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Action Alert: Imprisoned pain patient needs public support

by Izzy Thu Jun 28th, 2007 at 01:29:26 PM EST

If you want proof that the drug war is inhumane, our laws unconstitutional, and our justice system unjust, you need look no further than the case of Richard Paey.  A disabled father of three, Paey is now about three years into a 25-year sentence for narcotics possession and drug trafficking.

Paey's crime was being in pain and taking prescription medicine.  He had no illegal drugs.  He never sold any drugs.  There was no real evidence of any fraud or wrongdoing, yet his conviction was perfectly legal in the state of Florida.  And perfectly unjust.

Paey's appeals are done and his last chance of getting out of prison is if he's granted clemency by Governor Charlie Crist.  His clemency petition was recommended by the Florida Parole Commission and the governor has made a statement that indicates he may be sympathetic.  Paey's wife and lawyer are asking for public support.

There's a good chance that our support could make a difference to correct this gross injustice.  Not only would it help Richard Paey, but it gives us a chance to express our concerns about mandatory minimums and the drug war.

Please continue over the jump for the contact information and details about the case...

if you'd like to skip the case details and go directly to the  contact information, scroll to the bottom of the post.

In 1985, Richard Paey was in law school.  On his way to class one day, he injured his back in a car accident, leaving him with chronic pain.  He had surgery a few months later which provided some relief, but it was only temporary.  In 1987, he had another surgery, a fusion procedure, during which the doctors installed an experimental type of pedicle screw which was not FDA approved and later triggered a class-action lawsuit.

Paey has been living in a nightmare of pain ever since.  The screws cannot be removed, or Paey risks paralysis.  Doctors have been reluctant to treat him because of the prior litigation, even though Paey was not involved in it.  What's more, Paey was subsequently diagnosed with multiple sclerosis.  

He managed to finish law school.  As well as pain, Paey has muscle spasms that impair his breathing.  He tried to go on with his life, but had to quit his job as a law clerk and go on disability.  Eventually, he and his family settled in New Jersey where his wife, Linda, worked as an optometrist.  Richard Paey spends most of his time in a wheelchair or in bed.

Because of our drug laws, doctors are reluctant to prescribe pain medication, especially in the doses that a patient like Richard Paey requires, fearing attracting the DEA's attention.  But Paey's doctor in New Jersey, Dr. Stephen Nurkiewicz, was willing to take him on as a patient and help alleviate his suffering, even though there wasn't anything he could do to "cure" him.  Paey tried every other sort of pain relief method -- from biofeedback to chiropractors to hypnosis -- but only drugs really helped.  There were no problems until the Paeys had to move to Florida in 1997.

In Florida, Paey couldn't find a doctor willing to take him on as a patient.  Dr. Nurkiewicz was sympathetic to this situation and continued to prescribe Paey's medication.  He phoned and faxed prescriptions in and gave Paey post-dated written prescriptions for the ones that aren't allowed to be phoned or faxed.  He verified those prescriptions when the pharmacy called.

But the pharmacy thought that was suspicious and contacted Pasco County deputy B.J. Wright who agreed and contacted the DEA.  They then visited Dr. Nurkiewicz who at first confirmed that he'd prescribed all of the medication.  After being informed he could be facing 25 years for trafficking, he changed his story.  Faced with prosecution, Nurkiewicz flipped and became a witness for the prosecution.  

The authorities surveilled Paey for weeks, but never saw him doing anything but picking up his prescriptions.  Under Florida law, if you're found with 28 grams of narcotics, you are assumed guilty of trafficking, even with no evidence that you've ever sold any drugs.  And Florida law counts not just the small amount of narcotic in the pills, but the tylenol as well.  In 1997, police burst into Paey's home and arrested him in front of his family.  

Faced with the enormity of the charges, he was reluctant to plea bargain.  He knew he was innocent.  What he didn't realize was the extent that the drug war had perverted our laws.  He thought if he wasn't trafficking, he couldn't be found guilty of it.  He thought with no evidence of fraud except the extorted and conflicting statements of the doctor, that surely a jury would have sense and compassion.  He also knew that by accepting the plea bargain he'd be a convicted felon and would have trouble ever getting his pain pills again.  

He did initially accept a plea bargain, but choked up with tears and couldn't say the words.   Maintaining he'd done nothing wrong, he went to trial -- surely a jury would understand.  But the jury didn't -- they weren't allowed to hear that there was a mandatory minimum of 25 years for a conviction.  They assumed he'd get probation and were told it was their duty to follow the letter of the law.  One key fact that plays a part in the conviction was that the prosecutor maintained that no person could take the amount of painkillers Paey was taking.  This is contradicted by pain specialists.

One wonders why the prosecutor would be so seemingly vindictive as to pursue these charges.  It seems extreme.  But Assistant State Attorney Scott Andringa explains the current prosecutorial mindset:  

"As a trial lawyer, normally you charge the highest crime that you can prove.  If it goes to trial, you might as well lean on that.  Then there's [the option] to plead the case out.  I understand someone wanting to have their day in court... But they have to accept that with that there's a risk, and in the case of Richard Paey it was a 25-year mandatory minimum, which he knowingly and willingly accepted."

In other words, the prosecutors don't bring the charges they know fit the crime -- they bring the most extreme charges to use as a bludgeon to get someone to accept the plea bargain, turning justice into a high-stakes gamble.  If you lose, tough luck -- that's what you get for forcing them into a trial.  Andringa doesn't even feel bad about it:

"While I have sympathy for him, the system did what it does. Everyone did their job. ... We made a decision based on laws passed by the Legislature and signed by the governor. We made the right filing decision as evidenced by the jury's verdict. I don't see this as an issue of whether our office did the right thing ... I have no personal or professional regret about what we've done in this case."

Currently, Richard Paey receives more pain medication in prison than he was convicted of obtaining.  He finally has some relief from his physical condition.  Let's help him get relief from our justice system.  His clemency petition is in the governor's hands and he says of the case:

"It's always important to be open minded to review those kinds of cases when people have had their rights abridged. It's important to give them relief as quickly as possible."

Let's lend Paey our support.  He, his wife, and his three young children would thank you and, just maybe, we can send a message that there's public support for politicians who will take on this broken system.  We need to let them know we want them to stop being tough on crime and start being smart on crime.

Contact Florida Governor Charlie Crist:

E-mail: charlie.crist@myflorida.com

The Honorable Charlie Crist
The Capitol 400 South Monroe Street
Tallahassee, Fla. 32399

Phone: 850-488-7146
Fax: 850-487-0801

Update: noweasels on daily kos has provided the contact information for the Commissioners as well as a link to the pdf of the petition. And Jennifer Clare has provided the commissioner's email addresses.

In addition to the Governor, Mr. Paey will require affirmative votes from two of the following members of the Clemency Commission:

The Honorable Bill McCollum, Attorney General

Department of Legal Affairs
The Capitol
Tallahassee, Florida 32399-1050
(850) 414-3300
Office of Cabinet Affairs
(850) 245-0145  

The Honorable Alex Sink, Chief Financial Officer

Department of Financial Services
  The Capitol
Tallahassee, Florida 32399-0300
Office of Cabinet Affairs
(850) 413-2824

The Honorable Charles H. Bronson, Commissioner

Department of Agriculture and Consumer Services
The Capitol
Tallahassee, Florida 32399-0810
(850) 488-3022
Office of Cabinet Affairs

(850) 410-6747

  Email addresses:

Bill McCollum: ag.mccollum@myfloridalegal.com
Alex Sink: cfo@fldfs.com
Charles Bronson: commissioner@doacs.state.fl.us
Charlie Crist: charlie.crist@myflorida.com

crossposted from Unbossed.

This diary is a bit US-centric for ET, but I'm hoping some of our readers will be willing to write to the governor.

Maybe we can eventually make language a complete impediment to understanding. -Hobbes
by Izzy (izzy at eurotrib dot com) on Thu Jun 28th, 2007 at 01:31:29 PM EST
Terrible story! From what I understand Crist is quite a bit more reasonable than his predecessor (Jeb Bush - remember Terry Shiavo?), so at least he has that going for him...

"The basis of optimism is sheer terror" - Oscar Wilde
by NordicStorm (m<-at->sturmbaum.net) on Thu Jun 28th, 2007 at 03:28:59 PM EST

My mother also suffers from chronic back pain (she has what's known as a degeneritive spine) and had serious trouble in the past convincing her former "pain doctor" to treat her.  He knew what the problem was, and he knew her pain was genuine and debilitating, and he also knew that there was no danger that she would be abusing the particular pain treatments she required, which involved injections directly into her spine.  But he would still routinely refuse to treat her, saying she was "too tense."  Never mind that the main reason she was "tense" was because she was IN PAIN.  It made no sense to me -- "I'm sorry, I can't give you your pain medication because you're clearly in too much pain."

They went round and round on this so often that it created great hostility in their relationship, to the point that she would become "tense" at the very idea of visiting his office, because she was afraid of him.  And naturally, being "tense" with doctor-induced anxiety when she visited his office would lead to more denial of treatment, and the pain would become more unbearable, leading to still more tension....  I honestly thought she was going to end up in a wheelchair.

This went on for about two years before I convinced her that she needed to find a new doctor.  Maybe one who wasn't a sadist.

She's doing OK now.

Anyway, I have relatives in Florida.  I'll make sure they hear about this, if they haven't already.  The governor should be getting a few more letters from constituents.

by the stormy present (stormypresent aaaaaaat gmail etc) on Fri Jun 29th, 2007 at 10:03:31 AM EST
It's hearing things like this that just make me think -- what the hell is wrong with people!?!

Maybe we can eventually make language a complete impediment to understanding. -Hobbes
by Izzy (izzy at eurotrib dot com) on Fri Jun 29th, 2007 at 02:43:15 PM EST
[ Parent ]
Izzy, do you know of any way we could get something like a transcript of his trial or testimony.  I would feel more comfortable writing the Gov. and commissioners if I knew I was stating/referring to the undisputed facts of the case.  In addition, referral to legal documents makes any "friend's" request more convincing.

I sympathise and can see this whole thing happening. My wife lives with pain and depends upon daily doses pain killers. - Fortunately her pain is not yet as severe as Mr. Paey's and is relieved by non-narcotic medication.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Fri Jun 29th, 2007 at 09:48:42 PM EST
[ Parent ]
No, I'm sorry, but I don't know how one would go about getting a transcript of the trial.  

To write the piece, I basically read a whole bunch of different articles, some of which I've linked to (and they're pretty interesting reading).  I don't think there are any "undisputed" facts.  Paey says he's completely innocent of wrongdoing.  The prosecutor would have you believe he's a one-man crime spree.

To stay completely on point, I guess it's not disputed that he actually had prescription medication.  He was convicted of possession, trafficking, and fraud.  The pills he had contained both the narcotic ingrediant and tylenol, totalling over the 28 grams which make it an automatic "trafficking" 25-year mandatory minimum sentence.

Paey and his family were surveilled for two months and he never sold any of the drugs.  The prosecutor's sole "evidence" was that he didn't believe anyone could take "that many" pills.  I don't know if the jury was convinced of that, or if they were just following the "letter of the law" about the 28 grams.

The fraud charge is more problematic -- the doctor at first verified all of the prescriptions, but when threatened with prosecution, testified that Paey forged them.  I did read one article that said, originally, that the police told Paey he could cut a deal if he would testify against the doctor and that he refused, at which point the tactic was reversed.  After reading everything, it's unclear to me whether Paey forged any prescriptions or not.  

In any case, he wasn't selling the pills, just trying to control his own pain.  I think it's ridiculous the medication is so tightly controlled and doctors are so fearful of the DEA that this situation arose in the first place.  If he is guilty of anything in this mess, it's trying to get more medication for himself.  

Nevertheless, his guilt or innocence is moot at this point, having been found guilty in a court of law.  It's now a matter of the governor showing mercy.  I focused my letter on the mandatory minimum aspect -- that a 25 year sentence for a disabled man who wasn't selling drugs is overly punitive and serves no purpose to society, and that he should be with his wife and children.  He's already been in prison too long.

Here's a link to another article by John Tierny of the NY Times via the November Coalition, in which he talks about the prosecutor.

Just doing his job

Tierny dismantles the prosecutor's arguments and the prosecutor himself says "I'm not thrilled about this case, I'm only proud that I did my job as a prosecutor."

Maybe we can eventually make language a complete impediment to understanding. -Hobbes

by Izzy (izzy at eurotrib dot com) on Fri Jun 29th, 2007 at 10:57:13 PM EST
[ Parent ]
Thanks Izzy for the added info.  I totally agree that our drug laws are overkill (can't even get the old  actifed formula anymore because of the controls on pseudoefedrine hydrochloride) and the mandatory minimum sentencing aspects for some offenses need to be tweaked quite a bit.  It is tragic that the laws can be used to destroy an innocent life, especially one that's already being lived in misery.  I blame the prosecutor for pursuing the case.  He must have been desperate for a conviction to boost his record.  This day and age there's no need to take on the innocent to make one's self look good.  There's plenty of real criminal activity going on but of course it usually requires some work to prove the case.

I'll write the Gov. and Commissioners.  

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Sat Jun 30th, 2007 at 12:32:34 PM EST
[ Parent ]
Thanks, Gringo, for taking the time to write.

I have a theory that sometimes it's not so much conviction rates as they have so much time and trouble invested they don't want to look stupid -- they'd interviewed everyone, involved the DEA, travelled to New Jersey, and done months of surviellance -- I think after all that, they just feel it's impossible to drop the whole thing or they'd look like assholes, so they convince themselves more and more as it goes along, each action justifying all the previous ones.

Maybe we can eventually make language a complete impediment to understanding. -Hobbes

by Izzy (izzy at eurotrib dot com) on Sat Jun 30th, 2007 at 01:24:12 PM EST
[ Parent ]
You could be right. By the time they/he realized there was nothing to the case, they had invested too much time and political capital (their thinking) to just drop it.  May have been the police and DEA pushing the prosecutor.

This case kind of reminds me of the Peter Reilly murder conviction. Reilly, a teenager convicted of killing his mother in the 70s, was basically brainwashed into making a false confession by the state police who were so convinced they had the right person that it caused a rift between the police and prosecutor's office for years when the conviction was overturned and the new prosecutor refused to retry the case.  I happened to see the Reilly case profiled on one of the TV justice programs a day or so ago.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Sat Jun 30th, 2007 at 03:32:34 PM EST
[ Parent ]
False confessions are another of those really problematic areas.  To the regular person, they think it's a no-brainer, that they wouldn't confess to something they didn't do so why would anyone else?  It doesn't make any "logical" sense to people.  Whereas the reality is, false confessions are really, really common.  People "break" far more easily than we'd expect.

Maybe we can eventually make language a complete impediment to understanding. -Hobbes
by Izzy (izzy at eurotrib dot com) on Sat Jun 30th, 2007 at 03:49:34 PM EST
[ Parent ]

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