I can't remember much from my
law school class on criminal law but I do remember that prosecuting
someone for fraud is awfully difficult. You have to prove that the
defendant intended to deceive, did deceive and that the deception caused
harm. That's a lot to prove beyond a reasonable doubt. Let's look at some of the problems involved in prosecuting Eric
Conn for fraud.
Was Social Security really deceived?
Social Security's Administrative Law Judges (ALJs) aren't stupid. When
they see the same type of odd-looking evidence submitted repeatedly they ask questions. They also tend to come to conclusions about
that evidence. In my book, I advise against attorneys sending all their
clients to one physician for medical examinations. Even if everything is
above board, this looks bad to ALJs. They heavily discount the
evidence. In Conn's case, I would hazard a guess that the ALJs who were
receiving the medical "reports" that Conn is alleged to have submitted
would testify that they knew the reports were bogus and paid no
attention to them. If you wonder why Social Security couldn't recognize that Conn was acting fraudulently, maybe the answer is that they did realize it but thought what Conn was doing was a farce. Conn wasn't winning because of the allegedly phony reports but despite them.
Can what Conn is alleged to have done be considered deceptive when it is
little different than what Social Security does routinely? Most
Social Security disability claim files at the hearing level contain
"opinions" offered by physicians at the initial and reconsideration
levels. These physicians never see the claimants. The opinion forms are
usually filled out by a non-physician disability examiner and then
routinely signed off on by the physician. Workloads are such that it is
impossible for the physicians to actually review the medical evidence in
most cases. The physicians or, more accurately, the disability
examiners rely upon Social Security RFC (Residual Functional Capacity)
guidelines in filling out the forms. In theory, the RFC guidelines don't
exist. Social Security denies that they exist. Yeah, right. Does Social
Security want some of these physicians on the stand testifying under
oath about the RFC guidelines?
Not
only do the opinions of Social Security's physicians appear in the
files but Social Security has told ALJs that these physicians are
"experts" whose opinions must be considered and that their opinions may
be entitled to more weight than that given to the opinions of treating
physicians. How is what Social Security does any different than what
Conn is alleged to have done, other than the fact that Conn, unlike
Social Security, was in no position to demand that ALJs treat the
opinions with more respect than they deserved?
Would the decisions have been any different if Conn had not submitted the questionable opinions?
Much attention has been paid to the fact that ALJ David Daugherty was
approving essentially all of Conn's clients. Little attention has been
paid to the fact that Daugherty was approving essentially all of every
other attorney's clients as well. No one is alleging that the other
attorneys were submitting the same sort of medical reports that Conn is
alleged to have submitted. I think a jury would probably conclude that
the questionable opinions were of no consequence; Daugherty would have
approved the cases without the opinions Conn submitted.
To me, Conn doesn't look like a criminal. He looks like a doofus whose only real skill is self-promotion. He couldn't figure out that his silly scheme was ineffective and would look criminal to a many people.
