With the release of Netflix’s Our Father, I’ve been thinking, once again, about Dr. Donald Cline, its subject, whose prosecution I handled in my former life as a deputy prosecutor with the grand jury division of the Marion County Prosecutor’s Office, a case I’ve elsewhere called the most “philosophically interesting” of my career.
The investigation was referred to the grand jury division via a media inquiry. The facts presented at the time were that two women in their thirties, who knew themselves to be donor-conceived children, had learned through DNA tests that they shared a common donor and that he was not anonymous, as their mothers had been promised, but was their fertility doctor himself.
The investigation nearly died before it began. There was no law forbidding Cline’s conduct. Existing laws could not be made to fit. The criminal code only punishes specific, enumerated conduct and for good reason: people should have notice of what constitutes a crime up front, before they act. Even were a law to fit, the statute of limitations passed decades before, barring any case from going forward.
It took an assist from Cline himself to get us unstuck. He did what no good criminal should ever do: write something down. He had responded to an attorney general civil investigation by lying about his conduct. Charging him for it was a novel route for an obstruction case, but it was enough, and, after considerable legal wrangling, Donald Cline pled open to the court – i.e., without a plea deal. His request that his felony convictions be reduced to misdemeanors was rejected. He was given a one-year suspended sentence, which was unsurprising given the level of the charge, his lack of criminal history and his age.
Maybe it will be lost in the sordid tale of a doctor conceiving dozens of children with his unsuspecting patients, but this case illustrates well the limits of the criminal justice system. It is not the best place to turn for those seeking catharsis. It can be rigid. Children conceived of Cline have often complained that he was charged with a process crime and not for his underlying acts. That such a thing was impossible hasn’t allayed the frustration. Demands for a lengthy jail sentence likewise came from place of emotion and ran up against inflexible sentencing laws and an overtaxed jail system.
I am proud of the work we did on the Cline case. It is not easy to make a case when the law is against you, and getting it done does not necessarily make everyone happy. No one views the criminal justice system the same way. I have learned as much by joining Bose McKinney & Evans LLP and gaining the perspective of my clients, who are baffled by their encounters with a system I once called home.