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High court refuses to hear case involving prosecutor’s investigation of pain-relief advocate

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From the Winter 2011 issue of The News Media & The Law, page 30. Siobhan Reynolds said she has been…

From the Winter 2011 issue of The News Media & The Law, page 30.

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.”