To Whom It May Concern:
I was his appellate attorney in a case that began in 1992 and led him to give up his license to practice medicine. I understand that he has applied to have his license restored, and I would like to provide some information about the trial, the appeal and my impression of him as a client.
A jury found Dubelman, a physician, guilty of second degree sexual assault, a class 4 felony, for touching the clitoris of his patient Mary Gomez during a medically-necessary pelvic examination on April 26, 1991. Dubelman denied that he had touched Gomez’ clitoris during the pelvic examination and that is he had, the contact was accidental because he has had an essential tremor since childhood and on occasion either hand may shake in an uncontrollable manner. Dubelman’s nurse was standing next to him when he performed Gomez’ exam.
During trial, the prosecution moved to exclude the testimony of Bennett Machanic, M.D., a witness for Dubelman. Dr. Machanic, Dubelman’s treating neurologist, was to testify about Dubelman’s essential tremor and that is becomes worse when the hand is extended in the position it would be in to perform a pelvic exam. The prosecution acknowledged that Dubelman’s attorney had endorsed Dr. Machanic as a witness October 1, 1993 — as required by Crim. P. 16 — but argued that it had not known about the essential tremor until the attorney’s opening statement on July 5, 1994 (the statement referred to Dr. Machanic as a witness the jury would hear with respect to Dubelman’s essential tremor). The prosecution failed to interview Dr. Machanic; had the prosecturor spoken with Dr. Machanic, he would have learned about Dubelman’s essential tremor.
The trial court granted the prosecution’s motion on the basis that “the spirit and the letter” of Crim. P. 16 required Debulman’s counsel to disclose to the prosecution the “essential tremor theory.” The district court found that Dubelman was not acting in the bad faith when his attorney failed to provide the prosecution was substantially prejudiced by the late disclosure. The court’s sanction was to precluded Dr. Machanic from testifying as a treating doctor on Debelman’s behalf and to exclude Dr. Machanic’s records, dated December 20, 1991, and March 2, 1993, of his treatment of Dubelman’s essential tremor. The court also disallowed Dubelman’s testimony that his tremor had been diagnosed when he was age 15 and treated by a doctor since then.
The exclusion of Dubelman’s medical records and his testimony about the diagnosis and treatment of his essential and the preclusion of Dr. Machanic from testifying may well have determined the outcome of the trial. Dubelman was left with no way of countering the prosecution’s implication that he was faking a tremor. In a case that turned on the credibility of Gomez’ allegation of impermissible touching and the credibility of Dubelman’s testimony that if had touched her clitoris, he had no intention of doing so, the court’s ruling left Dubelman with no way to substantiate his credibility with respect to his medical condition. The case became one of “she says” and “he says.”
In an unpublished decision, the court of appeals affirmed the district court’s ruling. Rulings on sanctions for discovery violations are within a district court’s discretion, and discretionary rulings are almost never overturned on appeal. The Supreme Court denied certiorari review; the Supreme Court almost never grants further review of an unpublished court of appeals decision, especially one reviewing a trial court’s exercise of discretion.
I still believe that Alan Dubelman was convicted because his counsel inadvertently failed to provide what the district court determined was “full disclosure” in the “spirit” of Rule 16. Nevertheless, Dubelman served his sentence and since has furthered his education and worked in non-medical fields. He is very intelligent and a cooperative client. He always did what he said he would do. He fully understood the severity of the charges against him and their consequences. I think it quite unlikely, if his license is restored, that he will ever again be involved in any complaints about his medical practice.
If you have any questions, please contact me.
Jean E. Dubofsky