Category Archives: Criminal Law

Another Cardiologist charged with Fraud

Innocent Until Proven Guilty

The Feds have charged another cardiologist with fraud. Does this mean that the cardiologist is guilty? No. Everyone is innocent until proven guilty.

The common perception is that because someone is charged, either by indictment or complaint, that the person is guilty and that the evidence is conclusive that the person committed a crime. This is incorrect.  The old saying among criminal law practitioners is that the government can “indict a ham sandwich,” if they want. While this is an exaggeration,  it does have some merit.

For those who don’t know, when the prosecution presents evidence to a grand jury,  it is part of a secret proceeding.  During the proceeding, as a general rule, only the government presents information for the jury to consider.  The grand jurors consider this information in deciding whether or not to hand down an indictment.

The panel of grand jurors serve for a substantial period of time. One wonders what kind of “camaraderie” develops between the members of the jury and the prosecutor. Ultimately, the prosecution provides the defense with a transcript of what transpired in the “room.” But, is it everything? Hardly! It is merely a transcript of evidence presented to establish probable cause (the lowest standard of proof in the criminal justice system). As a matter of fact, at trial, the Court instructs the  jurors that they are not to consider the indictment as evidence.

Is this admonition effective? One wonders. In my experience, juries try to follow the law and do a good job of it. Whether or not I agree with the verdict, I have always respected the verdict. The jury is in the best position  to make that determination. Every story has two sides and the jury hears both. The simple fact of the matter is that the jury decides which version makes more sense and who presents the stronger case.  The presumption of innocence, in theory, applies until all evidence has been presented and the jury begins deliberations. Again, in theory, that is where the jury must start.

So the moral of the story is that just because you read about an indictment, you should read what follows with a grain of salt.  See the story below.

http://Eastern Ky. cardiologist charged with fraud

Jury Polling in Crafting a Sentence Under 3553

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Jury Trials:

Today, the USCA for the 6th Circuit in United States v. Collins considered a case wherein the trial judge, at the conclusion of a jury trial, and after the jury returned a verdict of guilty, polled the jury to see what they thought a “just punishment” was for the Defendant. This was a case of first impression for the 6th Circuit. Federal Court criminal practitioners will find this opinion educational. It has been recommended for full publication. The link to the full opinion is found below. It is interesting to note that one of the reasons for his actions was that the trial judge wanted to see what the “community view” was of a “just punishment” and he incorporated that into his 3553 analysis of  the appropriate punishment.

http://www.opn.ca6.uscourts.gov/opinions.pdf/16a0149p-06.pdf

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