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Nurse acquitted after sketchy legal attack by Texas good ol’ boys

Sheriff Robert L. Roberts Jr.

Sheriff Robert L. Roberts Jr.

One of the more bizarre legal cases that I’ve heard of came to a close yesterday when a jury took just one hour to acquit a Texas nurse who may have been a victim of malicious prosecution.

A West Texas jury took but an hour Thursday to acquit a nurse who had been charged with a felony after alerting the state medical board that a doctor at her hospital was practicing unsafe medicine.

The uncommon prosecution had ignited deep concern among health care workers and advocates for whistle-blowers about a potential chilling effect on the reporting of malpractice.

But after a four-day trial in Andrews, Tex., a state court jury quickly found that the nurse, Anne Mitchell, was not guilty of the third-degree felony charge of “misuse of official information.” Conviction could have carried a prison sentence of up to 10 years and a fine of up to $10,000.

I think this case demonstrates the power that prosecutors wield and how easily they can misuse it.  It also reinforces the stereotype of rural Texas as a place that’s ruled by a good ol’ boy network that plays by different rules than most of us who live in big cities are used to playing by.

The case was investigated by Sheriff Robert L. Roberts Jr., a friend and admiring patient of Dr. Arafiles, and tried by the county attorney, Scott M. Tidwell, a political ally of the sheriff and, according to testimony, Dr. Arafiles’s personal lawyer.

In other words, this doctor appears to have enlisted the local good ol’ boys to retaliate against a nurse who made complaints against him.  I suspect that there are plenty of people, nurses included, who do make unfounded complaints about doctors they don’t like to state medical boards.  But the best way to differentiate complaints with merit from those that are malicious or merely unfounded is to let the state medical board conduct its investigation.  It’s what they’re good at, and it’s what state law requires that they do.  But in this case, the local prosecutor interfered with the process by charging the nurse with a felony under a state law that prohibits a “public servant” from “disclos[ing] or us[ing] information for a nongovernmental purpose that: (1)  he has access to by means of his office or employment; and(2)  has not been made public.”

This seems bizarre.  The nurse used the information she had about Dr. Arafiles’ treatment of several patients for a purpose that was very much governmental.  She sent it to the Texas Medical Board, a government agency charged with regulating medical practice in Texas.  And according to the standard procedures of the Board, that information was kept confidential and never made public.  The executive director of the Board told the prosecutors as much in a remarkable letter [pdf], urging them to basically get the hell out of the way so that the Board could conduct its investigation.  My favorite part; the boldface is mine:

This action undertaken by your office has adversely impacted the Board’s investigation by its peace officers in this case.  Further, it has potentially created a significant chilling effect on the cooperation of any other hospital personnel who might have been able to provide additional information needed by the Board in the completion of its investigation.

This is of grave concern to the Board in its implications for this case, as well as other cases.  The willingness of persons to come forward and file complaints with the Board is critical to the Board’s success in regulating the practice of medicine as required by Texas law.  Causing persons to fear criminal felony prosecution if they do so undermines the Board’s ability to do its job. Such action is clearly against the intent of the [Medical Practice] Act and the Legislature.

As part of its investigation of the complaint involving the licensee physician in question, a relevant inquiry will be whether that physician engaged in any activity that was designed to intimidate witnesses or complainants.  Such activity is a violation of the Act and constitutes unprofessional or dishonorable conduct. If your office is aware of any such evidence, we ask that you make that known to us immediately.

Shorter Texas Medical Board: please let this doc know that if he enlisted you into bringing these ridiculous charges, we will punish him for it.

Another issue this case presents is the problem of prosecutorial discretion.  Although the nurse has filed a civil lawsuit in federal court alleging civil rights violations against the hospital, the sheriff, and the prosecutor, there was nothing she could do directly about the criminal charges, other than to accept a plea bargain or to contest the charges at trial.  Basically, when a prosecutor decides to prosecute you, you’re pretty much hosed even if the charges are clearly ridiculous.  You have to post bond, you have to hire a lawyer, and you have to suffer the anxiety of not knowing if the jury will come to the reasonable conclusion that you’re not a criminal.

The arguments for prosecutorial discretion are powerful.  Giving the prosecutor the ability to choose which violations to pursue allows us to use our limited crime-fighting resources most effectively, and prosecutors are in a better position than legislators to determine when a violation of the law has injured the community.  But these arguments are more powerful when they’re used to support prosecutors’ refraining from prosecuting an obvious violation, rather than aggressively pursuing a very tenuous and sketchy one.  Given the damage an unfounded prosecution can do to an innocent person, I’d prefer that prosecutors have more negative discretion to not prosecute than positive discretion to prosecute wantonly.

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