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The Ninth Man Out: A Fired U.S. Attorney Tells His Story

When a Kansas City pharmacist was convicted of diluting drugs for cancer patients, former U.S. Attorney Tom Graves thought the victims and their families should be compensated. The FBI thought otherwise.
 
 
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The first sign that crimes may have been committed was when the victims no longer felt nauseous and their hair stopped falling out. Also, it wasn't cold going deep into the vein the way it was before. They needed that hurt. And when it was too long in coming, they grew anxious. Their discomfort after all was their comfort. That was the only way they knew that the chemotherapy was working.

When the FBI believed that they had enough to make a case, they brought the file to Todd Graves, the then-U.S. attorney in Kansas City, Missouri. Ultimately, Robert Courtney, a local pharmacist would be sentenced to 30 years in prison without parole for watering down chemotherapy prescriptions for thousands of cancer patients.

When the Bush administration ordered Graves to resign as U.S. attorney in Jan. 2006, the prosecutor wondered if it might have something to do with the Courtney case. Graves was the first of nine U.S. attorneys fired by the Bush administration for reasons that still are not entirely clear.

On Tuesday morning, Graves testified before the Senate Judiciary Committee about his firing.

At the time of his dismissal, Graves had had relatively few conflicts with his superiors at Main Justice in Washington. But one of them involved the Courtney matter.

This can't be over the Courtney case, Graves thought.

Diluting drugs for at-risk patients had proved to be lucrative business for pharmacist Robert Courtney. At the time of his arrest, Courtney was worth $18.7 million. He owned two mansions in the small exurban enclave of Kansas City known as Tremont Manor and was considering the purchase of a condominium in St. Croix.

Main Justice wanted Courtney's seized assets to be deposited in the U.S. treasury. But Graves had his own ideas: Why not give over the money to compensate the cancer patients and their families?

"Nobody wanted it," Graves told me recently, "The FBI was leaning on me. My own assistants were telling me no."

Eventually, Graves told everyone involved that if he heard from the DAG -- the Deputy Attorney General, his boss -- that he couldn't do it, he wouldn't. But the call from the DAG never came. The money went to Courtney's victims.

While discussing possible plea-bargains with Graves, Courtney's attorneys put forth the argument that those who had been given the diluted chemotherapy were going to die anyway. It was as if the dark place from which his crime was committed was being rationalized from a place even darker and farther back in the drawer.

Michael Ketchmark, a Kansas City, Mo. attorney who has represented more than 200 of Courtney's victims in civil suits, says: "That argument went nowhere with Todd ... because Todd knew personally that wasn't always the case."

When Todd Graves was twenty one, he discovered a lump in his groin. It turned out he had a rare form of lymphoma. And the prognosis was not very good: He was told to put his affairs in order, because it was unlikely that he would survive very long.

For a full 18 years afterwards, he could not bring himself to touch -- even for a single moment -- the same place in his groin where the original lump was discovered out of fear that he might discover a new one.

In the end what likely saved his life was the chemotherapy.

A year of chemotherapy.

A cycle every three weeks.

At regular 20-minute intervals for 26 hours straight, like clockwork, the nausea and the retching and the severe pain became overwhelming. Short reprieves, then more pain.

"I would lay up in my room for 26 hours straight."

At the time, he was attending the University of Missouri, and throughout it all, lived in a fraternity house.

"I had an open wound for a while that wouldn't heal," he recalled, "The chemotherapy didn't allow it to heal. ... I think some of the people in the house worried that I might just expire right there."

He met his wife during this time. He was bald and on the chemo and because he was on steroids, he was also 30 pounds overweight.

"She was a far better person then me to see past all that," Graves told me. The doctors also told him that the radical chemotherapy necessary would almost certainly make him infertile. Today he and his wife have four children, ranging in ages from four to ten.

When the street agents first came to Graves with a file on Courtney, Graves dreaded the possibility that if his personal story became known, for fear that would drown out what had been stolen by Courtney from his victims.

"I had a woman who missed the birth of a grandchild by three weeks," Ketchmark told me, "She didn't want a cure. She wanted those three weeks."

As best that can be determined, at least 4,200 cancer patients received diluted drugs. All together, those 4,200 patients in turn received at least 98,000 watered down prescriptions.

The crime was discovered when a nurse took questionable prescriptions to the FBI, only to discover that Courtney was diluting prescriptions for the chemotherapy drug Taxol between 17 and 39 percent of what they should have been. When they analyzed prescriptions for another chemotherapy agent, Gezmar, they found that the concentration levels ranged from a high of 28 percent to one prescription that contained no Gezmar at all.

On Aug. 13, 2001, the FBI executed a search warrant on Courtney's pharmacy. Inside the pharmacy, a nurse handed the FBI agents a vial of insulin that turned out to be diluted as well. Courtney would have pocketed yet another 14 dollars from that transaction that day if he was not caught.

Although none of the street agents and prosecutors would say it, they believed that Grave's experience clearly made him exactly the right prosecutor for this crime.

Ketchmark says: "Without his leadership, I don't know if the case would have made its way through the criminal justice system."

According to Ketchmark, because Courtney's victims were so numerous, Graves arranged for all of the victims and their families to watch Courtney's sentencing on closed circuit television. Everyone who wanted to make a victim impact statement got their say. Everyone got their phone calls returned almost immediately, sometimes personally by Graves.

One was Delia Chelston. When her physician prescribed Taxol to help her fight her ovarian cancer, she was already long familiar with the chemotherapy agent.

Delia was with her son, Patrick, years earlier during a doctor's visit when Patrick was fighting colon cancer and told he didn't have long to live. He wanted to spend just one more Christmas with his 4-year-old son. "Was it possible? What would it take?" mother and son asked the doctor. A single dose of Taxol might keep him alive until Christmas, but he would not have a very high quality of life.

Patrick told his doctor, according to Delia, "No. My 4-year old has seen enough."

Courtney filled six prescriptions for Taxol for Delia to treat her ovarian cancer. Courtney's pharmacy was reimbursed exactly $11,447 for each dose. Delia says: "For all I know, they were bags of saline and water."

Delia needed to witness Courtney's sentencing for herself.

When a contingent of men moved towards the front of the courtroom "with leather attache cases, cashmere overcoats, good-looking watches," Delia was unsure at first who exactly they were, or which side they were on. She felt empowered when one of these well-dressed men -- perhaps Graves, it is unclear -- stood up and said, "We represent the United States of America."

In contrast, Courtney entered the courtroom in "shackles looking like he was twelve years old."

Calm one moment, the next Delia burst into tears: "I suddenly realized he was a human being." All vulnerable like that. "And he looked like he was about my son's age." The realization that Courtney was a human being like her was what was so disturbing -- that a human being could do what Courtney did.

Delia Chelston's ovarian cancer is now long into remission and she now only has to check in with her doctor once a year.

But how can justice be meted out for someone like Robert Courtney? Courtney will likely spend 30 years in prison.

When another one of Courtney's patients, also battling ovarian cancer, sued him in a civil suit, she was awarded $578,881 for lost wages and her medical expenses -- and $2.2 billion in punitive damages.

What did she believe Courtney's punishment should be?

She said after the verdict: "If I had my wish, they would paint all of our pictures on his cellblock wall so that when he goes to sleep at night, we are the last thing he sees and when he wakes up in the morning, we are the first thing he sees."

Somewhere today, there is another kid with cancer, like Todd Graves once was, lying flat on their back in a dorm room or a hospital room. And it will be cold going into the vein. The nausea will be followed by vomiting and when there is nothing left in their stomach the dry retching will start. If it's nitrogen mustard or methorexate, it will leave a metallic taste in their mouth. The open surgical wound will not heal because of the chemo, and even if they somehow survive, the physical and psychological wounds may never entirely heal.

They will be all alone attempting to make sense out of the senseless.

And they will wonder whether they should just give in, to succumb. What with the odds so stacked against them, is it worth one more toxic violation of their person with nothing assumed and far less guaranteed?

But if you are Todd Graves, perhaps the senseless has long ago come to make perfect sense: When he looks at the four children he was never supposed to have; that he would someday stand up in court for Delia Chelston.

When she recently testified before Congress, Monica Goodling, the former counselor to Attorney General Alberto Gonzales, suggested that the reason Graves was fired was not because he was loyal enough to the Bush administration but rather because he had been "under investigation" at the time of his dismissal. It was one last smack in the face. In reality, an internal Justice Department investigation had cleared him of specious allegations that he used a government car to go to a political event.

After surviving a cancer that nobody thought he would get through, Graves has the right perspective. He asks: "What possibly could Monica Goodling say about me that could have anything more than a passing consequence on my life?"

 
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