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Why We Continue to Fight for Dr. McIver
 

 
John Flannery; Pain and Social Policy listServ, Pain Relief Network; 2006-12-20.
[Identifier: http://www.doctordeluca.com/Library/WOD/WPS9-McIver/Flannery-WhyWeContinue2Fight4McIver06.htm]
 
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See also:
McIver v. USA - Petition for Writ of Certiorari (PDF) - John P. Flannery II; 4th Circuit Court of Appeals; Filed: 2007-04-03
 
Siobhan Reynolds on U.S.A. v. Dr. McIver - Siobhan Reynolds; Pain Relief Network; 2006-02-24
 
WPS #9 - USA v. Dr. McIver: Zero Tolerance for Opioid Therapy
 
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There has been much good writing submitted in the cause of physicians and chronic pain patients.

The reason that we write and argue is because manifestly - silence changes nothing. It is acquiescence, if not surrender.

When you consider the magnificent brief in the Hurwitz appeal, and the series of issues that were rebuffed by the court, you could be quite discouraged.

Just review the astonishing leeway that the government has to search a doctor's office without probable cause - as a result of that opinion. It is the extraordinary unreasonableness of the general search that dr. Hurwitz' counsel attacked - right but unsuccessfully in the end.

Still, that Hurwitz brief managed to catch the court on the question of Dr. Hurwitz' good faith, and the failure of the trial court to instruct on that issue.

While counsel for Hurwitz and others (including myself) are critical of the opinion for the notion of objective good faith, for when isn't good faith subjective - as noted in the dissent, we celebrate the fact that the conviction was overturned.

Had Dr. Hurwitz and counsel said it's the 11th circuit, why bother, where would Dr. Hurwitz be?

So what can we expect for Dr. McIver?

The answer is no one can tell.

The appellate process is daunting in the 11th circuit, but it is also the circuit that has written a fair amount on this issue, and some of it has been good.

The remarks by members of the panel, reproduced in our petition, were at odds with aspects of the opinion that they rendered.

Will what they said matter when they reconsider it in our petition, and will members of the court (or the law clerks read it) and be persuaded.

I would hope so - or we wouldn't submit the brief.

But I do know that we cannot ever expect to persuade a court by remaining silent.

It is not an option for Dr. McIver in prison facing a 30 year sentence.

So we argue, persistently, insistently, as we can do nothing else.

Christ said, if you are tepid, I shall spit you forth from my mouth. So tepid we're not. Nor can we be so.

If there is a constructive way to view this, it is to consider who may submit amicus briefs for Dr. McIver in the court of appeals, and get them to do so.

Warmest regards,

John

John P. Flannery II
Campbell Miller Zimmerman PC
19 East Market St., Leesburg, VA 20176
Office: 703-771-8344

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