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APPELLANTS' [Drs Alerre, Bordeaux, and Jackson] PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

 
Eli D. Stutsman (Attorney for Dr. Bordeaux); U.S. State Court of Appeals for the Fourth Circuit; USA vs. Drs Alerre, Bordeaux, and Jackson; Filed: 2005-12-15
[Id: http://www.doctordeluca.com/Library/WOD/WPS6-MyrtleBeach/PetitionRehearingBordeauxAppeal05.htm]
[Related resources: http://www.doctordeluca.com/Library/LibPages/WODacademic-lib.htm]
 
See also:
WAR ON PAIN SUFFERERS #6: The Myrtle Beach Massacre
 

 
This Document includes the “Statement of Counsel” and “Conclusion” sections of the brief.
[The entire text of this Appellants’ Petition in Adobe PDF format]

I. STATEMENT OF COUNSEL

In counsel's judgment, this proceeding involves one or more questions of exceptional importance, as follows:

1. The prosecution's theory of criminal culpability, expressed on this record as the "standard of care," "medical necessity," and "legitimate medicine," is wrong as a matter of law. See Discussion, infra, 4-7.

2. The prosecution's erroneous theory of criminal culpability is derived from a Department of Justice "Quick Reference Card" (a guide to prosecuting physicians for drug offenses), that is systematically confusing the criminal and civil standards wherever and whenever it is used. See Discussion, infra, 7-8; I.A. 1300.

3. The prosecution's erroneous theory framed the facts and the arguments heard by the jury during 11 days of the trial.

4. The defense attorneys accepted the prosecution's misstatement of the law and defended the defendant-physicians only against malpractice. The defense attorneys never framed the facts or arguments to show the jury that the government's evidence of violations of the civil standard of care may prove malpractice but failed to prove the crimes charged. See Discussion, infra, 8-10.

5. Under Strickland, a petitioner alleging prejudice from his counsel's deficient performance "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. This standard "is not a stringent one." Baker v. Barbo, 177 F.3d 149, 154 (3d Cir.1999) (citing Nix v. Whiteside, 475 U.S. 157,175 (1986». It is less demanding than the preponderance standard. Id.

6. The misuse of the civil standard of care evidence at trial illustrates the poor condition of the law and the need for a clear statement from this Court. Although the Fourth Circuit correctly differentiates between the civil and criminal standards (see Slip Opinion, 11-15), the Court limited its analysis to whether the evidence was relevant and thus admissible. The problem in the conduct of trial, however, was not the admission of the evidence, it was the pervasive framing of the facts and arguments by counsel that misrepresented the value of the civil standard of care to the jury. The attorneys never informed the jury that the evidence was relevant but not sufficient to prove the crimes charged. The attorneys on both sides of the case framed and argued the case as if it were sufficient. That characterization of the evidence denied the defendants a fair trial.

7. In order for the distinction between the civil and criminal standards to have any meaning, this Court is urged to remand for a fair trial based on the proper criminal standard, and not allow these convictions to stand, as they are the product of a trial infected with an erroneous standard of proof.

In. CONCLUSION

FOR THE FOREGOING REASONS, appellants urge this Court to grant rehearing, and, if denied, then rehearing en bane.

[The entire text of this Appellants’ Petition in Adobe PDF format]

[END]