Trial of ‘largest sexual abuse scandal in history of VA’ begins in KCK federal court

The case involving the veterans hospital in Leavenworth, Kansas, is being tried without a jury in federal court in Kansas City, Kansas, before U.S. District Judge Daniel D. Crabtree.

by Dan Margolies, Kansas News Service

A lawsuit brought by one of 100 military veterans who were sexually abused by a physician assistant at the VA hospital in Leavenworth will determine if the federal government is liable for damages in what the plaintiff’s lawyer described as “the largest sexual abuse scandal in the history of the VA.”

“Countless veterans have never gotten their day in court, have never gotten justice,” the lawyer, Daniel A. Thomas, said in opening statements at the federal trial, which began Monday. “And more importantly, not a single person from the VA has ever been held accountable.”

The physician assistant, Mark Wisner, was convicted at a criminal trial in 2017 of aggravated sexual battery and aggravated criminal sodomy and sentenced to 15 years and seven months in prison. Around 100 of his victims separately filed civil suits seeking damages against the federal government for his actions as an agent of the government.

More than 80 of them settled their lawsuits last year for a total of $7 million. But a few of them refused to settle, and the trial of the first of those cases, which got underway this morning via Zoom video conference, will determine whether the government will have to pay out additional damages.

The case is being tried without a jury in federal court in Kansas City, Kansas, before U.S. District Judge Daniel D. Crabtree. The trial is expected to last through the end of the week.

The plaintiff in the case is identified in court documents only by the fictitious name John Doe.

The government does not dispute that Wisner sexually molested veterans of America’s wars in Iraq and Afghanistan, including John Doe, by conducting unnecessary genital and rectal exams on them and then overprescribing opioids and other pain medications to make them dependent on him.

“Indeed, all who have heard about these matters cannot help but be outraged,” Justice Department lawyer Larry Eiser, who represents the government in the case, said in his opening statement. “A sexual predator in the guise of a health care provider preying upon wounded warriors – outrageous.”

Mark Wisner, a former physician assistant at the Leavenworth VA, was sentenced to 15 years and seven months in prison for aggravated sexual battery and aggravated criminal sodomy.

But the government says that it should not be held liable because Wisner’s conduct was outside the scope of his employment and because the damages Doe is seeking – payment for a lifetime of medical treatment – are excessive.

“We accept that plaintiff was abused by Mr. Wisner,” Eiser told Crabtree. “We accept his version of the facts of his encounters with Mr. Wisner. We will not dispute that he was subjected to unnecessary, ungloved genital examinations of two to three minutes in duration during each and every one of his nine encounters with Mr. Wisner over a two-year period in 2012 to 2014.”

But Eiser said that the plaintiff’s damage claims were unsupported by the evidence and “untethered to reality” because they asked the government to pay for treatment of mental health conditions and other ailments that preceded the plaintiff’s encounters with Wisner.

Thomas, the plaintiff’s attorney, said that his client’s PTSD was exacerbated by Wisner, whom he said was the subject of numerous complaints that the VA failed to follow up and investigate.

One of Wisner’s patients was admitted to a psychiatric unit after he was overheard threatening to kill Wisner, Thomas said. That patient later killed himself.

“They just didn’t believe the victim,” Thomas said. “It’s a scenario that played out repeatedly with Wisner’s victims over a period of years. One hundred victims over six years.”

Earlier this year, another federal judge, Carlos Murguia, threw out the plaintiff’s claims against the government for negligent supervision of Wisner. Murguia found that the plaintiff had failed to assert that claim during an earlier, administrative part of the case.

The case was reassigned to Crabtree in February after Murguia announced his resignation from the court following his public reprimand for sexual harassment and workplace misconduct.

Dan Margolies is senior reporter and editor at KCUR. He can be reached by email at [email protected] or on Twitter @DanMargolies. The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.
Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.

See more at https://www.kcur.org/news/2020-07-06/trial-of-largest-sexual-abuse-scandal-in-history-of-va-begins-in-kck-federal-court.

Public defender says government owes it legal fees for misconduct in Leavenworth tapings case

by Dan Margolies, Kansas News Service

The federal public defender’s office in Kansas says it’s entitled to nearly $224,000 in legal fees because of prosecutor misconduct in an explosive case over the taping of attorney-client phone calls at the Leavenworth pretrial detention prison.

In a court filing this week, the public defender says it incurred nearly $1.7 million in fees and expenses litigating the case but is seeking only the amount “required to litigate the Government’s contemptuous conduct.”

It cites two areas of misconduct by the government, both of which had previously been identified by the court: its failure to preserve evidence in the case; and its failure to cooperate with witness and document production.

“From the outset, the Government disregarded the Court’s Orders to preserve evidence and to cooperate, and, consequently, this litigation has dragged on for more than three years,” the public defender states in its filing.

U.S. District Judge Julie Robinson last month held the U.S. Attorney’s office in Kansas in contempt for its lack of cooperation in the case.

She issued her 188-page ruling in a contentious dispute over the extent of federal prosecutors’ involvement in the recording of attorney-client phone calls at the Leavenworth facility.

The detention center is run by CoreCivic (formerly Corrections Corporation of America), one of the country’s largest private prison companies.

The public defender claimed CoreCivic made video and audio recordings available to federal prosecutors.

It said that violated inmates’ rights under the Sixth Amendment.

The U.S. Attorney’s office at first denied accessing the recordings, then later said it had accessed only some.

In all, more than 1,000 phone calls between attorneys in the public defender’s office and their clients were recorded.

Robinson found that the U.S. Attorney’s office had a “systematic practice of purposeful collection, retention and exploitation of calls” made between detainees and their attorneys.

Scores of defendants charged with or convicted of federal crimes could see their cases dropped or prison sentences reduced based on their claims of prosecutorial misconduct and violations of attorney-client privilege.

A spokesman for the U.S. Attorney’s office did not return calls seeking comment on the public defender’s fee request.

Melody Brannon, the head of the federal public defender’s office in Kansas, declined to comment.

Not long after he was confirmed as the U.S. Attorney for Kansas in December 2017, Stephen McAllister sought to tamp down the furor over the recordings by seeking to reach an agreement with the federal public defender’s office.

The agreement called for affected defendants’ prison sentences to be reduced. But he was overruled by then-Deputy Attorney General Rod Rosenstein, who said that the Justice Department could not approve blanket reductions of defendants’ sentences “absent evidence of particularized harm.”

The federal public defender estimates it spent nearly 7,000 hours on the litigation over a three-year period, but says it’s seeking only those fees it incurred in connection with government’s misconduct.

It bases its fee request on hourly rates ranging from $325 an hour for Brannon and her top deputies to $250 an hour for two assistant public defenders to $100 for the office’s investigator. The $325 figure is well below what senior attorneys at Kansas City’s top private law firms charge for their work.

Even if Robinson awards the requested fees, the money won’t be directed to the public defender’s budget.

Rather, the public defender is requesting that Robinson consult with an arm of the Administrative Office of the U.S. Courts to determine where the funds should go.

The disclosures that attorney-client calls and meetings at Leavenworth were recorded spawned two separate class action lawsuits by inmates at the prison and their attorneys.

Last month, CoreCivic and the operator of the phone system at the prison, Securus Technologies, agreed to settle the case with the inmates for $1.45 million.

The attorney class action is pending.

Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies. Kansas News Service stories and photos may be republished at no cost with proper attribution and a link back to kcur.org. See more at https://www.kcur.org/post/public-defender-says-government-owes-it-legal-fees-misconduct-leavenworth-tapings-case

Leavenworth prisoner will get opioid addiction treatment after his lawsuit is settled quickly

by Nomin Ujiyediin, Kansas News Service

The federal Bureau of Prisons will provide opioid addiction treatment for a prisoner at the Leavenworth penitentiary, according to a settlement reached Wednesday.


The American Civil Liberties Union in Kansas and Missouri had sued earlier in the week on behalf of Leaman Crews. He began a three-year sentence at the prison earlier this month and had been using buprenorphine, a medication used to counter the effects of opioid withdrawal.


With the help of the medication, Crews had not used drugs for 15 months prior to entering Leavenworth.


An ACLU press release said Crews and the Bureau of Prisons reached a settlement agreement in which Crews would start getting buprenorphine on Wednesday evening.


“When he was deprived of medication for the last week, until we were able to reach this agreement with the Bureau of Prisons, he’d been suffering tremendously,” said Lauren Bonds, legal director of the ACLU of Kansas. “He’s dealt with withdrawal from the medication he was receiving, so it’s very important for our client’s health.”


The ACLU had argued that denying inmates access to buprenorphine treatment is a violation of the 8th Amendment of the U.S. Constitution, which forbids cruel and unusual punishment. The group also contended a denial ran afoul of the Rehabilitation Act, which bans federal programs from discriminating against people with disabilities.


The settlement does not address treatment for other inmates in the federal system. The ACLU said in the release that it’ll pursue lawsuits in the future to get other prisoners access to opioid treatment.


Bonds said in a phone interview that ultimately, the organization will push for a change in the Bureau of Prisons’ policy.


“Then we wouldn’t have to deal with this on such an ad hoc, case-by-case basis,” she said. “It would just ensure everyone who needs this medication is just getting it.”


The suit alleged that the agency denied Crews access to buprenorphine as part of a policy to only give inmates the medication while they are detoxing and to wean them off the medication after several days.


That lawsuit said Crews is recovering from a decade-long addiction to opioids following a car accident and had been taking buprenorphine throughout his recovery.


According to the Bureau of Justice Statistics’ latest data from 2004, about half of the people incarcerated in federal prisons had symptoms of substance abuse or dependency.


In an email, the Bureau of Prisons said it does not comment on litigation. The agency said it gives methadone or buprenorphine to inmates on a case-by-case basis and gives Vivitrol, another medication used to treat opioid addiction, to inmates two months before release.

Note: This story was updated at 10 a.m. on Sept. 12, 2019, to reflect comments from the Bureau of Prisons.

Nomin Ujiyediin reports on criminal justice and social welfare for the Kansas News Service. Follow her on Twitter @NominUJ or email nomin (at) kcur (dot) org.
The Kansas News Service is a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio focused on the health and well-being of Kansans, their communities and civic life. Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.
See more at https://www.kcur.org/post/leavenworth-prisoner-will-get-opioid-addiction-treatment-after-his-lawsuit-settled-quickly