What do the Duke lacrosse players, former Alaska Senator Ted Stevens, General Michael Flynn, and the Aetna insurance company have in common? Evidence that was damaging to the government’s case against them appeared to be withheld. Fortunately, in each of these cases, the actions by the governments’ attorneys were discovered.
The rules of ethics for attorneys require that attorneys not conceal or destroy evidence, even if that evidence could harm their case. Simply stated, the law seeks the truth, and evidence is the means to it. Though the stakes can be high, enforcement of this requirement is often weak.
Consider these well-known examples of concealing evidence:
- Members of the Duke University lacrosse team were accused of rape. Prosecutor Michael Nifong had DNA evidence that exonerated the defendants, but he concealed that evidence. Ultimately, the evidence came out in court, and the case against the lacrosse players was dismissed. Michael Nifong was disbarred for his unethical behavior.
- Republican Senator Ted Stevens of Alaska was convicted of accepting payments from an oil company executive. The indictment was made in an election year, and Stevens lost his re-election to Democrat Mark Begich by 2.3% or just under 4,000 votes. After the election, an FBI whistleblower alleged that the three United States attorneys prosecuting the case concealed information that impugned the evidence against Stevens. Stevens was exonerated of all charges. The two prosecutors were each suspended without pay for a few weeks. The third committed suicide.
- General Michael Flynn was accused of lying to federal investigators. After a plea bargain, North Carolina attorney Sidney Powell filed a motion to release previously concealed evidence that indicated that the FBI was convinced Flynn was telling the truth. The U.S. Department of Justice has moved to dismiss that case.
We may soon be able to add another one to the list.
In 2019, the North Carolina Department of Health and Human Services (DHHS) under Dr. Mandy Cohen awarded multi-billion-dollar Medicaid managed care contracts to the four private companies that scored highest on a purportedly independent evaluation. Aetna was not selected as one of the four companies and filed suit, claiming that the process was arbitrary and capricious. During the legal process, a DHHS witness revealed that Aetna’s proposal was in the top four. DHHS and Attorney General Josh Stein’s office allegedly withheld from Aetna the original scoring document that confirmed that Aetna should have been one of the four companies awarded the multi-billion dollar contract.
A committee of seven DHHS employees constituted the “evaluation committee” tasked with appraising proposals for over $30 billion in contracts. The scoring difference between Aetna and Blue Cross and Blue Shield of North Carolina (BCBSNC) came down to whether a certain reference letter submitted by BCBSNC came from an independent entity. After considering the letter, the evaluation committee unanimously denied scoring the letter. When the committee had finished reviewing all of the proposals, they prepared the scoring list showing Aetna in fourth and, therefore, the final winner. BCBSNC came in fifth. After the results were given to DHHS leadership, Lotta Crabtree, the agency’s deputy general counsel, appeared to interject herself into the evaluation process and demand that the group score the BCBSNC letter. This revised evaluation led to a multi-billion dollar contract for BCBSNC and nothing for Aetna.
Despite having the ethical obligation to provide the original evaluation to Aetna during discovery, the Attorney General’s office and DHHS had not done so. In fact, the original listing’s existence was only revealed by a member of the Evaluation Committee when she was deposed under oath. Immediately upon learning of this document, Aetna’s attorneys paused the deposition and demanded the document. The exchange was recorded. (Mr. Kessler is an attorney for Aetna, and Mr. Knowlton is an attorney for DHHS):
Only after the inadvertent admission of the document’s existence and the demand for it was it handed over to Aetna.
Of all of the documents that were turned over to Aetna during discovery, a list showing Aetna as one of the winning candidates was critically important to the case. Why they withheld the document and why Ms. Crabtree required the proposals to be rescored is a subject of the litigation.
If the document was withheld intentionally, it would appear to be an ethical violation on the part of the Attorney General’s office and DHHS. Given the obvious importance of this document to the case, it remains to be determined why the document was withheld. Whether a criminal conviction or a multi-billion dollar contract are in the balance, concealing evidence by the government has serious consequences.
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