Today the Broward State Attorney's Office dropped the charges of Failure to Report Child Abuse/Neglect filed less than three weeks ago against Dr. Helen Richardson and Dr Juliana Gerena. The State Attorney's Office stated that Florida Statute Section 914.04 prevented them from proceeding against the doctors. This is true and it is commendable that the State Attorney's Office recognized their legal obligation to dismiss the charges. But the time for the dismissal based on this technical ground existed long before today.
Florida Statutes Section 914.04 is a useful tool that allows the State to obtain information that is necessary to pursue criminal charges. Issuing a subpoena to gather information and evidence is the proper way to investigate allegations of criminal conduct. However, requiring witnesses who are subpoenaed to testify or produce records after they have received a subpoena comes with a trade-off. Under 914.04 any witness, as well as the records they are required to produce, automatically receives immunity from the use of their testimony or their records against them in a criminal proceeding. This is what is referred to in legal terms as "use immunity." This is what occurred when Dr. Richardson and Dr Gerena provided their records to the grand jury in the spring of this year. They received use immunity.
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Looking back, it appears that at the time the State sent out their subpoena, they did not believe that the doctors were targets of the investigation. So at that time, serving a subpoena that would provide immunity was a good idea.
However, as they should have, the attorneys who were representing the doctors made a strategic decision to fight these subpoenas on the grounds of both the doctor patient privilege and the right against self incrimination. This should have highlighted the fact to the State that if enforced, the subpoenas would provide immunity to the doctors for the use of these documents against them. If the State had any evidence to support an allegation that the doctors had committed a crime, they should have paused and evaluated whether or not they still needed these records to prove their case against other individuals. However, after deciding to move forward with the subpoena, once the State finally obtained the patient records through their subpoena, use immunity kicked in for Dr. Richardson and Dr Gerena.
At that time and as a specific result of this decision, a legal obligation existed for the State not to file charges based solely upon these records. Unless the State had additional evidence, independent of the subpoenaed records, the case against the doctors should have been abandoned.
The fact that the State dismissed the charges today indicates that there was no additional independent evidence that the doctors failed to report child abuse or neglect. Unfortunately, Dr. Richardson and Dr Gerena were arrested, fingerprinted, and dragged through the criminal justice system for a case that was built solely upon information that could not have been used against them.
David Weinstein heads Clarke Silverglate PA's white collar criminal defense practice. His areas of expertise include corporate compliance, asset forfeiture and recovery, money laundering and fraud cases.
Before joining Clarke Silverglate, Mr. Weinstein was an Assistant United States Attorney and an Assistant State Attorney in Miami Dade County. Prior to leaving government practice, he served as Chief of the Public Integrity/National Security section at the US Attorney's Office.
He has 25 years of practice in criminal law and his courtroom experience includes more than 100 jury trials ranging from burglaries and homicides through international money laundering and drug trafficking cases.