BY Detective (Retired) Martin Swirko, Manchester NH Police Department
Most people are familiar with the Miranda Warning. It was derived from the US Supreme Court decision which emerged from the now famous Miranda vs Arizona case in 1966. Despite its notoriety, I would venture to guess that most people don’t know much about Miranda beyond what they see on TV and in movies. I’d also guess that most people don’t know when, where, how or under what circumstances a suspect in a criminal case must be advised of his Miranda rights. I will not be having that discussion here beyond opining that during my time as police officer, it was my responsibility (and all law enforcement officials) to zealously safeguard any suspect’s constitutional rights. That certainly included their right to “remain silent” and seek advice from an attorney.
Today as I take another stroll down memory lane I’m going to talk about the day when I was testifying in the Manchester NH District Court and I had my rights read to me. On that memorable day, I was testifying during a preliminary or Probable Cause (PC) hearing on a case that I had investigated and made an arrest on. Probable Cause hearings always followed soon after a felony level arrest. The legal reason they occurred was to provide a defendant another layer of protection between arrest and indictment. Also, bail could be argued and reset if the court felt that the initial bail set by the court’s bail commissioner or magistrate at the time of arrest was either too lenient or too harsh.
One other characteristic about this preliminary hearing was that the rules of evidence for trials didn’t apply. Hearsay evidence, for example, could be presented at a Probable Cause hearing, but not during a criminal trial. What that meant in simple terms was that one officer, that being the arresting officer or in the case of a detective, the case officer, could testify under oath to what witnesses told the police about what they saw, what they said and what they thought. In a complicated case, like a homicide, at a PC hearing, the detective who knew the most about the case would testify and an array of other witnesses or experts wouldn’t have to come forward and a mini-trial held. The judge just needed to hear the facts of the case, the defense attorney could cross examine the presenting officer about the case in the presence of his or her client. The only purpose of a PC hearing was to establish whether or not probable cause existed and to argue bail. That was it. Nothing more.
Naturally many defense attorneys pushed the limits during these hearings. If the judge or prosecutor let them run away with their cross examination during the hearing, that’s exactly what a PC hearing could turn into. A miniature trial. Also, many attorneys, rather than to waive probable cause and forego the hearing, used the hearing as an opportunity to get “discovery” for the case. Discovery was the legal process that a defendant went through, after indictment but before trial. During the discovery process the defendant, through his or her attorney made a written request to the prosecutor and through the trial court to obtain all the evidence and witnesses that the police, or the state accumulated that led to the arrest and indictment. Defendants are entitled to this information as a matter of law so that they can prepare for trail.
Many attorneys did their best to circumvent the legal or lawful Discovery process by holding long, drawn out PC hearings. They would push the limit as far as the presiding judge would allow them to. Each judge was different. Some judges gave great latitude to the defense, while others followed the letter of the law and had a low tolerance for theatrics.
On the day I am going to talk about here, an overly aggressive defense attorney (some would say there is no such thing) tried to turn the tables on me in the hope that I would fold on the witness stand or confuse me while I testified. Failing that, the attorney used this tactic to place the case on hold and draw it out over time with the hope that it would be dropped and eventually go away.
I found early on during my career that this delay tactic was commonly used in sexual assault cases. Defense attorneys often tried to obtain continuance after continuance hoping that the victim would eventually be worn down, develop second thought about testifying and eventually choose not to go forward with the criminal charges. I’ll talk more about these dynamics in my upcoming book about police work.
During the case I am going to talk about here, I was assigned to the Manchester Police Department’s Financial Crimes Unit. My detective partner for about five years during that time was Ken Loui. Today, as I write this, Ken serves as the Assistant Chief of Police for the Manchester Police Department. But during that time he was a young detective that got stuck working with me on financial cases.
Ken was, among other things, the funniest cop I ever worked with. He had a work ethic that matched my own and was far smarter that I ever could hope to have been. I loved working with him and we had a great partnership. We and our families are still close friends to this day. Between the two of us, we carried a combined case load of over one hundred assigned cases at any given time. In addition to working our cases, we also responded to ongoing crimes and crime scenes as well as homicides as they occurred. Of course, you couldn’t actually work one hundred cases at a time, so we usually each select five or ten cases at a time to work together on.
One day I was assigned an Identity Fraud case, one of many. After reviewing it, I decided the case had enough merit to pull out and place at the top of my list to work on immediately. It wasn’t a huge dollar amount case in terms of loss, but to the victim the financial damage along with the problems associated with that loss in this case for him and his family were tremendous. I did most of the work on this case myself so that I didn’t pull Ken away from anything he was in the middle of.
The victim in this case was a law abiding citizen who lived in Manchester. He was a blue collar, middle class, hard working guy with a family. He owned a home and had good credit. In other words, like most victims of financial crimes, he had something someone thought was worth stealing.
Normally, but not always, to become a victim of Identity Theft, you have to be someone that had good credit and / or a little money in the bank. You had to have something. To put it another way, most Identity Theft victims had to be law abiding, hardworking, taxpaying citizens. Otherwise, there was no point in someone stealing your identity. For this reason alone, I always worked these types of cases hard when they were assigned to me.
In this case, my victim had one more asset that someone tried to steal. That asset was a decent medical insurance plan for him and his family. And the culprit? His own brother. Unlike the victim, as I recall, the suspect in this case was quite the opposite of his brother. He was unemployed, and if my memory serves me correctly he was both an alcoholic and drug addict. He was both desperate enough and had no scruples which prevented him from stealing from his own brother. “Just my kind of case “ I thought to myself after digesting the initial police report.
It seems that the suspect in this case had visited both the emergency departments in both hospitals in Manchester, twice at one location and once at the other. Each time, when he signed in to be triaged and seen, he signed in using his brothers name, date of birth. address and I believe his social security number. He did so knowing that if the costs of these visits would be billed to his brother and his brother’s insurance plan, he would never have to pay.
The victim in this case started to receive bills from both hospitals for these visits which he never made. In addition to the multiple thousands of dollars he had been billed, he was getting bills from various medical associations for the tests and treatments that were run on the suspect.
The bill ran into the tens of thousands of dollars, five figures for sure. To make matters worse, once the victim informed his medical insurance provider that he didn’t make any of those visits, the insurance companies not only refused to cover those visits, they reversed the payments that they had previously made, which made the victim wholly liable for those bills.
On top of being held responsible for his brothers medical bills, these debts started to ruin his credit. By the time this case was assigned to me, this gentleman was at his wits end as to what he could do about this.
Things kept getting worse for the victim as both hospitals and their associated doctors now billed everything to the victim directly. When the victim contacted each hospital and tried to explain what actually happened, neither hospital would help him. They invoked HIPAA (Federal legislation which safeguards patient confidentiality regarding their medical treatments and history). Suffice it to say that during my police career I found many medical professionals who never really did understand what those safeguards actually were, such as to who and when they applied, so they often just invoked HIPAA as an excuse not to co-operate with law enforcement or deal with any of those pesky situations that came up regularly.
Often times when hospital personnel cited HIPAA as a reason not to co-operate it was done so with good intentions based on the employee’s mistaken understanding of HIPAA. Other times it was just used as an excuse so that the employee didn’t have to go out of their way to do any extra work. During my time I was astounded when various hospital personnel were so very uncooperative, always citing HIPAA when I investigated sexual assaults, homicides and even elderly abuse and elderly financial exploitation cases. Always HIPAA, even though much of the time HIPAA didn’t apply to what I was investigating.
Getting along with my story, after reading the initial report that a patrol officer had taken, I arranged for the victim to come in for an interview, Because that officer had written an clear, concise and detailed report, I didn’t have to start from scratch and I could pick it up from where the patrol officer left off. This saved me a lot of time. Unfortunately, that was not always the case, but in this case the reporting officer did a good job.
After digesting the report, and before I ever spoke to the victim, I knew that if this case was going to go anywhere, I had to get the both the victim’s medical records and history as well as the brother’s records from those three emergency room visits. Comparing the two medical histories (one had steel rods in his back, the other didn’t) should at least prove which brother actually visited those two hospitals.
I already knew that the Hillsborough County Attorney would never issue a subpoena for those records. I previously had many “spirited” discussions regarding the same topic with many of the prosecutors in that office. Rightly or wrongly, apparently it was the policy of that office not to issue any kind of a subpoena for medical records. They wouldn’t even allow me to go before a grand jury to seek a grand jury subpoena. I knew before I began that was not an option.
After meeting with the victim, I formulated a plan. I had the victim fill out medical releases for his own medical records at various faculties where he had been treated in the past. As I worked the case I delivered those signed releases to the appropriate medical facilities.
Since the suspect in this case posed as my victim during each of his visits, I requested that the victim sign medical releases requesting records for the visits he was alleged to have made in both hospitals. I reasoned that should be easy enough because after all, as far as the hospitals were concerned, it was my victim who made those visits, they reiterated that several times to the victim. So, when the victim requested this records, the hospitals released them and I was eventually able to get them for my investigation.
I compared the records of both brothers, and medically speaking, one could never be confused with the other. They each had different histories and were treated for differing things at different times and locations. I reasoned that comparing the medical records would show that my victim could never have been the person who made those three visits. So far, so good. But I hadn’t built an Identity Theft case yet.
The suspect had a criminal history, so I was able to locate a previous booking photo of him. I used it to create a photo array which included my suspect. I also made it in a way that complied with various court decisions regarding the use of photo arrays and within the guidance provided by the New Hampshire Attorney General’s Office.
While the victim’s phone was ringing off the hook from various bill collectors, I set out to find each ER Doctor who treated the suspect as he posed as his brother. I wanted to interview each of them with the hope that they would be able to identify the suspect as the person they treated, not his brother. That was not an easy task. After chasing each of these docs around for some weeks, I was finally able to determine a day and time they were on duty and I could see them.
It took a while to catch up with each, but when I did so I caught a few breaks. In one of the hospitals, the same doctor treated the suspect during both visits. After viewing all the records he went on record telling me that the man he treated could not have been his brother. But there was more. After reading his own notes on the two visits he told me he not only remembered both visits he would recognize the guy if he came in again! Out came my photo array, and after following proper protocol, I showed the array to the doctor, and miracle of miracles, the doc immediately picked out my suspect as the person he treated. That proved that that the suspect used his brother’s identity to seek treatment. I had now made two Identity Fraud cases.
The doctor further stated that that there was nothing really wrong with the suspect, in his opinion the suspect was a drug addict seeking drugs, but based on the complaints the suspect presented, he was obligated to order various expensive tests to make sure the suspect really wasn’t ill or injured. The doc said he suspected at the time the tests were a waste of time and money, but ethically he was obligated to follow up on the suspect’s complaints. In the end, the suspect was released from the ER with no definitive problems found and he was treated with an over the counter pain medication. The suspect was not a happy when he left the hospital.
I then took the evidence I had gathered and interviewed the doctor at the other hospital who treated the suspect who again posed as his brother. Unfortunately, that doctor, even while reading his notes, was unable to remember the case or identity the suspect when presented with my photo array. That doc gave his opinion based on his notes. He was able to say, again, based on his notes and then looking at the victim’s medical history, that the person he treated could not have been his brother. No Identification, but I was hopeful at least that would show that the victim had not made that hospital visit.
After gathering all my evidence, I attempted to get the suspect to come in for an interview, but that was never going to happen. Therefore, I sought an arrest warrant charging the suspect with two counts of Identity Fraud (the two times in which the emergency room doc identified his photo) which was a Class A Felony. We eventually found the guy and locked him up.
A short time after his arrest, a preliminary or probable cause hearing was held. Most PC hearings were a formality. Once probable cause was or was not established, the district court had no further authority or control of felony cases. Over the course of my career, I may have lost an occasional probable cause hearing, but in each of those cases, despite the charges having been dismissed at district court, we still sent the case to a grand jury and the grand jury indicted.
And before you ask, that does not constitute double jeopardy. Double Jeopardy only applies when a defendant is found not guilty after a trial. He can never be tried again for the same crime. In the case of a PC hearing, the court only ruled that it believed there was not enough probable cause to go forward with the case. We could continue to work the case, possibly developing more evidence, but even when that didn’t happen, we always got a second bite of the apple by going directly to a grand jury regardless of the outcome of any PC hearing. That was just one of the quirky things I discovered about the New Hampshire Court System and its criminal procedures. To me, I always thought the concept of the PC hearing was redundant, and served no real purpose.
On this day, as I sat testifying about the case and the actions I took, the defense attorney began to cross examine me. I had never seen this attorney before, so I didn’t really know what to expect. When he started off asking how I was feeling and making small talk with me on the stand, I knew he was just trying to soften me up for what he hoped would be the proverbial slaughter.
After the niceties, the defense attorney started in on me. In a dramatic turn of events worthy of portrayal in a Perry Mason episode, the defense attorney expressed shock. “Your Honor” he began. laying it on thicker and thicker as he went along. “It’s my duty to see that Detective Swirko’s constitutional rights are protected and he has the opportunity to seek an attorney for advice before we can continue with this proceeding”.
The attorney, after declaring that he was shocked, just shocked, then went on to declare that I had violated Federal HIPAA laws. I had persuaded his client’s brother to apply for and obtain his client’s medical records using false and fraudulent pretenses. Furthermore, he argued that the medical records I used to build my case on, since I had obtained them fraudulently, should be disallowed as evidence. He went on to demand that and any other information I gathered, such as the photo ID that the doctor made of his client, be treated as the “fruit of the poisonous tree” and also be disallowed. In fact, the entire case should be dismissed because I had not presented one iota of legally gathered evidence. Furthermore, I had entered into a fraudulent and illegal conspiracy with the alleged (his word) victim when I told him to apply for medical records that we both knew belonged to his client and not the victim. Therefore, the hearing should be suspended immediately so that I would not incriminate myself any further. He could not in good conscience allow me, for my sake to continue. Suddenly the packed court room, filled with cops, attorneys and defendants, all trying to make last minute deals while waiting for their turn became silent. All eyes were on me.
I marveled at the act the attorney put on in front of the court and everyone present. The passion, the shock, and his feigned concern for my well being was almost believable. He certainly earned his fee that morning, I cynically thought to myself as he went on and on as though was a Shakespearean actor.
The Honorable William Lyons was the judge hearing the case that day. He never did or ruled on anything without making a well, thought out decision based upon a solid legal foundation. When the attorney composed himself after putting on quite the show, Lyons questioned the attorney’s legal theory and argument at length. I eventually got the impression that the judge wasn’t buying it, but I wasn’t sure. After he was satisfied, Judge Lyons was quiet for a minute and then he addressed me.
“Detective Swirko” he began “I feel it is my duty to advise you of certain rights you have at this time.” The judge went on to read me a slightly modified version of the Miranda warning. Basically it came down to the fact that if I wanted to consult and attorney for advice he would continue the hearing to a further date until I had that opportunity. Judge Lyons actually told me that among other things I had the right not to incriminate myself (if in fact that was what I was doing by testifying) and seek an attorney. No one had ever said that to me before or since. An interesting turn of events for sure.
Now I’d been around for more than a day, and had seen this tactic implemented in the past, but never on me. However, I was not intimidated. I recognized this tactic for what it was. Beyond that, I thought that the attorney’s legal argument had been so twisted and distorted as was his portrayal and explanation of HIPAA that it wasn’t logical. I didn’t believe it passed the legal standard known as the “straight face test”.“EFF this guy” I thought to myself.
After Lyons had read me my rights and asked what I wanted to do, I answered immediately without wavering. Sounding as sincere and authentic as I possibly could, I started off by thanking the defense attorney for going out of his way to protect my rights. I told him I appreciated all he had done for me. I tried to pretend outwardly that I was very appreciative of his concern. Meanwhile, I was thinking to myself that two could play that game. So I did.
I went on to say that since I had violated no laws or obtained any evidence illegally, I saw no need to seek the advice of an attorney, nor to continue this hearing to a different date. Therefore, I declined to take the opportunity that the judge and attorney had graciously offered me. I then thanked the judge. I believe the defense attorney was not expecting my response. He tried not to show it, but he was definitely surprised and didn’t expect it. Judge Lyons asked me one more time if I was certain that I wanted to proceed, and I told him I was and thanked him again.
The hearing continued and Lyons overruled the defense request to suppress the evidence I presented. He simply ruled that the submission and legality of evidence presented at the hearing was beyond the scope of a probable cause hearing. He then ruled that probable cause existed and he was going to bind the case and defendant over to Superior Court, where the process would start all over again. Bail for the defendant would be continued in the meantime. I then left the courtroom, walking past the attorney and defendant without looking at either. I held my head high thinking my integrity had been questioned in open court and successfully defended.
Eventually the suspect was indicted. Much to my delight, he was also indicted for the third case where the emergency room doctor could not identify or recall the suspect’s visit there. Eventually he pled guilty to all three incidents of Identity Fraud. The defendant was ordered to pay restitution to both hospitals. But, just as importantly, the hospitals and other entities involved were forced to release the victim from all monetary obligations and bill his brother for their services. Eventually, the victim’s good name and damaged credit was repaired and he was made whole. I don’t know if the hospitals ever got a cent in restitution, but that was beyond my control. In this case, that outcome was good enough for me. Chalk one up for the good guys.
