[Balko] The System's Epic Fail | Jackson Free Press | Jackson, MS

[Balko] The System's Epic Fail

When the SWAT team came for Richard Paey in 1997, it battered down the front door of the home in Pasco County, Fla., where he lived with his wife, Linda, an optometrist, and their two children. Paey is a paraplegic who uses a wheelchair after a car accident and botched back surgery. He also suffers from multiple sclerosis. The cops were there because Paey was accused of distributing the medication he used to treat his chronic pain, even though there was no evidence he had sold or given away a single pill. Thanks to Florida's draconian drug laws and mandatory minimum sentences, he was eventually convicted and sentenced to 25 years in prison.

Paey's prosecution was an outrage, attracting attention not only here at Reason and among drug policy reform organizations but also from "The New York Times" and "60 Minutes." In 2007, after Paey had served nearly four years of his sentence, Florida Gov. Charlie Crist gave him a full pardon.

Yet Scott Andringa, who prosecuted the case as an assistant state attorney in New Port Richey, has never expressed the slightest regret or remorse for imposing what was effectively a life sentence on a man who no one really thought was a drug trafficker. In fact, Andringa, now a defense attorney in private practice, brags about his efforts to imprison Paey on his professional website, noting that he "was the prosecutor assigned to a controversial drug trafficking case that was later profiled on "60 Minutes," "Nightline" and in The New York Times. 

And now he wants to be a judge. On Dec. 13, Andringa announced his candidacy in the 2012 election for Pinellas County judge. Andringa's father currently holds the position and is retiring.

In his prosecution of Paey, Andringa showed a lack of discretion and zeal to obtain the maximum possible sentence without regard to justice. At the time of his arrest, Paey was undergoing high-dose opioid therapy, a relatively new form of treatment for chronic pain that titrates doses upward as a patient develops tolerance. The tolerance eventually plateaus, but at that point the patient is taking large doses of narcotics every day, enough to kill someone who has not built up the same tolerance. Paey initially was under the care of a New Jersey physician but found it difficult to find treatment when his family moved to Florida, a state overcome by anti-opioid hysteria. Depending on whom you believe, either Paey's New Jersey doctor illegally sent him several prescriptions to continue his treatment or Paey forged those prescriptions. In any case, a local pharmacist, alarmed at the volume of medication Paey was taking, tipped off the Pasco County sheriff's office.

Although Andringa has conceded he had no evidence Paey was selling or giving away medication, Florida law allowed him to charge Paey with distribution because of the alleged forgeries and the volume of medication he possessed. But simply because the law allows a charge does not mean it is merited or in the interests of justice. And here is where Andringa's discretion comes into question.

Over the years, Andringa has said he is "proud" of putting Richard Paey in prison, that he has "no personal or professional" regret about the case and that he's certain his office "did the right thing." Here's an excerpt from an interview I did with Paey in 2007, shortly after he was pardoned, describing his time in prison:

"I went more than 30 days in solitary where the lights were on the entire time. [Note: Paey was never told why he was put in solitary confinement, but he believes it was punishment for telling his story to New York Times columnist John Tierney.] It was this callous indifference of a particular officer. And other things, like slamming the doors when they do security checks. They come by every hour and give your door a loud kick. When you're inside a cell, and someone comes by and gives that big iron door a kick once an hour, the sound just ricochets between your ears. So systematic sleep deprivation is common. I would see men go into solitary and when they came out weeks later, their hair would be completely gray...

"This place looked like a bomb shelter. Solid cement walls, no windows. You get in through a small hatch. I was pushed inside, and that became my home until Linda's calls persuaded the doctor to come and see me in August. One of the doctors told me the heat index in there was 105. There's no air conditioning. I'm in a cell where there's no air movement. To survive, you strip down to your boxers. You use sink water to soak rags and put them on the back of your neck. They feed you through a slot in the door. There are no bars like in the movies. It's all solid, cement walls and doors. That's where I stayed for two weeks until I started passing out. After that, they moved me to the hospital."

When a reporter from Tampa's Weekly Planet asked Andringa about Paey's case in 2004, he said, "As a (prosecutor), you normally charge the highest crime that you can prove." That's one way of approaching the job. Another would be to charge someone with a crime only when doing so serves justice. (Andringa did not respond to a request for comment.)

The injustice of treating Paey as a drug trafficker is clear from the enormous disparity between the sentence he received and the punishment he would have gotten under a plea deal that Andringa offered him. Under the deal, Paey would have received only probation and counseling if he admitted he was a drug addict and pleaded guilty to attempted drug distribution. Paey refused because he had not attempted to distribute drugs and, more important to him, he was not an addict. He was a patient. He was no more addicted to pain medication than a diabetic is addicted to insulin. The pills merely helped him live a more normal life. When Paey refused the plea bargain, Andringa still could have gone to trial only on the attempted distribution charge, or he could have prosecuted Paey for forgery. He could have chosen not to prosecute Paey at all. Instead, he threw the book at Paey--a punishment for his obstinacy. Here is Andringa, again in the Weekly Planet:

"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...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."

The state tried Paey three times before it got a conviction, and then only after the jury foreman assured his fellow jurors that the sentence would be no worse than probation. As Paey noted in his interview with me, Andringa used some form of the phrase "drug addict" eight times in his closing argument. He charged Paey as a trafficker but was clearly trying him for being an addict. Even assuming the facts most unfavorable to Paey, he was neither. At worst, he was guilty of forging prescriptions, and not to get high but to get the medical treatment he needed. That he required such treatment is not in dispute. While in prison, he received morphine through a subdermal pump, and the dose was higher than what he had been taking before he was arrested.

"It became a comedy of bureaucracies," Paey told me. "One agency prosecutes me for taking too much medication. And that was their explanation--that my dose was too high for one person to be taking, therefore I must be selling it. ... Then I get to prison, and the doctors examine my records and my medical history, and they decide that as doctors, they have to give me this medication ...in higher doses than what I'd been getting before."

Florida's rigid laws did not bind Andringa. He had discretion about which charges to file, and he could have asked the judge to waive the mandatory minimum 25-year sentence in Paey's case, but he didn't. Andringa is a drug warrior. He was taking advantage of a sweeping law to punish a man he thought was an addict, a man who had the gall to insist on his constitutional right to a trial.

Andringa recently started a blog to coincide with his campaign for judge. In a post titled "Thoughts About 'The System,'" he chastises those who say the criminal-justice system is flawed. Andringa explains that "The System" is run by "a group of people who are as capable, or fallible, as any other group of people one might find in any other business, industry or enterprise."

He adds: "This is not merely an academic discussion; the criminal justice system is overburdened and underfunded. When mistakes are made, time is wasted, scarce resources are squandered and the primary and axiomatic mission of the criminal justice system; to see that justice is done, is thwarted."

"So as citizens read and debate articles, watch or listen to stories or even see and hear cases being resolved in courthouses across this great country, I believe the appropriate question is not whether 'The System' is flawed, but whether one or more of the people involved has failed, as we all will from time to time, to play their part in the intricate balance between the peacekeeping and arrest powers of the police; the investigative and charging authority of the prosecutor; the constitutional responsibility of the defense lawyer to stand in the constitutional gap between the accused and the authorities; the obligation of the Court to ensure that proceedings are fair; and the oath of the jurors to render a fair and impartial verdict that speaks the truth."

It's an eloquent passage, but it isn't quite right. A system that identifies, compensates for, and attempts to correct mistakes would be the system Andringa describes: a good system complicated by human failing. A system that rewards human failing is a broken system. Scott Andringa's stirring defense of "The System" is actually a strong argument for keeping Scott Andringa far away from a judge's gavel. Andringa not only squandered scarce resources in his prosecution of Paey; he ignored his responsibility "to see that justice is done." Nothing about the jury's verdict spoke to the truth. Several people involved in the case failed--most notably, Scott Andringa. Andringa continues to fail by refusing to acknowledge that the case was a travesty of justice. If he is rewarded with a promotion to judge--a position in which he will be charged with ensuring that others accused of crimes are treated fairly--then "The System" will have failed.

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