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Board investigator’s implied threat of sanctions excludes use of his interview of licensee as evidence in criminal case

A state medical board investigator who cooperated with local law enforcement, using the implicit threat of license sanctions to coerce testimony from a physician that led to his criminal conviction, violated the physician’s Fifth Amendment right to freedom from self-incrimination, an Ohio appellate court ruled June 24. The ruling made evidence from the interview inadmissible (State v. Gideon).

In 2017, the Ohio State Medical Board cooperated with local law enforcement in an investigation of physician James Gideon for alleged inappropriate touching of his patients. Gideon denied the allegations to criminal authorities, and a board investigator, Chad Yoakam, after consulting with the police officer in charge of the case, went to question the doctor, evidently hoping to get more incriminating answers. Because he was a licensed physician, state law required Gideon to cooperate with the board and provide truthful answers to questions, or else face license discipline. Yoakum shared the results of his interview with the police.

Because he was a licensed physician, state law required Gideon to cooperate with the board to provide truthful answers to questions, or else face discipline. Following this interview, Yoakam shared the results with the police.

During the criminal trial that followed, Gideon challenged the use of his interview with the board investigator as evidence, arguing that, because he had no choice but to cooperate with the board, the statements were involuntary and their use a violation of his Fifth Amendment rights to due process.

 The trial court denied the motion, holding that Gideon’s interview was done voluntarily. A jury found Gideon guilty of sexual imposition, and the court sentenced him to 180 days in jail and ordered him to be listed as a sex offender. Gideon appealed, and the case went up to the state Court of Appeals, which issued a decision overturning his conviction.

A U.S. Supreme Court case, Garrity v. New Jersey, holds that the government may not penalize the assertion of a suspect’s Fifth Amendment privilege, including through the use of civil sanctions. Despite this ruling, in Gideon’s case, the trial court had concluded that, although Gideon believed he would be penalized—through the loss of his license—if he refused to answer the board investigator’s questions, his belief was not objectively reasonable, and Garrity was not applicable for his defense.

Here, the Court of Appeals did not agree, holding that the lower court was wrong to hold that Gideon unreasonably believed he would be penalized if he did not cooperate with the board investigator’s interview request.

Ohio statutory law, the court explained, permits the board to discipline medical licenses if a licensee refuses to cooperate in board investigations, and the court held that this disciplinary power did amount to the type of penalty on non-cooperation envisioned by Garrity.

“The evidence in the record reflects that the circumstances surrounding the administrative investigation at issue in this case show some demonstrable, coercive action by the state beyond the general directive to cooperate,” the court said. The statute allowing the board to discipline licensees for a refusal to cooperate in board investigations put licensees on reasonable notice that they could be penalized by invoking their Fifth Amendment privileges.

Noting Yoakam’s purposeful cooperation with criminal law enforcement, Judge William Zimmerman wrote that, “while there is nothing inherently wrong with Investigator Yoakam and law enforcement’s agreement to share information, the evidence in the record reveals that Investigator Yoakam exceeded statutorily permissible collaboration by taking demonstrable steps to coerce Gideon to provide him an incriminating oral and written statement in reliance on Gideon’s duty to cooperate. In other words, Investigator Yoakam was posing as a ‘straw man’ to effectuate law enforcement’s criminal investigation.”

Taken as a whole, the court wrote, “Yoakam’s actions created an impression that Gideon’s refusal to cooperate with his investigation would result in the type of penalty prohibited under Garrity.” Because Gideon’s belief that he would be penalized if he refused to cooperate was reasonable, his statements were not voluntary. The judgment of the lower court was reversed, and the case remanded for further proceedings.