A Meditation On Father’s Day

           

            At age 56, I am now four years older than my father was when he died. 

            For many years, I rarely thought of Daddy.  Primarily, I thought about him every January 6, the anniversary of the day he died. Annually, this is a day upon which my mother and I have the same conversation, rehearsed and hushed.  I loved him, and one might expect me to have thought of him more often, to have honored him, but I did not, at least not until recently.  Before you draw too many conclusions, though, bear in mind that I could not see him clearly.

            Have you ever looked through the wrong end of a telescope?  The object at which you gaze looks tiny, and slightly blurred at the edges.  The object – a tree, a person – is as impossibly distant as the moon is impossibly close when you turn the telescope right way around.  When my father died, I had just turned twelve.  Although precocious in some ways, I saw him with a child’s eyes, and never after that did my eyes change, at least the eyes with which I saw him.  Time passed; I aged, and everything around me changed and aged; but not the eyes with which I struggled to see him.  Time passed, but my eyes for my father remained unchanged, a child’s eyes in man’s body.  I went further and further down the wrong end of the telescope.

            It was only when I became a father, and then approached his death-age and surpassed it, did I understand a little better who he was, and that I could quicken with memory that tiny figure moving in sepia grace at the wrong end of the telescope.

            Memory is a treacherous thing, and no less so than between father and son.  The danger is in adopting someone else’s memories – my mother’s, for example, who is aged but singular in her devotion to Daddy.  My own memories, though, I need to sift and poke through.

Baskin-Robbins

Baskin-Robbins

He was a CPA, but he and his brother also owned an ice-cream store, a Baskin-Robbins at a mall (which, in Tuscaloosa, Alabama in 1970 was as fancy as some Ben and Jerry’s superpremium exotic would be today).  At times, we would skip church on Sunday morning so that he could go to the store and take inventory.  The mall was empty and silent, and the walk-in commercial freezer blew out white cold air like some massive Antarctic creature.

One night, he and I went out to the mall on a store-errand.  I was probably ten.  A conservative man, both politically and financially, my father drove a Volkswagen Beetle.  The evening was warm, and I cracked my window to let in a breeze.  We got out, went to the store, came back to the parking place and discovered the car gone.  Although I had dutifully locked the car door, I had failed to roll the window back up completely.  At the time, in the twilight of the hippies, “dune buggies” were in great demand.  (Admit it – When was the last time you heard of a dune buggy?)  Volkswagen Beetles were ideal to be stripped-down and turned into dune buggies, the police told us.  They theorized that the thieves had been able to slip a twisted metal coat-hanger into the gap in the window I had left open; pull up the lock; and gain access.

           

A dune buggy

A dune buggy

           I was embarrassed, devastated and fearful at the prospect of forcing my father to pay for a new car, even if insurance was available.  (He had taken a staff job at the University of Alabama which, I figured out later, paid less than his previous, private-company job).  He never got mad about the Beetle, never blamed me and never considered it anything other than an unfortunate event.  I was grateful and did not know how to express my gratitude.

            Gratitude is not my strongest quality, and there were other things for which to be grateful.  There was a trip to Acapulco: we played tennis, and the breakfast pancakes had Mexican chocolate in them.  My tennis career was budding, and he hired a contractor to build a cinder-block backboard on one side of the driveway, painted dark green the way I imagined the high walls at Wimbledon might be.  There was a beach trip to Destin, Florida.  The motel where we stayed had a bar and, one afternoon when I went to get some ice from the sweating ice machine, I passed the bar.  The band was rehearsing: “Jeremiah Was A Bullfrog,” by Three Dog Night.  Also, Daddy had been a high school basketball player, and he encouraged my (undistinguished) play in the downtown YMCA youth league.

            That was the day he died, the Saturday of a Y basketball game.  The day was cold and clear.  He watched my game and brought me home (in yet another Beetle, this one green).  After my shower, I built a fire in the coal grate.  (An oddity, coal fires, but the house was old and the fireplace built for coal.  Some people do not like coal fires.  As a child, I loved them.  Pockets of gas would escape and explode in blues and purples around the black coals, demons escaping from rock).

            Daddy had complained of nausea and went to lie down in my parents’ bedroom.  I got the fire into a good, colorful roar.  The demons were looking good.  My mother must have known how impressed I was with my fire-making skills, and she helped my father up to the living room to see my handiwork.  Something was amiss.  Even I knew something was amiss when all he could do – he who was usually so effusive in praise for me – was to nod and murmur something I do not remember.

            He went back to the bedroom, I went back to watching the purple and blue demons crack and jump from coal to coal.  There was a commotion, my mother cried out and I ran down the hall towards their bedroom.  No Daddy.  My mother was saying something about He fell, and she was on the phone.  My words and hers all run together now.

            Whereishe?

             Inthebathroom.

            I stood there, rooted, terrified.  I did not know what had happened, but I did not want to look at him.  I was afraid to look at him.  I didn’t care: I was afraid.  I was also a failed Boy Scout, so I asked some inane question to cover up my cowardice. 

            Isithishead?  Headinjury? 

            But my mother was talking into the phone.  I took a breath, stepped around her and looked into their bathroom.

            My father was in his bathrobe, sitting in the empty tub, his legs hooked over the edge of the tub, feet dangling.  (Later, it was surmised he had gone into the bathroom, thinking he would throw up; had sat on the edge of the tub; and had tumbled backwards  into the empty tub when the heart attack hit).  His eyes were shut, but he was making a chuck-chuck noise through his nose, a violent snuffling.  His right arm rose in the air, as though one of the little coal-demons were yanking it upwards with thread.

            Perhaps he was dying at the moment; perhaps it was a body in some sort of death throes.  (I do not know and never asked.  The doctors gave us the obligatory He-never-felt-a-thing, which I doubted even then).

            My mother had called the ambulance.  Perhaps she knew full well and did not want me to see.  She told me to go out the front door and look for the ambulance.  Which, to my relief and shame, I ran and did.

            Neighbors, food, flowers, funeral.  My parents had many friends, and the house was filled with flowers.  To this day, I cannot abide the smell of flowers.

            That was forty-one years ago.  What to make of it this Father’s Day, for your benefit or mine?

            Perhaps we only understand aspects of ourselves when we understand aspects of our fathers, and the latter understanding comes only with time.  My time was ambered – that backwards-telescope problem – but now, with my own children, I can see my face in theirs and, more than ever before, Daddy’s face in mine.  I appreciate, perhaps, what he might have been thinking about a job, a child, the future.

            And perhaps we only look into a father’s face when enough time has passed to get us to the same age as he, so to speak: the same age as when something happened to you as a child, something critical or weird or shameful.  I was afraid at his death, fearful watching it, impotent.  No Boy Scout, me.  Guilt at not doing something Boy Scout-like.  Mouth-to-mouth?  Some kind of pounding on his chest?  Getting in the tub and holding him until he died?

            Whatever it was I should have done, I failed to do it.

            I believe the Gospel, and so I believe that he and I will meet again.  Sometimes, over the years, I have been terrified that he will judge me for my failure, there in a dying man’s bathroom in 1973.  What a judgment upon me that would be, would it not?

            Yet now I am older than he was on that day, and the telescope seems to distort his memory less now than it did before.  Peculiar, isn’t it?  Now, when I fear his judgment, memory replays how my failure to close that window caused that Beetle to get stolen, and how he acted towards his child.

            True, someone got their dune buggy out of it.  All I got was love.

            Happy Father’s Day.

           

 

[NOTE: this post was originally published in 2014 and has been updated]


Stethoscopes, Handcuffs and Pain

The ties that bind.

When does managing pain become a crime?

And, what can a healthcare provider do to stay out of trouble in these days of the “opioid epidemic”new federal legislation and the criminal prosecution of doctors?

I make a few suggestions here in Pain Management News:

That’s the question many physicians, nurse practitioners (NPs), certified registered nurse anesthetists (CRNAs) and physician assistants (PAs) are asking in the wake of a tidal wave of prosecutions related to pain medicine. This has been partly spurred on by the “opioid epidemic.” There has been a sharp spike in convictions—either by guilty plea or by conviction after a trial—of health care professionals involved in pain medicine.

The facts of each case are different, but the gist of each charge is that health care providers are operating a “pill mill,” where prescriptions are being provided “outside the usual course of medical practice” and “not for a legitimate medical purpose.” There also may be a charge that procedures or tests are not “medically necessary.”

Read the full article here, and our previous notes on related topics:

And my mens rea is unknown, too.

Mute Oracle: The Controlled Substances Act and Physicians’ Criminal Conduct

“In Flanders fields . . . .”
(via Zyance)

.

Pill Mills, Poppy Flowers, Dead Poets and the Human Resources Department

We’ll be right with you.

Electronic Medical Records and Federal Criminal Prosecution


Vermouth, Bitters and Black Coffee

The transatlantic bond.

In speaking of the martini, Winston Churchill supposedly observed   “I would like to observe the vermouth from across the room while I drink my martini.”  Here is a recipe for a “Churchill martini,” which is basically a glass of cold gin.

Hammering the martinis.

On the other hand, Julia Child supposedly went to the opposite extreme: a glass filled with vermouth and topped with gin, also known in this recipe as an “upside down martini.”

I am no Churchill or Child, on several counts, but I have never understood the anti-vermouth wing of the martini party.  A martini is a cocktail.  A cocktail, by definition, is “an alcoholic drink consisting of a spirit or spirits mixed with other ingredients, such as fruit juice or cream.”  Ignore the “fruit juice or cream” modifier.  The point is that a cocktail is a mixture of things, and a martini mixes gin with vermouth (by being stirred, one hopes, not shaken).

On the other hand, we can consider drinking vermouth by itself, a concept that does not offend because vermouth by itself does not call itself a “martini.”

Vermouth shooters?

Lettie Teague of the Wall Street Journal offers a thorough article on  The Best Vermouths for Sipping.  In particular, she notes the new drive towards drinking vermouth on its own, which is apparently the way that things started out:

A tall order, perhaps, but that’s how vermouth is usually consumed in Europe—not as a component in a Manhattan or martini, as in the U.S. Back in 1786, in Turin, Italy, Antonio Benedetto Carpano created vermouth to be sipped as an aperitif. He infused a white wine with herbs and spices, and it was an immediate hit, so popular that Turin cafes purportedly had to stay open day and night to meet the demand.

Such practices have a ways to go in the United States, but who knows?

Either way, Fred Astaire in 1943 was having none of it:

 

“Celery.”  It sounds . . . English.

Bitters are now a “thing” again.  (I like celery bitters with Plymouth or Death’s Door gin).

One may reasonably ask, with EpicuriousWhat Are Bitters, Anyway?

Basically:

Bitters are made from botanicals, like aromatic herbs, bark, roots, and fruit. These ingredients are infused into a flavorless alcohol base to create a potent flavoring. You know how you add salt to almost everything you cook for that extra flavor boost? That’s sort of like what bitters do for cocktails.

There are all sorts of ways to use them in cocktails, and there is even a book about bitters.  Originally, they were touted as having digestive and even medicinal properties.  Dropped into gin, I have certainly found them so.

No matter how you take your martinis, if you are over-served, you may need a pot of black coffee (via Julie London (on “Around Midnight” (1960)):


 


Congressional Investigations, Criminal Cases and The Knights Who Say “Ni!”

We are heading into what appears to be a summer of investigations along the Potomac, some of them in the House and Senate.  What are some of the things we might reasonably expect to see as investigations congressional and criminal cross paths?  And what does Monty Python have to do with it?

Previously, I shared a few lessons about congressional investigations.

First, the short-version video:

Jack Sharman – Learning in Congress from Legal Filmworks Unlimited on Vimeo.

Second, a longer how-to approach for lawyers and clients in a congressional investigation:

Lessons From An Ex-Congressional Lawyer

In particular:

We are in the summer months.  We have written before about  summer hearings:

As a former oversight-and-investigations lawyer for a House committee, I can testify: summer is the high season for O&I hearings.  Nothing is going on legislatively, O&I hearings don’t require lobbyists or constituents, it is hot as hell but most House and Senate hearing rooms have good air-conditioning these days and, if you get some hearings under your belt in June and July, you’ll have plenty as a Member to talk about in your district or state.

Because most people are familiar with Congressional investigations only through television, they assume that if they are caught up in an investigation they will be summoned to testify before a committee like John Dean or Oliver North, with cameras clicking amid vigorous partisan drama.  Although your client may indeed be called to testify in a public hearing — and you should prepare as though your client will be called — it is more likely that constraints of time, the demands of the media, and political pressure and compromise having little to do with your client will result in your client never being called.  If your client testifies, remember that in many instances the committee members’ “questions” are not actually designed to elicit information from the witness.  Rather, questioning is often more like speech-making designed to maximize camera time on the questioner or to score political points against the opposition.

These  lessons were reinforced in my latest job in this arena: Special Counsel to the Alabama House Judiciary Committee for the impeachment investigation of Governor Robert Bentley.

Talk of President Trump and impeachment seems to have subsided for the moment with the appointment of former FBI Director Robert Mueller as a Special Counsel to investigate potential links between the Russian government and the Trump campaign.

What are some points to keep in mind as these investigations — congressional and criminal — move down their parallel tracks?

Jacket and tie, please.

The Grand Jury Is Grand. The criminal investigators will largely call the shots.  How so?

There are two reasons that there will likely be increased negotiation and tension between Congress and the Special Counsel.

Telling Tales. The first reason is one common to all federal criminal investigations: no prosecutor wants his or her witnesses making statements, especially public statements under oath. Sworn statements lock the witness into a story and can be used by defense counsel for cross examination in a potential criminal trial.

Federal Knights Who Say “Ni!” The second reason is that, much like the terrifying “Knights Who Say ‘Ni!'” in the 1975 film Monty Python and The Holy Grail who look down upon the coconut-slapping Knights of the Round Table, federal prosecutors do not usually hold congressional investigators in high esteem although they convey that view with varying degrees of politeness.  (Of course, I have expressed a differing view, sometimes with varying degrees of politeness). I learned this lesson both from my Whitewater time as Special Counsel to the House Financial Services Committee for the investigation of President and Mrs. Clinton’s dealings with Madison Guaranty and also from the recent impeachment investigation of Alabama Governor Robert Bentley.

INCENTIVE NOTE: If you make it to the end of this post, there is a “Knights Who Say ‘Ni!'” clip.

This clash between prosecutors and congressional investigators should not be too surprising. Congressional investigations and grand jury investigations serve different institutional and constitutional mandates. From time to time, there will be some tension.

Paging through for immunity.

Immunity? Congress could bugger up the criminal investigation by granting General Michael Flynn (or other witnesses) immunity in exchange for their testimony.  As noted by Philip Shenon in Politico, after the Iran-Contra prosecutions of Colonel North and Admiral Poindexter, that is unlikely to happen:

The special prosecutor was convinced that Congress was on the verge of sabotaging his politically charged investigation—one that led straight into the White House and threatened to end with a president’s impeachment. And so he went to lawmakers on Capitol Hill with a plea: Do not grant immunity to witnesses in exchange for their testimony if you ever want anyone brought to justice.

But the plea failed. And the special prosecutor, Lawrence Walsh, a former federal judge appointed in 1986 to investigate the Iran-contra affair during the Reagan administration, watched two of his highest-profile targets go free: former National Security Adviser John M. Poindexter and Poindexter’s deputy, Lieutenant Colonel Oliver North. Although both former Ronald Reagan aides were later convicted at trial of multiple felonies, the convictions were overturned, with appeals courts deeming the prosecutions tainted as a result of the testimony the men had given to Congress with grants of supposedly limited immunity.

Read the full article: How Congress Could Cripple Robert Mueller.

As a reminder: a grant of congressional immunity raises a potential “Kastigar” problem for a criminal prosecutor.  As the United States Court of Appeals for the District of Columbia Circuit said in United States v. North:

Because the privilege against self-incrimination “reflects many of our fundamental values and most noble aspirations,” Murphy v. Waterfront Comm’n, 378 U.S. 52, 55, 84 S. Ct. 1594, 1596, 12 L. Ed. 2d 678 (1964), and because it is “the essential mainstay of our adversary system,” the Constitution requires “that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.” Miranda v. Arizona, 384 U.S. 436, 460, 86 S. Ct. 1602, 1620, 16 L. Ed. 2d 694 (1966).

The prohibition against compelled testimony is not absolute, however. Under the rule of Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), a grant of use immunity under 18 U.S.C. § 60021  enables the government to compel a witness’s self-incriminating testimony. This is so because the statute prohibits the government both from using the immunized testimony itself and also from using any evidence derived directly or indirectly therefrom. Stated conversely, use immunity conferred under the statute is “coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege…. [Use immunity] prohibits the prosecutorial authorities from using the compelled testimony in any respect….” Kastigar, 406 U.S. at 453, 92 S. Ct. at 1661 (emphasis in original). See also Braswell v. United States, 487 U.S. 99, 108 S. Ct. 2284, 2295, 101 L. Ed. 2d 98 (1988) (“Testimony obtained pursuant to a grant of statutory use immunity may be used neither directly nor derivatively.”).

When the government proceeds to prosecute a previously immunized witness, it has “the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.” Kastigar, 406 U.S. at 461-62, 92 S. Ct. at 1665. The Court characterized the government’s affirmative burden as “heavy.” Most courts following Kastigar have imposed a “preponderance of the evidence” evidentiary burden on the government. See White Collar Crime: Fifth Survey of Law-Immunity, 26 Am.Crim.L.Rev. 1169, 1179 & n. 62 (1989) (hereafter “Immunity”). The Court analogized the statutory restrictions on use immunity to restrictions on the use of coerced confessions, which are inadmissible as evidence but which do not prohibit prosecution. Kastigar, 406 U.S. at 461, 92 S. Ct. at 1665. The Court pointed out, however, that the “use immunity” defendant may “be in a stronger position at trial” than the “coerced confession” defendant because of the different allocations of burden of proof. Id.

Committee assignment?

Constitutional Theater. Congressional investigations, in part, are political theater.  That’s okay.  As we have noted elsewhere:

The fact that there appear to be no rules in a congressional investigation underscores perhaps the primary fact that counsel should bear in mind: the committee’s investigation takes place in a political environment, not a litigation environment.  Although the investigatory process appears legalistic, it always unfolds in a political environment in which the actors have political goals that may or may not have anything to do with your client.

Because most people are familiar with Congressional investigations only through television, they assume that if they are caught up in an investigation they will be summoned to testify before a committee like John Dean or Oliver North, with cameras clicking amid vigorous partisan drama.  Although your client may indeed be called to testify in a public hearing — and you should prepare as though your client will be called — it is more likely that constraints of time, the demands of the media, and political pressure and compromise having little to do with your client will result in your client never being called.  If your client testifies, remember that in many instances the committee members’ “questions” are not actually designed to elicit information from the witness.  Rather, questioning is often more like speech-making designed to maximize camera time on the questioner or to score political points against the opposition.

When a congressional committee issues a subpoena, for example, it may (and will) do so with the knowledge and expectation that the recipient may not make even a good-faith attempt at compliance.  With regard to recent subpoenas sent to intelligence agencies by the House Intelligence Committee, for example:

Where NSA had previously complied with the House panel’s investigators, sources said that cooperation had ground to a complete halt, and that the other agencies – FBI and CIA – had never substantively cooperated with document requests at all.

Read the story by James Rosen: House Intelligence Committee sends subpoenas to intel agencies

Come to order?

Enforcing subpoena compliance is a legally and politically difficult maneuver for a congressional committee, especially where it seeks enforcement against the executive branch.  Customarily, the subpoena issues, then a bit of Kabuki theater ensues, and an agreement is reached, as in the case of General Flynn.  Although there are multiple reason why General Flynn . . .

5 Possible Reasons Why Michael Flynn Is Now Turning Over Documents

. . .  . may have decided to comply with the document subpoena from the Senate Intelligence Committee, one possible explanation is that his lawyer simply reached an agreement about the scope of responsive documents that was tolerable.

As a necessary aside, I object to the ATL description of the D.C. Circuit’s North opinion as a “three decade old precedent from a split panel [that] rested on a mushy determination that North’s congressional testimony ‘tainted’ the criminal prosecution.”  As Judge David Sentelle’s judicial clerk at the time, I reiterate the court’s observation:

The fact that a sizable number of grand jury witnesses, trial witnesses, and their aides apparently immersed themselves in North’s immunized testimony leads us to doubt whether what is in question here is simply “stimulation” of memory by “a bit” of compelled testimony. Whether the government’s use of compelled testimony occurs in the natural course of events or results from an unprecedented aberration is irrelevant to a citizen’s Fifth Amendment right. Kastigar does not prohibit simply “a whole lot of use,” or “excessive use,” or “primary use” of compelled testimony. It prohibits “any use,” direct or indirect. From a prosecutor’s standpoint, an unhappy byproduct of the Fifth Amendment is that Kastigar may very well require a trial within a trial (or a trial before, during, or after the trial) if such a proceeding is necessary for the court to determine whether or not the government has in any fashion used compelled testimony to indict or convict a defendant.

We readily understand how court and counsel might sigh prior to such an undertaking. Such a Kastigar proceeding could consume substantial amounts of time, personnel, and money, only to lead to the conclusion that a defendant–perhaps a guilty defendant–cannot be prosecuted. Yet the very purpose of the Fifth Amendment under these circumstances is to prevent the prosecutor from transmogrifying into the inquisitor, complete with that officer’s most pernicious tool–the power of the state to force a person to incriminate himself. As between the clear constitutional command and the convenience of the government, our duty is to enforce the former and discount the latter.

Read the entire North opinion here.

Open invitation.

Congressional subpoenas (such as the one to the right) are not the only examples of tension in legislative investigation.  In the impeachment investigation of Alabama Governor Robert Bentley, the issue of legislative authority to enforce subpoenas against the executive branch was front and center, as set out in the Special Counsel’s report:

The Committee Has Subpoena Power.

The Committee has inherent, constitutional authority to issue subpoenas pursuant to its investigative powers.  The investigative power of the legislature and, by extension, legislative committees, have been further derived from its broad legislative power.  This precedent, though it does not directly discuss legislative subpoenas, clarifies the broad powers enjoyed by the Alabama Legislature while showing great deference to the Legislature’s enactments.  Further, an extensive list of other states that have addressed the issue of legislative subpoenas has unanimously endorsed such an ability, with no court finding that its state’s legislature lacks this power.   

This Committee has broad power to investigate.

“The Legislature is laden with a broad form of governmental power which is plenary in character, and subject only to those express limitations appearing in the Constitution.”[1]  This authority is “absolute or exclusive.”[2] The Legislature’s plenary power is not, as has been suggested by Governor Bentley throughout this investigation, derived from either the State or Federal constitutions; to the contrary, these documents serve as the only limitations upon the Legislature’s power.[3] “Apart from limitations imposed by these fundamental charters of government, the power of the [Alabama] Legislature has no bounds and is as plenary as that of the British Parliament.”[4]

Inherent in the power to legislate is the power to investigate.  In McGrain v. Daugherty, the United States Supreme Court held that  “[t]he power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for that purpose.”[5]  Relying on this precedent, the Alabama Supreme Court also has held that “the power to legislate necessarily presupposes necessity for investigation by members of each House.”[6]  This “inquiry power” is sweepingly broad.[7] It encompasses not only the authority to investigate into the propriety of existing and proposed laws but also into the departments of the government “to expose corruption, inefficiency or waste.”[8] Indeed, the United States Supreme Court has recognized that “Congress’s investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department.”[9]  States, too, have recognized that the legislature “is acting at the height of its powers” during an impeachment process.[10]  So long as it is “related to, and in furtherance of, a legitimate task” of the legislature, the inquiry falls within the permissible bounds of legislative investigation.[11] 

The federal constitution does not give Congress subpoena power, but the United States Supreme Court has repeatedly held that the power to obtain information through compulsion has long been treated as “an attribute of the power to legislate.”[12]  “[W]here the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it.”[13] And while “[i]t is unquestionably the duty of all citizens to cooperate with Congress in its efforts to obtain the facts needed for intelligent legislative action,”[14] “[e]xperience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.”[15]  Thus, a necessary component of the power of investigation is a process to enforce it.[16]

Like the federal courts, the majority of state courts “quite generally have held that the power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for that purpose.”[17]  Relying on McGrain and general notions of the plenary authority of the legislature, courts across the country have upheld the constitutionality of legislative subpoenas as inherent in the broad legislative authority afforded to state legislatures.[18]

[1] Ex parte Alabama Senate, 466 So. 2d 914, 917 (Ala. 1985) (quoting Hart v. deGraffenried, 388 So. 2d 1196, 1197 (Ala. 1980)) (emphasis in Ex parte Alabama Senate).

[2] Id. at 918.

[3] In re Opinion of the Justices No. 71, 29 So. 2d 10, 12 (Ala. 1947).

[4] Id.  (citing Alabama State Federation of Labor v. McAdory, 18 So.2d 810 (Ala. 1944)).

[5] McGrain v. Daugherty, 273 U.S. 135, 165 (1927); see also Mason’s § 795(5) at 562 (the legislature has “the power in proper cases to compel the attendance of witnesses and the production of books and papers by means of legal process”).

[6] See In re Opinion of the Justices No. 71, 29 So. 2d at 13 (citing McGrain, 273 U.S. 135); see also Mason’s § 795(2) at 561 (“The legislature has the power to investigate any subject regarding which it may desire information in connection with the proper discharge of its function . . . to perform any other act delegated to it by the constitution.”).

[7] See Watkins v. United States, 354 U.S. 178, 187 (1957) (“The power of the Congress to conduct investigation is inherent in the legislative process.  That power is broad.”).

[8] See id.

[9] Todd Garvey, Congress’s Contempt Power and The Enforcement of Congressional Subpoenas: A Sketch, Congressional Research Service, April 10, 2014, at 3 (citing Watkins, 354 U.S. at 187). 

[10] Office of Governor v. Select Comm. of Inquiry, 858 A.2d 709, 738 (Conn. 2004). 

[11] See Watkins, 354 U.S. at 187.

[12] McGrain, 273 U.S.  at 161; see also, e.g., Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975).

[13] McGrain, 273 U.S. at 175.

[14] Watkins, 354 U.S. at 187.

[15] McGrain, 273 U.S. at 174.

[16] See id. (“The power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”); Eastland, 421 U.S. at 491 (“[I]ssuance of subpoenas . . . has long been held to be a legitimate use by Congress of its power to investigate.”).

[17] See McGrain, 273 U.S. at 165.

[18] See, e.g., Conn. Indem. Co. v. Superior Court, 3 P. 3d 868 (Cal. 2000); Garner v. Cherberg, 765 P. 2d 1284 (Wash. 1988); In re Shain, 457 A. 2d 828 (N.J. 1982); Commonwealth ex rel. Caraci v. Brandamore, 327 A. 2d 1 (Pa. 1974); Maine Sugar Industries, Inc. v. Maine Industrial Bldg. Authority, 264 A. 2d 1 (Maine 1970); Chesek v. Jones, 959 A. 2d 795 (Md. 2008); Sheridan v. Gardner, 196 N.E. 2d 303 (Mass. 1964); Gibson v. Florida Legislative Investigation Committee, 108 So. 2d 729, 736 (Fla. 1958); State ex rel. Fatzer v. Anderson, 299 P. 2d 1078 (Kan. 1956); Du Bois v. Gibbons, 118 N.E. 2d 295 (Ill. 1954); Nelson v. Wyman, 105 A. 2d 756 (N.H. 1954); In re Joint Legislative Committee, etc., 32 N.E. 2d 769 (N.Y. 1941); Terrell v. King, 14 S.W. 2d 786 (Tex. 1929).

Read the Special Counsel report here.

And, here is your reward for getting all the way through this post:

 


Needful of a Negroni Cocktail?

Balance

Balance

I have been drinking Negroni cocktails recently.  The Negroni presents three virtues: it contains gin, it is bitter and it is simple to make (equal parts gin, Campari and sweet vermouth).  Its simplicity makes it superior for quiet mixing at home or when one is faced with modestly-adept bartenders, as noted by Kevin Sintumuang in the Wall Street Journal:

“That’s it?” Yep. Boozy, bitter, bold and built right in the glass, the Negroni has become a steadfast sidekick for me when I need a proper cocktail at a not-so-proper bar, from dive to airport. And when I’m mixing at home, there’s no other drink that produces so much satisfaction with so little effort.

Read the article here: The Only Negroni Recipe You Need


One place to start for a little history is Conde Nast Traveler:

Iconic bartender Gary Regan, a Brit who now makes his home in the Hudson Valley, is the go-to man for Negroni history. He recently published The Negroni: Drinking to La Dolce Vita,which traces the drink back to Florence in 1919. According to reliable lore, the cocktail was born when an Italian bartender responded to a customer’s demand for a stiffer riff on an Americano cocktail (a much-tamer mix of Campari, sweet vermouth, and club soda). The patron, Count Camillo Negroni, had picked up a taste for strong liquor while working—true story—as a rodeo clown in the American Wild West, and gave his name to the resulting concoction. Today, Regan estimates that the drink appears on “about 300 percent more cocktail lists than 10 years ago.” One caution for the uninitiated, via Negroni fan Anthony Bourdain: The drink will “hit you like a freight train after four or five.”

After four or five?  True.  Read the entire article: How The Negroni Became Today’s It Cocktail 

Watch that twist.

Watch that twist.

Here is a post by Vince Keenan, and an even more detailed article from Difford’s Guide

It’s even possible to dive into literary theory:

So I have to conclude that like the novels of F. Scott Fitzgerald, or the paintings of Henri Matisse, the Negroni has become a symbol of an older iteration of the modernist idea. Its pedigree comes with the passage of time. Just as how Matisse and his cohorts were once denounced as fauves, the insult became a badge of honor, before becoming a simple historical descriptor. The cocktail is no longer a “barbaric horror,” a bucking of antique tradition, but a part of that antique tradition itself.

It’s easier just to drink the thing and then fix another, but here’s the full post from the Subject/Object blog: On the Negroni.

Another instructional video, this time from Liquor.com:

With regard to the Negroni and films, here’s an excerpt from a post by Trevor Kensey:

“There is a thirty year age difference between us thought Mrs. Stone. Then she was ashamed of herself and by the time Paolo had emerged from the bathroom she had mixed two negronis and placed them on the glass-topped table on the still sunny terrace with a bowl of olives between. Paolo came outside with an air of abstraction. He paid no attention to the drinks, but left her sipping hers while he wandered over to the balustrade and looked moodily down into the little piazza at the top of the Spanish stairs. Mrs. Stone thought to herself, This is a time to lie low. And so she made no comment. She sipped her drink with her eyes on his grey flannel back and she thought of the night when the flannel would not stand between them.”

– Page 31, “The Roman Spring of Mrs. Stone”, Tennessee Williams.

Even its most ardent fans, myself included, must admit that the Negroni is not always enjoyable at first contact. It is a near-universal first time sipper experience that can often block one from falling in love with this stubbornly seductive cocktail. Stick with that drink and what begins by leaving a bad taste in your mouth becomes a complete joy by the time you finish your inaugural glass. By your third you will be well on your way to a lifetime of full Negroni enjoyment.

Read the full article here: The Negroni Cocktail .

If you want to see more of Mrs. Stone [Vivien Leigh] and Paolo [Warren Beatty], here is the 1961 trailer:

Let’s close with a quote by F. Scott Fitzgerald, a man who knew a good bit about cocktails:

The bar is in full swing, and floating rounds of cocktails permeate the garden outside, until the air is alive with chatter and laughter, and casual innuendo and introductions forgotten on the spot, and enthusiastic meetings between women who never knew each other’s names.

–F. Scott Fitzgerald, The Great Gatsby

The great American novel. And, cocktails.

The great American novel. And, cocktails.

 


Electronic Medical Records and Federal Criminal Prosecution

Bedside manner.

Bedside manner.

Electronic medical records (or “EMR”) were supposed to be a boon to the provision of healthcare.

As two Boston-area physicians point out, EMR are anything but a benefit:

Electronic medical records, or EMRs, were supposed to improve the quality, safety and efficiency of health care, and provide instant access to vital patient information.

Instead, EMRs have become the bane of doctors and nurses everywhere. They are the medical equivalent of texting while driving, sucking the soul out of the practice of medicine while failing to improve care.

Read the whole article: Death By A Thousand Clicks: Leading Boston Doctors Decry Electronic Medical Records

We'll be right with you.

We’ll be right with you.

The additional problem for healthcare professionals is that EMR systems often auto-populate fields from the last patient visit (or even from the first patient visit).  In busy clinical practices, such systems can create technically inaccurate records that do not diminish patient care but, three years later and blown up on a courtroom monitor, can be used by the Government in a criminal prosecution under a “medical necessity” theory under Medicare or a prescription-based “not for a legitimate medical purpose” theory under the Controlled Substances Act.  (A physician may legally “dispense” controlled substances but, if he or she does so without a legitimate medical purpose or not in the usual course of his professional practice, he or she may be criminally prosecuted under the CSA.)

An EMR trial.

An EMR trial.

On the latter point, consider our White Collar Law 360 article:  Mute Oracle: The Controlled Substances Act and Physicians’ Criminal Conduct.

In particular:

Physicians continue to face two critical questions in the uncertain case law under the federal Controlled Substances Act. First, what conduct is prohibited? Second, what intent must the physician be shown to possess in order to support a conviction? Given the government’s increasingly aggressive prosecution of physicians with regard to controlled substances, white-collar practitioners who represent a physician or other healthcare professional in a “pill mill” case understand and address these issues in pretrial briefing and in preparing their trial strategy and must do so early.

 


Mute Oracle: The Controlled Substances Act and Physicians’ Criminal Conduct

 Balance in the law?

Balance in the law?

Criminal laws are supposed to give persons regulated by the law sufficient notice of what conduct, exactly, is prohibited.  Criminal laws, as interpreted by courts, are also supposed to provide clear standards for mens rea (that is, the level of intent the Government must prove at trial).  With regard to physicians and their prescribing practices, the federal Controlled Substances Act does neither.

Or, as my Lightfoot colleagues Brandon Essig, Jeff Doss and I put it in a recent article for Law 360:

With the Eleventh Circuit’s recent decision in United States v. Enmon, physicians continue to face two critical questions in the uncertain case law under the federal Controlled Substances Act. First, what conduct is prohibited? Second, what intent must the physician be shown to possess in order to support a conviction? Given the government’s increasingly aggressive prosecution of physicians with regard to controlled substances, white-collar practitioners who represent a physician or other healthcare professional in a “pill mill” case understand and address these issues in pretrial briefing and in preparing their trial strategy and must do so early.

And my mens rea is unknown, too.

And my mens rea is unknown, too.

Read the entire article: Questioning The Controlled Substances Act After Enmon


Pill Mills, Poppy Flowers, Dead Poets and the Human Resources Department

"In Flanders fields . . . ." (via Zyance)

“In Flanders fields . . . .”
(via Zyance)

Having been through a seven-week federal criminal “pill mill” trial, I think a lot about enforcement of the Controlled Substances Act and its effect on physicians.  Aggressive enforcement effects others in healthcare as well, including management:

“It’s very hard for medical professionals and those in upper management, such as hospital CFOs, CEOs, and CMOs, to see themselves as criminals,” says Jack Sharman, partner at Lightfoot, Franklin, and White, a law firm headquartered in Birmingham, AL.

“This difficulty to perceive what someone else might think merits a criminal investigation impedes judgment and slows internal response.”

While physicians might not see themselves as criminals for managing patients’ pain or making sure they had enough pills to get through a holiday, it’s not hard for others to come to that conclusion, says Sharman.

Health Leaders MediaHere is the full text of my interview with Health Leaders Media:What the Crackdown on Painkiller Prescribing Means for HR

 

John McRae (1872-1918)

John McRae (1872-1918)

If your recall for literature is not what it once was, In Flanders Field is a poem by John McRae, spoken from the point of view of World War I dead:

In Flanders fields the poppies blow
Between the crosses, row on row, 
That mark our place, and in the sky, 
The larks, still bravely singing, fly, 
Scarce heard amid the guns below. 

We are the dead; short days ago
We lived, felt dawn, saw sunset glow, 
Loved and were loved, and now we lie
In Flanders fields. 

Take up our quarrel with the foe! 
To you from failing hands we throw
The torch; be yours to hold it high! 
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.

 


Christmas Movies and Serial Killers

Rogier van der Weyden (1399-1464), The Annunciation:

Rogier van der Weyden (1399-1464), The Annunciation

Today is the first Sunday in the season of Advent, a time in which Christians traditionally prepare themselves by reflection and prayer for the Incarnation, the birth of Jesus, God made flesh.  Ultimately, of course, Jesus was sacrificed upon the Cross for our sins, and “sacrifice” is a fit subject for Advent reflection:

We may think of sacrifice in its patriotic or collective sense, as when we attended a Veterans’ Day parade or when an earlier generation watched a movie about World War II hero Audie Murphy (1925-1971).

More commonly, we talk about sacrifice in its individual or instrumental sense, as when we say that an athlete has made sacrifices to achieve proficiency in a sport; when parents scrimp and save to send their children to college; or when George Bailey puts everybody else first in It’s A Wonderful Life (1946).

We even grapple with “sacrifice” in its entertainment sense. We are great consumers of fiction and nonfiction books and films about serial killers and psychopaths, many of whom are presented to us as treating their victims sacrificially.

None of this is how scripture views sacrifice. The distinction is critical: in one direction lies death (Christmas movies and serial killers); in the other direction we find life. How is this so?

Read the entire post here, from the Cathedral Church of the Advent blog: Christmas Movies and Serial Killers.

Some eggnog?

Some eggnog?

 


Handwriting On The Wall (And In The FBI’s Notes)

Wisdom about recordings.

Wisdom about recordings.

As the father of a college-bound high school senior and an eventually college-bound high school sophomore, I pass along to them helpful articles.  Whether, in the ancient words of Archbishop Cramner in the Anglican liturgy, they actually “read, learn and inwardly digest” the articles I send them is an open question, but it gives me an uneasy assurance of the discharge of paternal duty.

I passed along to my children a recent Wall Street Journal article that posed the question Can Handwriting Make You Smarter? The article concluded:

Students who took handwritten notes generally outperformed students who typed their notes via computer, researchers at Princeton University and the University of California at Los Angeles found. Compared with those who type their notes, people who write them out in longhand appear to learn better, retain information longer, and more readily grasp new ideas, according to experiments by other researchers who also compared note-taking techniques.

Handwriting is scripturally important, as King Belshazzar finds out in Daniel 5:1-9:

King Belshazzar made a great feast for a thousand of his lords and drank wine in front of the thousand. Belshazzar, when he tasted the wine, commanded that the vessels of gold and of silver that Nebuchadnezzar his father[had taken out of the temple in Jerusalem be brought, that the king and his lords, his wives, and his concubines might drink from them. Then they brought in the golden vessels that had been taken out of the temple, the house of God in Jerusalem, and the king and his lords, his wives, and his concubines drank from them. They drank wine and praised the gods of gold and silver, bronze, iron, wood, and stone.

Immediately the fingers of a human hand appeared and wrote on the plaster of the wall of the king’s palace, opposite the lampstand. And the king saw the hand as it wrote. Then the king’s color changed, and his thoughts alarmed him; his limbs gave way, and his knees knocked together. The king called loudly to bring in the enchanters, the Chaldeans, and the astrologers. The king declared[ to the wise men of Babylon, “Whoever reads this writing, and shows me its interpretation, shall be clothed with purple and have a chain of gold around his neck and shall be the third ruler in the kingdom.” Then all the king’s wise men came in, but they could not read the writing or make known to the king the interpretation.  Then King Belshazzar was greatly alarmed, and his color changed, and his lords were perplexed.

FBI training.

FBI training.

Being greatly alarmed, having your color change and seeing your lords perplexed are all often incident to an FBI interview.

Here is another perplexing question: why do FBI agents (and most other federal criminal investigators) not record witness interviews but rather rely on handwritten notes?  A layperson could be forgiven for assuming that the agents, unlike the students in the Journal article, are mostly interested in creating a complete, objective record that could be relied upon later. State criminal investigators, in contrast, often do tape-record interviews.  (I realize that to say “tape” record is an anachronistic usage.  Anachronism is the least of my sins).

FBI agents do not record witness interviews except by handwritten notes, with a recently-added policy exception for custodial interviews (that is, when the witness is in custody and has been given a Miranda warning).  Why so?

FBI Agent Dale Cooper's recorder from "Twin Peaks"

FBI Agent Dale Cooper’s recorder from “Twin Peaks”

Here is a useful post by Brian Jacobs of Morvillo Abramowitz Grand Iason & Anello P.C. on the subject: Why Do Federal Agents Still Take Interview Notes by Hand?.  In particular, he suggests that agents at least be required to take notes by laptop:

Another explanation for why the standard practice has gone largely unchallenged might be that when a witness interview is memorialized in an agent’s hand-written notes, there will necessarily be ambiguities, and those ambiguities can have benefits for both the government and the witness. For example, to the extent a witness’s story changes between the initial interview and trial it will be more difficult for defense counsel at trial to impeach the witness’s testimony with handwritten notes than with a typed record. This helps both the government as well as the witness him or herself.

. . . .

Of course, if the goal is to have a perfect record of witness interviews, then they should all be recorded and transcribed. That would be a worthwhile goal for the government to pursue. In fact, the government itself has gestured in this direction: Deputy Attorney General Cole’s memo calling for the recording of custodial statements also encouraged “agents and prosecutors to consider electronic recording in investigative or other circumstances” beyond custodial interviews. Until recording and transcription become the norm, however, the government should consider taking interview notes on a laptop computer. This method works for law students; it can work for federal agents.

The goal, of course, is not to have a perfect record.

To give and receive good dictation.

To give and receive good dictation.

In FBI witness interviews, there are almost two agents.  One is the questioner who focuses on the witness and one is the secretary who takes note.  When the witness says something inconsistent with the Government’s theory, or exculpatory of a target (or of the witness, for that matter), it is not uncommon to see the “clerical” agent simply stop writing until the witness gets back on a preferred course.  Taking notes by hand allows agents to perform this start-and-stop procedure, whereas a recording would capture everything said.

 

And where are Forms 301 and 303?

And where are Forms 301 and 303?

The FBI agent’s notes are turned into “302s,” interview memoranda so nicknamed from their federal-form number.

Although there is little “discovery” in criminal cases as compared to civil lawsuits, the government must frequently disclose “302s” to defendants when those 302s contain Brady material (that is, statements or other information tending to show the innocence of the defendant); Jencks material (statements of Government witnesses); or Giglio material (statements or writings tending to impeach or diminish the credibility of Government witnesses).

The problem is obvious: with each memorialization from notes to memorandum, something is lost in translation, whether intentionally or not.  The translation-loss is why the standing criminal-discovery orders in some federal courts require the case agents to maintain their notes and also why it is good practice for defense counsel to demand that the agents preserve (and disclose) their notes, although the latter demand is sometimes a tall order.

Should you receive the underlying notes in discovery, the lost-in-translation problem becomes more pungent — and unfixable — because in the creation of her handwritten notes the agent has complete discretion.  When we combine that editorial discretion with the The Efrem Zimbalist, Jr. Syndrome, the interviewee is in an impossible position:

“Government Agents,” a Lightfoot140 by Jack Sharman. from LFW on Vimeo.

This issue has been addressed before by Douglas Starr in The New Yorker (The F.B.I.’s Interrogations, Finally on Film);  by Tim Cushing in TechDirt (Your Word Against Ours: How The FBI’s ‘No Electronic Recording’ Policy Rigs The Game… And Destroys Its Credibility ) and by David Drumm (guest blogging for Jonathan Turley) (Why The FBI Doesn’t Record Interrogations).  Starr raises a useful point about recording policies and trial effects in federal versus state or tribal trials:

The federal government is, in this respect, far behind the states. Alaska required recording in 1985, followed by Minnesota, in 1994; now twenty states require it, as do the District of Columbia and hundreds of individual precincts. States with big Indian reservations have provided a sort of controlled experiment in the differences between federal agents, who did not record, and local police, who did. On the reservations, tribal officers investigate misdemeanors, while agents from the Bureau of Indian Affairs and the F.B.I. investigate major crimes such as murder, rape, and arson. Once charged, the suspect faces indictment in federal court, generally in a major city off the reservation. Paul Charlton, a former U.S. Attorney for Arizona, recalls many trials in which even the most minimally competent defense lawyer would know enough to contrast the behavior of F.B.I. agents with that of the local police. In “long, excruciating cross-examinations,” those lawyers would ask agents if the Bureau owned a recording device; if it was small enough to take to the Navajo reservation; if the device had an On button; if the agents knew how to use the On button … and on and on, until the agents’ refusal to record the interrogation seemed nothing short of ridiculous.

“So we would either lose cases, plea down cases, or find some lesser charge,” Charlton said. He got so tired of the situation that he ordered all federal investigators in Arizona to record interrogations, the rules notwithstanding. That helped to put him on the wrong side of the U.S. Attorney General at the time, Alberto Gonzales, who eventually dismissed him along with eight other U.S. Attorneys in a controversial mass firing in 2006.

An even more useful “lab” for comparison is an investigation conducted by a joint federal/state team.  The state agent tape-records Jane Smith’s interview; the federal agent just takes handwritten notes.  In discovery, you may then get from the Government the state-agent’s tape and the federal agent’s 302 of the same interview.  The discrepancies can be fertile ground for cross-examination and for motions to compel production of the federal agent’s handwritten notes.

In an age of iPhones and voice-over-internet-protocols, is there any longer a meaningful reason for criminal interviews to not be recorded?  Witness interviews are often the basis for federal false-statement charges under 18 U.S.C 1001.  What is at least part of the evidence that the statements are “false,” according to the Government?  Because the agent gets on the stand and says, “Here is what the witness said to me, as reflected in my 302 [or my notes].”  If a trial seeks the truth, would we not rather know what the witness said, actually?

If a false statement is about untruth, cannot jurors also handle the truth?