Miami Herald - Tuesday, July 14, 1998
Amy Driscoll, Herald Staff Writer

But according to the close-out memo in an investigation by the Miami-Dade state attorney's office, the case file will be turned over to the state Medical Examiner's Commission to determine if any administrative punishments are appropriate.

"What he did was horrendous," said Assistant State Attorney Howard Rosen, who investigated the official misconduct allegation. "You have to call it like it is."

Mittleman did not return calls Monday from The Herald.

The memo states that Mittleman told Rosen he removed the information from the front page of the report "for purely humanitarian reasons. . . . He felt there was no reason to cause further suffering to the Mishcon family by causing unnecessary embarrassment."

Mittleman also said the presence of marijuana in Patricia Mishcon's system had nothing to do with her death July 11, 1997, of heart failure, and he noted that the information about marijuana in her system was included in two other places in the file.

"Dr. Mittleman was very contrite and stated that he would never do anything like this again in the future," the state attorney's office memo says. "Dr. Mittleman also said he had never done anything like this in the past."

Though no criminal charges will be filed against Mittleman, his actions could have far-reaching effects, Rosen noted in the memo.

"It is understandable how a person may want to spare a family from particular embarrassment about a fact discovered in the course of medical examiner business. On the other hand, the medical examiner's office must maintain accurate and complete public records," he wrote. "The integrity of that office is relied upon in every single prosecution involving a death in Dade County."

The issue already has come up in one highly publicized murder case, the slaying of 9-year-old Jimmy Ryce. Mittleman conducted the autopsy of the boy. In May, defense attorneys filed a motion requesting information about the investigation into Mittleman, noting that it may discredit his testimony in the trial, which is set for late August.

Patricia Mishcon, 53, died a year ago of heart failure after taking the now-banned diet drug combination Phen-Fen. The sentence deleted from the first page of the medical examiner's report noted that she had tested positive for marijuana after her heart attack.

According to the memo, investigators interviewed employees of the medical examiner's office who said Mittleman told them "they are not there to hurt anybody" and he would "take the heat" for altering the document.

The memo also reports that Mittleman told one employee that he had received a phone call from Jeffrey Mishcon shortly after the death of his wife, in which the mayor said he would appreciate if the word "marijuana" was removed from the medical examiner's records.

But in voluntary, sworn statements given to the investigators, both Jeffrey Mishcon and Mittleman deny such a phone call occurred.

And Jeffrey Mishcon repeated that position again Monday during a brief interview, saying he made no request to have the word removed from the public record. He had no other comment.

Investigators concluded there was insufficient evidence to charge Mittleman with official misconduct because, under Florida law, the charge requires commission of an act "with corrupt intent to obtain a benefit."

The circumstances under which Mittleman changed the record did not point to a "corrupt motive," Rosen wrote in the memo.

But he also noted the danger inherent in Mittleman's actions.

"One slight change made to one page in a medical examiner's office file, no matter for what altruistic reason, could start the slippery slope which leads to far greater consequences," Rosen wrote. "Deleting the word `marijuana' to prevent a mayor and his family's embarrassment today could eventually lead to not reporting that another decedent is HIV positive . . . [and] those who may have been exposed to the virus would never know it. It is for this reason that public records laws exist."

CAPTION: photo: Roger Mittleman (a), Patricia Mishcon (a)
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