A federal judge has overruled a defense motion alleging prosecutorial misconduct in the case of indicted Carthage counselor Tammy Neil and has reset her trial for Aug. 20.

Neil had been set to go to trial in February in U.S. District Court in Springfield on charges that she conspired with her deceased ex-husband, Dr. John Freitas, to distribute large quantities of the prescription drugs phentermine and hydrocodone illegally and “outside the course of professional practice” through their pain-management and weight-loss clinic in Carthage, and that she laundered the proceeds of their illegal activity.

The trial was postponed when Neil’s attorneys, Richard Monroe and Tyson Martin, filed a motion Feb. 2 asking that her indictment be dismissed. The defense alleged that Randall Eggert, an assistant U.S. attorney in the case, knowingly elicited perjured and misleading testimony from government witnesses before the grand jury that indicted her on 24 counts in 2010.

The motion alleged that Eggert’s questioning of investigators before the grand jury was calculated to create false impressions, and that it elicited numerous inaccuracies of testimony that prejudiced the grand jury against Neil.

U.S. District Judge Richard Dorr wrote in his order dismissing the motion that the defense attempted to create the appearance of impropriety on the part of the federal prosecutor “by highlighting every mistake or questionable testimony that occurred before the grand jury.”

The judge found no evidence of any perjured testimony offered by government witnesses. He wrote that the defense failed to show how certain inaccuracies in those witnesses’ testimonies materially affected the case against Neil or served to prejudice the grand jury against her.

For instance, the motion to dismiss complained that a Drug Enforcement Administration agent had testified before the grand jury that Freitas had been “stripped of his ability to practice medicine in the state of Nevada” before the couple moved to Missouri. Neil argued that this was false and created the impression that Freitas had been engaged in an impropriety in Nevada that prejudiced jurors against Neil by association.

The judge found that while the agent’s testimony was mistaken, it was not perjurious. The judge said the issue surrounding the doctor’s license was not material in any way to the charges jurors were being asked to bring against Neil.

“Neil also frequently raises arguments directed to the interpretation of evidence while attempting to pass off such arguments as demonstrating government misconduct,” the judge wrote.

Another issue raised by the defense concerned the same agent’s testimony that Freitas had stopped prescribing pain medication at the Complete Quick Care Clinic in Carthage when one of his patients died of an overdose of hydrocodone in February 2008.

The defense objected that Freitas’ decision to stop prescribing pain medicines was made the previous month, and that the prosecution knew this because one of the undercover agents who went to the clinic posing as a patient was told five days before the fatal overdose in question that the pain management side of the practice was being discontinued.

The judge found that the issue did not appear to be either material or prejudicial. The prosecutor had pointed out that the agent was aware that another hydrocodone patient of the doctor’s had shown up in an emergency room in January of that year with an overdose, and that the emergency room physician had contacted Freitas and threatened to report him if he continued prescribing pain medicine without a proper medical basis. The prosecutor argued that the agent could reasonably have concluded that the doctor had made the decision because of his patients’ overdoses.

The judge wrote: “Notably, the fact that Dr. Freitas decided to end his pain management practice before a patient died resulting from an overdose does not change the fact that a patient died because of an overdose or that another patient was forced to go to the emergency room. The statement also does not undermine the other evidence tying Neil to the charges asserted against her.”

Dorr did grant a motion seeking further disclosure to the defense of all grand jury colloquy and testimony. The ruling would allow the defense access to the prosecutor’s introduction of the case to the grand jury and discussion of the statutes involved. All other transcripts of the proceedings already were provided to the defense during discovery, according to the response of the U.S. attorney’s office to the defense motion.

The indictment alleges that the illegal activities took place between Jan. 1, 2005, and March 26, 2008. Neil and Freitas were divorced in December 2007, and she received the clinic in court proceedings. Freitas moved to Florida before the DEA seized the clinic’s records in June 2008. He committed suicide in February 2010.



Other motions

IN ADDITION TO DENYING a defense motion to dismiss the case against Carthage counselor Tammy Neil, a federal judge has granted motions by the prosecutor to be given a second chance to make copies of patient records that were returned to the defendant before the U.S. attorney’s office realized that copies had not been made, and to compel Neil to provide samples of her handwriting for possible use at trial.