Tag Archives: prosecution

A tip sheet for workers and workplaces where pot is legal

Changing marijuana laws aren’t necessarily making weed more welcome in the workplace.

For now, many employers seem to be sticking with their drug testing and personal conduct policies, even in states where recreational marijuana use is now permitted. Others are keeping a close eye on the still evolving legal, regulatory and political environment.

Voters in California, Massachusetts, Maine and Nevada voted Nov. 8 to approve the use of recreational marijuana, joining Colorado, Washington, Oregon and Alaska, where it had previously been legalized. (A recount of Maine’s close result is scheduled.) More than two dozen states have medical marijuana programs.

But the drug is still against federal law.

A closer look at what it all means for workers and businesses:

CAN MY EMPLOYER STILL TEST ME FOR POT?

Bottom line: You can’t come to work high. You can still be drug tested. And you can still be fired — or not hired — for failing a drug test even if you’re not the least bit impaired at work.

All the states with legalized recreational pot have exemptions for workplace drug policies.

In Massachusetts, for example, the law includes language stating that “the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees” is not changed.

“Yes, you may be able to have (marijuana) at home, but that doesn’t mean it’s OK in the workplace,” said Edward Yost, an HR specialist with the Society for Human Resources Management.

WHAT ABOUT WORKPLACE SAFETY?

Advocates for marijuana legalization said it was never their intention to compromise safety, a central reason offered by employers for drug testing.

“We don’t want anyone to come to work impaired on any drugs,” said David Boyer, campaign manager for the ballot initiative in Maine.

A 2013 survey by the employee screening firm HireRight found 78 percent of employers conducted drug tests either randomly, as a condition of employment, after accidents or for some combination of those reasons.

The federal government requires drug testing for some workers, including truck drivers and others in transportation.

Quest Diagnostics, which performed nearly 11 million laboratory-based drug tests for employers in 2015, said the percentage of tests coming back positive has shown a modest increase in recent years. Nearly half of all positive tests showed evidence of marijuana use.

CAN I GET FIRED EVEN IF I’M NOT HIGH?

THC, the psychoactive chemical in cannabis, can stay in a person’s system for days or even weeks, experts say — long after the buzz has subsided.

“It’s the equivalent of firing somebody who drank a glass of wine on Friday evening and then came to work on Monday,” said Tamar Todd, legal director for the Drug Policy Alliance, who believes employers should reconsider zero-tolerance policies in light of changing laws and attitudes.

A number of efforts are underway to develop an accurate method, akin to the Breathalyzer for alcohol, to measure actual marijuana impairment. Such a test might be useful not only for employers, but also for police and prosecutors trying to determine what constitutes driving under the influence of marijuana in states where recreational pot is legal.

WHAT SHOULD COMPANIES DO?

At a minimum, companies should review their current polices, make sure their managers are trained and make clear to employees that marijuana use on or off the job can still land them in trouble, said James Reidy, a New Hampshire-based attorney who advises clients around the country on drug testing issues.

Tina Sharby, chief human resources officer for an Easter Seals affiliate with about 1,700 employees in New England, said the organization, which provides services for people with special needs, is monitoring the evolving legal and regulatory environment but is sticking with its drug testing protocols for now.

“We have a drug-free workplace policy, and we believe that the current policy we have is effective,” Sharby said.

But drug testing and zero-tolerance rules can also make it difficult for businesses with a need to recruit young professionals who may harbor more liberal attitudes toward pot.

“We have ski industries out here, and if they really took a hard line on marijuana use, they would have to shut down,” said Curtis Graves, information resource manager for the Colorado-based Mountain States Employers Council.

After Colorado became the first state to legalize recreational marijuana in 2012, surveys showed an uptick in workplace drug testing, Graves said, but that trend has begun to shift in the other direction.

“Employers who have a zero-tolerance policy maybe shouldn’t apply that to non-safety sensitive workers, because if they do testing on them, they run the risk of inviting an invasion of privacy claim,” suggested Amanda Baer, a Boston-area attorney who specializes in labor and employment issues.

WHAT DO THE COURTS SAY?

Adding to the uncertainty is the scarcity of legal precedent in states that have legalized recreational marijuana. But several cases involving employees with permits to use medical marijuana have reached the courts, and most have been decided in employers’ favor.

The most widely cited case is a 2015 Colorado Supreme Court that upheld Dish Network’s firing of a disabled man who used medical marijuana and failed a drug test. The court ruled that a state law barring employers from firing workers for off-duty behavior that is legal did not apply because pot remains illegal under federal law.

Similar rulings have been issued in other states including California, Montana and Washington.

As medical marijuana programs become more common even in states where recreational pot remains outlawed, some companies have begun to weigh accommodations for workers with permission to use marijuana for an existing health condition.

 

Questions, concerns arise over FDA’s ‘Botox Police’

On April 5, 2012, a criminal investigator from the Food and Drug Administration named Robert West charged into an oncology clinic in Greenville, Tennessee.

West was chasing a lead that Dr. Anindya Sen and his wife, the clinic’s office manager Patricia Posey Sen, purchased an unapproved Turkish version of the cancer drug Avastin.

But “Cowboy Bob,” as some defense attorneys call him, did not realize his interview was caught on the clinic’s surveillance cameras. West told Posey Sen she was guilty of buying counterfeit drugs and looked like a “deer in the headlights,” court records say.

Without a warrant or permission, he and an FBI agent rifled through cabinets, seizing drugs that appeared to have foreign, non-FDA approved packaging. At one point, West snatched a drug out of a nurse’s hands as she treated a chemotherapy patient.

A U.S. judge later said West’s tone was “ominous and threatening” and that his statement about the drugs being counterfeit “apparently was not the truth.” West’s search was declared illegal, and the evidence was deemed inadmissible at the Sens’ criminal trial in December 2013.

Earlier that year, managers at the FDA’s Maryland-based Office of Criminal Investigations, or OCI, had promoted West to senior operations manager, where he oversaw hundreds of similar investigations. Last year, he was promoted to special agent in charge in Miami. In February, he taught a class to new agents on how to pursue similar probes.

West declined interview requests.

West’s approach in Tennessee and FDA managers’ eagerness to reward him open a window into a collision unfolding inside the historically staid U.S. drug agency, pitting investigators who object to what they see as cowboy tactics against a small cadre of managers who control the opening of investigations.

FDA leaders, including West, Special Agent in Charge of the headquarters office Thomas South and OCI Director George Karavetsos, are pursuing an agenda that has opened a divide over the office’s handling of criminal investigations, interviews and records show.

Prosecutors are declining to pursue many FDA cases, citing a lack of prosecutorial merit, criminal intent or strong evidence, Reuters found in a review of more than 170 letters detailing why the Department of Justice declined cases. The letters, obtained under the Freedom of Information Act, appear to bolster critics’ claims of agency overreaching.

From fiscal 2008 to 2015, more than half of OCI cases – 53 percent – were closed without action. By contrast, at the Environmental Protection Agency in the same period, 71 percent of opened cases spurred criminal charges. At the Internal Revenue Service’s criminal unit, 68 percent of initiated investigations resulted in charges. The FDA criminal investigation office had more cases closed without action than it had arrests, Reuters found.

Some FDA agents complain they have turned into the “Botox Police” – chasing down every doctor who purchased authentic versions of the popular anti-wrinkle drug that were labeled for use in other countries, an exercise producing few prosecutions.

Large pharmaceutical companies sometimes refer cases to the FDA or help the agency investigate targets, and some doctors ensnared in the dragnet say the investigations ultimately help drug makers charge top dollar in the United States.

In one example, Botox maker Allergan referred a case to the FDA against an unlicensed Virginia distributor accused of illegally selling Botox, court records show – helping the agency land convictions. Another time, a former OCI agent-turned security official for a drug maker conducted his own undercover work before sharing his findings with the FDA.

The FDA said its focus differs from other agencies, with a mandate to protect public health, and that it follows leads from all sources –agents, the public and industry. “The public health risks of unapproved drugs from foreign sources outweigh any potential cost savings,” the FDA said in a statement.

In an interview, Karavetsos said statistics are not a good benchmark to measure OCI’s success. Protecting public health will “always trump the criminal investigation,” said Karavetsos, who became OCI director in January 2015.

He points to successful prosecutions, including one against the former Peanut Corporation of America president who sold Salmonella-tainted peanuts, and another involving a fatal meningitis outbreak in Massachusetts.

Through an FDA spokesman, South declined comment.

UNKNOWN OFFICE, BIG POWER

The 280-unit Office of Criminal Investigations, with an annual budget of $77.3 million, is a little-known corner of the FDA created in the 1990s in response to a generic drug scandal.

The FDA agents carry guns and only investigate criminal violations, though the unit is housed inside the agency’s civil regulatory arm, the Office of Regulatory Affairs. Historically, many agents were hired from the Secret Service.

FDA leaders say they are trying to better align OCI’s priorities with agency centers that set policy over areas including food, drugs and tobacco. They are setting investigative goals and revamping training and hiring – changes, they say, that may be causing growing pains.

“Before the realignment, the decision-making about what types of cases OCI would take was less centralized than it is now,” said Howard Sklamberg, deputy commissioner for the FDA’s Office of Global Regulatory Operations and Policy.

Current and former FDA agents say managers push cases that lack legal merit at the expense of others with more potential that were not pursued, including probes involving steroids, the street-level sale of counterfeit painkillers and the importation of drugs like Kratom, a plant used as an alternative to opioids.

Agents say they are instructed to focus primarily on cases involving the “legitimate supply chain.” In the United States, the majority of drugs move through one of three major wholesale distributors – McKesson, Cardinal Health and AmerisourceBergen Corp.. OCI headquarters wields complete control over which cases to pursue.

Most agents who spoke for this article did so anonymously. Reuters obtained letters written by several agents describing tensions and low morale.

“The vast majority of referrals I received from within OCI, especially from Headquarters, involved conduct that did not even rise to the level of a knowing crime,” former FDA special agent Ken Petroff wrote in a March letter to FDA Commissioner Robert Califf. “Some of the referrals involved no crime at all yet I was ordered to spend (waste) time on these cases.”

Petroff sent the letter, he said, to share concerns about waste and management within FDA. Four months later, Associate Commissioner for Regulatory Affairs Melinda Plaisier replied, “I appreciate the information you have provided.”

DEAD-END INVESTIGATIONS

One example of the fissure emerging within the FDA: a push by headquarters to investigate the use of imported unapproved drugs by doctors, such as Botox, an injectable cosmetic made by Allergan to reduce wrinkles.

The Botox cases are part of a larger effort to crack down on what are known as foreign unapproved medical products – so-called “FUMP” cases. A drug is deemed foreign unapproved if it is manufactured without FDA oversight or lacks labels approved by the agency. The designation doesn’t necessarily mean the drug is counterfeit or harmful.

Concerns about the agency’s handling of Botox cases emerged as early as 2013. In one field office, a psychologist sent to defuse internal tensions heard complaints of “micromanagement” of cases and of Botox inquiries wasting “valuable agent time” and antagonizing relations with U.S. attorneys, documents show.

The Botox initiative has produced few tangible results, but has rankled agents who say they are little more than “Botox Police” or the “ATF”— Allergan Task Force. Some complain the crackdown protects pharmaceutical companies’ drug prices more than consumers.

“In the European Union, price controls govern the amount they can charge,” attorney Kevin Marino said in a 2014 trial defending a client acquitted of illegally shipping Botox. “Here in the United States, apparently the last bastion of capitalism in the world, they can charge whatever they please.”

Investigations into doctors who purchase foreign unapproved cosmetic products are unlikely to prompt prosecutors to press charges, records and interviews show. There is little demonstrable harm to public health or the national purse since taxpayer-funded insurance programs do not accept claims for Botox unless it has been prescribed for an approved medical purpose.

And, the majority of the Botox seized by the OCI was later found to be legitimate products made by Allergan but labeled for use in other countries, according to some 140 FDA lab reports examined by Reuters.

Allergan calls the manufacture and sale of counterfeit Botox a “significant threat.” Unauthorized suppliers may not store it at the proper temperature, decreasing its effectiveness and triggering “adverse effects,” Allergan said.

The company “frequently” receives reports about unauthorized sellers and refers them to law enforcement when necessary, a spokesman said.

Letters drafted by agents and sent to U.S. Attorney’s Offices detail why the bulk of the FDA’s Botox prosecutorial referrals were declined.

The Nevada U.S. Attorney’s Office rejected a case against a doctor who twice purchased foreign-made Botox for his wife. Other prosecutors declined cases because the Botox was authentic, small amounts were purchased, and no insurance claims were submitted.

Still, agents are instructed by managers in the office’s headquarters in Rockville, Maryland, to interview every doctor suspected of purchasing foreign unapproved drugs and upload their findings into a non-public FUMP database used to mine for criminal targets. “There are no assurances that unapproved products from foreign sources are safe or effective,” the FDA said.

Another investigation that faltered: a nationwide undercover sting championed by Karavetsos in 2015 involving the purchase of a variety of dietary supplements marketed for weight loss, sexual performance and strength building sold at retail chains including GNC, The Vitamin Shoppe, and Vitamin World.

Though agents bought about $16,000 in supplements, the investigation produced no prosecutions because the supplements all came back with a clean bill of health from the FDA’s lab, documents obtained by Reuters show.

“Wasting investigative resources on cases that go nowhere raises concerns about the responsible use of tax dollars,” said Senate Judiciary Chairman Charles Grassley, R-Iowa.

Karavetsos described the probe as a proactive investigation.

MISDEMEANORS AND QUESTIONS

Unlike Europe, the U.S. does not impose price controls on pharmaceuticals. This makes costly drugs like Botox popular in America’s “gray market,” where distributors divert drugs with foreign labels into the United States and sell them to doctors at a discount.

“There is a reason why a doctor in the United States is incentivized to buy foreign-sourced Botox,” said Andrew Ittleman, a defense attorney with Fuerst Ittleman David & Joseph PL. “All of this relates to… the lack of price controls and Allergan trying to control its market.”

The FDA launched a mission to interview doctors who buy foreign-sourced clinical drugs, hoping to halt fraud in the supply chain. But the effort brought limited success.

The FDA’s push was sparked when a fake version of Roche’s cancer drug Avastin infiltrated the supply chain. Distributors offered to sell the drugs at cheaper prices to oncologists who operate sole practices and had no power to negotiate discounts.

A Roche spokeswoman said the company learned of the issues from a Swiss wholesaler in December 2011; the FDA contacted the company in January 2012 after learning counterfeit vials were shipped to the U.S.

From 2011 to 2015, FDA investigations into foreign unapproved oncology drugs led to criminal charges against suppliers and distributors as well as more than two dozen doctors, nurses, office managers and clinics who bought the drugs and billed them to federal insurance programs.

Yet most doctors, nurses and office managers were charged with less serious misdemeanor violations of the Federal Food, Drug and Cosmetic Act, which makes it a crime to introduce or receive a counterfeit, adulterated or misbranded drug into interstate commerce.

The FDA is the lead federal agency enforcing violations of the law, with FUMP cases among its investigative priorities.

After devoting more than 218,000 man hours on FUMP investigations from 2012-2015, many cases were declined for prosecution or closed. Of 878 investigations opened from 2009 through Aug. 1, 2016, 110 convictions resulted and 437 cases were closed without action, records show.

In an irony, many doctors criminally prosecuted had purchased real versions of the drugs that were misbranded, while some who actually bought fake Avastin were not charged.

The Roche spokeswoman did not directly respond to a question about the disparate prosecutorial treatment, but said the company supports the government’s efforts.

In two California cases, doctors who purchased counterfeit Avastin reached civil settlements. In Arizona, doctors whose patients suffered adverse reactions to counterfeit Avastin were not charged due to “the lack of interest” by prosecutors, records show.

Karavetsos defended the efforts, saying each U.S. attorney’s office has unique priorities and OCI is focusing on high-volume purchasers and repeat offenders.

“We don’t have the luxury to play Russian roulette with the consumers in the United States,” he said.

Charging doctors with misdemeanor violations has sparked debate.

Doctors are typically not trained to identify misbranded packaging, yet can be convicted of a misdemeanor if they unintentionally buy a misbranded drug. An FDA expert once testified he didn’t learn how to identify foreign unapproved labels until he joined the agency. West, in a 2013 email to field managers, admitted having a hard time detecting misbranded medical devices.

A drug can fall afoul of branding rules over small details. Those failing to display “RX only” or containing foreign writing on the outer package or insert could skirt rules.

Often, prosecutors cited a lack of criminal intent in turning down FDA cases.

“You don’t have to be a philosopher king to understand there is an elemental unfairness in holding someone criminally liable for conduct of which they had no knowledge or intent,” said Richard Callahan, U.S. Attorney for the Eastern District of Missouri.

Callahan said he strives to bring felony charges, but on rare occasion files misdemeanors in hopes of using the charges to build larger cases.

To be sure, some doctors ignore red flags.

One in Tennessee got a two-year prison term after he ignored nurses’ concerns that some of the drugs he bought had foreign languages on the labels; he had the drugs shipped to a storage building to avoid detection. Karavetsos said the FDA has nearly a dozen active cases into doctors who continued buying drugs after warnings.

But many doctors say they did not knowingly break the law.

A CASE IN TEXAS

One is Dr. Eduardo Miranda, an oncologist treating primarily impoverished patients in Laredo, Texas.

The drugs Miranda bought were made by the real manufacturers, but labeled for use in other countries. No patients were harmed.

Miranda said he ordered from a company called Quality Special Products because he was facing a shortage of an anti-nausea drug. QSP also offered a discount.

In 2009, an FDA agent confronted Miranda and accused him of ordering from QSP to make more money. Later, with TV cameras rolling, agents wearing bulletproof vests and carrying guns raided his office while patients awaited care.

Miranda stopped purchasing from QSP and created a new compliance program. In 2013, the U.S. Attorney for the Southern District of Texas prosecuted Miranda. He pleaded guilty to a misdemeanor of introducing a misbranded drug into interstate commerce.

“I think I was used by them to make a statement,” Miranda said. “They didn’t care that I was the only clinic providing care for indigent patients.”

Miranda is trying to appeal a 13-year ban from participating in federal health programs. In a nod to the role Miranda plays in his community, the Health and Human Services Inspector General carved out an exemption allowing him to continue billing the government as long as he remains in Laredo. Separately, the Texas medical board declined to fine him.

Miranda pays $17,000 in monthly restitution to Medicare, Medicaid and Blue Cross Blue Shield. Drug maker Sanofi petitioned for restitution on top of that, saying it lost $300,000-plus in profit because Miranda did not pay the U.S. market rate. The judge rejected that argument.

Sanofi takes “threats to patient safety” seriously and seeks restitution “as an additional deterrent,” a spokeswoman said.

Miranda’s attorney, Russell Soloway, said the case sends another message: “The laws and regulations are set up to safeguard the … big drug supply companies.”

Some legal experts believe the law should differentiate between clear criminal conduct, such as selling watered-down products, versus buying the same drugs cheaper.

“You would hope they would focus on people endangering the public health,” said Kevin Outterson, a professor of health law at Boston University.

SHIFTING FOCUS

After the discovery of bogus Avastin, OCI initially focused on tracking down doctors who purchased foreign unapproved cancer medications.

In 2013, the focus shifted. That year, Rockville managers dispatched investigators to interview 1,100 doctors suspected of buying foreign unapproved drugs from Medical Device King, a licensed wholesale distributor in Great Neck, New York, internal records show.

Former OCI agent Jim Dahl, then a security official for drug maker Eisai, conducted undercover purchases of the anti-nausea drug Aloxi from Medical Device King and shared his findings with the FDA, later testifying for the government.

Dahl, now a board member for the non-profit Partnership for Safe Medicines, said Eisai was motivated by patient safety. “If we find a crime, we refer it to the government,” he said.

As agents made their rounds, they encountered many doctors who had only purchased Botox or medical devices. Some got less than $1,000 worth of drugs.

Special Agent in Charge South instructed agents to conduct surprise visits to doctors’ offices, refer each for prosecution and seek asset forfeitures, an April 2013 email shows. Agents often entered offices without warrants.

Thomas Kubic, president of the non-profit Pharmaceutical Security Institute, sees value in agents visiting doctors. “You don’t know if it is genuine or counterfeit,” he said.

Only a handful of doctors have faced prosecution for buying foreign, unapproved Botox.

One, Anoushirvan Sarraf, was convicted at trial in 2014 on felony charges in connection with illegally importing and purchasing Botox from Gallant Pharma, an unlicensed Virginia supplier the FDA began investigating in 2009 after complaints from Allergan. Jonathan Simms, Sarraf’s attorney, said his client denied being part of a conspiracy.

In the same case, court testimony shows, the FDA asked Allergan to help it find a doctor who would go undercover, though the effort failed. Other drug makers hired their own private investigators to make undercover purchases and shared the results with the FDA. Drug companies “very frequently” send complaints to OCI, an FDA agent testified.

West unveiled plans to launch the FUMP database in an April 2013 email to field managers, saying it would help gather intelligence. “These cases are not ‘stupid’ as an agent recently stated,” wrote West, who is retiring this month.

In June 2013, an FDA employee lodged a complaint with the HHS Inspector General, saying the Botox cases drained resources. The complaint detailed the hours spent chasing doctors who bought small quantities, and said managers chided agents raising questions.

Nothing came of the complaint, the former employee said.

THE CASE IN TENNESSEE

In Tennessee, the Sens won a victory in convincing a judge to suppress evidence from West’s search. Dr. Sen and his wife faced multiple misdemeanor counts for buying foreign unapproved drugs. Office manager Posey Sen faced felony charges, including allegations she lied to West.

The jury acquitted Posey Sen of all felony charges. It convicted the Sens of misdemeanors involving introducing misbranded drugs into interstate commerce.

The convictions did not stand for long.

The Sens appealed, but before their case was heard, the Justice Department announced in December 2014 it would vacate the convictions. The DOJ declined to provide Reuters documents detailing its rationale.

Still, the DOJ has pursued civil charges against Dr. Sen, records show, and the government withheld about $1 million in reimbursements tied to the drugs. The Sens had to fight to convince HHS to let them participate in federal insurance programs.

Dr. Sen is again treating patients.

Posey Sen described the case as a “horrible ordeal.” At one point during her arraignment, she said, West swabbed her mouth for a DNA sample. “He personally did the DNA testing on me,” she said.

2016-09-08T142123Z_1_LYNXNPEC870ZQ_RTROPTP_4_USA-FDA-CASES

Maryland lays out reasons against new trial in ‘Serial’ case

A Baltimore judge was wrong to consider “a novel standalone claim” about the reliability of cellphone tracking evidence in granting a new trial for a man whose murder conviction was re-examined in a popular Serial podcast, the Maryland attorney general’s office says.

The podcast attracted millions of listeners who became armchair detectives as the series analyzed the case for weeks in the winter of 2014.

Appealing the decision to retry Adnan Syed, attorneys for the state contend that retired Baltimore Circuit Court Judge Martin Welch should not have ruled that his initial attorneys were constitutionally deficient because they failed to bring into evidence a warning from AT&T.

The cover sheet says: “Outgoing calls only are reliable for location status. Any incoming calls will NOT be considered reliable information for location.”

The first three words — “Outgoing calls only” — are underlined in the fax AT&T sent to Baltimore police.

Defense attorneys said prosecutors improperly used unreliable tower data on incoming calls to place Syed’s phone near the burial site of his former high school girlfriend, Hae Min Lee, who was killed in 1999.

Welch agreed, ruling that Syed’s attorney provided “ineffective assistance for the failure to cross-examine the state’s cell tower expert about the reliability of cell tower location evidence.”

In its appeal filed Monday, the state counters that Syed’s trial attorney, Cristina Gutierrez, “was far from ineffective in her challenge of the state’s cellphone evidence.”

“For one thing, there is no consensus among experts in the forensic community that Syed’s interpretation of the fax cover sheet is valid,” wrote Thiru Vignarajah, a deputy attorney general.

“Where one expert concludes the disclaimer does not apply, another finds it does, and yet a third opines it is ambiguous, trial counsel cannot be declared ineffective for a sustained and vigorous cross examination that does not incorporate an uncertain line of attack.”

The state also argued that Syed waived his right to raise the issue about the cross-examination failure now because he should have raised it in a prior proceeding. But the judge ruled that Syed didn’t “intelligently or knowingly” waive his right, noting that he never completed his high school degree.

“We think Judge Welch reached the correct decision in granting Syed a new trial,” said C. Justin Brown, Syed’s attorney.

Syed’s attorneys also argued that he deserves a retrial because his original attorney did not contact Asia McClain Chapman, an alibi witness who swore in an affidavit that she saw Syed at the Woodlawn library about the same time prosecutors say Lee was murdered.

Welch disagreed with the defense on that point. He also disagreed that prosecutors breached their duty by withholding exculpatory evidence.

But the attorney general’s office says the judge was wrong to include arguments about the cover sheet in reopened legal proceedings that were supposed to be predicated on Chapman’s newly available affidavit.

“Maryland’s courts have imposed few limits on what qualifies as in the ‘interest of justice,’ but limits remain,” wrote Vignarajah.

On the Web…

Find the podcast Serial here.

A timeline of events in the Brendan Dassey case

A judge has overturned the 2007 homicide conviction of Brendan Dassey in a case profiled in the Netflix series Making a Murderer.

At the center of the judge’s decision was a confession Dassey made saying he helped his uncle Steven Avery kill Teresa Halbach in Wisconsin.

The judge determined the confession was coerced using deceptive tactics.

Here are some key events in the case:

Oct. 31, 2005: Teresa Halbach, 25, of St. John in Calumet County, a photographer for Auto Trader Magazine, goes to Avery’s Auto Salvage near Mishicot to photograph a minivan for sale by Steven Avery’s sister.

Evidence later shows Avery called asking for her to come, using his sister’s name.

Nov. 3, 2005: Halbach’s family reports her missing.

Nov. 5, 2005: Halbach’s cousins find her vehicle under brush and auto parts in the Avery salvage yard. Charred bone fragments found in a burn pit later are determined to be her remains.

Nov. 8, 2005: Avery tells reporters he fears authorities are trying to frame him for Halbach’s slaying because he sued Manitowoc County officials for $36 million for wrongful conviction. Avery spent 18 years in prison for rape before DNA evidence cleared him of the crime and he was freed in 2003.

Nov. 9, 2005: Avery is arrested and, based on past convictions for burglary and other crimes, charged with possessing firearms as a felon. Authorities say two guns were in his trailer home.

Nov. 15, 2005: Avery is charged with first-degree intentional homicide and mutilating a corpse.

Feb. 14, 2006: Authorities announce Avery has settled his lawsuit against Manitowoc County officials for $400,000.

March 2, 2006: Avery’s nephew Brendan Dassey, then 16, is charged in adult court with being a party to first-degree intentional homicide, mutilation of a corpse and first-degree sexual assault. Prosecutors base the charges on a videotaped statement in which Dassey detailed the killing, saying he and Avery raped and killed Halbach and burned her body. He later recants the statement.

Jan. 29, 2007: A judge dismisses sexual assault and kidnapping charges against Avery because Dassey may not testify at his trial.

Jan. 30, 2007: A judge says defense attorneys can tell jurors that Avery was wrongfully convicted of rape and may use as evidence a vial of his blood found unsecured in the Manitowoc County courthouse. Defense attorneys say discovery of the vial supports their claim that blood was planted to frame Avery.

Feb. 12, 2007: Avery’s trial begins.

March 12, 2007: After the prosecution and defense rest, the judge dismisses the false-imprisonment charge, saying he doesn’t think the jury has enough evidence to find Avery guilty. Avery has not taken the witness stand. Dassey also does not testify in Avery’s trial.

March 18, 2007: After deliberating for nearly 22 hours over three days, jurors convict Avery, now 44, of first-degree intentional homicide and being a felon in possession of a firearm. Avery is acquitted of the charge of mutilating a corpse.

April 16, 2007: Dassey, now 17, goes on trial before a jury selected in Dane County.

April 20, 2007: Prosecutors play Dassey’s videotaped confession for the jury.

April 23, 2007: Dassey testifies in his own defense, saying he lied when he gave the statement but doesn’t know why. Avery does not testify.

April 25, 2007: After 4 1/2 hours of deliberation, the jury convicts Dassey of being party to first-degree intentional homicide, mutilation of a corpse and second-degree sexual assault. Sentencing is scheduled Aug. 2.

June 1, 2007: Avery is sentenced to life in prison with no possible parole.

Aug. 2, 2007: Dassey is sentenced to mandatory life in prison with a possibility of parole set for Nov. 1, 2048.

December 2015: Netflix releases the series Making a Murderer, in which the filmmakers cast doubt on the legal process used to convict Dassey and Avery. Authorities involved in the case have called the 10-hour series biased, while the filmmakers have stood by their work.

Aug. 12, 2016: A judge throws out Dassey’s conviction, ruling that investigators coerced a confession using deceptive tactics. He gives prosecutors 90 days to decide whether to retry Dassey.

Looming marijuana ruling could limit federal prosecutions

Rolland Gregg and his family have fought federal marijuana charges for more than three years, arguing that the roughly 70 marijuana plants investigators found on their Washington property were for their own medicinal use and fully complied with state law.

A federal jury last year convicted Gregg, his mother and his wife of growing 50 to 100 marijuana plants — amounts their attorney said are in compliance with state medical marijuana law.

With prison sentences looming, they have now turned to a recent act of Congress that they say should have stopped the U.S. Department of Justice from prosecuting them because they were doing what their state allowed. Marijuana is illegal under federal law, and the DOJ disagrees with Gregg’s understanding of the new law.

“It’s been the hardest thing I’ve ever had to deal with in my life when you see the government coming down on you for simply trying to be healthy,” Gregg said.

A federal appeals court is expected to issue a ruling soon on the scope of the law that could pave the way to end or overturn at least six federal marijuana criminal prosecutions and convictions in California and Washington, including Gregg’s, and limit future prosecutions of medical marijuana users and dispensaries in eight Western states that allow them.

“The 9th Circuit is the biggest circuit, one that contains lots of marijuana states. If they were to say, ‘The federal government is prohibited from enforcing medical marijuana law,’ that would be huge,” said Sam Kamin, a professor at the University of Denver Sturm College of Law who studies marijuana regulation.

At issue is a Congressional amendment that said the DOJ could not use funding Congress allocated to it for 2015 and 2016 to prevent states that have legalized medical marijuana from implementing laws that permit its use, distribution and possession.

The amendment’s bipartisan sponsors — California Congressmen Sam Farr, D-Carmel, and Dana Rohrabacher, R-Costa Mesa — say it prohibits the DOJ from prosecuting people who are complying with state medical marijuana laws. California and more than 20 other states have legalized marijuana for medical use. The drug, however, remains illegal under federal law.

The DOJ has interpreted the law more narrowly, saying it prevents prosecutors from trying to block state medical marijuana laws or charging state officials who implement them, yet permits U.S. attorneys to go after marijuana dispensaries and growers.

The 9th Circuit is expected to clarify the amendment in appeals by three sets of defendants who have cited it as grounds for judges to dismiss their marijuana charges.

Steve McIntosh, a dispensary owner in Los Angeles, had permits from local officials that show him in compliance with state law, according to his attorney, Marc Zilversmit. Under the Congressional amendment, the most the federal government can do is refer him to state authorities for prosecution, Zilversmit said.

Another defendant, marijuana grower Samuel Doyle, met Washington’s requirements for collective cannabis grows for medical marijuana patients, his attorney Douglas Hiatt said.

“He was growing medical marijuana for people who needed it, whether they could afford it or not,” Hiatt said.

The DOJ says McIntosh’s dispensary had ties to a street gang, and Doyle and his co-defendants did not meet the legal requirements for medical marijuana in Washington. Investigators found more than 550 plants growing on the Spokane property Doyle oversaw, and at least one of Doyle’s co-defendants indicated the marijuana was being sold, prosecutors said.

The DOJ did not respond to a request for further comment.

Gregg’s case is not among the ones the 9th Circuit is set to rule on. But he has raised the same argument as the other defendants, and the 9th Circuit has put his appeal on hold pending the outcome of the other appeals, his attorney Phil Telfeyan said.

“The feds think they have the power to override voters of the State of Washington and the will of Congress,” said Telfeyan, co-founder of the nonprofit civil rights group Equal Justice Under Law. “It’s up to the 9th Circuit to tell them, ‘Enough is enough. You can’t keep prosecuting people who are using medical marijuana for their needs.””

The DOJ cited a county investigator’s testimony that he saw evidence of a for-profit marijuana growing operation on Gregg’s family property. The investigator said he found records that he believed were for drug sales, a scale and packaging material in the house as well as firearms, according to court documents.

Gregg, 34, who owns an alternative energy company, denied he sold marijuana, saying he used the drug to treat pain following a snowboarding accident that left him with a broken back and neck. His mother has rheumatoid arthritis and his ex-wife had an eating disorder, he said, adding that all three had medical marijuana authorizations.

But the DOJ argued in his case and Doyle and McIntosh’s cases that the Rohrabacher-Farr amendment doesn’t bar it from prosecuting people violating federal drug law, even if they meet state law.

Alex Kreit, a marijuana law expert at Thomas Jefferson School of Law in San Diego, said the DOJ and marijuana defendants have strong arguments for their conflicting interpretations of the amendment.

“The (amendment’s) language is not a model of clarity,” he said. “It really is open to a number of different interpretations.”

California police targeted gays in sting operations

A judge who said police improperly targeted gay men in sting operations has dismissed charges of lewd conduct and indecent exposure against a man who was arrested in a public bathroom.

Superior Court Judge Halim Dhanidina ruled Rory Moroney’s arrest in 2014 was based on discriminatory enforcement and prosecution, the Long Beach Press-Telegram reported.

If convicted, Moroney would have been required to register as a sex offender for life.

Moroney, 50, was arrested after a detective acting as a vice unit decoy said he exposed himself in a bathroom at Recreation Park in the Los Angeles suburb.

Moroney said the detective, who smiled, nodded and made eye contact in the restroom, appeared to be interested in sex.

During the trial, police indicated they had arrested about 55 men for lewd conduct in the past two years.

Police said they based lewd-conduct operations on complaints, but the judge said there was little evidence of such complaints at the men’s restrooms where most stings took place.

“The presence and tactics of the decoy officers actually caused the crimes to occur,” Dhanidina ruled.

“The arbitrary enforcement of the law as seen in this case undermines the credibility of our legal system, eroding public confidence in our ability to achieve just results,” the judge said in his closing remarks.

“This judge knows discrimination when he sees it,” said Bruce Nickerson, one of Moroney’s defense lawyers. “His ruling is powerful because it sends a message far beyond this case. It sends a message to police departments throughout the state who do these decoy operations for lewd-conduct cases.”

In 1996, Nickerson won a decision from the California Supreme Court that police in Mountain View discriminated against gay men in lewd conduct arrests.

The Long Beach Police Department said in a statement that it is taking the court ruling seriously “and will evaluate how we respond to these kind of complaints.”

Police Chief Robert Luna said the department is “100 percent committed to civil rights and equality for all people, including the LGBTQ community” and has many openly homosexual employees.

City Prosecutor Doug Haubert said his office would review the ruling before commenting.

No federal charges in the killing of Dontre Hamilton

The Justice Department announced on Nov. 10 that there is insufficient evidence to pursue federal criminal civil rights charges against former Milwaukee Police Officer Christopher Manney for the death of Dontre Hamilton on April 30, 2014.

Officials from the U.S. Attorney’s Office of the Eastern District of Wisconsin, the Department of Justice’s Civil Rights Division and the FBI met on Nov. 10 with Hamilton’s family and their representatives to inform them of this decision.

In a statement to the press, the Justice Department said federal authorities conducted a “comprehensive and independent review of the evidence” collected related to the death of Hamilton, who was shot during a struggle with Manney. This included reviewing all information from the state investigation, reviewing all recorded interviews, consulting with the Milwaukee County medical examiner and reviewing the transcripts from Manney’s termination hearing by the Milwaukee Fire and Police Commission.

The team of federal prosecutors and FBI agents considered whether Manney violated federal law by willfully using unreasonable force against Hamilton.

The Justice Department said under federal criminal civil rights statute, prosecutors must establish, beyond a reasonable doubt, that a law enforcement officer willfully deprived an individual of a constitutional right. To establish willfulness, federal authorities must show that the officer acted with the deliberate and specific intent to do something the law forbids. “Mistake, misperception, negligence or poor judgment are not sufficient to establish a federal criminal civil rights violation,” according to DOJ. 

In the Milwaukee case, there were civilian witnesses who saw some part of the physical confrontation between Manney and Hamilton. Based on those eyewitness accounts, the account of the former officer involved, the physical evidence and the assessments of independent use of force experts, the federal team determined “the evidence was insufficient to prove, beyond a reasonable doubt, that Manney acted willfully with a bad purpose to violate the law.”

Accordingly, the federal review of the killing of Dontre Hamilton has been closed without prosecution.

Justice’s statement said, “This decision is limited strictly to an application of the high legal standard required to prosecute the case under the federal civil rights statute; it does not reflect an assessment of any other aspect of the incident that led to Hamilton’s death.”

Responding on Nov. 10, U.S. Rep. Gwen Moore, D-Milwaukee, said, “As a mother to two young black men, I am especially saddened by the Department of Justice’s decision not to bring criminal civil rights charges against Officer Christopher Manney. More than 18 months have passed since Officer Manney fatally shot Dontre Hamilton — an unarmed black man struggling with mental illness — and many unanswered questions still remain. Although this decision is certainly a setback, it is by no means the end of our collective efforts to pursue justice for the Hamilton family. I continue to hold them in my thoughts and prayers during this difficult time, as I know the wounds from such a devastating loss will take time to heal.”

Moore also said, “With violence in Milwaukee on the rise, we must strive to mend the relationship between the police and the people they serve, especially for those with disabilities and in communities of color.”

Tennessee attorneys: Sterilizations of women were part of plea deal talks

Nashville, Tennessee, prosecutors have made sterilization of women part of plea negotiations at least four times in the past five years, and the district attorney has banned his staff from using the invasive surgery as a bargaining chip after the latest case.

In the most recent case, first reported by The Tennessean, a woman with a 20-year history of mental illness had been charged with neglect after her 5-day-old baby mysteriously died. Her defense attorney says the prosecutor assigned to the case wouldn’t go forward with a plea deal to keep the woman out of prison unless she had the surgery.

Defense attorneys say there have been at least three similar cases in the past five years, suggesting the practice may not be as rare as people think and may happen more often outside the public view and without the blessing of a court .

Sterilization coerced by the legal system evokes a time in America when minorities, the poor and those deemed mentally unfit or “deficient” were forced to undergo medical procedures that prevented them from having children. 

“The history of sterilization in this country is that it is applied to the most despised people — criminals and the people we’re most afraid of, the mentally ill — and the one thing that that these two groups usually share is that they are the most poor. That is what we’ve done in the past, and that’s a good reason not to do it now,” said Paul Lombardo, a law professor and historian who teaches at Georgia State University.

Davidson County District Attorney Glenn Funk agrees. A former defense attorney who took over the office in September, he recently ordered lawyers in his office not to seek sterilization by defendants. He said he hadn’t heard of it happening before but didn’t ask.

Funk said people could be ordered to stay away from children, and the state wouldn’t have to resort to such invasive measures.

“The bottom line is the government can’t be ordering a forced sterilization,” Funk said.

However, such deals do happen.

In West Virginia, a 21-year-old unmarried mother of three agreed to have her tubes tied in 2009 as part of her probation after she pleaded guilty to possession with intent to distribute marijuana.

And last year, a Virginia man who fathered children with several women agreed to undergo a vasectomy in exchange for less prison time in a child endangerment case.

Forced sterilization came up in a different way in California last year, when Gov. Jerry Brown signed a bill that banned state prisons from forcing female inmates to be sterilized. The law was pushed through after the Center for Investigative Reporting found that nearly 150 female prisoners had been sterilized between 2006 and 2010. An audit found that the state failed to make sure the inmate’s consent was lawfully obtained in every case .

The most recent Nashville case involved Jasmine Randers, 36, who had been under court supervision for mental illness when she left her home state of Minnesota. She gave birth in West Memphis, Arkansas, then fled a homeless shelter to come to Nashville, said her attorney, assistant public defender Mary-Kathryn Harcombe.

Court records show Randers reported awakening in a motel, where she’d slept in a bed with the baby, only to find the child unresponsive. She reportedly called a taxi two hours later and took the child to a local hospital, where the infant was pronounced dead.

There was no sign of injury, and the cause of death was undetermined.

Police later learned that in 2004, Randers stabbed herself in the stomach while pregnant, though the fetus was not harmed. She told investigators that it happened when she fell down the stairs while cutting fruit.

The assistant district attorney who worked the case, Brian Holmgren, is a child prosecutor who speaks around the country, was once a senior attorney with the National Center for Prosecution of Child Abuse and serves on the international advisory board of the National Center for Shaken Baby Syndrome. He has been both praised and fiercely criticized for his aggressive courtroom tactics on behalf of children.

Harcombe said he previously asked that another client agree to be sterilized in order to get a plea deal. She refused and it didn’t become part of the plea deal reached in that case. 

Holmgren did not respond to several messages seeking comment.

Nashville defense attorney Carrie Searcy said Holmgren asked that two of her clients who gave birth to children who tested positive for drugs undergo sterilization. Neither did, Searcy said, because both women had already undergone the procedure.

Assistant public defender Joan Lawson, who also supervises other attorneys, said she also had been involved in cases in which a prosecutor had put sterilization on the table. Lawson said it was typically not an explicit demand, was not an everyday occurrence and was made off the record. Lawson said she refused the idea and resolved her cases without sterilization.

“It’s always been more of ‘If your client is willing to do this, then I might be inclined to talk about probation,”” Lawson said.

This time, when Holmgren insisted Randers ungero sterilization to avoid prison, Harcombe complained to his boss. The district attorney took over the case, and Randers was not sterilized. The prosecutor agreed Randers was mentally ill, and she was institutionalized after being found not guilty by reason of insanity.

“Any time a woman is given a choice between prison and this surgery, that is inherently coercive, even in cases where there is no mental illness,” Harcombe said.

Social media sleuths aid investigation into gay couple’s beating in Philadelphia

Police in Philadelphia searching for a group of people suspected in the beating of a gay couple got an outpouring of help from Twitter and Facebook users, who located a photo of the clean-cut young men and women at a restaurant and helped match names to faces.

Attorneys representing a number of those seen in the video notified police they would bring in their clients to tell their side of the story, a police spokesman, Sgt. Eric Gripp, said.

A security video of the group strolling downtown was posted by police earlier this week and set the online community to work.

Within hours, a Twitter user posted a photo of the well-dressed men and women gathered at a restaurant on the night of the attack. Social media users soon figured out which restaurant, used Facebook to find people who had “checked in” there, and started coming up with the names of those pictured.

“This is how Twitter is supposed to work for cops,” Detective Joe Murray tweeted as the crowd-sourced investigation exploded online. “I will take a couple thousand Twitter detectives over any one real detective any day.”

“Love the outpouring of social media sleuthing happening in our city tonight! Let’s keep it up!” another department posting said.

The victims, a gay couple in their late 20s, were held down, punched and beaten after they bumped into a group of about a dozen people on the street, just blocks from a part of town known affectionately as “the Gayborhood.” Members of the group hurled gay slurs as the men were pummeled, police said.

One man was left with a broken eye socket and a wired jaw, while his partner had bruises and a black eye.

A defense lawyer, who spoke to The Associated Press on condition of anonymity because he had not been formally retained, suggested the fight could have stemmed from random contact, not bias. Pennsylvania’s hate-crimes law, in any case, doesn’t cover crimes motivated by a person’s sexual orientation.

The lawyer said he was contacted by a potential client before police posted the video. He said the group consisted largely of working professionals.

Philadelphia police routinely seek the public’s help with criminal investigations through Twitter, YouTube, a department website and other online forums.

Oral arguments set in John Doe appeal

Oral arguments in the appeal of a federal judge’s ruling halting an investigation into Gov. Scott Walker’s recall campaign and other conservative groups have been set for Sept. 9, exactly two months before the Republican stands for re-election.

The 7th U.S. Circuit Court of Appeals set the date.

No charges have been filed against Walker or anyone else as a result of the investigation, which began in secret in 2012 but has since been largely revealed through court filings and other public statements.

Prosecutors have said in court filings that they are looking into allegations of illegal campaign activity involving Walker’s campaign, Wisconsin Club for Growth, the state chamber of commerce and conservative groups during the 2011 and 2012 recalls.

Special prosecutor Francis Schmitz described what he called a “criminal scheme” by Walker to evade campaign fundraising and coordination laws, according to a document written in December but made public in June. An attorney for Schmitz subsequently said Walker was not a target of the probe and that document laid out a legal theory, but that no determination had been made to bring any charges.

Walker, a potential 2016 candidate for president, has said repeatedly he did nothing wrong and that his political opponents, including Democratic challenger Mary Burke, are slandering him by referring to his involvement in an alleged “criminal scheme.”

Under Wisconsin law, third-party political groups are allowed to work together on campaign activity, but barred from coordinating that work with actual candidates. The Wisconsin Club for Growth has argued the prohibition does not apply to it because it does not specifically tell people how to vote or run ads with phrases like “vote for” a certain candidate.

U.S. District Judge Rudolph Randa, in his May ruling halting the investigation, agreed with that argument and found that the probe was a violation of the group’s free speech rights.

The state court judge overseeing the probe, known as a John Doe, quashed prosecutors’ requests for subpoenas in January, also effectively halting the investigation.

David Rivkin, attorney for Wisconsin Club for Growth, said he was pleased with the date being set. An attorney for prosecutors, Sam Leib, did not immediately return a message seeking comment.