While it’s not illegal to use an expert witness with a tainted past, it is illegal for one side to hide that information from the opposing side’s attorneys.
The guilty verdict followed nineteen days of trial where the government presented forty-one witnesses, including a number of expert witnesses, chief of which was Dr. Arthur E. Jordan. During the course of trial, jurors heard evidence that Dr Ignasiak, a licensed physician who owned and operated Freeport Medical Clinic, located in a rural town in the Florida Panhandle, prescribed controlled substances to patients in quantities and dosages that would cause patients to abuse and misuse the substances without determining sufficient medical necessity for the prescription of these substances. The government presented evidence that Dr. Ignasiak prescribed controlled substances to patients knowing the patients were addicted to the substances, misusing the substances, or were “doctor shopping,” and were requesting additional quantities of controlled substances for their drug habits. The use of controlled substances dispensed by Dr. Ignasiak resulted in the death of two patients.
While the appeals court determined that the case was strong enough to convict the defendant, an appeal was granted and the conviction overturned. Now the government will need to decide if it wants to retry the case against Dr. Ignasiak.
Dr. Jordan, a South Carolina board certified pain management medical doctor, “was the centerpiece of the government’s presentation regarding prescribing practices. He testified for almost three days concerning his opinion on the generally accepted treatment philosophy in the field of pain management; the dangers and risks of using narcotics individually or in combination with other drugs; the critical importance of documenting a patient’s file regarding complaints, care and treatment; the warning signs of prescription drug abuse ; and the responsibility of medical doctors to ensure controlled substances are properly used and prescribed.” USA v. Robert L. Ignasiak, Jr., (11th Cir. 2012).
Unknown to the defense at the time of trial, Dr. Jordan had engaged in criminal conduct beginning at an unspecified time up to and continuing until 2006. Specifically, Dr. Jordan had, on nine separate occasions, used a counterfeit badge and his United States Marshal credentials to pose as an on-duty U.S. Marshal in order to carry firearms on commercial airplanes while on personal travel. On the ninth flight, a TSA agent discovered Dr. Jordan’s ploy and seized the weapons, counterfeit badge, and Marshal Service credentials.
The U.S. Attorney’s Office in South Dakota opened an investigation of Dr. Jordan. Although Dr. Jordan had engaged in similar criminal conduct at least eight times before, thereby committing multiple felony violations, the South Dakota U.S. Attorney allowed Dr. Jordan to plea bargain in something called a “pre-trial diversion agreement” in which Dr. Jordan paid a paltry $2,000 fine and agreed not to carry any concealed weapons except while on official business. This begs numerous questions like: what was he thinking? Is there a color of authority issue? Why would the government, in the wake of 9/11 and the Shoe & Underwear Bombers not have this repeat offender in jail, or at the very least scrutinize his Marshal Service credentials or revoke his permit to carry weapons ?
For its part, the government fought hard to conceal the information from opposing counsel. It asserted a Brady claim and Giglio material. These are US Supreme Court cases in which the prosecution had withheld certain evidence from the criminal defendant and failed to fulfill the duty to present all material evidence to the jury. The prosecution claimed the defendant’s conviction or sentence would not have been different had the evidence been disclosed. The court affirmed the conviction in Brady v. Maryland, 373 U.S. 83 (1963) and reversed the conviction in Giglio v. United States, 405 U.S. 150 (1972).
In this case the argument used was that the prosecutor did not personally know about Dr. Jordan’s conduct or the plea agreement during Dr. Ignasiak’s prosecution. The government acknowledged that ordinarily there is a presumption of openness in legal proceedings but asserted that in this case the District Court should keep the history of the good doctor in chambers and not let it see the light of day so as to protect Dr. Jordan’s privacy and protect him from any potential retaliation, further arguing that keeping this information sealed caused no prejudice to anyone. The appeals court did not agree.
In its decision to unseal the information in the government’s post-trial in camera notice, the Court stated that “the highly material fact that Dr. Jordan, a repeat government expert witness, abused his government authority and committed acts which could have been charged as felonies” was “highly relevant impeachment evidence” that the defense most certainly would have preferred to use to discredit Dr. Jordan’s testimony.
As to the privacy claims, the Court held his status as a paid expert witness “greatly reduce [s], if not altogether eviscerate[s] his expectation to keep impeachment evidence private.” As if that wasn’t clear enough, they went on to further state that “impeachment evidence concerning a highly compensated and voluntarily appearing expert witness is [n]either “unwarranted” [n]or an “invasion” into that witness’s privacy.”
What looms large is the Dr. Jordan is a repeat government expert witness who, at a rate of $300/hour, testified that he had been paid “around” $30,000 for his services as the government’s expert in this and other cases. Dr. Jordan abused his government authority and committed acts which could have been charged as felonies. He was impeached on this case and probably will be in the other government cases he testified at, thereby overturning numerous convictions the government thought it had obtained.
Written by: Expert Witness Referral Expert Witness No. 1031