Sunday, April 24, 2011

The Dickman Trial: The Truth Sacrificed To An Abundance Of Caution

Jury trials are scripted narrations carefully edited by all the parties involved – judge, defense council and prosecutor – not always to the benefit of the party accused.

Priscilla Dickman, accused of four counts of forgery by the state attorney general’s office, was found guilty on March 24 on all counts and faces in mid-May a possible sentence of eight years in prison.

The trial turned on disparities in medical forms – documents #8, #9 and #10 – that found their way into the personnel file of Ms. Dickman, for 27 years a senior microbiologist at the University of Connecticut Health Center (UCHC), the prosecution contending that Ms. Dickman had altered the forms to secure a benefit. Ms. Dickman was convicted of second degree forgery for having tampered with the documents and, upon sentencing, may receive 2 years on each of the four counts for a total of 8 years.

In criminal trials, the prosecution is charged with presenting to the jury evidence sufficiently compelling to justify a verdict of “guilty beyond a reasonable doubt,” a fairly high standard of proof. Ms. Dickman chose not to testify at her trial because her lawyers felt that they could impugn the prosecution’s evidence sufficiently to create a reasonable doubt in the mind of jurors that would justify a not guilty plea.

Days after the guilty verdict, Dr. Paul Tortland of Valley Sports Physicians & Orthopedic Medicine, a physician who had been treating Ms. Dickman for eight years and one of the two doctors called by the prosecution to testify to the putative forged documents, was so disturbed by the verdict that he wrote a letter to Ms. Dickman’s attorney.

Dr. Tortland’s letter is here printed in full:

March 31, 2011
Norm Pattis, Esq.
Pattis Law Firm
649 Amity Rd.Bethany, Ct. 06524
Re; Priscilla Dickman

Dear Attorney Pattis,

In the hours immediately following my testimony in Mrs. Dickman’s case, I reflected on the line of questioning to which I was subjected, both by then state’s attorney and by you. I was asked very detailed questions about the content of the documents in question [State’s exhibits 8, 9, and 1].
However, I was quite surprised that you never asked me to explain the content [the doctor perhaps meant to write “context” rather than content] in which those documents were produced and generated such controversy, especially in light of my letter to Attorney [William] Gerace explaining the circumstances surrounding those documents. While I am no attorney, it seems to me that the context is critical in providing exculpatory evidence on behalf of Mrs. Dickman.

Specifically, it is my recollection that document #9 stipulated very stringent work restrictions, so much so that Mrs. Dickman’s employer could not accommodate them. She was, as I recall, told to have her physician relax some of the restrictions if she wanted to return to work. To expedite this process, it was my understanding that Mrs. Dickman created document #10 as a template for me to use to create a new work restriction form. She had her husband hand deliver to form to our office, with the intension being that I would create a new form and give it to him. However, my medical assistant at the time apparently did not fully understand this and, rather than bring the matter to my attention, instead simply faxed document #10 back to UConn.

In other words, it is my understanding that Mrs. Dickman did not alter the documents with intension to deceive or defraud, but rather to assist me in generating a new form to help her get back to work (emphasis original in Dr. Tortland’s letter).

Furthermore, the logic of the accusation makes no sense to me either. Who falsifies a document with intent to deceive, and then returns the altered document to the original creator [Dr. Tortland] for approval (emphasis original in Dr. Tortland’s letter). In addition, if it is my documents that have been altered, and yet I find no problem with the alterations, how is that an issue?

It seems to me that, at least regarding the forms from my office, a gross miscarriage of justice had been visited upon Mrs. Dickman by her being found guilty.


Paul D. Tortland. D.O. FAOASM
Although called to testify by the prosecution and questioned on the stand by Ms. Dickman’s defense attorney, Mr. Pattis, the jury did not have the benefit of hearing in full the concerns that tormented Dr. Tortland in the letter he wrote after the jury had returned its verdict.

One of the documents Ms. Dickman was accused of forging, document #10, was the template document she had prepared for Dr. Tortland. Ms. Dickman was told by the health center’s Human Resources personnel that figures previously provided would have to be adjusted so as to be less restrictive to allow her to return to work. According to Dr. Tortland, that template document was to be used by him to gauge what medical limits were necessary to allow Ms. Dickman’s return. In trial testimony, Dr. Tortland said that the differences between the medical limits in the template document and another medical report that made its way into Ms. Dickman’s personnel file were “medically insignificant.”

The template document, offered to the jury as a forgery, was sent to the UCHC by mistake by one of Doctor Tortland’s assistants, according to the doctor’s letter. It was no more than a doctor’s work sheet used by the doctor to produce an alternate form that was to be sent to the UCHC in order to allow Ms. Dickman to continue to work.

The jury never heard Dr. Tortland say during his testimony, as he had in his post verdict letter, it was his understanding that “Mrs. Dickman did not alter the documents with intention to deceive or defraud, but rather to assist me in generating a new form to help her get back to work (emphasis original in Dr. Tortland’s letter).”

Nor did the jury hear the doctor say unambiguously, as he did in his post trial letter, “It seems to me that, at least regarding the forms from my office, a gross miscarriage of justice had been visited upon Mrs. Dickman by her being found guilty.”

Nor did the jury hear Dr. Tortland question “the logic of the accusation,” which was impossibly convoluted. Ms. Dickman had been accused of forging a document to obtain a benefit. The only immediate benefit was that she be allowed to return to work after a debilitating illness brought on by a fall that had exacerbated her original injury.

During the trial, Ms. Dickman’s defense attorney attacked the prosecution’s premise: How many workers commit fraud on medical documents in order to return to work after a disabling illness? And the defense also questioned whether forgery was a proper charge to bring against Ms. Dickman in view of the fact that both doctors testified they had given authorization to Ms. Dickman to fill in portions of the forms under question.

Citing dispositive cases out of the presence of the jury, the defense argued in a motion that the intent to deceive is necessary to forgery. Importantly, the jury never heard Dr. Tortland, one of only two doctors called as prosecution witnesses, say that “it made no sense to him” that a patient who intended to deceive his employer by submitting a forged document would first submit the document to his doctor “for approval" (emphasis original in Dr. Tortland’s letter).

Addressing the jury in her summation, the prosecutor remarked that that the state was not concerned with claims that Ms. Dickman neither desired to deceive nor did in fact deceive Dr. Tortland; the disparities in the various forms the jury had been shown, which they were to take with them in the jury room to examine before settling upon a verdict, were sufficient to prove forgery. It was a matter of no importance that the state had not called upon a professional hand writing analyst to verify doubted signatures; the jury was instructed to look carefully at the documents and determine, on the basis of the disparities, whether a forgery had occurred. You are the experts, they were told. The defense had insisted that deception was a necessary component in forgery. Pointing to Dr. Tortland’s testimony, as well as a note written by Dr. Abeles giving Ms. Dickman permission to use his signature on forms or in the alternative to fill out the forms for him, the defense argued that there was no intended deception.

So instructed by the prosecution, the jury retired for deliberation, studied the documents, noted that there were disparities in the forms and returned, after a little less than twenty minutes deliberation, to announce that it had found Ms. Dickman guilty on all counts of second degree forgery, each one a felony charge.

Alex Wood of the Journal Inquirer, who reported on the trial, was able to interview a juror following the jury verdict  (The JI has a pay wall on stories).

“’It was kind of a very clean-cut case, the juror said, explaining that the panelists concentrated on the documents at issue.

“’If it was just one document with a questionable signature, that’s one thing,’ the juror said. ‘But there were multiple documents.’

“The juror emphasized that, under the state forgery statute, it didn’t matter whether Dickman was the one who altered the documents, as long as she was aware that they weren’t the originals.

“Two of the forms that Dickman was convicted of forging included instructions in boldface type that some or all of the information was to be filled in by the attending physician or practitioner. The juror said Dickman shouldn’t have filled out such a form even if a doctor had given her approval to do so.”
The doctors either testified or earlier provided documentation to the UConn Health Center that as a matter of practice they had Ms. Dickman fill in forms for them. Disregarding the testimony.

“Three of the documents that the jury found to be forged bore the name of Dr. Michael Abeles, who has treated Ms. Dickman for more than 20 years.

“The juror said Abeles was smiling and waving at Dickman during his testimony, adding that he would say things and take them back, ‘conveniently forgetting.’

“’We didn’t feel his testimony was very valid,’ the juror said.”

Never-the-less, based in large part on Dr. Abeles’ questionable testimony, the jury convicted Ms. Dickman on three felony charges of forgery.

Dr. Abeles had a rather high hurdle to overcome. The doctor, on the payroll of the UCHC for thirty years and due to retire this June, had written to Ms. Van Alstyne, Ms. Karen Duffy Wallace's UCHC labor relations assistant, in response to their questions concerning the documents: “Yes, I approve the documents” for Ms. Dickman. One of Dr. Abeles’ forms was presented to the jury by the prosecution as an indication of possible forgery; Dr. Abeles’ e-mail was presented to the jury by the defense to rebut the charge.

Dr. Abeles was asked by the prosecution on the witness stand to account for his e-mails clearly giving Ms. Dickman permission to use his signature and fill out portions of the forms. The doctor six years later testified he had not given such permission, explaining that he had sent to Ms. Dickman an e-mail clearly authorizing her to use his signature because, over brimming with compassion for his patient, he was acting in her best interest.

In her summation to the jury, the prosecutor referred to Dr. Abeles as a “compassionate man.” As he took the stand and was asked to identify Ms. Dickman, he smiled in a friendly fashion in her direction, a gesture that, according to the post verdict interview reported by Mr. Wood, was not lost on the jury. As reported by Mr. Wood, the jurors “didn’t feel his testimony was very valid.” Dr. Abeles also appeared to have great difficulty recalling with any precision events that had occurred five or more years earlier. To questions asked by both the prosecution and the defense, he responded more than half a dozen times that he did not recall.

E-mails held by The UConn Health Center and released recently upon a Freedom of Information ruling track Ms. Dickman’s connection with Dr. Abeles and the center’s investigation of Ms. Dickman.

They show that in April 2005 Dr. Abeles was asked by health center attorney Wallace whether he had approved a two week medical leave form for March 2005 and an out-of-work note for which Ms. Dickman was to receive a reduced payment for one day. Dr. Abeles received three e-mails from UCHC, all authored by Ms. Van Alstyne, who testified as a prosecution witness during the trial. Ms. Van Alstyne reports to Ms. Wallace. Ms. Van Alstyne received back from Dr. Abeles the note that figured as a defense document during the trial affirming that Dr. Abeles had approved the document. Ms. Wallace then had a labor relations attorney at the health center also query Dr. Abeles in yet another e-mail, to which Dr. Abeles again responded that he had approved the documents.

Virtually all of the e-mails showing the interaction between both doctors and the health center were withheld from Ms. Dickman, who several times requested them in other hearing venues.

In August of 2008, Dr. Abeles met with Dickman attorney Stephen Solomson and once again stated, according to the attorney’s investigation notes, that he routinely allowed Ms. Dickman to fill out forms. After so many years treating his patient, the information on the forms were repetitive.

After Ms. Dickman in September 2008 had refused to plead guilty to worker compensation fraud, Dr. Abeles was visited by Inspector Gregory Dillon of the office of the Chief State Attorney (OCSA) and prosecutor Mike Sullivan of the workers compensation fraud division in the same office. Mr. Dillon retired in January of 2011. Chief State Attorney Kevin Kane, appointed by Governor Jodi Rell, may be replaced in September 2011 on the recommendation of Michael Lawlor, Governor Dannel Malloy’s Under Secretary for Criminal Justice Policy and Planning.

There are fatal conflicts between Dr, Abeles’ testimony during the Dickman trial and his prior representations to a host of people never called to the witness stand. Most seriously, the jury that convicted Ms. Dickman never heard important exculpatory evidence that was withheld from them, Dickman Attorney Norm Pattis now asserts in a motion for a new trial, “in defiance of a subpoena issued by an officer of the Superior Court" (and in addition that the State violated Brady by with holding information that it knew it should have revealed regarding its most recent interview with Dr.Tortland on January 2011 when he revealed to the states prosecutor and inspector that he felt intimidated and threatened when interviewed by the UCHC police officer Gary Loomis, who was armed, in uniform and belligerently pushed forms in front of him. When Dr. Tortland said on the stand that he felt intimidated by the police, the prosecutor asked flippantly whether Mr. Loomis had drawn his gun on the doctor.

The subpoena was served upon state witness Wallace, the labor relation attorney for the health center, and required that she bring with her to court all handwritten notes of interviews regarding the investigation of the defendant.

Ms. Wallace, herself a lawyer, defied the subpoena, thus depriving the defense of necessary exculpatory evidence it intended to present to the jury.

According to a “Post Trial Motion For A New Trial” filed by Mr. Pattis, Ms. Dickman through her attorney issued to Ms. Wallace a subpoena requiring that she bring with her to court “all handwritten notes of interviews regarding the investigation of the defendant.”

These e-mails, relevant to the defense of Ms. Dickman, had been the subject of a previous Freedom of Information (FOI) hearing during the course of which the FOI commission issued a final decision requiring that e-mails drafted by Ms. Wallace and Ms. Van Alstyne from January 2005 through August 2008 be made available to the commission so that the commission could determine in an in camera review whether the notes were subject to a non-disclosure privilege. The defendant had attempted since February 2008 to have the emails released to her. The state, represented by the UCHC assistant attorney general Donald Green, requested a stay of any enforcement order pending an appeal on September 2, 2010. The state, Mr. Pattis writes in his petition for a new trial, “took an administrative appeal of the order requiring disclosure of the communications on March 30, 2011, after the verdict in the instant case was recorded.”

Coincidentally, the trial court responsible for hearing the administrative appeal issued an order on April 8, 2011, “directing Ms. Dickman to bring any issues relating to compliance with the subpoena and the deliberate withholding of information from this Court to this Court.”

Mr. Pattis’ charge is highly plausible:

“In this case, an investigative agency of the State was actually fighting the defendant in a separate proceeding to prevent her from obtaining documents about the investigation in this case. A witness in this case [Karen Duffy Wallace] appeared subject to a subpoena and tendered partial compliance with the subpoena without alerting anyone that documents were withheld that the Freedom of Information Commission had ordered disclosed. Apparently, counsel trying the case for the State was not made aware of this. Counsel for the University of Connecticut Health Center did not appear to quash the subpoena; instead, the witness was left on her own to determine what to bring and whether to comply. Evidently, she did this on her own, without discussing it with the state’s attorney in this case.”
In his motion for a new trial, Mr. Pattis argues that the state had an inescapable obligation under Brady v Maryland to provide the defense with any and all exculpatory evidence at its disposal. “During trial,” Mr. Pattis notes in his motion, Ms. Dickman was “deprived of timely notice of exculpatory evidence regarding Dr. Tortland because, apparently, the state changed prosecutors at the last minute.” Two previous state attorneys more familiar with the history of the health center’s dealing with Ms. Dickman, John DeMattea and Jack Whalen, now heading the office public integrity and ethics in the office of the chief attorney, were prepared to nolle the charges. In addition, Mr. Pattis argues, “Ms Dickman was also deprived of information the Freedom of Information Commission ruled she should have: no attorney for the State alerted the Court to this at the time witnesses tendered documents in response to a subpoena.”

And in what must be the understatement of the year, particularly for those who are familiar with the tortuous history of the flawed investigation of the heath center and its tragic ramifications, Mr. Pattis concludes, “The result is something less than a fair trial.” Mr. Pattis broached Brady during the trial, arguing that the state had fairly assured a false verdict through the exclusion of vital subpoenaed evidence. The jury was sequestered and deprived, from an abundance of caution, from hearing his plea.

Pretty funny funny-business all that.

But it comes as no surprise to Ms. Dickman. Her six years of dealing with agents of UConn and its support system of assistant attorneys general have been pockmarked with funny business. The jury that convicted Ms. Dickman had only a glimpse of the tip of a large iceberg that includes faulty affidavits, ex post facto enforcement of state regulations, illegal entrees into Ms. Dickman’s computer, the gathering and publication of medical information normally protected by HIPPA regulations, the intimidation of possible witnesses by UConn’s overpaid police and, as it now appears, the rank refusal of a lawyer, Ms. Wallace, to bring with her to trial possible exculpatory evidence that the jury convicting Ms. Dickman therefore could not process while considering its verdict.

The great mass of the iceberg -- even the tip of which, visible to the jury, has been dusted over by the passage of six years -- remains buried deep below the surface, though a portion of it, invisible to the jury, may be found here in an earlier report.

It is the weight of everything that has happened to Ms. Dickman during the intervening six years since she first blew the whistle on both UConn and former attorney general Richard Blumenthal, now a U.S. Senator, that drives forward her prosecution. The whole shaky edifice rests upon a faulty investigation undertaken by the UConn police, big spenders of tax dollars who have been much in the news lately.

The Dickman trial suffered from excessive editing in an attempt to narrow the jury’s attention to a few questionable documents. The all important context that might have better illuminated the real meaning of the documents was so foreshortened that the jury, throwing the reasonable doubt standard to the wind, brought in a most unfortunate finding of guilty on all counts. The reasonable doubt lay, for the most part, in a context beyond the ken of the jury. There is enough reasonable doubt hovering over Ms. Dickman’s prosecution over the years to choke a herd of horses.
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