Category Archives: Prosecutorial Discretion

Discretion

Solicitor Greg Hembree has dismissed the charge of leaving the scene of an accident against former Atlantic Beach Mayor Retha Pierce.

I have written about discretion before and how it starts with the officer on the street and continues up to the prosecuting attorney. Well, this is a good example and it comes from the top prosecutor for this county.

Pierce was found guilty of resisting arrest recently and sentenced to 18 months probation. According to Hembree:

Certainly the most serious charge was resisting arrest. Once she was convicted of that, it was the maximum sentence. If we took her in on that case, she would not get an additional bit of punishment. It would run concurrent to what she is serving.

Could the state have gone forward with this case? Sure. Would they get a conviction? Who knows? Probably, but who cares? What good could come from prosecuting this case?

Another word for discretion is judgment.  Solicitor Hembree has shown good judgment in dismissing this case. Nothing else could be served from going forward with it.

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Nurse on Trial for Blowing Whistle on Doctor

Discretion is a wonderful concept, in theory. In criminal law, discretion starts with the beat cop or patrol officer. It’s his decision to make an arrest, write a ticket or issue a warning. That discretion goes right up the chain of command in law enforcement. Although the top cop usually uses hers for making policy. Then we have the prosecutors. The decision to plead a case out, go to trial or even dismiss – it is completely discretionary. This leads me to the following question: What the hell is wrong with the Sheriff and the prosecutor in Kermit, Texas?

Anne Mitchell and Vickilyn Galle were nurses at Winkler County Memorial Hospital. They worked there a combined 47 years, most recently as its compliance and quality improvement officers. According to the New York Times, they were fired without explanation last June. Then things went from bad to worse. They were arrested.

Turns out these nurses had committed the unspeakable act of ratting out a bad doctor. Mitchell, with help from Galle, wrote an anonymous letter to the Texas Medical Board complaining about Dr. Rolando G. Arafiles Jr. when

she saw as a pattern of improper prescribing and surgical procedures — including a failed skin graft that Dr. Arafiles performed in the emergency room, without surgical privileges. He also sutured a rubber tip to a patient’s crushed finger for protection, an unconventional remedy that was later flagged as inappropriate by the Texas Department of State Health Services.

You might think that when the good doctor found out about the anonymous complaint that he went to consult a lawyer. No, he went to see his friend the sheriff. You might think that would have been the end of it. I could imagine the sheriff saying something like this. “Well Dr. that’s really unfortunate but you know that sounds like a civil or administrative type issue. Good luck with it.” But that was hardly the end of it.

The sheriff got a search warrant for the nurses’ work computers and found the letter. The two nurses were charged with “misuse of official information,” a third-degree felony in Texas. A third nurse also complained about the doctor and she actually signed the letter according to the article. However, she resigned from the hospital because of her concerns about the doctor and was not prosecuted. I guess that is an example of prosecutorial discretion.

Another example of discretion might be that the prosecutor has dismissed the charge against Nurse Galle. The article doesn’t say whether or not Ms. Galle is “turning on” her co-defendant in exchange, but I hardly doubt that she is. These nurses risked their jobs, and maybe their careers, for doing what they thought was right.

To convict Mrs. Mitchell, the prosecution must prove that she used her position to disseminate confidential information for a “nongovernmental purpose” with intent to harm Dr. Arafiles.

I don’t see how reporting concerns about a doctor’s competency to the state medical board violates the law. Especially since:

Several Texas laws would seem to enshrine a nurse’s right, and perhaps duty, to report a physician when he or she believes that patients are at risk.

So, the criminal case will be decided by a jury and it looks like the question will be whether Nurse Mitchell acted in “good faith” or “bad faith” when she mailed in her complaint. Here’s something else to consider:

In a surprise inspection last September, state investigators found several violations by Dr. Arafiles and concluded that the hospital had discriminated against the nurses by firing them for “reporting in good faith.”

Some have called this prosecution outrageous and I agree. The burden of proof in a criminal case is a high burden and it should be. In criminal cases, the state is seeking to deprive someone of their life or liberty. In civil cases the burden of proof is much lower and the case usually is dealing with money. We have seen many examples where a case failed in criminal court and later was a success in civil court. The prosecutor in Winkler County has turned this concept on its head.

Many people are looking at the chilling effect this case will have on whistle blowers in general, and nurses specifically. I agree, but I also see this case as an example of prosecutorial discretion. It’s simply a bad one.

UPDATE:

The jury took less than one hour on Thursday to acquit Nurse Mitchell after a four day trial.

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