Thursday, October 11, 2012

A Letter to the Prosecutors

Dear Mr. Smith and Mr. Stinson:

     It seems to me that two years and three months is adequate time for you and your FBI agents to have undertaken a thorough investigation of my medical practice, Colasante Clinic, PA,  as well as my prior business, Hawthorne Medical Center, PA, and my person.   Even allowing for the provision that you weren't, at the outset, familiar with family practice, billing, coding, supplies, and ordering, and that the frequency of my billing for certain tests and services might have triggered suspicion, especially if you didn't share my philosophy of patient care, by now it must be clear to you that my business practices are clean.  It must be clear, because it is the case.
     I realize that out-and-out criminals might proclaim their innocence in the exact same way, but I am not capable of that type of dissembling.  I have known from childhood on that I would never make a good liar or criminal.  For one thing, I am too tactless.  For another, criminals usually beat around the bush, and pretend that things are other than they are, whereas I prefer to get right to the point.  There is too much to do to waste time with storytelling. 
     I am available to speak with you regarding any unanswered questions you have, or to fill in lacunae in your understanding of who I am and what I have been doing in my twenty years of practice.  While I don't want to abandon my calling as a physician, your actions against me have been so damaging to my reputation and my self-image, that I don't know how much longer I can call upon inner resources to tolerate the atmosphere of siege you have created, while locating amidst the rubble the deep, intuitive organ I require to figure out what it is my patients need.  
     The government has sworn to protect people and make sure they don't get damaged.  That's fine, and I respect your mission in these tough economic times.  I understand that you had what is termed "reasonable suspicion" for using all the resources at your disposal to uncover fraud, abuse, racketeering, or money laundering in my two medical clinics.
     I also know that this is a big deal for the government:  you get lots of kudos for finding fraud and recuperating assets.  You were misguided by your original informant, whose motives had less to do with protecting the American people than defending herself against my reprisals, and you may have found it easy to petition others to say things that might strengthen your case.  But you don't get awards for doing this to the wrong people, in the wrong places.  Intimidating doctors with wrongheaded raids and forfeitures will only worsen the doctor shortage in this country.  Perhaps that's not your concern now--but it may be, one day, when you need good doctors, and they've all flown the coop.
     My suggestion is that you close this case on me, immediately.  My friends tell me that this is an absurd request, and that government officials don't care what I think.  But I continue to believe that government agents are human, too.  Do it quietly, if you like.  Please return my belongings, including all my patient records, the IUD's and pharmaceuticals listed in your inventory, the handbooks and protocols my nursing staff needs to stay current with state and federal requirements, and the cash you removed from my bank accounts.
     Then, I can stop all this blogging and work on Carmine's Farm, the residential facility for adults with autism, a project for which Colasante Clinic was originally opened, and which would have been funded by its profits.  Unfortunately, now there aren't any profits--at least, none that aren't disappearing into the black hole into which Medicare is pouring all the payments for my services--because of your actions against me, or going into the coffers of my lawyers.
     Please close your case on me, and allow me to return to my life.  I know the difference between right and wrong--and what you have been doing is wrong.  Your intentions may be good, but you must realize by now that they have been misdirected.  How can it be otherwise?  I know these clinics of mine, I have spent too many 16-hour days in them, and I have managed them with great care.  Unless I'm crazy, or blind, or have been completely blindsided (not likely), there is nothing wrong at all in the delivery of medical care, or billing, or coding, or management, or the personnel structure of my medical clinics.  Therefore, it's time this investigation ended--and did so, as they say, gracefully.
     Thank you for your kind consideration.
                                                                       Very truly yours,
                                                                                     Ona Colasante MD


  1. Long before the book "Outliers" became a best seller, a cult classic titled "The Mythical Man-Month" explored outliers. It found a tremendous disparity between average software coders and exceptional software coders. It found that exceptional coders might be more than ten times as productive as average coders. It appears that the government is having a problem differentiating between an outlier and an outlaw.

    1. I don't know what might be meant by an "exceptional coder" in the world of medical billing. But it has been important for the survival of my clinics to capture all payments for services rendered by coding for everything that is done at the time of service. I was not aware that this was somehow wrong, but I expect that the sheer volume of secretarial work required to make sure all patient services are billed properly is too time-consuming for most doctors. Instead of coding and billing themselves, they relegate the job to billing staff--but that opens up the possibility for errors. Solo doctors must be good at what they do, or patients will go elsewhere; they must also be good at running a business, or there won't be a business to run. My mistake, it seems, has been to be successful. It's suspect. Or--it pays for the government to deem it suspect, when it decides to take back money using fear-inducing tactics.

  2. Part 1

    One of your readers asked if you felt that your attorneys have earned the money you’ve paid. Everyone should understand that should you become the subject of an investigation or you feel that you might be arrested you should hire an attorney right then, don’t wait. Your attorney makes your adversaries circumspect to your case simply by being. You should never speak to the police, FBI, or prosecutors about anything at all, except to respectfully say, “No Comment”. Never talk to the Internal Revenue unless you have full immunity.

    The Fifth Amendment provides: “No person ….shall be compelled in any criminal case to be a witness against himself.” One of the Fifth Amendment’s basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances. Truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government incriminating evidence from the speaker’s own mouth. Two many Americans, even those who should be better advised, view this privilege as a shelter for wrongdoers. Citizens too readily assume that suspects who refuse to speak to police are guilty of having committed the crime by claiming the privilege.

    The government states that there are around 10,000 criminal statues; the government has even lost track of the actual number. There are, in fact, many reasons for hiring an attorney, wouldn’t you say? Defense attorneys can work behind the scenes, and the accused cannot. What they might say to the prosecutor cannot be held against the accused. The accused cannot ever help their own case because should they say something that benefits their side of the case it becomes hearsay in court. Prosecutors are not required to bring up anything in court that may point to your innocence.

    Justice Robert Jackson said, “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstance.” Jackson is known as a ”Prosecutor’s prosecutor.” By Professor James Duane, criminal defense attorney when in private practice.

    Police are taught to lie effectively and are taught how to protect themselves from negative consequences. At no time do police admit to the harm done to innocent people by lying police.

    While police feel entitled to lie, it is considered a criminal offense (generally described as “obstruction”). There are serious consequences for police who lie; they can be sanctioned by the courts, sued, subject to professional discipline, lose the confidence of the public, or even have evidence suppressed, a case dismissed. It doesn’t stop them from lying, however.

    Following are some points to consider before talking to law enforcement:

    Talking to any law enforcement CANNOT help you.

    If the police are talking to you, it’s because they suspect you have committed a crime. If they have detained you, it’s because they think that they already have enough evidence to arrest you and they want to see if you will admit it and thus, give them an even stronger case against you.

    If they have evidence (includes a sworn statement) against you, they will. If they don’t, they won’t. It’s simple as that.

    Talking to them or not talking to them won’t make a difference, anyway. No one has ever “talked his way out of” an arrest. If the police have enough probable cause to arrest, they will. If you deny that you committed the crime, they will not believe you. They already have evidence suggesting that you committed the crime. They’ll assume you’re just doing what every criminal does in denying the offense. It will not prevent you from getting arrested.

  3. Part 2

    This is completely contrary to popular belief. For some reason, many people think that they are savvy enough or eloquent enough or well educated enough to be able to talk to the police and convince the police not to arrest them. But ask any police officer if because of the eloquence and convincing story of the suspect, they have ever been convinced not to arrest somebody whom they had originally intended to arrest, and they will tell you no. They will tell you in their experience, no one has ever talked himself out of getting arrested. Talking to the police cannot help you. It cannot prevent you from getting arrested. It can only hurt.

    Why should innocent people never speak to law enforcement under any circumstance?

    Even if you are innocent, it’s easy to tell some little white lie in the course of a statement.

    This kind of thing happens all the time. A person who is completely innocent and who is trying to vehemently assert their innocence will go overboard and take it a little bit too far and deny some insignificant fact, tell some little white lie, because they want to sound as innocent as possible. But if the police have evidence of that lie, it makes your entire statement look like a lie. The prosecutor will ask: “Why did he lie to the police? Why indeed would he lie to the police, unless he were guilty?”

    That little white lie could be used to destroy your credibility at trial.

    An example would be a man who is questioned about a murder. He wants to sound innocent. He wants to sound non-violent. He is, in fact, innocent. So he denies everything. He denies the killing. He denies being in the area where the killing occurred on the night that it occurred. He denies owning a gun, and denies that he has ever owned a gun in his whole life. But it turns out that this last statement is not true, and the police can prove it. He did at one time during his life own a gun. Now he has told a lie and the police have caught him and things will only go downhill from there. Although he is innocent of the murder, he has told a lie that will be used to destroy his credibility at trial and could be the cause of his conviction.

    Even if you are innocent, and you only tell the truth, and you don’t tell any little white lies, it is possible to give the police some detail of information that can be used to convict you.

    For example, a suspect is being questioned about a murder. He is truly innocent of the murder. But in the course of explaining his innocence, he makes the statement that he never liked the victim, because the victim was not a nice guy. A statement like that can be used to prove motive.

    Or in the course of the statement, the suspect might admit that he was in the area of town where the murder was committed at the time it was committed. Although he’s innocent and although this statement is true, the prosecutor could use that statement to suggest that the suspect had the opportunity to commit the crime, which looks very bad in front of the jury.

    Even if you were innocent, and you only tell the truth, and you don’t tell any little white lies, and you don’t give the police any information that can be used against you to prove motive or opportunity you still should not talk to the police because the possibility that the police might not recall your statement with 100% accuracy.

    What if the police office remembers something wrong? What if he remembers you saying “X” when actually you said “Y”? If you police officer takes the witness stand and contradicts your statements at trial, it will kill your credibility. You can take the witness stand and say. “I never said that!” But it’s your word versus a police officer. Who’s the jury going to believe? Who will the jury assume is lying to save his own skin? Who would the jury believe is lying because he’s really guilty? You guessed it YOU!

  4. Part 3

    Even if you’re innocent, and you only tell the truth, and your entire statement is videotaped so that the police don’t have to rely on the memory, an innocent person can still make some innocent assumption about a fact or state some detail about the case they overheard on the way to the police station, and the police will assume that they only way the suspect could have known that fact or that detail was if he was, in fact, guilty.

    Example: Suppose a police officer is questioning a suspect about a homicide. And the suspect makes the statement “I don’t know who killed the victim. I’ve never owned a gun in my life. I don’t even like guns.” On it’s face, there’s nothing incriminating about that statement. But suppose at trial, the prosecutor asks the police officer if anything about that statement surprised him. The police officer answers “Yes, it surprised me when the suspect mentioned a gun, because I had never mentioned a gun before that. I merely told him that I was investigating a homicide.”

    When the officer said there has been a homicide, the suspect may have simply assumed that the killing was done with a gun. Or the suspect may have overheard in the police station some other officer talk about the fact that it was a shooting. But if the officer taking the statement had never mentioned a gun or a shooting, and the suspect makes the statement that he had never owned a gun, you give the prosecution the opportunity to create some high drama, suggesting that suspect has had a Freudian slip, and has made a statement about a gun because he is, in fact, the murderer. And as the murderer, he knew that a gun was used.

  5. Part 4

    Even if you’re innocent, and you only tell the truth in your statement, and you give the police no information that can be used against you, and the whole statement is videotaped, a suspect’s answers can still be used against him if the police (through no fault of their own) have any evidence that any of the suspect’s statements are false (even if they are really true).

    Suppose the police have a statement from a witness who claims to have seen the suspect in the area where the crime was committed at the time of the incident. Suppose further that this witness is actually wrong, but has made an honest mistake. The suspect then gives a statement to the police in which he says he was nowhere near the area where the crime took place at the time of the incident. By giving the statement, the suspect has not created a conflict between his own statement and the statement of this witness. By itself the statement of the witness that he or she saw the suspect in the area at the time the crime was committed is not that useful. But by giving this statement, and creating a conflict with this witness’s statement, the suspect has now made this relatively minor witness into the government’s star witness.

    The jury will hear the conflict and will assume that the suspect is lying and wonder why.

    So even if you tell the complete truth, you’re putting your cards on the table without first seeing what evidence the government has. And if the government has some bit of evidence which, through some honest mistake, contradicts part of your story, you set yourself up to be portrayed as a liar by giving a statement without first knowing what evidence the government has.

    Even for a completely honest and innocent person, it is difficult to tell the same story twice in exactly the same way.

    If you tell your story one time at trial and you tell the truth and you’re innocent there’s very little the prosecutor can do by way of cross-examination. But if you’ve told your story twice, once at trial, and once previously in a statement to the police, many months apart, the chances are very high that, even if you are telling the truth, some little details in your statement are going to change.

    A good cross examiner will pick up on the changes and will relentlessly questioning you about them in an effort to make it look like you are lying.

    So for all these reasons whether you want to exonerate yourself, whether you are the most eloquent intelligent person in the world, you should NEVER, EVER, under any circumstances, give a statement to law enforcement at any level.

    Note: Credit for some of the Reasons goes to Professor Dwayne at Regent University Law School. By way of the website of The Law Offices of James Kirk Piccione, Lafayette, Louisiana.

    1. What I understand is that our judicial system is a psychopathic one, in the sense that it is staffed by people whose aim is to arrest and penalize citizens, and those arrests and penalties fund more arrests and penalties, so the psychopathy is self-serving. Your admonitions simply reinforce my understanding. Although I have no intention of talking to the prosecutor or FBI, if these law enforcement people are bent on indicting me and making me pay for whatever it is they decide to invent about me, they now have plenty of raw material from which to choose--all 170 blogposts, and more to come. Does my blog represent a "statement" in the sense you meant in your comment? If so, I'm doomed, though I can't for the life of me guess how the material I've provided incriminates me. But, of course, that's what FBI agents and prosecutors are so good at: finding guilt, even where there isn't any.

  6. I am in agreement with your assessment.

    Your reader’s question prompted any admonishment. I view her question as being totally honest. She basically asked if your attorneys were performing and, if so, what are they doing? In my view, that is a great general question, not specific to your attorneys, to think about.

    Most cannot fathom a scenario where they could be falsely arrested. What you should do if arrested probably hasn’t been thought through either.

    Too many citizens automatically think that law enforcement and prosecutor motives are above reproach and are totally selfless. They think that the police serve and protect. Many newly developed websites are giving details about what many police officers have done instead.

    I am raising a red flag and waving it to approximately 200,000 Floridians who will be arrested next year but who are innocent of any crime.

    I view your blog as doing the same service. I’m compelled somehow to get my two cents worth in (actually many thousands of dollars were spent after admittance into the Arrestee Club). Some of my long kept opinions have been reformed. Good job.

    I am happy that I have reinforced your understanding. Most arrestees are very isolated. The more that I read about other people’s experiences on the Internet the more reassured I became about my own attorney’s competency and his course of action. My attorney did a lot behind the scenes. I am aware that he planted bugs in the ear of the prosecutor. I am convinced that he did the right things, which ultimately saved me a ton of money and more undo stress. I am still terribly upset at the punishments I endured that were dealt out before any evidence was established as fact. In my case the prosecutor refused to speak with a witness, who (without my prior knowledge) went to the prosecutor’s office to provide information. That person was asked to leave and was told to “go tell it to the other side”.

    I cannot recall reading a case about a prosecutor twisting blog comments. A person you might ask is Professor Dwayne at Regent University Law School.

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