'FREE OUR DOCTOR! DON'T LET US DIE!'
BURZYNSKI GOES ON TRIAL IN HOUSTON FOR "FRAUD"

Copyright 1997 by Ralph W. Moss, Ph.D.


Dr. Stanislaw Burzynski was found innocent of all the charges against him in a second trial in May, 1997. The following article details the intense struggle that took place to reach that innocent verdict.

He is a licensed medical doctor who treats desperate cancer patients, seems to help many of them, and earns their gratitude. Now he faces life in federal prison. Outside the courthouse, in increasing numbers, his patients plead, "Free our doctor. And don't let us die!"

This was the setting as Stanislaw R. Burzynski, MD, PhD, perhaps the best-known cancer specialist in the country, went on trial on Monday, 1/6/97, charged with 75 counts of what the FDA and Justice Department allege is fraud.

The government plays hardball when it comes to alternative cancer treatments: Dr. B., as his patients call him, faces up to five years in prison and a $250,000 fine on each of 34 counts of mail fraud and up to three years in prison and a $250,000 fine for each of 40 counts of violating the food, drug and cosmetic laws.

The final count is for `contempt' and will be decided not by the jury of eight women and four men, but by judge Simeon T. Lake III.

Simple math shows that the charges carry the equivalent of life imprisonment for the 53-year-old Polish-born scientist. A guilty verdict on even one of these counts will spell ruination for the doctor and for nearly 400 patients who believe they are kept alive by his treatments.

DEMONSTRATIONS

The trial scene has been marked by extraordinary efforts by patients on behalf of their doctor. On the first two days of the trial, there were vocal demonstration of over 125 patients and their supporters outside the Courthouse at 515 Rusk Avenue in Houston. This is made necessary by the fact that patient testimony on the effectiveness of the treatment has been barred from the trial.

When Burzynski appeared for the first day of the trial, he was surrounded by children whose lives he had apparently prolonged or saved. They and their parents wanted to tell their heart-rending stories. But Judge Lake had agreed with the FDA that the effectiveness of Burzynski's treatment was not to be an issue in this trial: it could not even be alluded to in the courtroom, "irrelevant" to the puny technical charges against him.

TRIAL COVERAGE

Nevertheless, through the media the general public is getting a lesson in the vindictive ways of the US "cancer establishment." A picture of a heroic-looking Dr. Burzynski, holding his five-year-old patient Dustin Kunnari, appeared in full color on the front page of the Dallas Morning News on Wednesday, January 8. They stood in front of a sea of posters proclaiming, "Dr. Burzynski saved my life" and "Call Now 1-888-2-SAVE-DR-B."

The opening of the trial was given extensive coverage by many media outlets. Even the The New York Times (1/8/97), generally hostile to alternative cancer treatments, covered the story, although they played up the "untested" nature of the drugs. (The Times's Gina Kolata had blasted Burzynski in a front-page article in 1996.) The local Texas papers were more sympathetic, with articles entitled, like this one in the Houston Post:

"Cancer Doctor Says Patients Need Him." A huge picture of Dr. B. with another smiling five-year-old, Taylor Ulbricht Robb, appeared in a Houston Chronicle article.

"Rebel cancer doctor to go on trial for fraud," proclaimed the Chicago Sun-Times. It called the trial "part of the debate over the US Food and Drug Administration's handling of unconventional therapies for life-threatening illnesses." This was one of the few papers to realize the larger dimensions of the trial.

Earlier, the conservative Washington Times (12/5/97) proclaimed "Doctor's lifesaving effort could land him in prison--FDA ignores cancer drug's success." But even the more liberal Washington Post carried a long and detailed article, mainly favorable, on the patients' plight.

Patient advocate Greg Bader also managed to place an op-ed piece on the struggle in USA Today (2/10/97). The best coverage, in our opinion, was not in the print media, but that of Gabe Pressman, New York City WNBC-TV's veteran reporter, who travelled to Houston to cover the opening of the trial. From our perspective, his reporting on this and related questions has been without peer.

Many other programs have also either filmed or are planning segments on the controversy--so many we can hardly keep track. `Extra!' aired a segment on 1/23/97. `Hard Copy,' `48 Hours,' and `CNN Headline News' are all covering the trial. Whatever the outcome of the trial--and everything is stacked against Burzynski-- the publicity is delivering a tremendous blow to the credibility of the cancer establishment. Ironically, the trial coincides with the 25th anniversary of the war on cancer--an expensive effort that has yielded few victories. Burzynski made his discoveries without such support.

AN AD CAMPAIGN

Dr. Burzynski's patient organization has even been running a series of television cable ads in major cities.

"We didn't know what else to do," said Mary Jo Siegel, a 45-year-old mother who has been cancer-free for five years after taking Burzynski's treatment for non-Hodgkin's lymphoma.

Although both 30- and 60-second ads have appeared in Chicago and Washington, the cable provider in New York at first refused to accept the ads, treating them as they do hard-core pornography. They eventually relented and the ads have appeared.

"The FDA is deciding who can live and who will die and it's just not right," said Ms. Siegel. "Clinton and [David] Kessler promised us back in March [1996] they would speed up cancer drug approvals, but all they're speeding up is the [Burzynski] trial."

JURY SELECTED

Jury selection for Burzynski's trial began on January 6, and on the following day prospective jurors were "voir dired" (questioned) by lead Prosecutor Michael Clark as well as defense attorneys Michael Ramsey and Dan Cogdell. By 2 pm, eight women and four men had been chosen. There were two alternate jurors as well (one man, one woman). Overall, the Burzynski side was pleased with the make-up of the panel.

Later that day, both sides made opening statements. Clark told the jury that he would prove that Burzynski treated patients living outside the state of Texas and that he knew they were living outside the state of Texas.

This is the government's most "damning" charge. The problem is that Burzynski does not deny it. Why should he? Both he, his patients, the media, and other courts had always assumed this was perfectly legal. Perhaps because of this, Clark's delivery was considered dull by many in the audience.

"It would put you to sleep," one observer told us.

By contrast, defense attorney John Ackerman (a Wyoming colleague of famed "country lawyer" Jerry Spence) told the jury the incredible story of Burzynski's life: how Burzynski's father, a classical scholar, had been jailed by the Nazis in Poland, and how Burzynski himself struggled for an education despite his adamant refusal to join the then-dominant Communist Party. (See The

Cancer Industry, chapter 14, for a full discussion.)

He told how Burzynski arrived in the US with $20 in his pocket and landed a research position at the Baylor College of Medicine in Houston. He let them know about Burzynski's discovery of anti-cancer peptides which he dubbed "antineoplastons."

Ackerman showed the jury a copy of an attorney's opinion of the time informing the Houston doctor that it would be legal for him to use his new experimental drugs in the state of Texas. He also read them from a 1987 Federal Circuit Court opinion which agreed that Burzynski's use of antineoplastons were in fact legal in Texas.

THE STAKEOUT AT MAILBOX, ETC.

On the following day, the government called its first witness, US postal inspector Barbara Ritchey. Ms. Ritchey testified that she had been assigned to investigate Burzynski in 1993 (for alleged "mail fraud") and had been working on the case full-time since March, 1995.

She related how she had staked out a branch of Mailbox, Etc. near the Burzynski clinic in the hope of catching a hapless patient mailing antineoplastons back to his home address. She eventually found just such a patient and testified that she then followed him around for a while.

READING OUT LOUD

Throughout the first two weeks of the trial, the prosecutors repeatedly put up enlarged copies of the informed consent forms that all patients were required to sign. Some showed out-of-state addresses. The point was to impress the jury with the fact that some patients lived outside of Texas, and that Burzynski knew this.

But this approach provided an opening for the team of defense attorneys to have the documents read out loud to the jury. In these forms, Dr. B. clearly informed the patients that his antineoplastons were experimental in nature and had not been approved by the FDA. The forms were explicit that there could be no guarantee that antineoplastons would reduce or stabilize their cancers.

Attorney Ramsey astutely pointed out that one crucial element of "fraud" is deceit. Without deceit, there can be no fraud, he said. "Isn't that Informed Consent form the absolute, honest golden truth?" he then asked the Postal Inspector. She had to admit that it was, thereby undermining the government's main contention.

Ramsey also had Ms. Ritchey read from a 1987 Fifth Circuit decision which stated that Burzynski could continue to prescribe antineoplastons in the state of Texas. The decision also stated that Judge Gabrielle McDonald retained the authority to amend or modify her order.

"In other words," boomed the Texas lawyer, "the FDA had another remedy, didn't it? If it felt Dr. Burzynski was violating the order by treating out-of-state patients, it could have simply sought clarification, couldn't it have? Then we wouldn't all have to sit here for four or five or six weeks of this trial."

Here too, Ritchey had to agreed.

On January 9, Mr. Ramsey continued his cross examination of Ms. Ritchey. She admitted what had previously been suspected, that she and six other federal agents had known that Burzynski would be out-of-town when they raided his clinic on March 24, 1995.

In a dramatic moment, she admitted that the Informed Consent form was truthful, but took issue with the sentence, "Dr. Burzynski may continue to prescribe antineoplastons in Texas." She contended that the legal decision's actual language read "Dr. Burzynski may continue to treat patients with antineoplastons in Texas."

"Isn't that the same thing? " asked Ramsey.

"No," said Ritchey. "Sometimes, I go to the doctor and he treats me but he doesn't prescribe." Observers seemed non-plussed by this hair-splitting response.

QUESTIONING MS. TOMASZEWSKI

The next witness called by the government was Barbara Tomaszewski, Dr. B's long-time office manager. She was called to identify records, but in response to a question managed to get in that "Dr. Burzynski is very honest, a `workaholic,' and his only pleasure is when patients are getting better."

The final witness of that day was Ms. Peggy Oakes, an employee of the CNA Insurance company. Many have long suspected that the insurance industry was involved in the indictment, not wanting to pay for expensive new cancer treatments. Although insurance companies were allegedly "defrauded" by Burzynski, this witness admitted under questioning that her company knew all along that Burzynski's treatment was experimental. (If a company is on notice that a treatment is experimental there can be no finding of fraud, say Dr. B's attorneys.)

On Wednesday, January 15, the mother of an ex-patient, David Burleson, was called by the government and testified that Burzynski knew David lived out of state and that he would take the medicines out of state. (Again, something Burzynski hardly denies.)

But this experienced head nurse also told the jury that the training her son had received at the clinic in the use of the catheter and pump delivery system was excellent. She related that her son was very intelligent, had researched his options thoroughly, and had spoken to 11 other Burzynski patients before opting for this treatment. He was fully informed when he made his decision.

Ray Goulet, husband of another ex-patient, then testified that he and his wife came from New Hampshire for the treatment, after she was given 30 days to live.

"New Hampshire--don't your license plates say `Live Free or Die'?" asked defense attorney Mike Ramsey. The point was clear.

Repeatedly, the defense team turned the tables on the prosecutor. Over and over, they used the introduction of the Informed Consent statements to show that the clinics had in fact taken pains to inform patients that this treatment was experimental in nature.

A "GLORIOUS TRIUMPH"?

On Thursday, 1/16/97, Barbara Murphy, who owns a Bed & Breakfast near the clinic, was called by the government to testify. She admitted that she picked up a package at the clinic for a few patients and mailed it to their homes. (Apparently this is the government's idea of `introducing a drug into interstate commerce.')

Prosecutors acted as if they had scored a glorious triumph. However, during cross, Attorney Ackerman brought out that Ms. Murphy had a personal motive to help these patients: not only had she received hospice training but she was "working through" her grief at her own sister's death from breast cancer.

She testified to the " excellent care, warm attention and hugs patients received at the clinic--quite unlike the care her sister had received at a hospital in Chicago." Patients, she said, could call the clinic any time of day or night and get a five-minute callback. She recalled that she mailed these small packages at the request of a patient, but never at the request of the clinic; she did this for perhaps 3 or 4 out of the approximately 100 Burzynski patients who stayed with her.

PHENOMENON

The next witness was another insurance company employee, who testified that the code used by the Burzynski Research Institute on a claim form was not a perfect fit. Under cross by attorney Richard Jaffe, she admitted that such codes do not have to be exact fits, and she did not know a better code than the one they used.

Jaffe then tried to read a sentence from one of the Institute's letters to the insurance company, but prosecutors jumped to their feet and argued that this would be prejudicial, violating the judge's ruling that the effectiveness of the treatment was not at issue in this case. This time, Judge Lake overruled the prosecution's objections, pointing out that the prosecutors themselves had quoted extensively from the letter during direct.

The jury seemed riveted as Jaffe read, "Antineoplastons have shown remarkable effectiveness in treating certain incurable tumors such as brain tumors." The jury suddenly knew not only that the treatment might actually work, but that prosecutors were trying to hide this fact from them. It was a dramatic moment.

At the end of the day, Judge Lake commented that he sent his son to rent a movie the previous night so that their family could get a break from talking about the issues raised in the Burzynski case. And what did his son come home with? he asked, rhetorically. "Phenomenon" -- a movie starring John Travolta as a man who is diagnosed with an astrocytoma brain tumor!

It is mainly the FDA that instigated this whole trial. And so, on Monday, 1/20/97 Paul Zimmerman of the FDA testified that patients listed in the indictment were not part of a clinical trial.

Prosecutor Clark seemed certain that he had delivered a telling blow to the defense. But undercutting his own message, he then played a tape of Dean Mouscher clearly telling the FDA that a particular patient was being treated. but not in the context of a clinical trial.

Zimmerman also admitted that aspirin would never make it through today's FDA approval process.

This current FDA official read from a former FDA agent's letter to a Congressman stating that "Dr. Burzynski may manufacture and sell antineoplastons in Texas, where the FDA lacks jurisdiction."

Also interrogated was Bob Moseray, a native of Sierra Leone, who has been a clinic employee since 1988. Bob admitted that on a few occasions, when patients were too sick to come to Houston, he helped send them medicine.

"Why would you do that if you knew it was against the law?" asked prosecutor George Tallichet.

"Well, if you could see these people--sick and in need of help. It is my moral obligation to help the sick and the suffering," replied the BRI employee.

"You encouraged patients to make friends in Houston to send them medicine, didn't you?" Tallichet yelled. "No," said Bob, "I simply told them that if they had a friend in Houston, he could pick up the medicine for them."

"Aha!" shouted Tallichet triumphantly, "so you did encourage them to make friends in Houston!"

Bob also testified that when he helped patients send medicine, this had nothing to do with Burzynski. At that, Tallichet seemed to smell blood.

"You used a company van, didn't you," he asked.

"No, I used my own car," Bob answered, calmly.

"Well you did it on company time, didn't you?"

"No" replied Bob, "I did it on my lunch hour."

GOLDEN RULE

On Wednesday, 1/22/97, there were yet more witnesses from the insurance industry. An employee of the Golden Rule Insurance Company testified that Burzynski's clinic had billed her company for infusion services. On cross, Ackerman presented evidence that `Golden Rule' is well-known throughout the industry as a nit-picking company, which does everything it can to deny claims.

He showed her a record of a phone conversation in which a patient pleaded for them to cover the costs of his antineoplaston treatment. The employee tells the patient that if he sent in his medical records showing benefit, the company might agree to pay.

"So in fact your company can review the results of an experimental treatment and make an exception if it sees fit?" Ackerman asked.

"No, I don't think that's true," said the employee.

"So did you call Mr. Newman and tell him he had been misinformed," Ackerman probed, "that in fact Golden Rule would not review his medical records?"

Witness: "Well, we will review any information we receive."

Ackerman: "You just said that your company does

not make exceptions to its exclusion of experimental treatments."

Witness: "That's correct."

Ackerman: "So in other words that was just a charade? Is it your company's policy to lead your customers on and pretend that you may make an exception for them, when you know it will not?"

Witness: "Well, there's no such formal policy."

Ackerman: "Do you know what the Golden Rule is?"

Witness: "Yes. Do unto others as you would have others do unto you."

Ackerman: "That's right. No further questions."

A SERVICE INDUSTRY

Another prosecutor, Amy LeCocq, asked the witness during re-direct if insurance was not a "service industry." That gave the defense an opportunity to point out that the more claims the company denies the richer it becomes; Golden Rule had "serviced" its clients in such a manner that its own assets had grown to over $1 billion.

Michael Pugliese testified that his family was told by the country's finest hospitals that no conventional treatment could stop his father's glioblastoma multiforme brain tumor. They finally went to BRI for treatment.

The jury was then asked to leave, during which time Mr. Pugliese testified that two federal agents, a postal inspector and an FDA agent, came to the family's home and tried to convince them to "not waste the father's time" on Dr. Burzynski's treatment. They said that they had been "trying to get" Dr. Burzynski for the past ten years. The defense argued strenuously that the jury should be told about this, to show the animus, grudge and bias some agencies had against Burzynski.

But Judge Lake ruled that the jury could not hear these devastating details.


BOX: What's With Prosecutor Mike Clark?

Prosecutor Mike Clark seems to be unsure of the righteousness of his own cause. In a pre-trial motion, he virtually admitted that Burzynski's treatment works. When Dr. B's attorneys asked that jurors be allowed to tour the impressive Burzynski Research Institute (BRI), Clark called the request "a thinly veiled effort to expose the jury to the specter of Dr. Burzynski in his act of saving lives." "The specter... of saving lives!" Certainly an amazing choice of words, whose significance was not lost on reporters from the Washington Times. This was reported in a front-page story, December 5, 1996, entitled "Doctor's lifesaving effort could land him in prison." (The article justly commented: "The prosecution marks the first time the FDA has tried to jail a scientist for using a drug on which he is conducting FDA-authorized clinical trials.")

Clark is also quoted in the New York Times as saying to the jury, "I submit this case is not about Dr. Burzynski's character because I realize good men do bad things."

"A good man"? One wonders if this is what Clark told the Grand Jury last year, because their indictment paints Dr. Burzynski as nothing less than a money-hungry monster, a picture totally unrecognizable to the majority of his patients and to others who know him.


Ralph W. Moss, Ph.D. is director of the The Moss Reports for cancer patients. Dr. Moss is the author of eleven books and three documentaries on cancer-related topics. He is or has been an advisor on alternative cancer treatments to the National Institutes of Health, the National Cancer Institute, the American Urological Association, Columbia University, the University of Texas, the Susan G. Komen Foundation and the German Society of Oncology. He wrote the first article on alternative medicine for the Encyclopedia Britannica yearbook. He is listed in Marquis Who's Who in America, Who's Who in the World, Who's Who in the East, and Who's Who in Entertainment (as a film documentarian). This Web site does not advocate any particular treatment for cancer. We urge you to always seek competent medical advice for all health problems, especially cancer. Before consulting our site please read our full Disclaimer statement.



home - moss reports - books - - contact - order - news
members - chronicles - faq - free email newsletter