Deborah S. Bordeaux, M.D., was tried and convicted of distributing controlled substances in violation of the Controlled Substances Act (CSA) after working less than three months at a South Carolina pain treatment clinic.

Dr. Bordeaux, a temporary employee, passed through the clinic shortly after the clinic had come to the attention of the Drug Enforcement Administration (DEA) but well before the bulk of the investigation was completed.

Nine physicians who worked or had worked at the clinic were indicted. Five physicians entered into plea agreements and testified against their medical colleagues at trial. A sixth physician also pled guilty but committed suicide before trial.

The remaining three physicians, including Dr. Bordeaux, went to trial. All three were convicted. Dr. Bordeaux, who is now facing sentencing and lengthy imprisonment, continues to maintain her innocence.

I was hired by the Pain Relief Network (PRN), a nonprofit organization, to develop Dr. Bordeaux's appeal as a test case and, in so doing, to lay the groundwork for improved defense strategies nationwide.

Sentencing was held February 17, 2004, in Florence, South Carolina. Although the federal government recommended imposition of a 100-year sentence, Dr. Bordeaux was sentenced to eight years and one month. Soon thereafter, Dr. Bordeaux appealed her conviction and sentence, and through a series of motions Dr. Bordeaux remains free pending the outcome of her appeal.

Dr. Bordeaux's trial and conviction is typical of the many DEA investigations and prosecutions that today seek criminal convictions based on the wrong legal standard. Review of the 11-day trial transcript reveals that Dr. Bordeaux was prosecuted under the medical malpractice standard familiar to physicians and attorneys as the "standard of care." The correct legal standard in a criminal proceeding under the CSA is, however, the "course of professional practice," not the civil standard of care.

Review of the trial transcript further exposes the DEA's complete confusion over the applicable legal standard. One fascinating yet painful aspect of Dr. Bordeaux's trial is that only the federal district court judge correctly understood that the course of professional practice standard was a different legal standard than the civil standard of care. Puzzled by so much civil standard of care evidence in a criminal proceeding, and hearing no objections from the defense lawyers, Judge Weston C. Houck raised his own objections. The federal prosecutor resisted and, unfortunately, the defense lawyers either agreed with the federal prosecutor, or they remained silent. Judge Houck raised his objections many times and his frustration is evident from the Annotated Excerpts of Trial Transcript (443 KB).

Dr. Bordeaux's appeal is a test case challenging the DEA's prosecution strategies and tactics. Although the Fourth Circuit affirmed, I am currently preparing a petition for a writ of certiorari for Dr. Bordeaux, to seek review in the United States Supreme Court.

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