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December 19, 2006 - Tampa Tribune (FL)

Column: Mercy Plea Travels A Painful Road

By Daniel Ruth

Return to Drug War News: Don't Miss Archive

While Gov. Jeb Bush will be vacating his public housing in just a few days, Richard Paey will still remain a "guest" of the state for the next 23 years, a victim of an egregious miscarriage of justice that would embarrass even the most inept banana republic.

Of course, that could change. Leadership might be afoot!

Jeb's Clemency Board could vote to issue a pardon. In the waning moments of the Bush Administration something extraordinary could occur: doing the right thing.

On second thought, Paey probably shouldn't be thinking about packing any bags.

At the moment, the 48-year-old Paey resides in the Tomoka Correctional Institute. If he serves his full sentence -- cue the "Scarface" theme -- the convicted drug trafficker won't be released from prison until 2028.

But Paey is hardly Pablo Escobar, running an international cocaine cartel.

In 2004, Paey was convicted in Pinellas-Pasco Circuit Court of seven counts of trafficking in oxycodone, four counts of possessing hydrocodone and numerous counts of obtaining a controlled substance by fraud.

Horrific Accident

However, no evidence was ever presented at trial linking Paey to the sale or distribution of the drugs, nor was any evidence offered proving the former lawyer forged anything.

Indeed, the enormous amounts of drugs Paey was obtaining were for his personal use to ease the excruciating back pain he endures from a 1985 car accident that subsequently confined him to a wheelchair.

This month, the 2nd District Court of Appeal upheld Paey's conviction in a 2-1 vote, noting no technical "legal error" occurred at trial to warrant overturning the sentence.

The court, however, took the unusual step of suggesting the prosecution of Richard Paey was absurd to begin with. "Thus Mr. Paey's argument about his sentence does not fall on deaf ears, but it falls on the wrong ears," the court wrote in urging the Clemency Board to take up the case.

Twisted Logic

In a scathing dissent that runs as long as the original court opinion, Judge James Seals wrote: "I suggest it is cruel for a man with an undisputed medical need for a substantial amount of daily medication management to go to prison for 25 years for using self-help means to obtain and amply supply himself with the medicine he needed."

Seals added: "How is it not cruel to circumvent judicial checks and balances and intentionally put a man in prison for 9,125 days when his offense was being foolish and desperate in how he went about obtaining his medicine?"

Smart judge, James Seals is. Wise, too.

Adding insanity to injustice, the state is providing Paey the exact same pain management medications he has been convicted of obtaining for himself.

Or consider this twisted piece of criminal justice logic:

As prominent criminal defense lawyer John Fitzgibbons mused - he has no connection to the case - had Richard Paey burglarized a pharmacy and stolen the pain drugs he needs, he probably would be serving a sentence of about five years in prison as a first offender instead of 25 years for being a first-degree innocent man.

Anthony DeLuise, the governor's deputy press secretary, said Paey would have to follow the clemency process, which requires the approval of Jeb Bush and at least two members of the clemency board: Gov.-elect Charlie Crist, who's still the attorney general; Chief Financial Officer Tom Gallagher; and/or Agriculture Commissioner Charles Bronson.

Although Richard Paey has plenty of time on his hands, the moments lost are no less precious.

The paperwork before Jeb Bush is a textbook case of what a clemency proceeding ought to encompass.

"This is an act of mercy," said Paey's appellate attorney, John Flannery of Virginia. "Remarkable judges agreed the results were unfair."

To bolster Paey's appeal, Flannery sought the support of many experts in the field of pain management, including Russell Portenoy, chairman of the pain and palliative care department at Beth Israel Medical Center in New York.

Portenoy rightly argued individuals like Richard Paey need to have their drug management issues addressed in medical settings, not in prison.

"Criminalizing these behaviors will increase the fear among patients, families and doctors that surrounds the medical use of opioids, and this will worsen the undertreatment of pain," Portenoy said.

By any standard of common decency, Richard Paey, who has been criminalized for being a patient, should not have to spend one more minute, one more day, one more month locked in a cage.

Daniel Ruth's column appears Tuesday, Thursday and Saturday.

(For more on Richard Paey, visit

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