Dr. Maynard - Motions for Bail and New Trial…

EMERGENCY MOTION FOR BAIL PENDING SENTENCE and MOTION FOR NEW TRIAL (PDF) - Flannery and Rivers; served upon AUSA Chisolm; 2007-04-18.

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INTRODUCTION, by Siobhan Reynolds, President of the PRN, followed by text of the Maynard legal brief:

Friends of PRN, The legal brief (below) is a must-read. John Flannery respectfully demands bail for Dr. Paul Maynard who is being held in sub-human conditions in Puerto Rico following his sham conviction on prescribing charges.

Just to be clear; we have repeatedly and for years worked to engage the ACLU, Amnesty International, Human Rights Watch, and yesterday, the International Committee for the Red Cross and have been told each time that while they sympathize with our cause, they have a mandate that does not include protecting doctors or patients from the predations of the US Federal Government- even when lives are at stake.

I pointed out to the gentleman who handles the oversight of Guantanamo for the ICRC that this War on Drugs is just as bogus and transparently a campaign of intimidation and oppression as is the War on Terror, and asked if I could present my case to their board so as to persuade them to enlarge their mandate.

I was given an immediate no.

So American citizens are entirely on their own in our country. We enjoy no protection from these supposed civil liberties organizations.

Yours, Siobhan Reynolds, President, PRN, 505-989-3929

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IN THE DISTRICT COURT OF THE VIRGIN ISLANDS

[Respectfully submitted, John P. Flannery, II, appearing pro hac vice, 2007-04-18]

UNITED STATES OF AMERICA,

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

(Defendant.)

EMERGENCY MOTION FOR BAIL PENDING SENTENCE and MOTION FOR NEW TRIAL

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COMES NOW, Dr. Paul V. Maynard, Defendant herein, by undersigned counsel, John P. Flannery, II, appearing pro hac vice, with Clive Rivers, as local counsel, in accordance with 18 USC Sections 3142, 3143(a), and 3145(c), and the related case authority, to move this Honorable Court to grant bail on an emergency basis, and to release Dr. Maynard immediately from custody on the same bail conditions as prevailed before he was remanded without bail after his conviction on 4 of the 170 counts wrongly charged by AUSA Kim Chisholm;

COMES NOW FURTHER, Dr. Maynard, by undersigned counsel, in accordance with Rule 33, to move this Honorable Court to grant a new trial based on newly discovered evidence, and to schedule a hearing to consider the evidence in support of said motion;

In support of this emergency bail application, we respectfully demand this relief because:

  1. Dr. Maynard is deserving of release under the ordinary standards by which bail is granted, i.e., there is clear and convincing evidence that he does not present either a risk of flight or danger to himself or others,

  2. There are “exceptional reasons” why this detention pending sentencing is grossly “inappropriate” including:

  1. the fact that Dr. Maynard’s life is at risk while in custody,

  2. the federal institution has obstructed communications by and between Dr. Maynard and counsel,

  3. there exists newly discovered evidence justifying a new trial – if not the dismissal of this prosecution; and

  4. any sentence imposed might be probation but would likely not be more than three years; and

  • There is “substantial likelihood” that a new trial should be granted – despite this Court’s earlier expressed opinion as to this question.

    • In support of the motion for a new trial, we respectfully demand this relief because of the newly discovered evidence discussed hereinafter that is inextricably intertwined with Dr. Maynard’s request for bail pending sentencing.

    I. REASONS FOR RELEASE PENDING SENTENCING

    We make this emergency bail application as:

    1. Dr. Maynard is in serious danger of dying because of his confinement

    Dr. Maynard is in serious danger of dying because of the deplorable and dehumanizing conditions where he is detained at the MDC Guaynabo facility in Puerto Rico.

    Almost from the day of his conviction on St. Thomas, Dr. Maynard has been seriously ill. His blood sugar went up to over 300, a critical level that is almost double what it should be and his blood pressure became dangerously elevated when it had been normal beforehand.

    Since being transferred, Dr. Maynard has requested to be seen by a doctor on an almost daily basis but has had no medical attention.

    Since he’s been at MDC Guaynabo prison, as a consequence of not being given any medical help, Dr. Maynard’s health has deteriorated to dangerous levels and, in addition to being severely congested to the point of sometimes having difficulty with breathing, he is now coughing up blood, suffering frequently from diarrhea and, as a consequence, has had an extremely rapid weight loss.

    When last I spoke with Dr. Maynard he was hysterical, crying, fearful that, if he wasn’t treated soon, that he might die.

    This is a prosecution that might justify any sentence from probation to three years, but it could not ever justify death.

    This Court is aware of similar civil rights complaints involving other prisoners at this same MDC facility since this Court refused to consider a civil rights complaint (on jurisdictional grounds) that charged, inter alia, that the MDC failed to provide anything like adequate medical attention. See Parris v. Chavez, 199 Fed. Appx. 198 (3rd Cir. 2006). It is unfortunate that those conditions have not been remedied, as demonstrated by Dr. Maynard’s endangered physical state.

    Congresswoman Donna Christensen who represents the Virgin Islands wrote to the Director of the Bureau of Prisons and demanded that Dr. Maynard be given the medical attention he requires. See Exhibit A, Christensen letter, dated April 12, 2007, attached hereto. She said that “as a physician [herself], [she] can well appreciate the [health] risk to Dr. Maynard under these conditions.” Id. She suggested to the Director of the Bureau of Prisons that, “if [Dr. Maynard’s] health and safety cannot be assured in custody, either in San Juan, or in St. Thomas, then we really should reconsider confining him at all – at least until after he is sentenced …” Id.

    She also spoke to what Dr. Maynard’s release would mean and she said, “Dr. Maynard is a well-regarded member of his community despite this prosecution and I am confident that there is no danger that he will flee, nor does he present any danger to himself or to his community.” Id.

    But the Bureau of Prisons has done nothing in response to Congresswoman Christiansen’s request to remedy Dr. Maynard’s dire condition.

    It is little wonder that members of the community signed a petition requesting that this Court release Dr. Maynard from prison; they have been generally aware of Dr. Maynard’s ill health from shortly after his confinement by this Court. See Exhibit D.

    One St. Thomas columnist, Whitman Browne, noted how Dr. Maynard has “successfully cared for many persons” but that “recently he has been jailed,” that they “have even taken away his eyeglasses as they [the Government Agents] move to debase him.” See Exhibit E. This Court has even been criticized for “fail[ing] to restrain the excesses of the prosecution.” Id.

    Pastor Phillips of the St. Thomas Assembly of God since 1983 addresses the character of Dr. Maynard; he talks of how he has “personally sent individuals o[f] St. Thomas to [Dr. Maynard] for treatment, asking [Dr. Maynard] to bill the church and [Dr. Maynard] has consistently refused to do so,” rendering the medical service gratis. See Exhibit F. He underscores that “there has never been any indication of greed or selfishness … [and] [Dr. Maynard] has consistently gone beyond the call of duty to assist many less fortunate individuals in the community.” Id. He does not believe Dr. Maynard “should be subjected to any additional jail time.” Id.

    Reverend Niles of the Methodist Church looks forward to the day that Dr. Maynard may “be released to return to his family and work.” See Exhibit G.

    Phelia A. Powell Torres, RN, MA spoke to the “jealousy among nationals here in the Virgin Islands. If you are not ‘born here’ as the Virgin Islanders would say, the people of VI hate you and will do everything in their power to retard you progress, if not destroy you. Dr. Maynard is a Nevisian; he was born on the island of Nevis. “ See Exhibit H. Nurse Torres wrote in conclusion to this Court: “Please release [Dr. Maynard] so that he can continue providing health care to the people of the Virgin Islands.”

    Another Nurse, Elma Lewis, RN, spoke of Dr. Maynard’s “kindness to his patients” as “immeasurable.” See Exhibit I. Glenda Huggins, a classmate, friend and patient of Dr. Maynard, implored this Court to grant “expeditious bail.” See Exhibit J.

    Only yesterday, I wrote to the MDC Warden, demanding that Dr. Maynard “be provided medical treatment for his nascent diabetes, hypertension, diarrhea, and general ill health that has reached a critical state.” See Exhibit B. But the Federal Express communiqué was refused by the MDC. Id. I have written, faxed, e-mailed, and called the Warden and that prison facility to no avail. This is not surprising as the prison has consistently compromised Dr. Maynard’s access to counsel – since I’ve been retained - even on something as routine as when we have tried to forward court pleadings to Dr. Maynard so that he may see what we have filed with this court. See Exhibit C (legal pleadings forwarded to the MDC’s Post Office Box was returned – although the address and manner of delivery was as instructed by the MDC).

    Congresswoman Christensen complained to the Bureau of Prisons that Dr. Maynard had been denied access to counsel. See Exhibit A. But that has fallen on as silent a recipient as her request for medical treatment.

    It is a matter of bitter irony that the federal government purports to prosecute Dr. Maynard for allegedly compromising his patients’ health, and then takes license by the federal facility where he’s lodged pending sentencing to risk his death. For this “exceptional reason” alone, we request that Dr. Maynard be released pending sentence.

    1. Newly discovered evidence of prosecutorial bias and perjured testimony.

    There is newly discovered evidence that raises grave and substantial questions about the impartiality of the government’s prosecution; we cite this evidence in support of the bail application and in support of Dr. Maynard’s motion for a new trial.

    It involves the prosecutor of this case, AUSA Kim Chisholm, and the principal case agent, S/A Kevin Adams.

    Each has evidenced an irreconcilable conflict and bias that should have barred their participation in this criminal prosecution.

    The ethical conflicts themselves evidence an intolerable bias that encouraged both AUSA Chisholm and S/A Adams to see and to find and to frame Dr. Maynard’s conduct as criminal when it was nothing of the sort.

    These same conflicts evidencing bias also raise the question of selective and vindictive prosecution in violation of Dr. Maynard’s “due process” rights.

    Hearkening back to the remarks of Nurse Torres, AUSA Chisholm told counsel that prosecuting Dr. Maynard was “different” than other cases and other jurisdictions “because it involved [a person from] Nevis”:

        1. Conflict and bias. There is, in the most charitable reading of the facts, the appearance of disqualifying conflict and bias, by the fact that AUSA Chisholm continues to have an ongoing relationship with Dr. Maynard’s estranged wife, former VI Senator Cleon Cleque, from whom Dr. Maynard was divorced based on “incompatibility.”

        1. AUSA Chisholm

          1. This relationship, by and between AUSA Chisholm and Ms. Cleque, goes back for years, and involved discussions by AUSA Chisholm with Ms. Cleque, regarding this prosecution before, during and since the trial and conviction of Dr. Maynard. This was confirmed by an interview by undersigned counsel with Ms. Cleque following Dr. Maynard’s conviction herein. AUSA Chisholm discussed with Ms. Cleque “off the record”, according to Ms. Cleque, Dr. Maynard’s selection of trial counsel, and “things” that Mr. Gordon Rhea, Dr. Maynard’s trial counsel, could have challenged at trial — but did not. Ms. Cleque also said that Dr. Maynard’s wife, Patricia, was “not happy with me.”

          2. AUSA Chisholm was also a tenant at the in-law’s family home on St. John’s, at Ms. Cleque’s parents’ home, and Ms. Chisholm was a friend to Ms. Cleque’s elderly and frail mother whom Ms. Chisholm helped. Ms. Cleque said that “Kim [Chisholm] was helpful for my mother [Dr. Maynard’s former mother-in-law].” Ms. Cleque stated that Ms. Chisholm dated her brother’s friend.

          3. AUSA Chisholm was also a patient of Dr. Maynard during the undercover investigation, although Ms. Chisholm vigorously attacked Dr. Maynard’s credentials as a physician at the trial had before this Court; when asked as an officer of the court on April 9, 2007, by undersigned counsel, to confirm or deny the truth of this assertion, Ms. Chisholm refused to comment.

          4. In her summation, as further evidence of animus, AUSA Chisholm purposefully misled the jury when she said: “Narcotic pain medicine is a last resort, ladies and gentlemen. That is the testimony. It’s not the first resort. It’s the last resort, narcotics.” AUSA Chisholm knew or should have known that was not Dr. Parran’s testimony. AUSA Chisholm used Dr. Parran’s testimony about equivalencies between Oxycontin and Percocet in her closing to inflame the jury by doubling the equivalencies that Dr. Parran had described in his testimony. When Agent Poist presented himself with his back bent elbow as the source of his pain, she misled the jury, saying: “The doctor says, oh, okay, you gave me an excuse now.” She knew that Doctor Maynard made no such statement. (In this regard we incorporate by reference the arguments made in the reply filed in support of the earlier motion for a new trial.)

        2. S/A Kevin Adams.

          1. S/A Adams mother, Patricia M. Adams, born February 26, 1935, was a chronic pain patient attended by Dr. Maynard. See Exhibit P. Ms. Adams had osteoarthritis and terribly painful joints including her wrists and knees as well as low back pain that Dr. Maynard treated with Lorcet 10 mg (650 mg acetaminophen and 10 mg hydrocodone bitartrate). Id.

          2. Kevin Adams called the office and threatened “to get” Dr. Maynard for treating his mother’s pain with Lorcet’s but it was not clear that he was a DEA Agent, only that Patricia Adams’ son was upset with his mother’s medical treatment.

          3. Nevertheless after that call, Mr. Adams became the DEA case agent heading up a task force to investigate Dr. Maynard and he only visited Dr. Maynard once after that as part of the “investigative team,” under the false patient name of “Michael Lambert” (Count 11), lying that he had pain from old knee surgery, showing Dr. Maynard the true scar from that knee surgery, and saying that it had acted up, causing him pain, when he was playing basketball. See Exhibit Q (and Agent Adams’ testimony at trial). In Agent Adams’ DEA 6, he objected that Dr. Maynard had examined his back and ankles, having been told the pain originated in Agent Adams’ knee. Id. Agent Adams complaint, according to his report, appeared to be that Dr. Maynard examined him too closely. Dr. Maynard’s examination “… culminated to be more of a search then [sic] an actual examination for [my] stated knee injury.” Id.

          4. Toward the conclusion of the investigation, it was S/A Adams who then drafted the affidavit to conduct the search of Dr. Adams’ medical practice. See Exhibit R. He confirmed he was a member of the “investigative team”. Id. He also mis-stated, and therefore misled the warrant-issuing U.S. Magistrate, the Honorable Geoffrey W. Barnard, when he stated in his sworn affidavit, dated January 22, 2003, as to Aaron Houle, that Dr. Maynard was “a doctor that anyone could go to with money and walk away with a prescription for anything that they wanted.” As indicated below, as of that date, the information that the government had regarding Mr. Houle was that he had pain and went to Dr. Maynard to be treated for pain.

          5. S/A Adams also testified before the grand jury against Dr. Maynard as the case agent, questioned by AUSA Chisholm, and he testified at the trial against Dr. Maynard. See Exhibit S (Grand Jury Excerpt).

          6. After the trial of this matter, Ms. Lynette Gumbs investigated whether Agent Adams was the son of Patricia Adams, and told undersigned counsel that she had confirmed that Mr. Adams was the son of Patricia Adams who had threatened “to get even” with Dr. Maynard.

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        Newly discovered evidence of perjured testimony at trial.

        1. There is newly discovered evidence that the principal government witness, Justin Krall, who testified as to the death of his “friend”, Aaron Houle, misled the jury when, under oath, he testified that Mr. Houle went to bed at 8:30 pm on May 26th instead of staying out with Mr. Krall until 2 AM the next morning drinking at a St. Thomas bar. There is also newly discovered evidence that Mr. Houle was taking pills that were not prescribed by Dr. Maynard, as Mr. Houle was seen taking the pills from a tic-tac box rather than a prescription bottle:

          1. Following the trial of this matter, on or about April 5, 2007, Antoinette Rhymer, 43, a nurse at St. Thomas Hospital, after 20 years of nursing, stated that on the evening of May 26, 2001, she went to the bar, “Changes,” in St. Thomas, VI. She was there with three of her girlfiends and her brother, Antonio, now 41, and her Sister, Monique, now 35.

          2. She arrived at 10 pm on May 26, 2001, and met a heavy white person who was drunk already who identified himself, by name, as Aaron Houle. “He bought us all drinks,” said Ms. Rhymer. He was drinking a rum drink called, “Sex on the Beach,” consisting of several rums, peach schnapps, cranberry juice and grapefruit juice. He was with a “tall thin white guy” but she did not know his name. He bought her two of these rum drinks.

          3. While she was standing there, she saw Mr. Houle reach into his pocket and take pills from a tic-tac box. She said that Mr. Houle said the pills were a controlled substance, Oxycodone. Asked if it could have been a prescription bottle that he had, she said that it was a tic-tac box.

          4. She thought Mr. Houle should have known better than drinking rum drinks, and taking these pills. She asked him what he was doing. She told him, as a nurse, that “you can’t drink and take these pills”. He said to “leave him alone”. She said that Mr. Houle was “taking them like they were candy,” that he had 7 to 10 of these pills while he was drinking four of these large rum “Sex on the Beach” drinks himself.

          5. They stood at the bar together drinking and talking from 10 pm on May 26, 2001 through 2 am on May 27, 2001 when Mr. Houle left with his friend; Ms. Rhymer left after Mr. Houle did. She said Mr. Houle was “totally out of it” when he left.

          6. When Mr. Krall was interviewed on May 27, 2001, the morning that Mr. Krall reported Houle’s death, he told the U.S. Virgin Islands Police Department that he had put Mr. Houle to bed the night before at 8:30 pm. See Exhibit L, p. 1. When asked if Mr. Houle had taken any “medication,” he said yes, and, when asked what the “Oxy Cotton” was for, Mr. Krall said “pain.” Id. Asked what kind of pain, he said “back pain.” Id. Mr. Krall confirmed that Mr. Houle was also drinking alcohol.” Id.

          7. Several Years later, Mr. Krall made a negotiated plea agreement with AUSA Chisholm, on a simple drug possession charge, that could be violated if he didn’t “cooperate fully and truthfully” and if any statement or testimony he gave was “untruthful or incomplete.” See Exhibit M. His deal was also off if he had “any criminal liability for homicide,” presumably should he admit or be charged for his reckless conduct with his deceased friend, Mr. Houle, on that fateful night. Id.

          8. Mr. Krall told the grand jury that he had to be truthful as part of his agreement but he said on May 26th, the evening before Mr. Houle died, that he “put a movie in for [Aaron] to watch and told him to get some sleep.” See Exhibit N (excerpt of grand jury). He also insisted to the grand jury that he “didn’t count [Mr. Houle’s] pills” or “watch what [Aaron] was doing.” Id.

          9. At that time before the grand jury, as for the period before he visited Dr. Maynard, his testimony was that he had prescriptions “for the medicines I needed … and for the Oxycontin.” Id., at p. 29. He explained to the grand jury in July, 2003 that he took these prescription drugs “for the pain…”. Id. He explained as well why he needed blood pressure medicine. Id., at 31.

          10. Despite the agreement had with Mr. Krall, he was charged with a probation violation and an arrest warrant issued on June 23, 2006, then the warrant was stayed, then another arrest warrant issued on September 1, 2006, and his probation was finally extended by a year on February 15, 2007. See Exhibit O.

          11. At trial, on February 6, 2007, he testified that Mr. Houle did not go out the evening of May 26, 2007 – “not that I know of”, Tr. At 83, he “did not see [Mr. Houle] taking the pills,” Tr. At 82, but he was “pretty sure he chewed” the Oxycodone pills, Tr. At 105, but he had him “out of it” on the evening of May 26th, rather than the early morning hours of May 27th.

          12. This new evidence prompts us to re-consider what Stephen McGarvey had to say, after he waived indictment and pleaded guilty to an information on or about February 6, 2003. See Exhibit K. Mr. McGarvey “confessed” that he engaged in a conspiracy with Aaron Houle to go to the Virgin Islands to obtain Oxycodone to sell in Boston. But then Mr. Houle got the pills in the Virgin Islands, telling Dr. Maynard that it was for back pain, and started downing them for himself, swallowing and chewing them, rather than hanging onto them, so that he could sell them. It makes any fair observer wonder if Mr. McGarvey didn’t give the government what prosecutor Chisholm plainly wanted – to get Dr. Maynard – in exchange for the deal that McGarvey wanted. There is good reason to question how uncritical AUSA Chisholm was when you consider that McGarvey – somewhat inconsistently - told the grand jury that Mr. Houle was down in St. Thomas because he wanted to get a job down there. See Exhibit K (Grand Jury Excerpt), at pp. 4-5.

          13. Mr. McGarvey apparently pleaded guilty but, at least according to the docket, has never been sentenced on that felony. Exhibit K (Docket Sheet), at p. 4 of 4.

      1. Issues with a “substantial likelihood” to undermine the conviction

        1. The prosecutor was biased against the Defendant and had a disqualifying conflict that should have resulted in the assignment of this case to another prosecutor;

        2. The case agent was biased against the Defendant and had a disqualifying conflict that should have resulted in the assignment of another agent to conduct and participate in this prosecution;

        3. The prosecution was “selective” – against a citizen from Nevis – and “vindictive” based on the prosecutor’s association with Dr. Maynard’s former wife, and because Dr. Maynard treated the case agent’s mother with controlled substances, of which the agent disapproved;

        4. The death of Aaron Houle could not be ascribed to Dr. Maynard, and the jury said so (See Exhibit T (the Jury Verdict Form – as to Count One)1 – and they said so despite this Court’s express jury instruction that the jurors should not reach that question in their verdict unless the jury resolved that Dr. Maynard was guilty as to count one.2 When this Court denied Dr. Maynard’s first motion for a new trial “in the interests of justice,” disputing Dr. Maynard’s contention that this was “a compromise verdict”, this Court stated that the “jury’s verdict demonstrate[d] a careful debate about the effect of the evidence as to each count charged and a firm understanding of ‘proof beyond a reasonable doubt’ and ‘unanimous decision’ or lack thereof.” See Exhibit U (Court Order, dated April 4, 2007). If the jury had the “understanding” that the Court embraces in denying Defendant’s first motion for a new trial, then – we respectfully submit - how did they reach the question of Mr. Houle’s death, and decide that Dr. Maynard had nothing to do with it? The answer is manifest that they could not do this, except in contravention of this Court’s direction as to proof and the unanimous decision that this court required as a prerequisite before reaching the conclusion (we embrace) that Dr. Maynard did not prescribe whatever caused Mr. Houle’s death. What we have here, whether this Court acknowledges it or not, is a jury that had great difficulty with this prosecution despite an overreaching prosecutor, lying undercover patients, and the biased government expert who told the jurors, among other things, that they’d get high if they took a percocet. This court gave this jury instructions that embraced what the government expert told the jury was their duty. The jury resisted this overwhelming press of facts and law that just didn’t fit their experience of what they thought was fair and just. In other words, what we have here is a combination of “jury nullification”, to resist and extinguish a criminal charge brought by t