Surgeon appeals battery conviction

January 30, 1994|By Jonathan Bor | Jonathan Bor,Staff Writer

With 50 patients and doctors crowding the courtroom, an eminent cancer surgeon who was convicted three months ago of improperly touching a female patient's genitalia has asked for a new trial on grounds that his lawyer bungled the case.

Through his new attorney, Anton Keating, Dr. George Elias of the University of Maryland Medical Center argued in a two-day hearing that his first lawyer failed to present key witnesses, botched legal motions, mumbled his closing argument, was intimidated by the judge and missed opportunities to discredit the woman.

The defense didn't stop there.

Treading gingerly, Mr. Keating told the judge who convicted Dr. Elias -- Baltimore Circuit Judge Clifton J. Gordy -- that he had been impatient and rude toward the defendant.

He also accused Assistant State's Attorney Videtta Brown of expressing personal opinions that weren't founded upon evidence.

All in all, he said, the criminal justice system had "a bad day" Nov. 8, when the judge found the doctor guilty of battery -- a misdemeanor -- after a trial that lasted scarcely more than an hour.

"The system went wrong in this court," Mr. Keating said Friday, the first day of a two-day hearing that ended yesterday. "It took a very fine human being, a man who has spent his whole life taking care of other people . . . and --ed it in one hour and five minutes."

Yesterday, Judge Gordy, who closed the hearing, reserved judgment.

The conviction arose from a 31-year-old woman's charge that during a breast exam in January 1993, Dr. Elias touching her vagina on the pretext that he was concerned about a cluster of spots on her upper thigh.

Dr. Elias said he never touched her vagina. Instead, he said, he felt her groin for swollen lymph nodes. He said he was concerned that the spots -- unpigmented areas on the black woman's skin -- may have been a sign of melanoma, a dangerous form of skin cancer that can spread to the nodes.

Formal and proud, Dr. Elias is director of cancer surgery at the University of Maryland. His new attorney took pains yesterday to display an impressive rack of credentials: hundreds of published articles, lectures around the world, memberships in major medical and surgical societies, a caseload of as many as 1,000 patients a year.

Dozens of loyal patients turned out for the hearing, so straining a small courtroom Friday that Judge Gordy arranged for more spacious quarters yesterday.

"This is the most bizarre thing I've ever been involved in," said Jim Kehoe, the former athletic director of the University of Maryland and one of Dr. Elias' cancer patients. "For him to be subjected to anything like this is simply a travesty. This is a class individual."

But the defense faces a tough challenge. Dr. Elias was convicted twice -- in April in District Court and again in November when he exercised his automatic right to a retrial. In both cases, he was represented by attorney Robert Mann. Both times, he waived his right to a jury.

"We've given him a fair trial twice," Ms. Brown said. "He is not entitled to the perfect attorney or the perfect trial. And I would remind you that he chose the same attorney twice."

Asked about this when he took the stand, Dr. Elias said: "We underestimated the case in the beginning. We thought it was ridiculous. I left it in Mr. Mann's hands. When we lost the second round, I thought there was a problem."

In the first trial, Judge Askew W. Gatewood acquitted the doctor of fourth-degree sexual offense but convicted him of battery -- offensive touching without any sexual motive.

The judge said both witnesses were credible, and that he didn't believe that Dr. Elias had really done anything wrong. He called the matter a "misunderstanding" between a doctor who tried to do the right thing and a patient who took offense at his well-intended exam.

Judge Gatewood said the doctor performed his examination "automatically" -- failing to explain exactly what he was doing and why. Without saying where the doctor touched his patient, he said the examination surprised and offended her.

In the second trial, Judge Gordy affirmed the battery conviction. He didn't explain the verdict, and fined the doctor $5,000.

Mr. Keating said the surgeon deserves a new trial so the judge can hear evidence that Mr. Mann failed to present. The evidence includes:

* Testimony of three doctors who showed up at the first trial, ready to say that Dr. Elias was correct to examine the groin. They were never called.

* Evidence that could discredit the accuser.

* Testimony about lupus, a disease of the immune system which has afflicted the patient for years. Yesterday, Dr. Ira Fine, a Baltimore rheumatologist, said lupus causes distorted thinking in to 50 percent of all cases.

* The patient's $7 million malpractice suit against Dr. Elias and the hospital. Mr. Keating said this shows a financial motive.

Mr. Mann, who did not attend the hearing, said in an interview that the motion for a retrial is a routine legal maneuver that is used when a defendant is close to exhausting his legal options. But he defended his performance, saying, for instance, that he decided not to call the doctors because the prosecution didn't challenge Dr. Elias' actions from a medical standpoint.

"But I hope he gets [a new trial]," Mr. Mann said.

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