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Prosecutorial Witness Coaching
Xiulu Ruan, MD
December 5, 2018
In his book “Prosecution Complex,” Daniel S. Medwed, a Harvard Law School graduate and Professor of Law at the University of Utah, as well as a nationally recognized scholar in the field of wrongful convictions, opines:
“Improper witness coaching by prosecutors is one of the dirty secrets of the adversary system, a pervasive practice that subverts the search for truth during trials. Prosecutors normally prepare witnesses in closed-door sessions where no notes are taken. The participants in these encounters seldom disclose what happened, and cross-examination has limited utility in prompting such revelations.”
One and half decades ago, Bennett L. Gershman, a Professor of Law at Pace Law School, New York University School of Law, voiced the similar concern in his essay titled “Witness Coaching by Prosecutors,” published in Cardozo Law Review (2002, Vol. 23:3):
“Witness Coaching has been described as the ‘dark’–some have even called it ‘dirty’–secret of the U.S. adversary system. It is a practice, some claim, that more than anything else has given trial lawyers a reputation as purveyors of falsehoods. Witnesses are prepared by lawyers in private, no records are kept, and the participants do not openly discuss the encounter. If false or misleading testimony results, the only persons who know about it are the participants themselves. And the capacity of cross-examination to expose improper coaching is extremely limited” (p. 829-30).
“Indeed, the inability of criminal trials to produce accurate results may be attributed in many cases to techniques used by prosecutors to prepare, shape, and polish the testimony of their witnesses. Absent any contemporaneous record of a prosecutor’s pretrial interaction with witnesses, ii is exceedingly difficult for observers to investigate the preparation process to ascertain the extent to which the prosecutors or police may have improperly influenced witnesses overtly, covertly, or even unwittingly to give false or misleading testimony” (p. 833).
Professor Gershman also opines that some prosecutors coach witnesses with the deliberate objective of promoting false or misleading testimony by (1) eliminating inconsistencies between a witness’s earlier statements and his or her present testimony, (2) avoiding details that might weaken the witness’s testimony, (3) or concealing Information that might reveal that the prosecutor has suppressed evidence.
In my trial, I believe that the prosecutors Ms. Deborah Griffin and Mr. Chris Bodnar far more than Professor Gershman summed above. Some of the witnesses were coached not only how to “sing” but also how to “compose.” In this paper, my goal is to show some compelling evidence of improper witness coaching that happened during my trial. I hope to demonstrate that, through an in-depth analysis and reasoning of the trial Iran-script, we can confidently prove and therefore expose improper witness coaching by the prosecutors.
At trial, there were several dozen government witnesses who testified; but in this paper, I will focus only on the trial testimonies of half a dozen key witnesses. Before I begin reviewing the testimony of the first key witness, Mr. Ken Cross, the former PPSA administrator, I would like to show some testimony from a government agent, specifically DEA Special Agent Michael Burt, from whose testimony we can understand better why and how Mr. Ken Cross had been coached to say what he said in court. Here, a few words about Mr. Burt’s background will be helpful. Mr. Burt was introduced to the jury as a veteran agent with 20 years of experience working for the federal and state law enforcement agencies (Tr. 1/20/17 p. 1904). For example, he was involved in the investigation of what he called ”the most notorious pill-mill clinics” in south Florida (Id. p. 1905), referring to the pill mills owned by brothers Chris and Jeff George in the Miami area from 2008 to 2010. Those clinics in south Florida were cash-only clinics, as Mr. Burt admitted (Id. p. 2133). In other words, those clinics only accepted cash, no insurance payment at all.
Indeed, a unique feature of a pill-mill business is to sell prescriptions for cash. [For example. in United v. Otis, 872 F3d 678, 685 {2017): “a drug business exchanging controlled substances for cash under the guise of a doctor’s office…”; also in United States v. Sachs, U.S. APP. LEXIS 24087 (2017): “…patients were given large amounts of drug;, in exchange for cash.”] At my trial, DEA Diversion Agent Ms. Susannah Herkert also testified for the government on some cases in which she was involved in investigating pill mill operations in Central District of California, including United States v. Bamdad and United States v. Diaz. Dr. Bamdad prescribed primarily oxycodone and OxyContin for cash (Tr. 5/25/17 p. 14), while Dr. Diaz prescribed Dilaudid and OxyContin in return for cash (Id. p. 15).
PPSA, in contrast, had maintained its “No-Cash Pay” or “Insurance Only” policy since its inception in 1998. This material fact alone should have completely invalidated the allegation that PPSA was a pill mill. However, knowing that the fact was not on their side, the prosecutors knew that they needed to come up with something to support their pill-mill rhetoric so as to prejudice the jury. That was when Mr. Burt’s testimony came into play. During cross-examination by defense attorney, Mr. Brandon Essig, Mr. Burt claimed: “Sir, I will submit that criminal behavior is learned. Over time, people became aware of–when an organization is taken down, this time by law enforcement, that people learn that type of behavior. They adjust their way of doing things and become even better at it possibly or find new ways to do it” (Tr. 1/23/17 p. 2045).
Evidently, once was not enough. In his redirect examination by Mr. Bodnar, Mr. Burt reiterated: “As I stated before, criminal behavior is learned. Whether it be from physicians or other criminals, people learn from how people are arrested and can change their ways of how they obtain pills or money” (Id. p. 2134). Mr. Burt was insinuating that because of the pill mill bust in south Florida and possibly others, PPSA changed its modus operandi in payment structure in order to “avoid being detected by law enforcement.” When considered here In the context of PPSA being labeled as a pill mill by the government, these statements are, in essence, libelous. There had never been any change with regard to the “Insurance Only” policy at PPSA during the 17 years of its existence, and PPSA had always been an interventional pain management practice. Had there been a policy change, Mr. Cross would have told the jury at trial. This long-standing characteristic is diametrically opposite to that of pill mill operations. When I joined PPSA in August of 2003, that “Insurance Only” policy, together with “All Patients Requiring Referrals,” had already been in place for six years. Thus the insinuation that PPSA physicians learned (or modified) its “criminal behavior” is slanderous and defamatory.
The prosecutors then used Mr. Ken Cross to fill the lacuna generated by Mr. Burt’s statements. Ideally for the prosecutors, Ken Cross would testify that when he heard about the south Florida pill mill bust, he became “concerned” about PPSA, and he even “warned” Dr. Couch and myself. The prosecutors understood that by his mentioning a “concern,” it could cast a shadow big enough to prejudice the jury’s minds and at the same time substantiate Mr. Burt’s theory, i.e. that “criminal behavior is learned.” This allowed them to indicate that PPSA had changed its ways of operations as a result of Mr. Cross’s “warning,” projecting that PPSA had probably been operating as a “pill mill” prior to his “warning”.
Mr. Cross had worked in PPSA as an administrator for close to a decade, during which he had never complained about any “quasi-criminal” activity in PPSA. In February 2013 when he was still employed at PPSA, he sat for a deposition, speaking under oath in Dr. Couch’s divorce proceedings (Tr. 1/27/17 p. 3039), where he denied any knowledge of or involvement in anything illegal associated with his job at PPSA (Id. p. 3040-41). It was only after he was terminated by PPSA in May 2014 that he “remembered” something suggestive of “pill mill and insurance billing fraud” in PPSA that had happened years before while he was the company administrator. During his direct examination by Mr. Bodnar, the following exchange occurred:
Q Did there come an instance where you warned Dr. Couch and Dr. Ruan about the potential criminal investigation in Florida?
A Yes.
Q Explain what did you–what did you tell Dr. Ruan and Dr. Couch about criminal investigation in Florida?
A They had hit several pain clinics. And I just simply advised, I just said, you know, this is–they’ve certainly got to be looking at everybody. And we were the one of the largest ones, I believe, in the southeast, or it seemed like it to me. We were fairly large. And I just said, you know: we just need to make sure you’re doing everything correctly, that they’re probably being monitored.
Q Did you mention at all about the need to see the patients at least for a moment?
A Yes (Id. p. 3026).
Notice here at the beginning of the exchange, Mr. Bodnar used “criminal investigation in Florida” instead of “pill mill investigation in south Florida.” This is because he knew exactly that the Miami pill mills were cash-only businesses. Mr. Cross, having learned about the bust of south Florida pill mills, would not have any reason to talk about insurance billing or seeing patients at every visit at PPSA, because those clinics did not involve any insurance billing at all. Thus Mr. Bodnar cunningly used “criminal investigation in Florida,” via the testimony of Mr. Cross to tie two things together: that PPSA had been running like a “pill mill” and that PPSA had been “billing insurance companies fraudulently.”
Mr. Bodnar attempted to emphasize this point again with another round of Q & A:
Q Mr. Cross, do you recall talking about telling the doctors that after the Florida investigations that they needed to be seeing their patients?
A Yes.
Q Did you tell it to Dr. Ruan and Dr. Couch or just one of the two doctors?
A I believe it was for both of them, yes.
Q How about telling about the Blue Cross / Blue Shield billing and being present in the office visit? A That would be to both.
Q That was to both Dr. Ruan and Dr. Couch?
A Yes (Id. p. 3030).
First of all, his claim of telling both Dr. Couch and myself about being present in the office (when BC/BS patients were seen) contradicted an earlier statement of his that when I was out of town all my-clinical side shut down (Id. p. 2999). He knew this issue did not apply to me, therefore he could not have told me that. However, as we have seen through Mr. Cross’s testimony, Mr. Bodnar was able to connect the pill-mill allegation to an Insurance billing fraud allegation, and at the same time place Mr. Burt’s “criminal behavior” frame on PPSA, i.e. PPSA evolved from a classical pill mill into an atypical pill mill after Mr. Cross’s “warning”. Of course, Mr. Cross never told or “warned” Dr. Couch or myself about the bust of south Florida pill mills; I am not sure whether he even knew about that then, let alone having advised us about this. He was simply coached by the prosecutors to fabricate. Here, the ·evidence of coaching is clearly reflected in the lack of logic in his testimony. Specifically there Is no logical connection between the bust of south Florida pill mills and Insurance billings because those pill mills were cash-only clinics, thus without insurance billings of any kind. Therefore Mr. Ken Cross could not possibly have watched the news about this, connected it to PPSA insurance pilling, and “warned” us about “seeing patients at every visit.” The only way he could produce such Illogical testimony was by being coached by the prosecutors. In other words, he was only regurgitating whatever he was fed.
The next example indicating that he in essence was lying was in reference to our purchases of Galena stocks. Galena Biopharma (Galena) had the marketing right in the U.S. to sell Abstral. Mr. Cross lied when he testified that he had advised Dr. Couch and myself about his concern regarding our purchases of Galena stocks and our subsequent change our prescribing habit of Abstral. Most PPSA employees who had worked closely with Mr. Cross long enough could attest that Mr. Cross seemed to show little interest in anything else except for himself and his own environment. He was hired as a manager and was responsible for PPSA payroll and IT, but few employees at PPSA treated him as an office manager. He could not have cared less about our purchc1se of Galena stocks, and he had absolutely nothing to do with clinical affairs. How could he ever have come up with such an “advice” about prescribing habits related to Abstral? The only explanation ls that he received special instruction from the prosecutors, and he followed those instructions. The following exchange is related to the Galena stock purchase during his direct examination by Mr. Bodnar:
Q Did you explain to Dr. Ruan and Dr. Couch why you thought it was risky-
A Yes.
Q –to purchase this stock? What was it that you told Dr. Ruan and Dr. Couch?
A It was just–lt was cheap stock. Basically $3 a share, that’s a penny stock and It’s very risky…
Q Did you tell Dr.–did you discuss Dr. Ruan and Dr. Couch about what might happen if their prescribing habits changed after this?
A Yes.
Q What did you tell Dr. Ruan and Or. Couch?
A I just advised that if you purchase stock in the company that you… can’t change your prescribing habits. I mean, you certainly can’t increase your prescriptions when you purchase stock or any kind of investment (Id. p. 3020).
During the cross-examination by Dr. Couch’s attorney, Mr. Jeff Doss, Mr. Cross admitted that he had no knowledge of Dr. Couch’s prescribing habit for Abstral before November 2013 {presumed to be the first time Dr. Couch purchased Abstral stocks. Additionally, Mr. Cross had no knowledge of what was going on in patients’ exam rooms at PPSA (Id. 3047-49). During the cross-examination by my attorney, Mr. Dennis Knizley, Mr. Cross testified that he discussed this issue with Dr. Couch and myself at the same time In the Springhill Ave. clinic around November-December 2013 {Id. 3065-66). However, this was unlikely to have occurred per the following reasons:
From mid-2012 on, my clinical team moved to the Airport Blvd. clinic location on Mondays, Tuesdays, Thursdays, and Fridays. My team went to the Springhill Ave. clinic location only on Wednesdays; however, Dr. Couch’s team moved to the Airport Blvd. clinic location on that day of the week, i.e. our teams switched locations on Wednesdays. Therefore, the only day of a week that the Couch team and Ruan team would meet would be on Friday mornings at the Airport Blvd. location (half-clinic day) [Tr. 2/15/17 p. 5661].
For the above reason, it was unlikely that Mr. Cross talked to Dr. Couch and myself at the same time at the Springhill Ave. location, suggesting that he was once again coached by the prosecutors to spread falsehood. During my trial I was stunned to hear so many lies coming out of Ken Cross’s mouth. I wonder whether or not the ability of a human being to tell the truth could become impaired by the fact that he has already told too many lies? That seems to be the case with Mr. Cross. I will only give one more example to prove my point here:
Consider the fact that Mr. Cross was in charge of PPSA payroll during the entire time and look at the following exchange (cross examination by Mr. Doss):
Q And you testified about advising the doctors that they needed to see the patients at least for a moment. Do you remember that?
A Yes.
Q About when did that happen?
A That was when we first started hiring nurse practitioners.
Q When would that have been?
A I don’t recall the exact time… I believe Justin may have been one of the first ones we hired (Id. p. 3037).
Mr. Cross, who had been in charge of PPSA employee payroll since 2004, could not even remember those nurse practitioners who had worked with him for years. I could not help feeling disturbed by how erroneous his testimony was. I speculate either it was because he was virtually at loss himself, trying to cover up all the falsities he had told the jury and that he did not even know what he was saying, or telling all those falsehoods deprived him of his ability to think and talk about facts. If he could not even recall any of those nurse practitioners whom he had hired and who had worked with him for years, what else could he “remember”–only the prosecutors’ instructions?
The next government witness I will discuss is Ms. B, who was chosen by the prosecutors as a “victim” of having received transmucosal immediate release fentanyl (TIRF). The government presumably picked the worst case they could find to allege my care rendered to patients at PPSA was outside the usual course of professional practice, especially with the use of TIRF. During her testimony, Ms. B exaggerated and lied many times. I will show only a few examples and explain why I believe she was coached by the prosecutor Ms. Griffin. Ms. B was a 48 year-old lady with a history of chronic lower back pain and leg pain for over 13 years due to degenerative lumbar disc disease, leading to five lumbar spinal surgeries (Tr. 1/31/17 p. 3671). Prior to coming to see me, she had tried morphine, oxycodone, fentanyl, and hydrocodone (Id. 3672). She had Medicare insurance. The first lie she was coached to tell is that I did not see her on her first evaluation at PPSA. This was done because Ms. Griffin knew that Medicare requires that a physician see the patient on the first visit, and by having her allege that I did not see her on her first evaluation, Ms. Griffin could frame me with the healthcare fraud allegation, in addition to their main allegation of my prescribing controlled substances outside the usual course of professional practice.
During my medical career, I always saw my new patients. There are a lot of reasons why I did that. Above all, I believe I owed that to my patients who came to see me. For example, when I was out of town, I closed my section of the practice completely, i.e. I did not even allow my nurse practitioners to schedule any follow-up patients while I was out of the clinic. During the trial, many government witnesses, including two key government witnesses such as nurse practitioner Ms. Sharon Noland and office administrator Mr. Ken Cross, testified that when I was out of town, my nurse practitioners would also take time off, and no patients were scheduled, because I did not want my patients to see my nurse practitioners without my presence [(Tr. 1/31/17 p. 3557-58), (Tr. 1/27/17 p. 2999)]. The government medical expert, Dr. Rahul Vohra testified twice that based on his evaluation of my patient files, I saw my patients at every visit (not just on new patient visits) [Tr. 1/24/17 p. 2396; Id. p. 2426]. Despite all these testimonies from the above government witnesses, Ms. Griffin still went forward with coaching Ms. B to perjure at trial (see below).
Before showing Ms. B’s testimony, I want to lay some foundation about the care she received at PPSA. Her first visit with me was on May 7, 2014, and her last visit was on May 14, 2015. Thus she was with PPSA for a year and seven days. At her first visit, she was taking Norco 10 (hydrocodone/APAP) four times a day as needed, Klonopin for anxiety, Ambient for Insomnia, cyclobenzaprine for muscle spasm, and gabapentln 100 mg and 300 mg, i.e. total six different pills for five kinds of medications. I continued her Amblen and Klonopin, changed her Norco 10 to Percocet 10, lowering it to three times a day as needed, changed her cyclobenzaprine to tizantidine (non-controlled), consolidated her two-dose strength gabapentin to gradual release gabapentin (brand name Gralise), and then added the lowest dose of long-acting oxycodone i.e. OxyContin 10 mg twice a day. So, in essence, the only medication I added after her first visit with me was OxyContin 10 mg. She received six kinds of medications at the first visit. Her entire medical records were admitted into evidence. The following exchange occurred during her direct examination by Ms. Griffin:
Q How long were you a patient there?
A Oh, I don’t even know. Maybe three years or almost two years.
Q In connection with your first visit, you said you did not see Dr. Ruan; is that right?
A Right.
Q Did you receive any prescriptions that first visit?
A I did.
Q Do you recall how many?
A May be eight to 12·.
Q Was that a large number for you?
A It was kind of shocking, yes, ma’am (Id. 3659).
We clearly see exaggerations with open ended questions: one year and seven days became “maybe three years or almost two years,” six medications became “eight to 12 medications.” Then, with Ms. Griffin’s leading question, she made Ms. B bring up what she was instructed to affirm. Now I will show one of the lies she was coached to tell: her “opioid withdrawal” due to cessation of her Subsys. Before introducing her testimony, I would like to introduce some factual details regarding her care especially related to TIRF use. To better manage her pain, I tried combinational pharmac0therapy (opioids and nonopioids). Her Medicare insurance did not cover any TIRF products, thus I made use of free voucher programs of Abstral and Subsys to treat her severe breakthrough pain (Id. 3673). Her pain responded very well to Abstral and Subsys, “I could clean my house, wash my car” (Id. p. 3666); “I feel wonderful. I didn’t feel pain in the world” (Id. p. 3667). However, the fact that her pain and quality of life Improved greatly with the use of free Abstral and Subsys was useless to the prosecutors, because what they wanted to show the jury was the “harm” with such TIRF products, so as to allege her as a “victim.” Thus there was the need for the prosecutor to make something up to show harm rather than benefit. That was the reason behind the lie of “opioid withdrawal.”
Ms. B was prescribed Abstral 200 mcg in September 2014 (Tr. 2/14/17 p. 5774), and Subsys 200 mcg once in October 2014 following the Abstral free voucher trial (Id. p: 5775-76). The Subsys voucher program allowed her to receive 30 units of Subsys 200 mcg free of charge, so after she was using Subsys 200 mcg once a day as needed for the month of October 2014, she used up all her free Subsys. Because her Medicare insurance did not pay for any TIRF, her Subsys could not be continued at her follow-up visit on November 6, 2014.
Subsys comes in many dose strengths, from 100 mcg to 1,600 mcg. The government witness, Ms. Lacy Fortenberry testified that Subsys doses such as 100 mcg, 200 mcg, and 400 mcg were considered low dose (Tr. 1/17/17 p. 1166). Ms. B was prescribed Subsys 200 mcg (0.2 mg), once a day as needed for severe breakthrough pain; at the same time, she was continued on her routine oploids, including fentanyl patch 50 mcg/hr, and Percocet 10 (oxycodone 10 mg/APAP) three times a day as needed. ln the following exchange, with the Inappropriate use of a leading question in direct examination, Mr. Griffin led Ms. B to bring up her fabricated “opioid withdrawal” for the jury to hear:
Q Could you describe your withdrawal from Subsys and the Abstral?
A It was really horrible. I had diarrhea. I mean just–1 was in bed for like almost three months without even getting out of bed to shower or anything. It was really, really bad…(ld. p. 3670).
Clearly, this testimony was coached by Ms. Griffin, because Ms. B could not have experienced any opioid withdrawal symptoms because the majority of the systemic opioids including fentanyl patch 50 mcg/hr and Percocet 10 three times a day were uninterrupted. She could not have stayed “in bed for almost three months” because she came back for monthly evaluation in November and December 2014. And there was no report of any opioid withdrawal symptoms in those visit notes (Tr. 2/14/17 p. 3776-77). Ms. B fabricated her “opioid withdrawal” according to the instruction of Ms. Griffin to show that “harm” was done to her by the use of free voucher medications of Abstral and Subsys, which actually helped her pain and function tremendously in her own words.
Opioid withdrawal can happen following sudden cessation of a patient’s opioid Intake after he or she had been on an opioid at a high enough dose for a long enough period of time. When PPSA was raised by the government on May 20, 2015, many PPSA patients could not continue their routine opioid therapy and went into opioid withdrawal. For example, in her direct examination by Ms. Griffin, Ms. JK, a patient of Dr. Couch’s, testified for the government that she went into opioid withdrawal after the raid because she could not receive her routine pain medications (Pay attention to how long she reported her opioid withdrawal symptoms had lasted):
Q And did there come a time after PPSA was raided that you didn’t have any medication?
A Yes, ma’am.
Q What happened to you?
A I went into withdrawal and-
Q Could you tell us about that?
A Yes. I can’t sleep. Hot, very hot flashes and chills. Very restless, headache, diarrhea, that kind of stuff.
Q How long did it last?
A A good week, I would say (1/25/17 p. 2685).
Indeed, opioid withdrawal, if it happens, usually lasts about a week or so, as Ms. K reported. But, this was not the situation with Ms. B, because her routine daily opioid medications, which accounted the majority of her daily opioids, were continued without any interruption. Thus it was unlikely that she experienced any opioid withdrawal. One of the more vicious, ludicrously coached fabrications is shown in the following exchange. Here, the main message Ms. Griffin wanted to convey was that I was all about money, because I could not make more money on Medicare patients, I therefore mistreated Ms. B. By the use of such coached testimony, Ms. Griffin could not only show the jury my “greed” but also prejudice the jurors who had Medicare insurance. Indeed, the jury heard the following fabrication twice, first in her direct examination of Ms. B and then in her final rebuttal, respectively:
Q Did there come a time when that abruptly stopped when you weren’t getting predated prescriptions?
A …And he said: Nothing else I can do for you. I don’t make any money on you, I can’t do any procedures on you. You either take it or leave it.
Q Who told you that?
A Dr. Ruan.
Q Were you on Medicare?
A Yes, ma’am (Tr. 1/31/17 p. 3661).
By Ms Griffin: You heard from Ms. DB that Dr. Ruan told her: I can’t make any more money off of you. Because she was a Medicare patient (Tr. 2/16/17 p. 6195).
Clearly, Ms. Griffin meant to show that I cherry picked-patients at PPSA. Had that been the case, I would have rejected all Medicare patients upon their initial referrals to PPSA, i.e. PPSA would have not accepted any Medicare patients in the first place. PPSA had about 8,000 active patients at the time of the government raid (Tr. 2/13/17 p. 5456). The defense witness, Ms. DB, PPSA chief operations officer and former billing manager, testified that Medicare and BC/BS were the equally dominant insurance carriers PPSA patients had (Tr. 2/9/17 p. 5014). PPSA had thousands of Medicare patients. I am deeply disturbed to have heard the foregoing testimony and statements, for a variety of reasons. First, any physician would be indignant that such blatant, defamatory remarks were deliberately made up to attack his integrity and intelligence. I am no exception here. Second, I consider this a flagrant insult not only to the intelligence of the jury, but also to the prosecutors themselves. My understanding of federal prosecutors, prior to my trial, is that they represented the most prestigious and promising law school graduates in this country, who stood out among their peers in their ability to reason, analyze, and rationalize, etc. However, during my trial, I was indeed disappointed and embarrassed to see that Ms. Griffin showed none of the above qualities one would expect to see in a federal prosecutor. Instead, she was irrational and illogical, and had to rely on repeated deliberate falsehoods, fabrications, and distortions through Witness coaching to advance her rhetoric.
As for Ms. B, I could only pray for her just as my patient Mr. Sullivan told Judge Granade: “I pray that the Lord from up above will change some hearts” (Tr. 5/26/17 p. 30).
