NORMAN J CLEMENT RPH., DDS, NORMAN L.CLEMENT PHARM-TECH, MALACHI F. MACKANDAL PHARMD, BELINDA BROWN-PARKER, IN THE SPIRIT OF JOSEPH SOLVO ESQ., IN THE SPIRIT OF REV. C.T. VIVIAN, JELANI ZIMBABWE CLEMENT, BS., MBA., IN THE SPIRIT OF THE HON. PATRICE LUMUMBA, IN THE SPIRIT OF ERLIN CLEMENT SR., WALTER F. WRENN III., MD., JULIE KILLINGWORTH, BLU E. LOTUS MD., WILLIE GUINYARD BS., JOSEPH WEBSTER MD., MBA, BEVERLY C. PRINCE MD., FACS., RICHARD KAUL, MD., LEROY BAYLOR, JAY K. JOSHI MD., MBA, ADRIENNE EDMUNDSON, ESTER HYATT PH.D., WALTER L. SMITH BS., IN THE SPIRIT OF BRAHM FISHER ESQ., MICHELE ALEXANDER MD., CUDJOE WILDING BS, MARTIN NDJOU, BS., RPH., IN THE SPIRIT OF DEBRA LYNN SHEPHERD, BERES E. MUSCHETT, STRATEGIC ADVISORS
BLU E. LOTUS MD.
The Prosecutor’S Queen of Barratry
In his Inferno, Canto XXI, Dante places barrators in the Eighth Circle, fifth bolgia of Hell Canto XXI where they are immersed in a lake of boiling pitch, which represents the sticky fingers and dark secrets of their corrupt deals. They are guarded by demons called the Malebranche (“Evil Claws”), who tear them to pieces with claws and grappling hooks if they catch them above the surface of the pitch.
[ Barratry (/ˈbærətri/ BARR-ə-tree) is a legal term with several meanings. In common law, barratry is the offense committed by people who are “overly officious in instigating or encouraging prosecution of groundless litigation” or who bring “repeated or persistent acts of litigation” for the purposes of profit or harassment. In jurisprudence, prosecutorial misconduct is “an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment.
Such actions lead to a distrust of government and the belief that public authorities are in a vast conspiracy to violate the rights of individuals. Serial misconduct from a few bad actors may actually be widespread in the United States. “It’s a result-oriented process today, fairness be damned,” Robert Merkle, former U.S. Attorney for the Middle District of Florida, said.
The Doctrine of Harmless Error
Prosecutors are protected from civil liability even when they knowingly and maliciously break the law in order to secure convictions, and the doctrine of harmless error can be used by appellate courts to uphold convictions despite such illegal tactics, which some argue gives prosecutors few incentives to comply with the law.
In the New York Post article, Doctor accuses district attorney of destroying his career By Kathianne Boniello May 19, 2018, 10:40 pm, The Post reported:
“….. a Brooklyn doctor whose life was “destroyed” after he was wrongly swept up in an insurance fraud investigation. “It took me a lifetime to establish a practice . . . it vanishes right in front of your eyes,” cardiologist Abdul Q. Malik told The Post.
“Malik had a thriving, 4,000-patient practice in Prospect Lefferts Gardens when police showed up in March 2015 at his Brooklyn home, slapped handcuffs on him, and hauled him to Rikers Island.”
One of nine doctors accused of taking part in a scheme to defraud Medicaid and Medicare by offering homeless people free shoes and boots in exchange for billing for bogus medical tests, it took Malik’s lawyers months to clear his name, according to the Brooklyn Federal Court complaint.
Charges were dismissed against the married father of three in November 2016, but he had been fired from Methodist Hospital and saw most insurance companies terminate their relationship with him. His practice is about a third of what it was, the 59-year-old said. “I used all my life savings just to keep the office open,” he said. ‘We had to fight them tooth and nail every step . . . it prolonged this’”.
THE WRONG ARMS OF THE LAW
According to Helen Borel Ph.D. “The American Agony The Opioid War Against Patients in Pain:”
“The overreach of government lawyers, police, and prosecutors into the lives of patients in pain, which has been going on for years and is still happening, has gone from distressing to death promoting. Too many, almost all, of these autocrats, have been blithely abusing their unrestricted powers.
Which abusers include many State prosecutors who’ve gone overboard in their zeal to bring down an entire industry- Prescription Medical Manufacturing- vital to 21st Century health and survival. Which include Big Pharma corporations that have developed and manufacturing opioid medications commonly used for over a century to treat various levels of pain.”
On March 26, 2015, the District Attorney’s (DA) office obtained a search warrant for Malik’s HSBC bank account. HSBC records revealed Ultraline paid Malik, $236,270 over two years. Malik was arrested on March 31, 2015. It was revealed that from 2012 to 2015, the Kings County DA’s office investigated an allegedly fraudulent scheme involving the “Vanier Organization,” which purportedly operated medical clinics and submitted fraudulent claims to Medicaid, Medicare, and certain healthcare organizations.
Malik, a doctor, was implicated in the scheme and was charged with fraud, larceny, and other crimes in two indictments. Malik had read more than 10,000 diagnostic images for a company assertedly owned by Zavadsky that was purportedly involved in the conspiracy and was alleged to have, among other things, (1) controlled a bank account into which the company deposited fraud proceeds and (2) billed Medicaid for services that were either never performed or medically unnecessary. The DA’s office dismissed charges against Malik when on July 21, 2017, Malik’s counsel sent a report from a forensic document examiner proving that Malik’s signature was forged on evidentiary documents.
MALIK v. CITY OF NEW YORK AND THE WRONG ARM OF THE LAW
In Malik v. City of New York, describes the prosecutorial misconduct Malik experienced beginning on March 25, 2015, when a grand jury returned two indictments against Malik for health care fraud. Malik alleges against the City of New York that assistant district attorney (ADA) Jaroslawicz coerced Zavadsky, a cooperator in the District Attorney’s (DA) case, into falsely testifying before the grand jury. Malik alleges Barratry by Jaroslawicz who continued with litigation even though Malik denied the allegations and requested open discovery, all of which was opposed by ADA Jaroslawicz.
In Malik v. City of New York, the innocent physician opined that ADA Jaroslawicz engaged in the following unlawful acts including: “1) initiating prosecution despite exculpatory evidence, 2) presenting false evidence to a grand jury, 3) failing to disclose Brady material.”
Malik also filed complaints to the Bar Association complaining that ADA Jaroslawicz engaged in the knowing use of perjured testimony to a grand jury as well as deliberate withholding of exculpatory information. Malik complained that ADA Jaroslawicz made excessive promises of rewards and engaged in unduly coercive interrogation techniques with vulnerable potential witnesses.
CITY OF NEW YORK ADA JAROSLAWICZ GONE OVERBOARD
The complaint states that Jaroslawicz continually engaged in a pattern that amounted to a custom or practice amounting to a policy of deliberate indifference to the constitutional rights of Malik. Malik was alleging prosecutorial misconduct that violates a defendant’s civil rights—18 U.S.C. § 242—which requires that the misconduct by the prosecutor to be willful.
Quoting, “On March 30, 2018, Malik brought this action below against the City defendants, Malik argues that absolute immunity does not apply because (1) “Jaroslawicz was acting in her investigatory function when she attempted to, and successfully did, harass, intimidate, and threaten Zavadsky into testifying against Malik to the Grand Jury,” Appellant’s Br. at 52, and (2) “Addonizio and Kenny acted in concert [with Jaroslawicz] in coercing, pressuring, and concocting Zavadsky’s false testimony,” Appellant’s Br. at 55.”
Malik’s complaint essentially alleges that prosecuting attorney Jaroslawicz’s argument to the Grand jury was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the Grand jury. Malik also seemed to argue that the District Attorney’s office was responsible for Jaroslawicz’s ethical violations on a failure-to-train theory, arguing that the District Attorney’s Office had denied him due process of law through its deliberate indifference toward the need to train its attorneys in proper disclosure procedures.
JAROSLAWICZ CONDUCT IS MORE THAN DESERVING MEMBERSHIP in the Eighth Circle, fifth bolgia of Hell Canto XXI
The decision of the case implied that Jaroslawicz was not being supervised by superiors when in response to the complaint, District Attorney Gonzalez opined that ADA’s acting without supervisory authority are not “policymakers” for the purposes of municipal liability.
It is said in legal writings that “a prosecutor stands perhaps unique, among officials whose acts could deprive persons of constitutional rights, in his amenability to professional discipline by an association of his peers.” “With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases.
They have prosecuted black men, hiding evidence the real killers were white. They have prosecuted a wife, hiding evidence her husband committed suicide. They have prosecuted parents, hiding evidence their daughter was killed by wild dogs. They do it to win. They do it because they won’t get punished. They have done it to defendants who came within hours of being executed, only to be exonerated.”
Prosecutorial misconduct includes misstating the facts cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by the prosecutors’ questions that statements had been made to them personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts, not in evidence; of bullying and arguing with witnesses; and in general, of conducting themselves in a thoroughly indecorous and improper manner.
GUARDED BY Malebranche”Evil Claws”
Misconduct also includes: prosecutors knowingly using perjured testimony, suppressing evidence favorable to the accused that might have led to a not guilty verdict, and misstating the law in argument to the jury.
Lower courts have identified additional examples of prosecutorial misconduct, including prosecutors threatening witnesses with loss of immunity. If they testify for the defense, ignoring the obligation to disclose to the defense special treatment or promises of immunity given to a government witness.
In exchange for testimony against the accused, failing to remedy or disclose the government’s presentation of false evidence, making inflammatory remarks to the jury based on racial bias against the accused.
By presenting perjured testimony to the grand jury, and a host of other situations where the prosecutor ignores the obligation to accord procedural justice to the accused.
“Studies of DNA exonerations have identified wrongful convictions based on prosecutorial misconduct that included:
- suppressing exculpatory evidence,
- knowingly using false testimony,
- fabricating evidence, coercing witnesses,
- making false statements to the jury, and
- engaging in improper closing arguments.
Similarly, grand jury and journalistic studies into wrongful convictions have found that prosecutorial misconduct is a leading cause of wrongful convictions.
The presumption of innocence, the right to remain silent, the right to a public trial by an impartial jury, 24 and the requirement that the prosecutor must prove each case beyond a reasonable doubt all reinforce the public’s perception that the criminal justice system operates under the precautionary principle announced by Blackstone more than two hundred years ago: “better that ten guilty persons escape than that one innocent suffer.”
We teach school children this principle of criminal justice, and law students have it “drilled into their heads over and over.”
CONGRESS: CLEAN UP THIS MESS
It is past time for Congress to correct the mess they have made of the regulation of opioid pain relievers. Here is contact information for your Senators, Representatives, and governor’ offices. Call them and demand that they:
- familiarize themselves with the problems they have created by reading this article in STAT news.
- begin work on legislation to force the repeal of the CDC Guidelines
- reign in regulators and drug enforcement authorities from their senseless and unfounded persecution of doctors.
To make it easy for them here is model legislation that, if enacted, will do all of the above.
FOR NOW, YOU ARE WITHIN