A journalist fights the power for public information

P.E. PVD HEADSHOT WEYBOSSET smallBy Philip Eil   

For more than three and a half years I’ve been fighting to access evidence from a trial that sent a man to prison for four consecutive life terms. The defendant in that case—Dr. Paul Volkman, the “Pill Mill Killer,” the “largest physician dispenser of Oxycodone in the US from 2003-2005”—went to college and medical school with my dad, and I’m trying to write a book about him.

Now, it might sound odd that I, or anyone in this country, would have to fight for access to trial evidence that’s already been shown in open court. Doesn’t the Sixth Amendment guarantee all citizens a public trial? Haven’t landmark court decisions established that trial evidence can’t be un-published? And, if all else fails, doesn’t the Freedom of Information Act (FOIA) offer transparency insurance? After all, no one administering the law with President Obama’s 2009 “presumption in favor of disclosure” memo in mind would withhold previously published trial evidence, would they?

The answer to each of these questions is “You would think so.” But more than four and a half years after Volkman’s trial ended (the verdict was delivered May 10, 2011, a date tattooed on my brain), the vast majority of the evidence hasn’t been released. Judges, clerks, and prosecutors have all denied my requests. And when I filed a FOIA request with the Department of Justice in February 2012, the events that ensued were, in the words of MuckRock, a “nightmare.” That’s why—with the help of the Rhode Island ACLU and pro bono attorneys Neal McNamara and Jessica Jewell from Nixon Peabody—I’m suing the Drug Enforcement Administration.

In a sense, my case revolves around a simple question: can the government seal off a trial—in this case, for reasons related to medical privacy—once the jury has been dismissed and the defendant hauled to prison? I say “No.” The government, apparently, says “Yes.”

And, for now, let’s stick with the theme of simplicity. Because, as this lawsuit trudges on, there’s really only one document you need to see. It’s a 62-page packet filed “for review and consideration by the Sixth Circuit Court of Appeals” by the Ohio US attorney’s office on February 19, 2013.

In February of 2013, Volkman was fighting to have his conviction overturned, while the Ohio US attorney (the office that had successfully prosecuted him) was fighting to make sure the conviction stuck. With this 62-page packet, prosecutors presented a curated selection—16 exhibits, out of more than 200 shown at trial—of their most powerful evidence. Unlike any of the other trial exhibits, the packet was uploaded to PACER, making it accessible to the public.

That’s worth repeating: by submitting this packet to the appellate court, prosecutors published trial evidence. And they did so with very few redactions. Only a handful of black bars appear in the packet to cover Social Security numbers and birthdays on death certificates, and—curiously—the last name of one of Volkman’s victims (but not three others) on prescription slips and medical-exam reports. Mostly, the trial exhibits are published in their pristine, un-redacted natural state.

Mind you, these are the same prescription slips, death certificates, and reports that were withheld or aggressively redacted when I asked the DOJ for them in 2012. And these are the same prescription slips, death certificates, and reports that the Rhode Island US attorney (which is handling the lawsuit for the DEA) withheld or aggressively redacted when the office attempted to settle my case with two new “releases” on July 29 and August 31, 2015.

Which brings me to the one thing to remember about my case. Even if you ignore the Sixth Amendment, pro-courtroom-transparency court decisions, and Obama’s “presumption in favor of disclosure” FOIA memo, the government’s stance in this case still doesn’t make any sense. Because, as the 62-page packet from 2013 shows, the government is currently defending a privacy line they’ve already broken.

Four and a half years is a long time to wait for the release of this trial evidence. And I’ve come to view my FOIA case as a symbol of a lot of things: bureaucratic incompetence; Obama-era bullying and intimidation of journalists; and the disturbing fact that the US government, in 2015, can’t live up to some of this country’s founding principles. But, as with so many governmental failures, this is also a story about wasted taxpayer dollars. After receiving my FOIA request in 2012, DEA employees spent untold hours painstakingly redacting pages of trial evidence that had already been shown in open court. (Six hundred seventy-four days passed between my first partial FOIA-response release in May 2013, and my last, in March 2015.) And, right now, it seems there are people in the Rhode Island US attorney’s office working to make sure this previously published evidence (a chunk of which was re-published, in 2013) doesn’t see the light of day.

These are not top-secret documents. This is evidence that sent a man to prison. This is evidence from a case that traveled all the way to the US Supreme Court. This is evidence that was presented in every US citizen’s name, since we were all plaintiffs in “the United States of America vs. Paul Volkman.” Welcome to the “most transparent administration in history.”

Philip Eil is a freelance journalist and former news editor at the now-closed Providence Phoenix. His work has appeared in publications including The Atlantic, Vice, Salon, Rhode Island Monthly, and the Jewish Daily Forward. Email him at philip dot edward dot eil at gmail dot com and find him on Twitter at @phileil.

The Providence Phoenix, 1978-2014*

Screen Shot 2014-10-10 at 7.20.05 AMAs you may have already heard, The Providence Phoenix is shutting down, about a year and a half after The Boston Phoenix closed its doors. Ted Nesi of WPRI covers it here. Awful news, but not entirely unexpected. As recently as a few months ago, I was hearing that The Portland Phoenix of Maine was doing well but that Providence was lagging financially.

What happened? It’s hard to say. But Portland is a smallish city, insular and self-contained — the sort of place where alt-weeklies seem to be surviving. An example: Seven Days of Burlington, Vermont, which appears to be thriving. Providence, by contrast, is a fairly large city within the orbit of Greater Boston.

The demise of The Providence Phoenix would be bad enough on its own. What makes it even worse is that the Providence Journal is in the midst of downsizing following its sale to a company affiliated with the GateHouse Media chain. There is a real gap in Providence, and it’s not immediately clear what will fill it. Perhaps Rhode Island Public Radio can beef up its online local coverage. Maybe the online-only news site GoLocalProv will rise to the challenge. Or something new might come along.

The Providence Phoenix has produced some fine journalists over the years, including Ian Donnis of RIPR and David Scharfenberg of The Boston Globe. And best wishes to editor Lou Papineau, a veteran who started at the paper back when it was known as the NewPaper, and news editor Phil Eil, a more recent hire.

Best wishes, too, to publisher Stephen Mindich, who kept the Boston and Providence papers alive for as long as he could. I hope the future is brighter for The Portland Phoenix — now the only remaining alt-weekly in what was once a vibrant regional chain.

And yes, I plan to rant about this later today on WGBH’s “Beat the Press.”

(Note: I was a staff writer and editor for The Boston Phoenix from 1991 to 2005, and last wrote for the Providence and Portland papers this past July.)

*Correction: The headline originally gave the incorrect year for the founding of The Providence Phoenix, which began life as The NewPaper. As founder Ty Davis writes in the farewell issue, he began the paper during the Blizzard of 1978.

Cuts are imminent at the ProJo and the New Haven Register

The redoubtable Ian Donnis of Rhode Island Public Radio reports that The Providence Journal may shed up to 40 jobs once an affiliate of GateHouse Media has completed its purchase of the paper. Donnis’ source is impeccable: the number is included in paperwork GateHouse filed with the Securities and Exchange Commission.

Donnis does not say how many employees the Journal now has, and I was unable to find that number in recent coverage of the sale. I’ll add it if someone passes it along. Also, I assume that all 40 cuts will not be in the newsroom.

Also, Philip Eil of The Providence Phoenix takes a look (link now added) at what the sale means for the venerable paper. (Founded in 1829, the Journal bills itself as the oldest continuously published daily paper in the United States.)

In other dispiriting news, Paul Bass of the New Haven Independent reports that another round of deep cuts is imminent at the New Haven Register. Once part of the Journal Register Co., perhaps the worst newspaper chain in the country, and in more recent years a beacon of hope under Digital First impresario John Paton, the entire chain — which includes Massachusetts titles such as The Sun of Lowell, the Sentinel & Enterprise of Fitchburg and The Berkshire Eagle — is now believed to be for sale.