This is a story about “prosecutorial misconduct.” It outlines the reasons, in graphic detail, why we, as Americans, have to pay close attention to the daily activities of those we delegate certain powers to – prosecutors.
Opinion by Consumer Advocate Tim Bolen
There has been a lot of attention given in the last few years, in the United States, to issues of “prosecutorial misconduct.” So much so that the American Bar Association (ABA) set up a special task force to deal with the problem, and promoted a a bill in the US Congress to solve the issue. Their action was spurred by a rash of cases, nationwide, where Federal prosecutors decided that the US Constitution had no meaning for them in the pursuit of their interests. As many Americans know, though, that “misconduct” wasn’t, and isn’t, limited to the Feds.
In Wisconsin, for instance, it was found that two unsupervised, out-of-control, prosecutors in the health division of the Department of Regulation & Licensing (DRL) were trying to out-do Federal prosecutors with their own version of “prosecutorial misconduct.” The two, James Polewski, and Arthur Thexton, decided to embrace, without State permission, the crackpot health theories, of a subversive group arrogantly labeling itself as the “quackbusters.” Using that anti-American approach to health care, the twosome, attacked a wide range of health professionals across the State before counter efforts brought pressure to rein in their activities.
The two prosecutors embraced the “quackbuster,” view even though they knew that the “quackbusters” had been OFFICIALLY discredited in the US Court System. The prosecutors also knew that the “quackbusters.” flagship, the much vaunted National Council Against Health Fraud (NCAHF)) was being operated out of a cardboard box in the back room of its current president’s hair removal and ear piercing salon in Braintree, Massachusetts. They also knew that the “quackbusters.” bible, the internet site quackwatch.com, was being operated out of its author, failed MD Stephen Barrett’s basement in Allentown, PA.
One of those prosecutors, Arthur Thexton, actually arranged to funnel over $90,000 of State money to the NCAHF president Robert Baratz claiming Baratz as an “expert” in all areas of health care. Baratz had a “fake” resume, and was discredited in a hearing in Wisconsin where it was shown that he had been fired from every job we could find he’d had, had lied about court cases he’d been involved in, and had been disciplined for sexual harassment of an employee he claimed he’d had an “affair” with.. And, much more. Barrett, we know, had failed as to qualify for ‘board certification” as a Psychiatrist (he couldn’t pass the exam), and then he had to turn in his license to practice medicine in 1993 when he had so few patients he couldn’t afford to pay the insurance malpractice premiums.
That same prosecutor, Arthur Thexton, had another case going on though, called the “Suster case,” that puts his earlier antics to shame.
The “Suster case,” in Wisconsin, is one to watch. There are seven issues that make it one of THE MOST IMPORTANT health issue cases happening in America. In terms of the issues to be decided regarding the way prosecutions are handled – it has no peer.
Two reasons…
(1) The “Suster case,” is a microcosm of almost all of the rotten, sleazy, prosecutorial misconduct, tricks used against North American health professionals. The seven issues explain themselves, their importance, and the solutions.
(2) In the“Suster case,” the notorious “quackbuster” operation, funded by Big Pharma, joined forces with the Wisconsin Health Insurance industry for the express purpose of denying adequate health care options to the people of Wisconsin.
Here’s What Happened…
A unique situation was available, in Wisconsin, to the quackbuster/insurance duo. As I wrote above, Arthur Thexton, a prosecutor for the Wisconsin Department of Regulation & Licensing (DRL), had embraced the health ideas of the discredited National Council Against Health Fraud. He was, in the beginning of the Suster case, in the process of being publicly HUMILIATED over his demands in the earlier “Kadile case.” The Kadile case, and its political ramifications, was a disaster for Thexton’s career – in that it brought INTENSIVE, warranted, and timely, scrutiny, by new DRL management, to his personal handling of health prosecutions in Wisconsin.
Because of this scrutiny, DRL management FORCED changes on Thexton. But, not in time to save Suster from grief.
What Thexton did, I believe, in his reaction to his humiliation in the Kadile case, was to take out his anger on Milwaukee pain specialist Stuart Suster MD. Thexton, in the Suster case, wrote new chapters in “prosecutorial misconduct.” I’ve not seen worse.
Suster explains his case, and the unwarranted assault against him, in what’s called the “Narrative“, but in summary Thexton decided to represent, using state money and resources without permission, several health insurance companies in a claim dispute with Stuart Suster MD. Thexton decided, when Suster wouldn’t give up his claims for payment, to TAKE Suster’s medical license away from him, permanently, accusing Suster of “billing fraud.” When Suster wouldn’t cave in, Thexton took his case, on behalf of the insurance companies, to the media – ruining Suster’s practice. Suster’s claims were for non-conventional treatment – railed against by known crackpot “quackbusters.”.
Of course, the Health Insurance Industry saw Thexton’s situation as a gift. Where else in America can you get your very own State prosecutor to help you deny health claims you don’t want to pay, by threatening to take a health professional’s license away?
The Seven Issues that make the Suster Case so important :
(1) The Health Insurance Industry must not be allowed to use the State Administrative licensing procedure to argue claims. Period. They must be prevented from doing so. Labeling claims they don’t want to pay as “fraud,” simply on their say-so, should bring severe financial and operational penalties on the Health Insurance Industry. There is a “billing dispute” system in place. Let it work.
(2) Rules need to be written into the individual State’s prosecutorial and/or decision tree guidelines regarding the use of “quackbusters,” or “quackbuster” provided information. The “quackbusters” have been FORMALLY discredited in the courts. Failed MD Stephen Barrett, the author of quackwatch.com, has been OFFICIALLY declared “biased, and unworthy of credibility” by a California three-Judge Appeals Court panel in a PUBLISHED case. The rules should be clear that use, or even the discussion, of a “quackbuster”health position, or their material, in any part of the process, is a TERMINATION offense for a public employee.
(3) The Health Insurance Industry is trying to “regulate” medicine. They, themselves, have become an ungainly, and stupid, bureaucracy. They are long past the period where they were of benefit to the American people. They are now one of the biggest impediments to good health care in America. To them, medicine should fit into nice little boxes which they can use to make actuarial tables. The fact that different health professions, and different health professionals within those professions, would use different approaches to the same health problem (and expect to be paid), to them, and their thinking, is a “bad” thing.
To the health insurance industry, medicine is simple. In their computer, used by all of their employees, they already have, written in a little box, the “treatment” for each health condition, and what it will cost, and what they will pay. Something “new” will throw the whole company, if not the whole health insurance industry, into a tizzy.
The industry, which cannot change by itself, must be FORCED to adopt policies, and procedures, wherein “innovation” in health care becomes the norm – not a “bad” thing. Like State agencies, Insurance companies MUST adopt rules where it becomes clear that use, or even the discussion, of a “quackbuster” health position, or their material, in any part of the process, is a TERMINATION offense for an insurance company employees.
(4) The lack of formal written guidelines for prosecution in health cases at the Wisconsin DRL allowed a ruthless, sleazy individual like Arthur Thexton to get away with some of the most horrible prosecutions against health professionals perhaps ever seen in America. Thexton’s prosecutions (persecutions) highlighted the need to have formal written guidelines in place, to protect the public from people like Arthur Thexton. Thexton, in Wisconsin, could ONLY be reined in, he couldn’t be fired for violating rules – for there were NO written rules. Prosecutors must never be allowed to be AUTONOMOUS.
It is obvious, to protect the public, that there needs to be (a) a specific, rigid, DECISION TREE that prosecutors and investigators must follow, (b) the act of department employees communicating with the media about a case before it is decided needs to be a TERMINATION offense, (c) there needs to be specific ethical guidelines in place for the behavior of regulatory agency employees involved in cases – with severe penalties for violation, (d) prosecutors must be forced to get permission for all of their actions, including negotiations, from a higher authority, (e) all prosecutions, or decisions to prosecute, must be made with regard to case law guidelines.
(5) The business of the people is the business of the people. The public MUST have direct input about health policies made by appointed health boards on the public’s behalf. In Wisconsin, the public is not allowed to address the health boards. There is NO public comment period, either on individual issues, cases, or in general. The public has NO opportunity to indicate to a health regulatory board what it thinks the board’s policies should be. The boards operate in a vacuum – where the only outside contact, except for hearings, is from DRL employees. The public had no opportunity, in the Suster case, or any of the earlier cases, to go to the health boards en masse and ask the question “what the hell do you think you’re doing?”
(6) Administrative Law hearings are no place to argue criminal charges. Period. In the Suster case, sleaze-bag Thexton charged Suster with over 50 criminal acts he couldn’t get any police agency to prosecute. There simply was NO EVIDENCE of criminal wrongdoing. But, Thexton proceeded anyway.
The Constitution of the United States is clear on this issue. The Bill of Rights under the Constitution, says; “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Nowhere in the Constitution does it say that this law of the land can be circumvented by Arthur Thexton.
(7) There must be specific rules for a prosecutor’s conduct – with SEVERE punishment for violation. “We the people” don’t delegate prosecutorial power to “abusers,” like Thexton, intentionally. When our power is abused by the Thextons of the world, we must have the power to punish those wrongdoers.
The American Bar Association (ABA) has good rules for prosecutors. Last year, ABA president Phillip S. Anderson said “We reject any suggestion that acting ethically interferes with the prosecutorial function. Prosecutors are obligated above all to serve justice, and compliance with ethics rules advances that end while inspiring trust among the bench, the bar and the public.” He also stated “The courts have repeatedly interpreted these rules to allow prosecutors to do their jobs, and there are seldom conflicts among the various state rules which affect prosecutors. Since 1908, standards of professional conduct recommended by ABA have been the national professional model, adopted by states almost universally.”
Thexton’s behavior shows us that we need to have specific written rules in place – to hold people like him (abusers) accountable. As Chairman of the House Judiciary Committee James Sensenbrenner, Jr. (R-WI) remarked, “The public has a right to demand the highest ethical standards for its public servants, particularly those acting on their behalf in the legal system.”
But Thexton, in the Suster case alone, according to court documents, did the following unethical acts:
(1) First, Thexton accused Suster of being mentally unstable, for being “loud, and angry” in his dealings with health insurance companies, and “using drugs,” forcing Suster to undergo Psychiatric and Drug evaluation. While Suster was undergoing this humiliation, Thexton called the evaluator, attempting to influence the outcome. Suster easily passed the evaluation. When that attempt failed, Thexton moved to step (2)
(2) The destruction of the Suster’s business using the media – Thexton, even before any charges were filed, working with one or more health insurance companies, decided to remove the Suster’s patient base, and hence their ability to pay an attorney, by ruining the Susters’ reputation and business, in the media. Fox TV 6 in Milwaukee was contacted, and their help was enlisted in “the character assassination” of Stuart Suster.
The TV station, using lists provided by Thexton, contacted over a hundred of the Suster’s patients, and enlisted one of them to intentionally provoke the Susters, in front of a hidden camera, over his billing to her insurance company. Stuart Suster, suspecting something wrong in the former patient’s demeanor and conversation, asked her to leave. She refused, again acting in an unprofessional, provocative argumentative manner. In retrospect, there was no doubt this woman was “playing to the camera” hidden in her bag.
The TV station did an obvious “hit piece” on the Suster’s clinic. In fact, they did a series, in some asking Milwaukee viewers to “contact Wisconsin DRL, the FBI, local police, or the DEA” if they had any information on Suster. With such a broadcast, without any trial, or even any accusation filed, Thexton branded Suster as a criminal in the minds of Milwaukee residents.
(3) Thexton then went to police agencies trying to get Suster arrested. When that didn’t work, and police agencies rebuffed Thexton, Thexton then…
(4) in a “secret hearing” filed eleven counts against Suster with the Wisconsin medical board. The eleven “counts” include over 50 accusations of criminal activity which had been rejected for prosecution by the appropriate police agencies. The new accusations included eleven separate “suddenly found” accusations of sexual misconduct. Thexton then…
(5) went back to the media with the new accusations, asking the people of Milwaukee to “call the TV Station, the DRL, the FBI, the DEA, or the local police if they knew anything about Suster.”
(6) Then, when Suster complained about Thexton’s manipulations, Thexton ordered so-called witnesses “not to talk to Suster – although they were talking to the media.” Then…
(7) Thexton, with Ruby Jefferson Moore, conspired to eliminate “due process” from the so-called Administrative Hearing, going so far as to not allow Suster to cross-examine witnesses against him, nor call any witnesses in his own defense. All the while, Thexton had the TV station broadcast Thexton’s commentary about the hearing on a daily basis.
(8) Thexton, working in conjunction with failed MD Stephen Barrett of quackwatch.com, broadcast the whole bogus accusation/hearing situation worldwide.
Background…
Let me make four important points that have a bearing on the Suster, and other, recent cases….
(1) 1996 was the year that Big Pharma’s “quackbuster” operation took control of the Federation of State Medical Board (FSMB) annual meeting and kicked off the biggest health scam of our times – the redefining of “innovation” in health care as “health fraud.” That move began a series of “training sessions” around the country designed to “educate”(propagandize) individual State regulatory boards, departments, prosecutors, and investigators in that thinking.
It “sort of” worked. For a while.
As with all “quackbuster” operations, it wasn’t well thought out. For a while it had momentum, but it was so poorly constructed that individual victims of the onslaught were able to beat off attacks with simple, common sense, strategies.
Over time, “quackbuster” attacks, in individual States, became more-and-more strident, and more-and-more ludicrous, Many of you will remember the screeching, screaming, antics of Victor Herbert, New York State’s raving lunatic who, when faced with frustration (most of the time) began to shriek, and howl, publicly – to the amusement of the news media and the North American Health Freedom Movement. Frankly, I miss having him around – for, to me, he epitomized the “quackbuster“ persona. Herbert died of Cancer…
(2) Big Pharma is in big trouble in North America. Their GREED has angered just about everybody. Marcia Angell, former Editor of the new England Journal of Medicine, and now with Harvard University, recently hammered Big Pharma in an interview on PBS’s “Frontline.” in the interview, titled “The Other Drug War…” Angell says, among other things, that Big Pharma is coming apart…
I hope so…
(3) Throughout history, despotic regimes have, near their end, taken to brutality, and insanity, to maintain their status quo. Look at what the Nazis did to almost 10 million Europeans when it became obvious they weren’t going to win the war. In America, we’re in “The Last Days of the Quackbusters” period right now – for the American people are heading away from conventional medicine in droves, and looking for, and finding, innovations in health care everywhere they look. Like the Nazis, Big Pharma is in a death struggle to maintain their status quo.
But, so far, Suster has survived all of the attacks – and is now targeting his tormentors. I have no doubt, that in the end, Thexton will rue the day he listened to a “quackbuster’s”advice. I’m sure he already does. Suster has made Thexton’s sleazy tactics the issues – and those issues will be decided in the high courts.
(4) Significant “Due Process” rights were ignored. The Federal lawsuit filed by Suster, over the way his case was handled, claims:
“Count #3 – Arthur Thexton and Ruby Jefferson-Moore had numerous ex parte communications to conspire against Plaintiff concerning his legal pleadings and strategies that greatly prejudiced the Plaintiff’s due process rights of law.
“Count #4 – Arthur Thexton and Wayne Austin refused to adequately respond and comply with legitimate and legal due process requests concerning: a.) Pre-administrative hearing concerning final decision to investigate and summary judgment determination of guilt of Plaintiff. b.) Index and cross-index to statute all Board opinions, decisions, ruling, interpretations, etc. concerning allegations in the original Complaint. c.) Complying with the Privacy Act of 1974 since the Board assumed Federal jurisdiction and is a nominee for Federal agencies. d.) Complying with providing all rules and regulations concerning allegations in the Complaint against Plaintiff. e.) Complying with providing copies of Oaths of Office for all Board members and appointed officers. f.) Providing necessary rules of interpretation or construction in the Administrative action.g.) Providing copes of verification of certification, dating and filing of regulations used in the Complaint against Plaintiff. These are all in violation of due process and equal protection under the law of the Plaintiff.”
Count #5 – Ruby Jefferson-Moore ordered Plaintiff to cease and desist a proper legal process of a counter-claim and cross-claiming persons that have harmed, violated or made false witness declarations and statements against the Plaintiff in violation of due process and equal protection under the law of the Plaintiff.
Count #6 – Ruby Jefferson-Moore ordered Plaintiff to be under an illegal jurisdiction, venue and authority when in fact the original Complaint was fatally defective and did not exist due to several missing legal and fact essential elements, overcharging with federal regulations and where overt acts were outside the statute of limitations in violation of due process and equal protection under the law.
Count #7 – Ruby Jefferson-Moore deliberately delayed rulings on motions of the Plaintiff, while at the same time, made timely rulings for the Board to greatly prejudice and harm Plaintiff so that he could not adequately prepare for trial in violation of due process and equal protection under the law.
Count #8 – All of the above Defendants discriminated against Plaintiff in violating his due process of law and equal protection under the law both individually and in combined conspiracy among themselves. The Defendants had an improper ulterior motive for the discrimination.
Count #9 – All of the Defendants were only concerned with injustice, prejudice and unfairness to be administrated to the Plaintiff through their acts, words and deeds in violation of due process of law and equal protection under the law.
Count #10 – All of the Defendants violated and deprived the Plaintiff of liberty concerning the right to be left alone and pursue one’s chosen profession without interference and harassment under the liberty clause of due process in the Fifth Amendment to the U.S. Constitution and deprived and are continuing to deprive Plaintiff of property under the property clause of due process in the Fifth Amendment causing the Plaintiff to experience undue difficulty and expense in protecting his interest.”
Stay tuned…
Tim Bolen – Consumer Advocate – jurimed2@earthlink.net