Judge sets case of Nevada County holistic physician for trial
A Nevada County judge on Tuesday denied a defense motion to suppress evidence in the case of holistic physician Harvey Bigelsen, setting the matter up for a three-day jury trial starting Jan. 27.
"Given the pervasive regulation of the medical industry, the presumption of knowledge and defendant's particular familiarity with the medical practice, there can be no legitimate claim that defendant was unaware that his industry is one heavily regulated and subject to warrantless administrative searches," said the opinion issued by Superior Court Judge Candace Heidelberger.
She was referring to a March 20 raid on Bigelsen's Biological Health Institute in Nevada City, shutting the clinic down and confiscating two high-powered microscopes that Bigelsen had used to examine live blood cells.
Bigelsen's attorney, Mark Geragos, had argued that the state investigators lacked a search warrant in the raid and lacked authority for a March 4 undercover sting operation where a state investigator wearing a hidden video camera posed as a patient at Bigelsen's clinic.
Geragos said he was prepared to take the case to trial. Bigelsen is facing charges of nine misdemeanor counts of practicing medicine without a license and related offenses. He has maintained he was not practicing medicine in that he acted as a consultant to examine blood samples.
"I feel strongly about this," said Geragos, a Southern California celebrity lawyer who acknowledged he was "certainly not charging what I normally charge" to take the case. "It's obvious from all the community support that this is a case of government run amok."
He said he will file a motion in time for a Jan. 16 trial readiness hearing to request the return of Bigelsen's two microscopes.
Surrounded by about 60 supporters after the hearing Tuesday morning at Nevada County Courthouse in Nevada City and wearing his Vietnam veteran's cap, Bigelsen said he was stunned and dismayed.
"I served my country; I saved 200 lives," said Bigelsen, 74, a trauma surgeon during the Vietnam War. "This is stupid."
Community members were outraged.
"This is a modern-day witch hunt," said Nevada City activist Reinette Senum.
"I'm seeing criminals who are running meth labs and killing people still out in the streets," she said. "And here's one person who's actually healing people, and they're taking him down."
However, Nevada County District Attorney Cliff Newell said Heidelberger's decision reflected case law in terms of whether the March 20 raid and the March 4 undercover sting were legal.
"The judge followed the law," Newell said. "Given that she took the case under submission means she did her research."
Heidelberger, in her ruling, said the March 4 undercover sting "did not constitute a search under the 4th Amendment," citing an earlier case of Maryland v. Macon . "The Supreme Court has held that no search takes place and the 4th Amendment is not implicated, when an undercover agent merely accepts an offer to do business made to the public."
She said the authority to record the conversation was granted by Assistant District Attorney Anna Ferguson.
As to the March 20 raid, Heidelberger said it was a "warrantless search … (that) fell within the administrative search exception."
She also cited an earlier case, New York v. Burger , that held that "the potential for discovery of criminal activity during such an administrative search does not invalidate an otherwise lawful search."
If convicted at trial, Bigelsen could face a maximum misdemeanor sentence of six months in jail and a fine. However, Newell said he did not think jail time was a likely outcome.
"My office is not looking to lock Mr. Bigelsen up," Newell said. "We're simply holding him accountable."
He said his office had earlier offered a plea deal, but it was declined. Nevada County Deputy District Attorney Ray DeJesus is assigned to the case.
"We are offering a resolution to the case," Newell said. "It's up to them to decide whether to take it."
He declined to reveal any details of the proposed resolution, which he said was "between attorneys."
At Tuesday's hearing, Geragos told Heidelberger there were no active talks in progress on a plea deal.
"We're going to trial," he said.
Bigelsen's son Adam Bigelsen, a Truckee-based college professor and music teacher, said his father was a victim of injustice.
"He doesn't deserve this; he hasn't earned this," Adam Bigelsen said.
"It's a horrible thing to have to go through," he said. "To believe in things like justice and to not see justice served."
Adam Bigelsen said his father, one of an estimated three physicians in the country to employ the live blood cell technique called hemobiographic analysis, is sought after by practitioners globally.
"The rest of the world wants this knowledge," he said. "People come here from places like Croatia, Tasmania and Trinidad to study with him."
Rudi Leonardi of Mill Valley said he drove three hours to attend Tuesday's hearing, which lasted about 15 minutes.
"We have to preserve our choices," Leonardi said. "Alternative practitioners have to be able to protect their business models and not be threatened."
Leonardi said he wants to maintain the culture's "organic right to choice to select the people we want to be our practitioners," adding, "It's a fundamental right of who we are as a country."
Reno-based osteopathic physician David Holt, a homeopath, said he traveled to Nevada City for Tuesday's hearing to support Bigelsen.
He noted that Bigelsen, while practicing as a physician in Arizona, authored the country's first homeopathic medical doctor licensing law, which requires that a homeopathic physician first be an M.D. or an osteopath.
"He founded the homeopathic medical doctor degree in the U.S.," Holt said. "He's the reason I practice the way I do."
(NOTE: Senum is a member of The Union's Editorial Board).
To contact Staff Writer Keri Brenner, email email@example.com or call 530-477-4239.