Call me an idealist, a dreamer, even a fool: I believe in the presumption of innocence. When a client stands presented to the world as a criminal, his reputation in tatters, his livelihood at risk, the presumption of innocence is all he has left. I wish the courts took it more seriously.
I stood next to a physician at his first court appearance the other day. I was handed a package of sealed warrants, and quickly whisked in front of a judge to argue bond. He was accused by three patients of sexual assault. The bond was high. Press gathered on the courthouse stairs to get a glimpse of the doctor. Even Gov. Dannell Malloy took a swipe at my client.
It was not a good day in court for my client or his family.
The judge ordered that the warrants sealed. The public can only know the sound of the charges – sexual assault in the second degree. My client was held out to the world as little more than a serial rapist, his accusers accorded privileged confidential status.
Later that night I read the warrants. I was shocked. This was no rape case. Three women, two of whom represented by the same ambulance chasing lawyer, the same lawyer who stood on the courthouse steps at an impromptu press conference and encouraged other women to come forward, complain about how my client conducted his examinations of them. Hours later, when I had read the warrants and had the examinations and the patients’s physical complaints explained to me, I was outraged. Every physician in the state is at risk of prosecution by a disgruntled or gold-digging patient.
But I cannot tell the world all about that except in general terms. The warrants are sealed. My client’s accusers are denominated "victim’s" by a statute that accords them such status in a sex assault case before any finding of guilt has been entered. I have said it before and I will say it again: the word victim has no place in the criminal justice system until a judge or jury has been made a finding of guilt. Until that happens, an accuser is a complaining witness. Period.
But public sentiment says otherwise. We have an Office of Victim’s Advocate. Victims have a right to be heard at all stages of the criminal proceedings. We treat victims as if they enjoy, well, a presumption of victimhood.
When callers started to contact me about the doctor to offer their support, some asked who the accusers in his case were. I took the names and numbers of a half dozen former patients. They are willing to testify about his treatment of them, and they are even willing to sign waivers of their patient confidentiality so that they can be robustly cross-examined by the state at trial. When these folks asked who would raise complaints about my client and why, I wanted to show them the warrants. But I couldn’t. There is a order sealing them. The presumption of victimhood permits my client to be held up before the world as a scoundrel while his accusers are shielded from scrutiny.
I mentioned to the state’s attorney handling the case that I was contemplating suing these three accusers for malicious prosecution. Would he regard it as a violation of the court’s protective order issued against my client if a marshal dropped a little something at each of their doors? He winced. Why asserting a defendant’s right of access to the courts could yield a charge of witness tampering, I suspect. I plan on asking the prosecutor if he will accept service of a civil suit for the complaining witnesses.
I don’t know why folks accused of a crime are expected to put up half a fight, and why those who accuse a man or a woman of a crime are treated with kid gloves. The state will say such treatment is necessary to protect victims and assure that justice is done. That sounds nice. Try telling it to a client ruined by public accusations arising from the mere performance of his job.
I am glad I did not go to medical school. After what I have seen in this case, any doctor in his right mind should videotape every examination of a patient. Defensive medicine is nowhere so necessary as in the criminal courts.
Reprinted courtesy of the Connecticut Law Tribune.