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Former Cincinnati VA chief's criminal trial begins amid skirmish over audio recordings

Posted at 9:32 AM, Jan 03, 2018
and last updated 2018-01-03 21:47:10-05

A last-minute skirmish over interrogation recordings set the stage Monday for the hotly contested criminal trial of Dr. Barbara Temeck, a former Cincinnati VA chief of staff who is accused of illegally prescribing pain pills to the wife of her former boss.

The charges stem from a 2016 investigation by WCPO and the Scripps Washington Bureau, which spent several months exploring management concerns that 34 hospital whistleblowers raised. That report, “Dereliction of Duty,” presented evidence that Dr. Temeck wasn’t properly licensed when she prescribed hydrocodone and diazepam to the wife of former VA Network Director Jack Hetrick in 2012 and 2013.

By the time the report was published, the VA’s Office of Inspector General had already interviewed Dr. Temeck, launching an investigation that led to her indictment last May.

Last week, federal prosecutors asked U.S. District Judge Michael Barrett to let a jury hear audio clips from that two-day interview. Defense lawyers asked Barrett “to exclude the audio clips altogether” or require them to be heard in their entirety.

It’s a key issue because Dr. Temeck’s attorneys want to present evidence that she was selectively prosecuted because she was fighting waste and management abuses at the Cincinnati VA.

“The defendant should be precluded from arguing such motivations to the jury,” wrote Assistant U.S. Attorney Kyle Healey in a motion Friday. “Even if any of these purported improper motivations were true, which they are not, they would not be a proper grounds for the jury to consider in determining Dr. Temeck’s guilt or innocence.”

Barrett heard arguments on the motion Tuesday but hasn’t made a ruling on the matter. Back in November, however, Barrett rejected the notion that Dr. Temeck was unfairly targeted for prosecution when he refused to dismiss the indictment or permit additional discovery on the issue of selective prosecution. Here’s an excerpt from that Nov. 14 order:

"The government contends, and there is no evidence to the contrary, that the Department of Veterans Affairs Office of Inspector General learned of the allegations regarding defendant’s prescription practice through a media outlet story. The following day, VA-OIG agents conducted an interview and thereafter opened a case file. After interviewing the defendant, VA-OIG presented the case to the United States Attorney’s Office for the Southern District of Ohio. All of this happened within a few days. There is no evidence of improper or untoward actions by either VA-OIG or the United States Attorney’s Office. Other than vague, unsupported references to possible motivation, the defendant sets forth no factual basis warranting the granting of her motion."

Court filings indicate prosecutors will try to narrow the focus on Dr. Temeck’s actions only, not the government’s response to those actions.

“The allegations in this case stem from Dr. Temeck unlawfully prescribing three controlled substances to a non-veteran patient who was not entitled to benefits or treatment from the VA during 2012 and 2013," Healey wrote in a September court filing. "She provide(d) the prescriptions after receiving nothing more than a phone call or an email from a colleague requesting the controlled substances for his spouse.”

Court records identify Dr. Temeck's patient by her initials, K.H., and describe her as the wife of a high-ranking VA official. But the dates on the indictment match those on prescription records for Hetrick’s wife, Kathleen. The records were obtained by Scripps and WCPO as part of its Cincinnati VA investigation.

Prosecutors are expected to call a pain management specialist as an expert and fact witness. Court filings indicate Dr. Muhammad Munir prescribed pain pills for Hetrick’s wife.

Defense attorneys tried to exclude Dr. Munir’s testimony with a November motion that argued it could inflame the jury. 

“Given the opioid epidemic sweeping the area from which the jury pool will be selected, testimony regarding the risks of opioids would very likely inflame and mislead the jury,” attorney Ben Dusing wrote. “Further, what ‘could’ have happened if K.H. overdosed is similarly inflammatory.”

Dusing has also argued that any prescriptions that Dr. Temeck wrote were for “a legitimate medical purpose and within the scope of usual medical practice.”

Judge Barrett ruled that Dr. Munir can testify but the jury will be instructed to treat his testimony on facts differently than his testimony on opinions.

“You do not have to accept Dr. Munir’s opinion,” said one version of a proposed jury instruction that Dusing submitted last week. “Remember that you alone decide how much of a witness's testimony to believe, and how much weight it deserves.”

The trial began with jury selection at 9:30 a.m. Wednesday. It’s expected to last at least three days. If convicted, Dr. Temeck could face up to 20 years in prison and up to $750,000 in fines. The VA fired her in November.