Criminal Law Recent Case

Recent Case: State v. Gokal

At the start of 2021, the COVID-19 vaccine rollout in Houston, Texas was met with such high demand that the City’s vaccination call center phone lines crashed. And by the end of January, vaccine supplies remained so low that the Houston Health Department’s first dose appointments were nearly impossible to obtain. Against this backdrop, in State v. Gokal, the Harris County Criminal Court at Law No. 8 considered whether a doctor who removed soon-to-expire COVID-19 vaccines from a distribution site and administered them outside the County sign-up process could be charged with theft by a public servant under Texas Penal Code § 31.03(f)(1). The court held that “the defendant’s administration and documentation of vaccine doses outside of Harris County Public Health’s procedures” did  “not establish probable cause for the offense of theft” and ordered the discharge of the doctor. In interweaving its analyses of whether the State’s affidavit credibly articulates the facts it alleges with whether those facts would give rise to legal liability, the court demonstrated how layered of a concept probable cause can be.

After the COVID-19 pandemic erupted in early 2020, Dr. Hasan Gokal—who had been practicing medicine for two decades—began working for Harris County Public Health in Houston, Texas. In that capacity, he became “one of the faces of Harris County Public Health during the pandemic, [being] featured in videos and on town hall panels.” Near the end of the year, on December 29, Dr. Gokal was assigned to oversee vaccinations at a County distribution site set up for elderly and at-risk patients.

At the close of the business day, according to Dr. Gokal, a final patient entered the facility. The doctor opened a new vial of the Moderna vaccine with ten doses inside and inoculated the patient, leaving nine doses remaining in the vial. This created a problem: once removed from subzero storage and opened, a vial’s doses must be used within six hours or they will expire. The County asserts it has protocols in place to prevent unused doses from being wasted at the end of the day by administering leftovers to “at-risk front line workers,” but Dr. Gokal alleges he “offered doses to health workers and police officers on site” without any success. To prevent these nine doses from going to waste, Dr. Gokal admits that he searched through his phone contacts for potentially eligible recipients and then removed the vaccines from the site to go administer the doses to those individuals. The last of those individuals, reached just fifteen minutes before the final dose spoiled, was Gokal’s wife, who suffers from pulmonary sarcoidosis.

On January 6, 2021, Jennifer Kiger—Chief of the Office of Harris County Public Health Preparedness & Response—learned Dr. Gokal had removed vaccines from the distribution site premises and launched an investigation to see whether Dr. Gokal had violated County policy barring employees from taking vaccines for personal use. After two days of investigation, the County determined that Dr. Gokal’s handling of the situation could lead to loss of funding, as had occurred to the County several years ago regarding mishandling of H1N1 vaccines, and as such the County terminated his employment on January 8.

The Harris County District Attorney’s Office, under the leadership of District Attorney Kim Ogg, interpreted Dr. Gokal’s behavior to not only violate County employee policy but also the criminal law. The office’s Public Corruption Division believed “[Dr. Gokal] abused his position to place his friends and family in line in front of people who had gone through the lawful process to be there.” The office charged Gokal with theft by a public servant under Texas Penal Code § 31.03, which defines theft as occurring when one “unlawfully appropriates property with intent to deprive the owner of property.” Because the value of the vaccines was between $100 and $750, and because Dr. Gokal was a public servant at the time, the offense was classified as a Class A Misdemeanor carrying a penalty of a year of jail and a $4,000 fine. The doctor turned himself in, and on January 21, 2021, the State filed a Complaint in the Harris County Criminal Court based on an affidavit describing the facts recounted above.

Judge Bynum dismissed the charge for lack of probable cause. First, Judge Bynum critiqued the affidavit’s ability to credibly allege that Dr. Gokal removed the vaccines from the distribution site at all. Describing the document as “riddled with sloppiness and errors,” the Judge criticized the affidavit for failing to identify the affiant by name or with a legible signature and for using indeterminate language at times, such as when the affidavit noted certain forms “may have belonged to patients that were given the vaccine on site as well as offsite.” Further, the affidavit fails to name the “[eight] individuals given the vaccine offsite” and does not allege that, when Dr. Gokal vaccinated those individuals, he failed to complete the requisite paperwork. 

Second, Judge Bynum questioned whether the facts—if taken to be true as alleged—would give rise to criminal liability at all. Describing the prosecutor’s application of theft to a doctor’s administration of vaccines as “novel,” the court goes on to express clear discomfort with the State’s exercise of prosecutorial discretion in this case, writing, “In the number of words usually taken to describe an allegation of retail shoplifting, the State attempts, for the first time, to criminalize a doctor’s documented administration of vaccine doses during a public health emergency. The Court emphatically rejects this attempted imposition of the criminal law on the professional decisions of a physician.” Finally, the court notes that the state failed to show that the complainant, Michael McClendon (Director of the Office of Harris County Public Health), had a greater property right to the vaccines than the defendant.

By interlacing his analyses of the affidavit’s credibility, of whether the facts as alleged would give rise to legal liability, and of what possible affirmative defenses Dr. Gokal might raise, Judge Bynum demonstrated the multidimensional nature of probable cause, which the Supreme Court observed in Illinois v. Gates to be “a fluid concept.” 462 U.S. 213, 232 (1983). By scrutinizing the State’s charging document under all three distinct requirements, Judge Bynum showed that progressively minded trial courts can give the State’s probable cause burden real teeth.

The court demonstrated the potential rigor of the probable cause standard by contextualizing its analysis of the State’s charging document to the fact-specific circumstances of the COVID-19 pandemic. In parts of the affidavit the State relies on, it is alleged “without elaboration” that Dr. Gokal removed the vaccines from the County distribution site, but a more complete telling of the story reveals that while Dr. Gokal removed the vaccines, he did so openly, filling out the required paperwork for each patient to whom he administered the doses offsite. Thus, the court seems to imply that removal alone is not “theft” under the relevant statute, as removal does not necessarily imply deprivation for personal use, which is what the County’s policies specifically ban. Furthermore, the court emphasized that applying the criminal law to a doctor’s “documented administration of vaccine doses during a public health emergency” requires the State to more explicitly address certain seemingly affirmative defenses, such as whether the vaccination site director “had a greater right to possession of the vaccine than the defendant,” who was also empowered by the County to combat the COVID-19 pandemic.

Judge Bynum’s highly COVID-19-contextualized probable cause analysis may be a guide for how other judges can help protect well-intentioned doctors from criminal penalties as norms and rules regarding vaccine distribution and preventing “wasted vaccines” are being developed. While the possible risk of doctors using their privileged access to vaccines for personal gain exists, the beginning of the nationwide vaccine rollout was plagued by miscalculations of doses available in vials and unexpected needs to use vaccines quickly before they expire. By being able to separate well-meaning healthcare workers from bad actors, such as those who have intentionally destroyed vaccines, courts can turn the judicial discretion inherent to probable cause into a meaningful barrier “between the citizens and the police,” despite criticisms that probable cause’s discretionary nature often cuts the other way.

Discretion in the hands of a law enforcement–favoring judge may fail to protect innocent citizens from police overreach, but discretion in the hands of judges who are wary of police power may move the needle in the other direction. While Judge Bynum’s decision may not be politically driven—other doctors have had to move outside formal government policies to avoid vaccine waste and were not prosecuted—it is relevant that Judge Bynum ran for judicial office in 2018 as a Democratic Socialist and has openly supported prison abolition. He has frequently sparred with Harris County District Attorney Kim Ogg’s office, and in State v. Gokal has shown that it’s possible for judges to utilize the probable cause standard as a meaningful barrier against the State’s attempt to impose the criminal law in new contexts. For the State to proceed with a case against Dr. Gokal—as Ogg’s office has expressed interest in—it will now need to convince a grand jury to find probable cause. Thus, by taking a more contextualized approach to the probable cause analysis, trial judges can prevent harsh prosecution of doctors for their reasonable vaccination-related decisions during the COVID-19 pandemic.