ACLU raises First Amendment argument over subpoena

Eds: UPDATES with comment by Reynolds; ADDS Tuesday hearing on separate motion by Schneider defense team.

By ROXANA HEGEMAN

Associated Press Writer

WICHITA, Kan. (AP) -- The American Civil Liberties Union has taken up the defense of a political activist in a federal obstruction investigation, claiming subpoenas sought by a "frustrated prosecutor seeking to silence a dissenting advocate" have a chilling effect on First Amendment rights.

Siobhan Reynolds, president of the Santa Fe, N.M.-based Pain Relief Network, is being investigated by a federal grand jury in Topeka for her role in the case of a Kansas doctor whose clinic has been cited by the government as linked to 59 overdose deaths.

The Justice Department issued a grand jury subpoena for Reynolds and her group seeking all correspondence and other documents related to the case against Dr. Stephen Schneider and his wife, Linda, including Reynolds' interactions with attorneys, patients, Schneider family members, doctors and others.

A hearing is scheduled Tuesday in Topeka on the ACLU's motion to throw out or narrow the scope of the March 10 subpoenas issued to Reynolds and the Pain Relief Network. The judge also will hear at the same time a separate motion by the Schneiders' defense team to quash the subpoenas issued to Reynolds and her group.

The ACLU argued that Reynolds' activities are a far cry from the offenses of witness tampering, jury tampering and conspiracy, which the government claims to be investigating.

In its motion, the ACLU argued the subpoenas unjustifiably invade Reynolds' and PRN's freedom of speech and association. It noted the trial judge overseeing the Schneider case denied a prosecution request last year to gag Reynolds and others from talking to the media.

Their filing, posted on the ACLU's Web site, further contends the subpoenas are overbroad.

The ACLU also claimed that Assistant U.S. Attorney Tanya Treadway -- who also is prosecuting the Schneiders -- had misused the grand jury process to circumvent the standard criminal discovery process in the related pending case against the doctor and his wife.

The U.S. attorney's office declined comment on the ACLU motion, and since grand jury proceedings are secret, its filings in the case are under seal. Jim Cross, spokesman for the U.S. attorney's office, said Monday the government will make its response to the court.

"If I were to hand it over then I would in effect become a confidential informant against my will in cases where I have been helpful to the defense or to the accused, and so I wouldn't be welcomed ever again anywhere -- not by the attorneys, not by the experts," she said Monday. "So the very heart and soul of my work would be destroyed."

Reynolds told The Associated Press last month she would go to jail rather than turn over the subpoenaed documents.

"Given the sweeping nature of the subpoenas here, their chilling effect on First Amendment rights, and the circumstances under which they were obtained -- a frustrated prosecutor seeking to silence a dissenting advocate -- this Court should quash the subpoenas as an unjustified infringement on Ms. Reynolds' and PRN's First Amendment rights," the ACLU wrote in its pleading.

ACLU lawyers cited the subpoenas' demand for records of payments to a billboard company as an example of how the government's subpoenas are targeting protected speech rather than criminal activity. PRN paid to erect a billboard in January in Wichita proclaiming in large letters: "Dr. Schneider never killed anybody."

Reynolds' group has supported the Schneiders, who were indicted in December 2007 on 34 counts accusing them of unlawfully prescribing painkillers and overbilling for services at their clinic in the Wichita suburb of Haysville.

"At a more fundamental level, once again, there is a serious danger to First Amendment rights where prosecutors are permitted to infer criminal obstruction of justice from mere First Amendment advocacy in a criminal case," ACLU lawyers wrote.

Treadway's contention that Reynolds' continued advocacy is proof that her speech has not been chilled, and therefore no First Amendment infringement has occurred, is incorrect, the ACLU motion contends.

Reynolds has testified before Congress in her role as president of the Pain Relief Network. The group seeks to overturn the Controlled Substances Act as it pertains to physicians treating chronic pain patients, arguing it improperly interferes in the doctor-patient relationship. The organization has been involved in about 15 cases nationwide in which physicians are charged with violating the act.

The federal indictment charged the Schneiders with 21 overdose deaths and linked their Haysville clinic to 59 deaths overall. A federal judge's decision limiting their trial to four deaths is under appeal. The Schneiders maintain their innocence.

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On the Net:

ACLU: http://www.aclu.org/drugpolicy/religion/39539lgl20090507.html