Prosecution likely to press on in Gage conspiracy case despite ruling

If you’ve ever seen two scarred fighters continue to duke it out after the final bell, then you know what’s happening in the case against Las Vegas attorney Noel Gage.

Senior U.S. District Judge Justin Quackenbush rang the bell Tuesday when he rendered his order dismissing all charges against Gage, who was accused of conspiring with physicians and others to defraud law clients of his "honest services" in the foundering doctor-lawyer medical malpractice investigation.

But the U.S. attorney’s office isn’t bound by the Marquess of Queensberry rules. Although U.S. Attorney Greg Brower won’t admit it, bell or no bell, his office has little choice but to keep punching and take the Quackenbush decision to the 9th Circuit U.S. Court of Appeals.

That promises to reverberate throughout the larger investigation, which finds medical consultant Howard Awand under indictment and other doctors and lawyers damned in legal documents and court proceedings.

"We’re still reviewing the decision, and we haven’t made any decisions yet on how to proceed," Brower said.

Quackenbush’s decision is only nine pages long. In it, the judge outlines his legal justification for compelling the government to grant a defense witness immunity in exchange for testimony that surely would harm the government’s own prosecution. In doing so, Quackenbush spelled out problems with the Gage case that could have an impact on future prosecutions.

The trouble centers on the government’s treatment of surgeon Mark Kabins, who was interviewed at length after agreeing nothing he said would be used against him.

What Kabins said dramatically contradicted the prosecution’s case against Gage, who in part was accused of defrauding client Melodie Simon, who suffered paralysis following spinal surgery, by cutting a deal with her doctors, Kabins and John Thalgott.

Thalgott testified that, although he did nothing wrong, he agreed to steer Gage future clients if the bulldog litigator focused the Simon lawsuit on other parties. But Kabins’ statement contradicted Thalgott’s testimony, and Gage’s attorney Tom Pitaro sought to use it to defend his client. Complicating matters is the fact Kabins also received a government letter targeting him for possible prosecution.

Wrote Quackenbush: "Dr. Kabins’ testimony is undeniably relevant as to whether he committed malpractice in his treatment of Ms. Simon and as to whether he engaged in an unlawful conspiracy with Mr. Gage to deprive Ms. Simon of the honest legal services of Mr. Gage."

Kabins’ attorney David Chesnoff wouldn’t allow his client to testify without a grant of immunity. The government wouldn’t grant immunity.

And around it went.

"The motion came down to the idea of a fair trial, that Noel Gage was entitled to a fair trial, and the only way he could get a fair trial was to have the one doctor (Kabins) testify," Pitaro said. "And if the doctor did not testify, there couldn’t be a fair trial, and the case had to be dismissed."

At 69 with a family and a thriving law practice, Gage must have looked like a real pushover — just the type of guy who would be willing to take a plea deal and agree to cooperate against alleged co-conspirators.

Obviously, the government misread its man.

"I’m pleased that justice has been done," Gage said. "This case was reminiscent of the Duke case (in which members of the university’s lacrosse team were wrongfully accused of rape.) And, unfortunately I was the victim — as were my clients, who were caused to suffer the indignity of having to appear pursuant to subpoena by the prosecution.

"I would hope that others will not be subjected to the injustice that I have been subjected to, that my family has been subjected to, that my law firm has been subjected to, for over a year."

But this fight isn’t over.

Can the government let Quackenbush’s ruling go unchallenged? It seems to me there’s no choice but to appeal.

Then comes another difficult question. Even presuming the prosecution wins its appeal, it’s still faced with pressing a case that turned into a train wreck in the courtroom. Remember, 13 of 19 charges against Gage were tossed while the trial was in progress. Government witness Dr. Benjamin Venger was a nightmare. The case was dismissed after the jury failed to reach a verdict and was split 8-4 to convict.

That’s not a close call.

And that was before the Kabins immunity tango complicated this bloody dance.

John L. Smith’s column appears Sunday, Tuesday, Wednesday and Friday. E-mail him at Smith@reviewjournal.com or call (702) 383-0295.

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