Friday, December 16, 2016

Statement Read at Board Meeting 15 December 2016





Thank you for this opportunity to address the Board.

 I have refused to comply with the recently instituted criminal background check requirement for continued dental licensure. I've given a comprehensive explanation of my position in a letter that I submitted to the Board at my Rule To Show Cause Hearing in October. I'll spare the Board a reading of that letter at this time. Considering the consequences of your findings on my future career, I can only hope you have taken the time to read it.   [Note:  The Board apparently never received this letter from the Chief Hearing Officer Mr. Akin, and never read the letter.  You can read the letter in the previous blog post.]

The short version of my position is this: The law is unjust because it flies in the face of a fundamental principle of justice: Innocent until proven guilty. This law essentially presumes every Delaware healthcare provider is guilty until they prove otherwise. And not satisfied with simply conducting the background check as is often done for such mundane a purpose as renting an apartment, this law demands I actively participate in the State's supplanting of my rights by submitting to fingerprinting by law enforcement. This has traditionally been a practice reserved for criminals.

The Chief Hearing Officer, Mr Akin, sent this Board a letter dated 21 October 2016.  [Note:  The letter that I refer to here is not my letter to the Board, but a letter written by Mr Akin, the Chief Hearing Officer, that was a review of my Rule to Show Cause Hearing on 4 October, and included his recommendations to the Board for disciplinary actions against me]  In that letter Mr. Akin advises you that my arguments are not relevant to this Board. My objections should be addressed to the legislature, not to you. Mr Akin suggests that the Deputy Attorney General present at this meeting will agree with him. Your job isn't to weigh what is just. Your job is to simply follow the law. They assert that you have no choice in the matter. I don't agree. If you have no choice in the matter, why is this Board being consulted in the first place? Why aren't the findings of the Chief Hearing Officer the final determinant of action here? Unless your purpose is nothing more than to rubber stamp the findings of the Hearing Officer, I will presume that this Board does, in fact, have the capacity to exercise its own discretion and judgment.

 If you read my letter, or Mr. Akin's summary of my letter, you know that I view my refusal to comply as an act of civil disobedience. If you have no sympathy for my position, then I presume you will follow Mr Akin's recommendation in some fashion. But if you believe that my position has merit; if you would prefer to serve the interests of justice instead of practicing blind obedience to flawed legislation, then I request that you reject the recommendations of the Chief Hearing Officer and the Deputy Attorney General and simply take no action against me.

This Board is, in essence, a jury. You've been presented with a series of arguments, and you are asked to make a decision that will determine whether I may continue to practice dentistry, or have that privilege suspended. Like it or not, you're my jury, and I want to make you aware that juries have a distinguished past history of rejecting bad law to ensure that justice is served. For instance, prior to the Civil War, juries often refused to convict those assisting runaway slaves for violations of the Fugitive Slave Act. Principle was more important than bad law. Or consider the case of a whistle blower who discloses information revealing the fraudulent business practices of his employer. Said employer could sue that whistle blower for violating non disclosure agreements. A principled jury could find the whistle blower not liable despite his guilt in order to see justice done rather than practice blind obedience to the law. This courageous behavior has a name. It is called Jury Nullification.

Jury Nullification is a jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.  Jury verdicts of acquittal are unassailable even where the verdict is inconsistent with the weight of the evidence and instruction of the law.

You have an opportunity to perform a similar exercise in good judgment. You can find in favor of fairness and morality rather than in support of a misguided and over reaching bureaucracy. The bureaucracy is telling you that you must punish me because it is the law. I am appealing to you to choose justice over law and allow me to continue to earn my living and serve the public in a profession to which I have devoted the past almost forty years of my life.

Thank you. That concludes my statement.

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