USA v. Samaritan, et al. CR-97-042-M 11/04/99 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America, Plaintiff
v. Criminal No. 97-42-1-5-M
Samaritan Health Systems, Inc., Heart Trace of Nashua, Inc., John W. Conway, Donnie W. Lawson, and Norman P. Lehrman, Defendants
O R D E R
Defendant Lehrman's latest motion to continue trial - this
time until after January 1, 2000 - due to his medical condition,
was denied on the record for the following reasons.
The motion was filed on the eve of trial. It is supported
only by a letter from Dr. Hal S. Blatman and Lehrman's own oral
proffer at the final pretrial conference. Dr. Blatman, according
to his stationery, is a physician practicing in the field of pain
management and occupational and environmental medicine. Lehrman
began seeing Dr. Blatman in January of this year. According to
Dr. Blatman, as of about a month ago defendant "continues to
experience a high level of pain in his hands and feet, with
burning in his forearms and legs." Letter to William A. Brown,
Esq., dated September 30, 1999 (document no. Ill). The source or
cause of defendant's alleged (and presumably self-reported) pain
is not disclosed, but it seems reasonable to conclude that it
relates to his apparent diabetic condition. Dr. Blatman further reports that "[o]pioid medication serves to make [defendant] less
miserable, however it does not allow him to function and walk
without pain." I_d. Dr. Blatman also suggests, without much
detail, that " [h]igher levels of medication further reduce his
pain level and more greatly [a]ffect his ability to think and
concentrate." JCd. Apparently defendant is taking both
"conventional and alternative therapies" to improve his
condition. Id.
It is Dr. Blatman's opinion that defendant's ability to
withstand the rigors of trial "is severely compromised by his
condition." And, he opines, again without specificity, that
defendant's "mental function is altered by his medication and
these conditions will also adversely affect his ability to assist
his counsel." JCd. Counsel, however, has not suggested any
mental incapacity - naturally occurring or medication-induced -
that might render defendant incompetent to stand trial, and
counsel has not moved for a psychiatric or psychological
examination on those grounds. The court did not perceive any
mental incapacity or note any other reason to think Lehrman might
not be mentally competent to stand trial.
This is the defendant's sixth motion to continue - each
previous motion also sought additional time to resolve or
stabilize his medical difficulties. For example, in September of
1998, Lehrman submitted a letter from Dr. Paul T. Chandler in
support of a motion to continue. Exhibit A to document no. 89.
Then, Dr. Chandler recommended that defendant's trial be put off,
2 for medical reasons, until January of 1999. Dr. Chandler
cautioned that he would monitor defendant's condition and, if no
improvement occurred, would "strongly recommend" that he not go
to trial until after January 1999. The court deferred to Dr.
Chandler and granted the motion, continuing trial until March of
1999.
In February of 1999, Dr. Chandler wrote another letter in
support of another motion to continue. Exhibit B to document no.
89. Dr. Chandler recited the severe debilitating pain defendant
allegedly suffered - advising that "he can not actually drive a
car. He does not attempt to drive a car and uses family members
to accomplish this for him." Id. Dr. Chandler's basis of
knowledge for those statements is not revealed - it's reasonable
to conclude that defendant told him so. Dr. Chandler also
reported that defendant was essentially chair-bound: "Standing
for any period of time is impossible and without medication the
pain limits his standing to no more than 15 minutes at a time."
Again, presumably defendant told him so. Dr. Chandler concluded
that, "[i]t is hard to estimate a time at which he could
participate in his defense but I don't think it is likely to
occur in this calendar year." Id. That continuance reguest was
also granted and the case was rescheduled until October of 1999.
Another motion was filed on August 27, 1999, seeking a
continuance until sometime after January 1, 2000. Dr. Chandler,
defendant's personal physician again wrote a letter (to the
prosecutor) in support of the motion. Exhibit C to document no.
3 89. This time Dr. Chandler alluded not only to defendant's now
familiar complaints of pain, but also to a seemingly new
development - unspecified mental problems, i.e. "[defendant]
believes he is no longer mentally competent to handle his affairs
. . . he does not feel that he is capable to assist in his
defense or testify effectively in his own behalf." JCd. Dr.
Chandler voiced his agreement with defendant's self-evaluation,
and, while conceding that he [Dr. Chandler] is "not really
gualified to comment on these matters" (not being trained in
psychiatry or psychology), he nevertheless offered that
"[p]erhaps an endocrinologist and psychiatrist could evaluate
[defendant] and set a more reasonable trial date . . . [m]y own
thought is to have a trial date after the first of the year."
Id.
No doubt Lehrman's personal physicians took his reports at
face value and are sincerely trying to assist the court in
properly evaluating defendant's medical situation, but the court
does not accept Lehrman's assertions of debilitating pain as even
moderately credible. First, the pattern is reasonably clear -
defendant has made consistent efforts to postpone his trial,
implying that his medical condition simply needed time to
stabilize or resolve, but that hope of resolution continually
recedes and an indefinite postponement seems to have been the
real goal. Secondly, the government's evidence in opposition
(videotapes of Lehrman strolling around with no difficulty,
driving a car without difficulty, etc., even within one week of
4 the trial's scheduled commencement) pretty much put the lie to
Lehrman's claim that he is suffering from pain of a degree likely
to interfere in some meaningful way with his effective
participation in the trial. In short, Lehrman's claims are not
credible and the physician's letters are also not credible given
that the physicians themselves were obviously deceived by Lehrman
regarding the extent and debilitating nature of the pain he
experiences as a result of his medical condition.
Moreover, Lehrman asked, and was permitted, to speak to the
motion on his own behalf. Although generally unsupported (except
by his own dubious reporting), his presentation was rational,
articulate, and revealed a coherent and grounded perception of
the nature of the proceedings, the issues at hand, and the
factors relevant to resolving those issues. He exhibited no
visible sign of being in pain - certainly not disabling pain -
and the court observed him walking into the courtroom under his
own power - with a cane, but with no apparent difficulty at all.
(Also, subseguently, during jury selection, it was fairly obvious
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USA v. Samaritan, et al. CR-97-042-M 11/04/99 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America, Plaintiff
v. Criminal No. 97-42-1-5-M
Samaritan Health Systems, Inc., Heart Trace of Nashua, Inc., John W. Conway, Donnie W. Lawson, and Norman P. Lehrman, Defendants
O R D E R
Defendant Lehrman's latest motion to continue trial - this
time until after January 1, 2000 - due to his medical condition,
was denied on the record for the following reasons.
The motion was filed on the eve of trial. It is supported
only by a letter from Dr. Hal S. Blatman and Lehrman's own oral
proffer at the final pretrial conference. Dr. Blatman, according
to his stationery, is a physician practicing in the field of pain
management and occupational and environmental medicine. Lehrman
began seeing Dr. Blatman in January of this year. According to
Dr. Blatman, as of about a month ago defendant "continues to
experience a high level of pain in his hands and feet, with
burning in his forearms and legs." Letter to William A. Brown,
Esq., dated September 30, 1999 (document no. Ill). The source or
cause of defendant's alleged (and presumably self-reported) pain
is not disclosed, but it seems reasonable to conclude that it
relates to his apparent diabetic condition. Dr. Blatman further reports that "[o]pioid medication serves to make [defendant] less
miserable, however it does not allow him to function and walk
without pain." I_d. Dr. Blatman also suggests, without much
detail, that " [h]igher levels of medication further reduce his
pain level and more greatly [a]ffect his ability to think and
concentrate." JCd. Apparently defendant is taking both
"conventional and alternative therapies" to improve his
condition. Id.
It is Dr. Blatman's opinion that defendant's ability to
withstand the rigors of trial "is severely compromised by his
condition." And, he opines, again without specificity, that
defendant's "mental function is altered by his medication and
these conditions will also adversely affect his ability to assist
his counsel." JCd. Counsel, however, has not suggested any
mental incapacity - naturally occurring or medication-induced -
that might render defendant incompetent to stand trial, and
counsel has not moved for a psychiatric or psychological
examination on those grounds. The court did not perceive any
mental incapacity or note any other reason to think Lehrman might
not be mentally competent to stand trial.
This is the defendant's sixth motion to continue - each
previous motion also sought additional time to resolve or
stabilize his medical difficulties. For example, in September of
1998, Lehrman submitted a letter from Dr. Paul T. Chandler in
support of a motion to continue. Exhibit A to document no. 89.
Then, Dr. Chandler recommended that defendant's trial be put off,
2 for medical reasons, until January of 1999. Dr. Chandler
cautioned that he would monitor defendant's condition and, if no
improvement occurred, would "strongly recommend" that he not go
to trial until after January 1999. The court deferred to Dr.
Chandler and granted the motion, continuing trial until March of
1999.
In February of 1999, Dr. Chandler wrote another letter in
support of another motion to continue. Exhibit B to document no.
89. Dr. Chandler recited the severe debilitating pain defendant
allegedly suffered - advising that "he can not actually drive a
car. He does not attempt to drive a car and uses family members
to accomplish this for him." Id. Dr. Chandler's basis of
knowledge for those statements is not revealed - it's reasonable
to conclude that defendant told him so. Dr. Chandler also
reported that defendant was essentially chair-bound: "Standing
for any period of time is impossible and without medication the
pain limits his standing to no more than 15 minutes at a time."
Again, presumably defendant told him so. Dr. Chandler concluded
that, "[i]t is hard to estimate a time at which he could
participate in his defense but I don't think it is likely to
occur in this calendar year." Id. That continuance reguest was
also granted and the case was rescheduled until October of 1999.
Another motion was filed on August 27, 1999, seeking a
continuance until sometime after January 1, 2000. Dr. Chandler,
defendant's personal physician again wrote a letter (to the
prosecutor) in support of the motion. Exhibit C to document no.
3 89. This time Dr. Chandler alluded not only to defendant's now
familiar complaints of pain, but also to a seemingly new
development - unspecified mental problems, i.e. "[defendant]
believes he is no longer mentally competent to handle his affairs
. . . he does not feel that he is capable to assist in his
defense or testify effectively in his own behalf." JCd. Dr.
Chandler voiced his agreement with defendant's self-evaluation,
and, while conceding that he [Dr. Chandler] is "not really
gualified to comment on these matters" (not being trained in
psychiatry or psychology), he nevertheless offered that
"[p]erhaps an endocrinologist and psychiatrist could evaluate
[defendant] and set a more reasonable trial date . . . [m]y own
thought is to have a trial date after the first of the year."
Id.
No doubt Lehrman's personal physicians took his reports at
face value and are sincerely trying to assist the court in
properly evaluating defendant's medical situation, but the court
does not accept Lehrman's assertions of debilitating pain as even
moderately credible. First, the pattern is reasonably clear -
defendant has made consistent efforts to postpone his trial,
implying that his medical condition simply needed time to
stabilize or resolve, but that hope of resolution continually
recedes and an indefinite postponement seems to have been the
real goal. Secondly, the government's evidence in opposition
(videotapes of Lehrman strolling around with no difficulty,
driving a car without difficulty, etc., even within one week of
4 the trial's scheduled commencement) pretty much put the lie to
Lehrman's claim that he is suffering from pain of a degree likely
to interfere in some meaningful way with his effective
participation in the trial. In short, Lehrman's claims are not
credible and the physician's letters are also not credible given
that the physicians themselves were obviously deceived by Lehrman
regarding the extent and debilitating nature of the pain he
experiences as a result of his medical condition.
Moreover, Lehrman asked, and was permitted, to speak to the
motion on his own behalf. Although generally unsupported (except
by his own dubious reporting), his presentation was rational,
articulate, and revealed a coherent and grounded perception of
the nature of the proceedings, the issues at hand, and the
factors relevant to resolving those issues. He exhibited no
visible sign of being in pain - certainly not disabling pain -
and the court observed him walking into the courtroom under his
own power - with a cane, but with no apparent difficulty at all.
(Also, subseguently, during jury selection, it was fairly obvious
that Lehrman was mentally focused, not in any obvious or
debilitating pain, and was able to consult with counsel.)
The court was not persuaded that any colorable claim of
medical dangerousness was presented by Lehrman should his trial
go forward. Lehrman and his counsel were given every opportunity
to put on credible evidence on the issue and they failed to do
so. Before the latest motion was filed, defendant was told that
5 more would be required than vague physician letters, and more was
not forthcoming.
There certainly was no reason to think that Lehrman could
not as easily sit in a courtroom as wander around a flea market
and drive about town with his friends, as the videotape confirmed
he could easily do. And, there was insufficient evidence that
Lehrman's subjective complaints of severe pain (apparently
accepted at face value by his treating physicians), or the
effects of pain medication prescribed, raised any serious
possibility that Lehrman was mentally incompetent or unable to
participate in his defense - and certainly the evidence did not
suggest that any serious or out of the ordinary medical
repercussions might follow if Lehrman was required to finally
proceed to trial. Proceeding to trial did not, in the court's
judgment, pose a substantial danger to Lehrman's life or health,
and no colorable claim of medical dangerousness was presented.
See generally. United States v. Zannino, 895 F.2d 1 (1st Cir.
1990) .
Although obviously not a factor in denying the motion at the
outset of trial, the precision of hindsight confirms that Lehrman
was perfectly capable of proceeding to trial and meaningfully
participating in his defense. Defendant was advised at the start
of trial that if he had some specific medical difficultly during
trial he should raise the matter and all necessary accommodations
would be made. No such requests were presented.
Accordingly, the latest motion to continue was denied.
6 SO ORDERED.
Steven J. McAuliffe United States District Judge
November 4, 1999
cc: Robert M. Kinsella, AUSA Robert A. Griffith, Esq. Matthew J. Lahey, Esq. William A. Brown, Esq. U.S. Probation U.S. Marshal