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
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
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
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
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.
John P. Flannery II
Campbell Miller Zimmerman PC
19 East Market St., Leesburg, VA 20176