be trying to tamper with her testimony. Yet Tucker contradicted Cronin's claim when she testified that a DEA agent had tried to pressure her to tailor her testimony to bolster the prosecution's case against Dr. Shaygan.

[inline:david-markus.jpg align=left caption="Atty. David Markus after the acquittal"]When federal prosecutors appealed the cash award to the 11th Circuit, a sharply divided panel overturned it, holding that Gold had overreached and wrongly interpreted the Hyde Amendment by applying the incorrect legal standard for awarding the fees under the statue. The appeals court majority also held that "as long as a prosecutor had an objectively reasonable basis in law (not frivolous and not vexatious), an award of attorney fees under the Hyde Amendment is improper." One judge concluded that the overall prosecution and allegations on the original indictment were "objectively valid."

But in a harsh dissent, Judge Beverly Martin wrote that the majority opinion "will render trial judges mere spectators of extreme government misconduct."

Markus told the Chronicle the appeals court reversal was not what he expected. "The decision was surprising given how the oral argument went and how thorough Judge Gold's order was," Markus said, adding that he was appealing to the Supreme Court.

Now a coalition of former federal judges and prosecutors, organized by the bipartisan group the Constitution Project has signed onto an amicus brief supporting Markus's writ of certiorari asking the Supreme Court to overturn the appeals court decision and reinstate the cash award in US v. Shaygan.

"When a court bends the law to excuse a prosecutor's bad faith, public confidence in the criminal justice system suffers," the Constitution Project brief said.

Just Another Pain Doctor Prosecution

The wheels of justice in Dr. Shaygan's case began turning on June 9, 2007, when one of the long-term patients at his pain clinic, James Brendan Downey, died of a drug overdose from a fatal combination of prescribed methadone and illegal cocaine. Shaygun had prescribed the methadone to Downey two days before he died, and an autopsy found that the levels of methadone in his blood alone were enough to kill him.

In a subsequent undercover sting operation, two Florida police officers posed as potential patients at Shaygan's office to determine how easily they could obtain prescribed narcotics. Federal prosecutors said both officers obtained a prescription for controlled substances on their first visit without presenting medical records, and that Shaygan only administered minimal physical examination.

[inline:judge-gold.jpg align=right caption="Judge Gold"]On February 8, 2008, the Southern Florida US Attorneys Office filed a 23-count indictment against Shaygan alleging that "the doctor distributed and dispensed controlled substances outside the scope of professional practice unintended for legitimate medical purposes in violation of 21 U.S.C. 841."

Three days later, DEA agents arrested Shaygan at his office. Agents seized Shaygan's active patient files and even confiscated his leather-bound daily planner. Prosecutors said that DEA agents reported that Shaygan allegedly made a statement to the effect, "I want to cooperate." On May 14, Markus filed a motion to suppress his client's statement during his arrest.

At a post-hearing on the suppression motion held on August 2008, Markus clashed with lead prosecutor Cronin over Markus's attempt to keep his client's alleged statement from being heard by the jury. Cronin threatened Markus with an enhanced prosecution of his client if he persisted in that strategy.

"Cronin told me that if we litigated the suppression issues, there would be no more plea discussions, and that if I went after his witnesses (DEA agents), there would be a 'seismic shift' in the way he would prosecute the case against Mr. Shaygan," Markus said.

Markus dismissed Cronin's threat and forged ahead with the suppression hearing, offering up damaging testimony by Shaygan, who testified that DEA agents, while flashing their weapons, continued to interrogate him, despite his request to speak with a lawyer. Agents denied this happened. After hearing from a defense witness that he overheard Shaygan say, "May I please have my lawyer," Judge Gold granted the motion to suppress, which barred prosecutors from using Shaygan's statements during the trial.

Then, playing legal hardball, prosecutor Cronin made good on his threat, filing an additional 108 drug charges against Shaygan totaling hundreds of years in prison and bringing the total number of charges filed against him to 131. Cronin filed the extra charges after DEA agent Chris Wells located and interviewed Shaygan's former patients Carlos Vento, Trinity Clendening, Courtney Tucker and Andrew McQuarrie. These former patients would play a pivotal role in the misconduct allegations against federal prosecutors Cronin and Hoffman.

Before trial, prosecutors Cronin and Hoffman received a tip from DEA agent Wells that Shaygan's defense team might be tampering with the witnesses. Wells said one witness, Courtney Tucker, "was about to go south and not testify." Prosecutors relayed this new information to Karen Gilbert, the Assistant US Attorney in charge of the narcotics unit. Gilbert authorized DEA agent Wells to ask witnesses Tucker and Carlos Vento to record phone calls with the defense team and for the witnesses to ask attorney Markus for funds to testify that Dr. Shaygan had not overprescribed medication that killed James Downey. Vento later signed a confidential informant agreement with the DEA.

Trial Shenanigans

During a three-week trial in beginning in 2009, prosecutors characterized Dr. Shaygan as a drug dealer who recklessly sold prescriptions for dangerous narcotic painkillers, such as oxycodone and methadone, to increase his wealth. Prosecutor Cronin told the jury the government would prove that Shaygan's illegal distribution of methadone contributed to Mr. Downey's death. Jurors viewed evidence showing prescription bottles from Shaygan found in Downey's bedroom, where he died in his sleep. Downey's girlfriend, testifying for the government, said her boyfriend had obtained methadone from Shaygan hours before he died.

But the girlfriend also undercut the prosecution's case by testifying that Shaygan had questioned and cautioned Downey about the large amount of methadone he had requested. Defense attorney Markus further undercut the prosecution case by presenting evidence of additional medicine bottles at the scene prescribed by other doctors.

For the defense, renowned expert forensic pathologist Dr. Michael Baden testified that when Downey used multiple prescribed drugs there was no verifiable way to conclude the drugs given to him by Dr. Shaygan actually caused his death.

Then, in a dramatic twist right out of Perry Mason, former Shaygan patient and government witness Trinity Clendening let slip that he had recorded for the DEA a telephone call he made to to Markus's office to solicit payment for testifying on Shaygan's behalf. A recording later heard in court showed that that Markus had directly refused to offer bribes. "I am not paying money for anything," he said on the tape.

Markus was furious. During a hearing outside the presence of the jury, he hammered the witness. Clendening, now unraveling the government's deceit, revealed the whole scheme to set up Markus for a witness tampering charge. Markus attacked the prosecutors relentlessly over their withholding evidence of the scheme. In closing arguments, Markus rhetorically compared the prosecutorial misconduct in Shaygan's case with the infamous Salem Witch trials, and told the jury it had been misled by the government's flagrant violation of the law through withholding evidence that the defense had asked for under the law and not received.

Judge Gold instructed jurors that they were legally bound to consider the prosecutor's violations of the law during their deliberations over Shaygan's guilt or innocence. After deliberating four hours, the jury acquitted Dr. Shaygan on March 12, 2009.

Shaygan's relatives, friends and colleagues erupted with cheers after hearing the verdict, and jurors hugged Shaygan as he left the courtroom.

"I feel vindicated," Shaygan told the Miami Herald. "I feel that my life can move forward again."

"This verdict sends a message that justice prevails," Markus added.

But justice hasn't prevailed just yet. The federal prosecutors who engaged in the misconduct have not been punished for their actions, either criminally, professionally, or financially. The 11^th Circuit Court of Appeals decision reversing the $600,000 award for misconduct that is "vexatious, frivolous, or in bad faith" remains the last word on the affair -- unless the Supreme Court agrees to take the case.

At least, Dr. Ali Shaygan is out from under his legal woes and, having had his license to prescribe medicine reinstated, he is once again helping patients.