Tanya Treadway vs. Pain Relief Network: No First Amendment for Activists?

Radley Balko has a new article at Slate on the grand jury investigation of Siobhan Reynolds of the Pain Relief Network. Tanya Treadway is the relentless federal prosecutor pursuing her, apparently for exercising her First Amendment rights in the trial of pain doctor and his wife charged with drug trafficking. The fight started when the prosecutor sought a gag order against Ms. Reynolds, lost, and then opened a grand jury investigation and subpoenaed everything but the kitchen sink.

When Reynolds appealed the subpoena, the United States Court of Appeals for the 10th Circuit upheld it, as well as the seal on everything related to it. While we can't read the ruling, the justification for the seal is ostensibly the secrecy afforded to grand jury investigations. But that secrecy is supposed to protect the people the grand jury is investigating. In this case, the person being investigated wants it made public. Reynolds feels the subpoena is harassment and wants to shed some light on it. Treadway and the courts are hammering Reynolds with the very secrecy that is supposed to protect her. [More...]

Under federal law, witnesses may talk about their grand jury testimony. The non-disclosure rules apply to the grand jurors, stenographers, interpreters, prosecutors and law enforcement. The ABA on the purpose of grand jury secrecy:

Rule 6(e) of the Federal Rules of Criminal Procedure provide that the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury, unless ordered to do so in a judicial proceeding. Secrecy was originally designed to protect the grand jurors from improper pressures. The modern justifications are to prevent the escape of people whose indictment may be contemplated, to ensure that the grand jury is free to deliberate without outside pressure, to prevent subornation of perjury or witness tampering prior to a subsequent trial, to encourage people with information about a crime to speak freely, and to protect the innocent accused from disclosure of the fact that he or she was under investigation.

The Supreme Court has denied cert in Reynolds' case which means she must comply with the subpoena. The cost has resulted in her shuttering the pain clinic.

Radley Balko writes:

Reynolds had to get special permission just to share information about her case with the Institute for Justice and the Reason Foundation (which publishes Reason magazine, my employer). When the organizations submitted an amicus brief on her behalf, that brief was also sealed, even though it's based on publicly available information. New York Times Supreme Court reporter Adam Liptak was able to read a portion of the sealed 10th Circuit ruling on the sealing of the Reason and Institute for Justice briefs. In November, Liptak reported that the court said one of its reasons for keeping the brief secret was to keep IJ and the Reason Foundation from discussing Reynolds' pain advocacy agenda in public.

That's an astonishing thing to read in a federal appeals court opinion. All of the information in the brief is publicly available. Yet the courts are preventing Reynolds and these organizations from releasing the briefs or the court rulings, at least in part to stifle public discussion about Reynolds' criticism of government policy.

From Adam Liptak's NY Times article. How sweeping was the subpoena?

It had almost 100 subparts and sought documents, e-mails, phone records, checks, bank records, credit card receipts, photographs, videos and “Facebook communications (including messages and wall posts)” concerning contacts with dozens of people, including doctors and lawyers, along with information about a billboard supporting the Schneiders and a documentary film called, perhaps presciently, “The Chilling Effect.”

Is it prosecutorial payback for her activism?

Mr. Sherman, of the Institute for Justice, said the subpoena to Ms. Reynolds smelled of prosecutorial payback. “As far as we can tell,” he said, “she was targeted because of her outspoken criticism.”

He quotes her lawyer:

“The grand jury was created to be a buffer between the government and the people and to be a check on tyranny,” Mr. Corn-Revere said. “The problem in this case is that it was misused by a prosecutor to silence a government critic and then to hide those actions in secret proceedings.”

Here is Reynolds' (court-redacted) Petition for Writ of Certioriari. On the sealing questions:

3. Whether the government may meet its burden of proof that it has a compelling interest in requiring the production of expressive materials and that the subpoenaed materials are substantially related to the grand jury investigation entirely through ex parte, in camera submissions?

4. Whether the First Amendment or Rule 6(e) of the Federal Rules of Criminal Procedure limit the court's authority to seal the entire docket of ancillary grand jury proceedings imposing sanctions for contempt?

So Tanya Treadway wins another round, and the First Amendment and everyone else, particularly activists of all stripes, lose. Something is upside-down here.


As for the Schneiders, Dr. Stephen Schneider was sentenced to 30 years, his wife to 33 years, and they were ordered to forfeit a million dollars (The Government had sought life sentences and $4 million forfeiture.). The federal public defender has been appointed for his appeal, but the government is fighting Mrs. Schneider's request for court appointed counsel.

Update: I just found the subpoena and Motion to Quash unredacted online. I won't post the link but it makes it even more curious that the court sealed everything when so much is already out there.

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  • Display: Sort:
    A result of politicizing drug prohibition (5.00 / 1) (#1)
    by SeeEmDee on Wed Dec 22, 2010 at 06:57:44 AM EST
    and all the bureaucracies engaged in it.

    Exactly as the conclusion of Nixon's Shafer Report warned decades ago, the prison/industrial complex has risen to form a self-sustaining bureaucratic empire that will do anything and everything to keep a sweet little gravy train like it is going. Treadway is a perfect example of that, and how vicious such a system can be when its' 'authority' is challenged.

    And to think this country got along just fine from its' inception to 1914 without any drug laws.

    Given that we can't afford this massively bloated drug prohibition bureaucracy anymore, and need the money for the tattered social safety nets (lest we face eventual armed insurrection from hungry, desperate people; don't think 'it can't happen here', for it almost did once) it's long past time that the DrugWar be ramped down...and its' most vicious attack dogs like Treadway be retired to their kennels, never to attack their paymasters again.

    Prosecutors gone wild (5.00 / 1) (#2)
    by republicratitarian on Wed Dec 22, 2010 at 07:42:30 AM EST
    As far as Siobhan Reynolds is concerned, I wonder if she has any legal recourse left. The deck is always stacked in the governments favor, for the courts to let this go is troubling.

    What is the Grand Jury's role in this particular case? I know there has been some other discussion of Grand Jury functions here before. Do they have to believe some sort of crime has been committed to authorize Tanya Treadway to subpoena all of the documents she wants? Is it pretty much a blank check to the prosecutor?

    If you haven't already, you should check out Radley Balko's website, www.theagitator.com , it's a good one.

    Tanya Treadway... (5.00 / 1) (#3)
    by kdog on Wed Dec 22, 2010 at 08:04:40 AM EST
    is so far outta line she's on another axis...a Kafka-esque axis.  Wow.

    And it absolutely kills me that we pay for the displeasure...with public servants like these, who needs masters?

    OTOH, we just need informed citizens (5.00 / 1) (#4)
    by Harry Saxon on Wed Dec 22, 2010 at 10:19:58 AM EST
    on our side to win, from TPMuckraker:

    A prosecutor in Missoula County, Montana was forced to reach a plea agreement in a felony drug case after almost all 27 members of the jury pool said they would not convict the suspect for possessing such a small amount of marijuana.

    Touray Cornell was arrested after a search of his house turned up used joints, a pipe, and pot residue. The search was prompted by neighbors complaining that he was allegedly selling drugs, which he reportedly admitted to in an affidavit. According to The Beaumont Enterprise, Cornell's "criminal history includes numerous felony convictions."


    Even Cornell's own attorney was flummoxed, calling it "bizarre."

    "I think it's going to become increasingly difficult to seat a jury in marijuana cases, at least the ones involving a small amount," Deschamps said.

    Click Me

    Too true... (none / 0) (#5)
    by kdog on Wed Dec 22, 2010 at 10:22:52 AM EST
    the Tanya "Tread on Them" Treadway's of the nation need our cooperation and assistance to do their dirty, and I'd argue it is our patriotic duty to resist.

    I agree for once (5.00 / 1) (#6)
    by diogenes on Wed Dec 22, 2010 at 09:34:20 PM EST
    Get rid of grand juries entirely--let the prosecutors show probable cause to a judge and then allow the accused to have a TRIAL before his or her peers if charged with an actual crime.

    <temporary unlurk> (5.00 / 1) (#7)
    by JamesTX on Thu Dec 23, 2010 at 02:10:12 AM EST
    Thanks for publishing this, Jeralyn. It is an example of a bizarre outright suppression of speech by the government. This was a Draconian shock-and-awe attack by federal prosecutors which effectively silenced Siobhan Reynolds and the PRN.

    Judge Belot turned on Siobhan and PRN after his initial moves to discipline the prosecutor. In the sentencing, he referred to PRN as a "Bozo the clown outfit" and a "ship of fools", and stated specifically that he hoped the verdict and sentence would curtail or stop the activism of PRN. I was surprised at such name-calling in an official court order. It seemed unprofessional to me. I also can't quite wrap my mind around how a court can openly advocate suppression of speech and the silencing of activism.

    Since activism related to opioid drugs is rare and largely ineffective in changing erroneous but widespread public beliefs, this case will never draw the press which would be afforded someone like Siobhan if the topic was marijuana instead of opioids. After what has happened with marijuana, the feds obviously have resorted to unconstitutional speech suppression methods for fear public attitudes about marijuana will spread to other drugs. That is something the medical profession and the pharmaceutical companies simply cannot afford, as it represents a solution to many medical problems which currently generate incredible profits from patented drugs and professional services.

    Most all opioid drugs are not patentable. They have been around too long. They are also very effective, especially in a system where an aging population without hope for quality medical care and without funding for high priced patented drugs could lose their motivation for filling the coffers of the health care industry. The need for a simple palliative approach to care for an aging population, as opposed to misguided, expensive, and typically ineffective strategies to "fix" bodies failing naturally from age, is upon us. Decriminalization of effective pain management drugs would threaten a huge loss of profits for large parts of the medical and pharmaceutical industries.

    That is the issue with opioids. They are effectively demonized, and have been for much longer than things like marijuana. The history of the rise of the legislation in which opioids were suppressed is old enough now that it is forgotten, and the feds obviously don't want it remembered. The way in which the drugs became illegal is comical by today's scientific and legal standards.

    At one time you said you predicted the government would begin a campaign to fuse the drug and terror memes. The feds are apparently very adamant about squelching anything related to activism in the area of opioid drugs (the most effective and cheapest pain killing drugs in existence). It is probably not irrelevant that the poppy is an ongoing important part of our military adventures in Afghanistan. One might suspect it has something to do with protecting the industries, and it appears they are willing to go to any lengths to do it. No surprise the Supreme Court wouldn't hear the case. There are very, very powerful forces at work here, and it is the last thing a free press should ignore.

    </temporary unlurk>