Biden and Brady
Now that it appears Beau Biden is going to be fine after suffering a mild stroke yesterday, it is time to talk about the political ramifications of the Ammon Report on the Bradley case. You are saying to yourself right now that this case is not political, and no one should be playing politics with it since it is such a grave matter concerning a horrible crime against our most innocent. And I agree, but given the polarized age we live, everything is political, with one side always looking for political advantage over the other, and thus nothing is sacred from the touch of politics. Indeed, when this story first broke, we saw politics being played.
But in reading the report, I am more convinced than ever that there is no political advantage one side can take over the other.
First, everyone is guilty, especially in the most oft repeated failure contained in the report: that everyone failed in not reporting what they knew or suspected to the medical board. Republican and Democrat, liberal and conservative, nurse and doctor, parent and police officer, Attorney General and Judge, everyone…. EVERYONE failed to report what they knew when they knew it. And that is both a moral and legal failure, since the law does require police, prosecutors, doctors and nurses who “reasonably believe” a doctor is guilty of misconduct or unfit to practice medicine to file a written complaint to the board. And even if you were a person not required by law to report it, you were required by your conscience to report it. And people remained silent.
Thus, everyone shares in the blame for the tragedy that befell Earl Bradley’s victims.
Second, in looking for political ramifications, you naturally look at the two political actors in this tragedy: former Republican Attorney General M. Jane Brady and current Democratic Attorney General Joseph R. “Beau” Biden III. But the report exonerates both insofar as there was no specific decisions, actions, or failures to act that you can point to and say, “But for this, the tragedy could have been avoided.” I know you are thinking how can I say that, especially in reference to Jane Brady, as she refused to prosecute Bradley after being informed of the Milford PD’s investigation of Bradley in 2005. Indeed, Jane Brady was the guilty party in my mind, for at least Beau Biden’s AG office was investigating Bradley and trying to get a search warrant in the fall of 2008. As a Democratic partisan looking for political advantage over my Republican rivals, I would love to blame Brady for refusing to investigate. But the truth is not that simple.
Dean Ammon’s full report says this:
There is no indication that [Brady] was aware of the decision not to prosecute. Judge Brady stated she had no knowledge of the case, and it seems reasonable to believe that as fact because Steve Welch, the Deputy Attorney General responsible for the criminal investigation of Bradley in 2005, stated he never discussed it with her.
Now you may say she is still responsible for the conduct of her office, and she is. And you may question how she her office was run if she was not involved in decisions to prosecute. But if I am going to honest here, it is Steve Welch who really has to answer for the decision not to prosecute in 2005. Ammon asked him.
Steve Welch was the head of the Kent County Felony Unit for the Delaware Department of Justice in 2005 and was also the Deputy Attorney General who sat in on the CAC interview with Victim #2. After the CAC interview, Deputy Attorney General Welch contacted his superiors, Steve Wood, the State Prosecutor, and Bobby O‘Neill, the Kent County Prosecutor, and advised them that there was insufficient evidence for an arrest, but that Detective Brown would investigate further. […]
The results of Detective Brown‘s investigation were presented to the Attorney General‘s Office. On May 23, 2005, after consultation with Steve Wood, the State Prosecutor at that time, Deputy Attorney General Welch decided not to prosecute the case. There was no indication that the discussions between Welch and Wood went any higher in the Attorney General‘s Office. In an interview with Welch, he indicated that he has a handwritten note on a May 25th e-mail sent to Wood which said that Welch spoke with Detective Brown the day before and Brown would contact the Medical Board. According to the note, Brown agreed that there was not enough evidence to prosecute. Welch also maintained that it was his idea to report the allegations regarding Bradley to the Medical Board. According to Welch, he determined that Deputy Attorney General Michael Tischer represented the Medical Board and he sent Tischer an e-mail asking if Tischer did indeed represent the board. Welch also claimed that he followed up his E-mail with a phone call to Tischner. It does not appear that Welch had any other contact with Tischer, and there was no evidence that anything more was done regarding reporting the allegations regarding Dr. Bradley to the Medical Board.
For his part, Tischer remembered receiving the call from Welch and Bobby O‘Neil and remembered an e-mail from Welch. In what he described as a 5 minute conversation, Tischer said he was told by Welch that a doctor was being investigated and was asked if [Tischer] thought it was unprofessional conduct for a doctor to kiss a patient. Tischer said he told Welch that standing alone the prosecution would have a hard time. Tischer maintained that Bradley‘s name was never mentioned and that he was not privy to the evidence gathered in Welch‘s case. Further, Tischer did not want to have access to the information because of his role representing the Board. Tischer was the Deputy Attorney General who advised the Board with its hearings, and therefore he felt he had an obligation to ensure objectivity by not being involved either in the investigatory or the prosecution of cases that might come before the Board. Tischer recalled telling Welch to report the matter to the Board and the Division of Professional Regulation. When Welch was asked why he did not contact the board, he said “We relied on him (Brown) to contact the board, and he did.” Welch added, “I didn‘t have any doubt that Brown would call…We did take this seriously; I think Brown did a thorough investigation.”
Detective Brown vehemently disputed Welch‘s account on who agreed to report the allegations against Dr. Bradley to the Board. Brown maintained that before Welch had decided not to prosecute Bradley, it was Brown who went to the Medical Board to get them to investigate the Bradley allegations and was turned away. Brown further stated that out of his frustration with the way the Board investigator refused to assist him, he relayed the information to Welch, and it was at that point, Welch said he would reach out to the Deputy Attorney General who represented the Board.
Yeah, I agree, there is a lot of CYA and He Said-He Said-He Said going on here. Everyone ducting responsibility. Brady’s office and her subordinates will have to answer for and defend the decision not to prosecute, Welch specifically. But is Jane Brady directly responsible? I can’t say that she is with a straight face.
Now let’s turn to Beau Biden. For his part, when the State Police investigation began in the fall of 2008, Beau Biden was shipping off to Iraq, leaving Acting Attorney General Richard Gebelein in control of the AG office during the investigation and attempts to obtain a search warrant.
[State Police] Troop 4 of the Major Crimes department received three (3) reports of inappropriate conduct by Dr. Bradley during exams of patients. These complaints included that of a 12-year old female, who was taken to Bradley for a sore throat and pink eye, and was given a vaginal exam; a 6-year old brought to Bradley for Attention Deficit Disorder and given a 4 minute vaginal exam; and an 8-year old with an excessive urination problem who was given at least three (3) vaginal exams over a six-week period. A forensic interview was conducted of each child at the Sussex County CAC.
As a result, in December 2008, Deputy Attorney General Stacy Cohee, based on affidavits of probable cause from Delaware State Troopers, with the assistance of the State Police High Tech Crime Unit, applied for a search warrant from the Delaware Superior Court in Georgetown for Bradley‘s computers. That warrant application was denied. According to Cohee, the judge indicated that the application was better as an arrest warrant. A former State Police Detective, who has since retired, confirmed that the judge who denied the search warrant stated that he would sign a criminal arrest warrant. The criminal arrest warrant was not obtained. As there is no written decision or transcript of an oral decision, it is not clear as to why the search warrant application was denied, nor is there a contemporaneous documented explanation as to why an arrest warrant was not requested.
However, Deputy Attorney General Cohee stated that she was concerned about making an arrest without more evidence because of the nature of the information DOJ had at the time. In 2008 there were three complaints, which alleged vaginal exams in the presence of guardians, and a complaint about kissing of one of those persons. Cohee indicates she called the Delaware Department of Justice‘s child abuse expert at that time, Dr. Allen DeJong, and asked for an opinion regarding the propriety of Bradley‘s exams, and was told that vaginal exams in certain circumstances were acceptable as a routine procedure. As will be discussed supra, DeJong considered this an informal consult, but Cohee stated that she talked with him at great length -for at least 15 minutes – and was specific about the facts concerning the vaginal exams.
When the alarm bells did not go off for DeJong, Cohee contacted another doctor, Dr. Cindy Christian at Children‘s Hospital of Philadelphia. While Cohee did not go into great detail about her discussions with Christian, Dr. Christian allegedly told Cohee that generally vaginal exams are not appropriate. Thus, conflicting opinions from experts led Cohee to conclude that making an arrest under the circumstances was not the best way to proceed at that time.
After deciding not to arrest and prosecute Dr. Bradley in early 2009, the Delaware Department of Justice and the Delaware State Police stated that they continued to investigate Dr. Bradley using other methods. According to Cohee, there was no indication of the magnitude of the alleged offenses until after Bradley was arrested in December 2009.
To my conservative friends, if I cannot with a straight face blame Brady, than neither can you, on these facts, blame Biden. It would appear that decisions to prosecute are delegated to Deputy Attorney Generals handling the cases. Whether that is a good idea is up for discussion and debate, but in past practice during the Bradley case during both Brady and Biden’s terms as Attorney General, it is the reality.
If the culpable party in letting Bradley go in Brady’s encounter with the Bradley case is Steve Welch, the culprit in 2008 is the unnamed Superior Court Judge who denied Deputy Attorney General Cohee’s application for a search warrant. And I would definitely like to know who that Judge is (I have narrowed it to three Judges but I am not going to guess), and I would like to know his reasons for his decision. Because if cause existed in his mind for arrest warrant to issue, then cause existed for a search warrant to issue.
We will likely know what other methods were employed to continue the investigation past that denial of the search warrant (which Ammon referenced in the report) once the trial of Earl Bradley begins.
But in my mind, the trial of Jane Brady and Beau Biden is over, and by the Ammon report, they were both acquitted of specific wrongdoing.
Yes, they both were guilty, but only insomuch as everyone was guilty in this case.
Tags: Beau Biden, Earl Bradley, Jane Brady
FUBAR to the MAX!
After the judge “indicated that the application was better as an arrest warrant” it was up to the AG to file that application. He did not. It was his responsibility, not the judge’s.
Judges are there to protect people from unreasonable search and seizure by the state. The judge was doing his job.
And the reason the arrest warrant was not applied for is because there was not enough evidence to convict without the search warrant. So the AG office continued the investigation by other methods according to the report, which led to Bradley’s eventual arrest a year later.
Anonone, if probable cause existed to arrest, then probable cause existed for a search warrant. And according to the Constitution, search warrants can issue after probable cause is shown.
DD, I hope that Judges require a pretty high standard of probable cause evidence before they allow police to search innocent people’s medical records in Doctors’ offices. Although nobody has seen publicly exactly what the AG showed the judge, it seems clear to me that he was saying that unless they had enough evidence to arrest he wasn’t going to allow them to search. That does not seem unreasonable to me at all.
In hindsight, I think the AG should have tried to build a stronger case and not given up. I don’t fault the judge.
BTW, you have been doing some good blogging these days.
That is the catch-22 / circular argument in this thing. They weren’t going to get enough evidence to arrest unless they had the search warrant at that point.
And you are factually wrong in saying the AG office gave up at that point. Yes, they didn’t get the arrest warrant then, but the investigation continued, according to the Ammon Report, throughout 2009 leading up to the arrest in December 2009. The details of that investigation will come out in the trial.
I fault the Judge only insomuch as I don’t understand his reasoning. One day, after the case is over, hopefully we will know.
And thanks for the kind words. Blogging, like all writing, hits you in waves, when the inspiration strikes.
You’re right, I should have been clearer: the AG did not give up altogether; they just did not pursue an arrest warrant at that time.
It seems that the AG did not think that they had enough evidence to arrest and the judge did not think that they had enough probable cause evidence to search. Those are the judgements that they are supposed to make. Throw in that mix that there is a presumption of innocence, and the judge made the right call.
It only appears to be a Catch-22 in hindsight because we know now that Bradley is guilty. What if the judge had granted the search warrant and the doctor was innocent? Even a search warrant would have destroyed him.
The AG’s office did continue to investigate after their first request for a warrant was turned down.
Why is Welch still with the AG’s office after this report? He should have the grace to step down, or Beau should fire him. Ridiculous.
“Judges are there to protect people from unreasonable search and seizure by the state. The judge was doing his job.”
That is a tiny fraction of what a judge is there for. And, given the facts put before the judge, his judgment — part of his job, wouldn’t you say? — was execrable.
Why is every prosecutor named in this report, but not the judge?
Wouldn’t the Judge’s name be discoverable under FOIA? The Judge’s name should be disclosed.
Geezer, you have no idea of the quality of the evidence put before the judge. Furthermore, given this particular AG’s office propensity for screwing up major cases, including murder and rape cases, it would not be surprising at all to find that the search warrant request put in front of the judge was weak.
And if the judge said he would sign a criminal arrest warrant, as is alleged, why didn’t the AG prepare one?
This one reeks of failure by the AG, not the judge.
“Geezer, you have no idea of the quality of the evidence put before the judge.”
Unless the cops and prosecutors are lying, yes we do. I’ve laid it out several times now: HIS PARTNER SAID HE PHOTOGRAPHED PATIENTS AND STORED THEM ON HIS COMPUTER. His partner was in obvious position to know. Believe me, if you’re suspected of a shooting and your roommate tells the cops the gun is in your home, a search warrant will be quickly granted and executed. The difference? I suspect a judge was overly deferential to the suspect because the suspect is a doctor.
Beyond that, the supposed defense of the judge makes no sense, at least to a layman — “why do you want a search warrant when you have enough for an arrest?” I’ll be asking my judge friends about this, but your defense doesn’t amount to anything except your predilection to trust a judge more than police or prosecutors.
The report names every person involved except the judge. You have nothing to stand on here but your prejudices.
Dana: Nobody I’ve talked to is even sure where to send the FOIA request.
As I said, Geezer, this AG’s office has screwed up some major cases, including imprisoning innocent people for capital crimes and a major unsuccessful rape prosecution. Perhaps you think that police should have carte blanche to willy-nilly search medical records and potentially destroy an innocent doctor’s career based on flimsy evidence, but I don’t.
The judge didn’t say that the AG had enough for an arrest warrant. He only said that he would sign one if they brought it to him. He likely recognized that they did not have enough evidence to bring an arrest warrant, and they apparently knew it, too, regardless of what you think about what his partner said.
FOIA doesn’t cover Delaware courts. It does cover the administrative office of the courts, but not the courts themselves. Kind of a grey area.
Remember that FOIA is a misnomer – it’s not really the Freedom of Information Act, it’s the Freedom To Get Records Act. You’re not entitled to ask questions and have them answered, but to records that document government actions and decisions. So you could, conceviably, send a FOIA to the AG’s office asking for records pertaining to the interaction with a Superior Court judge who turned down a search warrant – but I can guarantee you that under the investigative exemption to FOIA, they’d turn you down in a heartbeat. And while you could submit it to the presiding judge of Superior Court, it’d probably get laughed at.