The child abuse exception to [privilege]

If the law were a series of Hollywood blockbusters, undoubtedly the highest grossing series of movies of all time would be the ones that featured the exceptions carved out in long-standing law to accommodate the prosecution of alleged child abusers. You’d start with the original, “The Child Abuse Exception to Confrontation”, with which the writers judges hit a goldmine. Then I’d recommend moving to “The Child Abuse Exception to Prior Bad Acts”, and by now with a well-worn formula that keeps the entire plot intact but simply changes the name, a la The Hangover 2, The Child Abuse Exception to Privilege. There’s a rumor that there is a madlibs game in the works “The Child Abuse Exception to _____”. Ultimately, the plan is to release a director’s cut box set compendium under the title “The Child Abuse Exception to The Law”.

This most recent iteration, which can be viewed on a screen near you, is also known by its working title of State v. Mark R., in which the court goes to great lengths to explain why it is perfectly legal for a psychiatric counselor to not only disclose suspected child abuse to authorities – as a mandated reporter – but also to testify as to the private communications between the counselor and patient.

The relevant facts are thusly: Man allegedly fondles step-daughter. Step-daughter and mother confront man with assistance of priest in priest’s office. Man reluctantly admits said fondling, apologizes. Priest then informs mother that either she or he will have to report said abuse to law enforcement within 24 hours, as he is also a mandated reporter (gotcha!).

Two weeks later, suffering emotional stress from the step-daughter’s accusations and impending criminal prosecution, the man goes to seek counseling at a clinic. During a confidential intake interview, man again (yes, I know) admits said fondling. Counselor has to report said suspected child abuse.

Both priest and counselor testify at man’s trial about his confessions. Man is convicted and spends many years in jail; appeal follows.

In Connecticut, the privilege statute is 52-146s, which states:

(b) Except as provided in subsection (c) of this section, a professional counselor shall not disclose any such communications unless the person or the authorized representative of such person consents to waive the privilege and allow such disclosure. The person or the authorized representative of such person may withdraw any consent given under the provisions of this section at any time in writing addressed to the individual with whom or the office in which the original consent was filed. The withdrawal of consent shall not affect communications disclosed prior to notice of the withdrawal.

(c) Consent of the person shall not be required for the disclosure of such person’s communications:

(6) If child abuse, abuse of an elderly individual or abuse of an individual who is disabled or incompetent is known or in good faith suspected;

So it is pretty clear that the counselor is permitted to violate the privilege in order to report the suspected child abuse. The question then becomes, does the privilege continue to not exist once the disclosure has been made? The court says yes:

Once a client makes such an admission to a counselor, there is no indication, in either the text of the statute or its legislative history, that the counselor must obtain his consent  for any subsequent disclosures.

The defendant in the present case contends that Orr controls the result here. He argues that, as with the social worker statute, the professional counselor statute only  contemplates an initial disclosure of a client’s admissions of child abuse, and only to the extent required by law and necessary to secure the safety of the child, and therefore  the statute does not permit a counselor subsequently to testify against her client at trial. We disagree.

The court then goes into a somewhat limited analysis of why they disagree, mostly revolving around the fact that some other statutes mention that reporters shall be immune from criminal prosecution and that their names shall be disclosed to all necessary parties in said prosecution. Thus, it concludes:

Taken together, these provisions demonstrate a clear legislative intent that any mandatory report of child sexual abuse be channeled simultaneously into: (1) a child protection  investigation, spearheaded by the department, to prevent future abuse; and (2) a criminal investigation, spearheaded by local law enforcement, to address past abuse. Unlike  the imminent risk exception in § 52-146q (c) (2), the child abuse exception contained in § 52-146s (c) (6) is in part remedial. Accordingly, we discern no basis for reading into §  52-146s an implied distinction between disclosure of confidential communications for purposes of child protection and criminal prosecution.

The court also dismisses the argument that this decision will have a chilling effect on people seeking therapeutic treatment because any disclosure results in a criminal investigation, so the prospect of having his statement admitted through his counselor isn’t much of a deterrent. I suppose it’s been a long time since any of the justices practiced in a criminal court – if at all – but I’d like to take this opportunity to remind them that the number one factor leading to convictions is a confession.

In addition, I think there’s a significant distinction between this case and any other hypothetical case involving the disclosure to a psychiatric counselor: the fact that the suspected child abuse had already been disclosed a few weeks prior, by the priest.

The reason he went to the clinic and spoke to the counselor in the first place was the stress he experienced following the accusations made against him by the step-daughter. I understand that we need to protect children and that is the main goal, but a subsidiary one has to be the rehabilitation of people who commit these crimes and the first step in that process starts with therapy.

Imagine the therapy session that starts: “I must warn you that I can’t help you unless you talk freely and honestly about what you did and why, but if you do that, I will have to report you and testify against you in court”.

Yeah, no chilling effect, for sure.

Abolition is dead and with it, a little bit of all of us

“They should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street,”

State Senator Edith Prague, D-Lots of Places That Are Not Cheshire, CT, who was for the death penalty before she was against it, before she was for it again, but only for one man.

The abolition of the death penalty in Connecticut was already hanging on by the thinnest of wires, thanks to Governor Malloy’s decision to take several Senators into his administration. The vote was a very, very close one. And that was before Sen. Prague’s comments today, after she had a meeting with Dr. He Who Shall Not Be Named, CT’s favorite victim.

But lets be clear: Sen. Prague may not have changed her stance on the death penalty in general – she may very well vote for abolition next time, she magnanimously informs us – but in this one instance, she wants the government of Connecticut to murder a man:

Prague indicated she may still support future efforts to abolish the death penalty but said, this year, she couldn’t look Petit in the face and “not give him something that would make his life a little easier.”

And more:

“I actually believe in repealing the death penalty,” said Prague, a senator for 16 years. “For Dr. Petit, for me to do one more thing to cause him some kind of angst, I can’t do it.”

Prague’s voice broke today as she recounted her visit from Petit.

“I can still see Dr. Petit’s face in front of me. Oh, my god in heaven. I’m doing it because that’s what they came in for,” Prague said. “They brought their lawyer and said, ‘If you vote for the repeal, it would make it more difficult.”

And she’s not the only one:

Sen. Andrew Maynard, D-Stonington, who voted for repeal two years ago, said he also has reconsidered as a result of conversations with Petit.

Those who are regular readers know that I am not easily left at a loss for words. To say that these comments left me reeling would be an understatement. So let me state this in terms that should not be misunderstood by anyone: Sen Edith Prague is deciding policy in the State of Connecticut based on the wishes of one man.

She may well be the deciding vote that defeats the abolition bill and she is doing so, not because of some moral opposition to the death penalty, but because one survivor made a personal request to her. And what of the others? Those survivors who are opposed to abolition? Did she even bother to listen to their opinions? Can she look them in the face and make their life easier? Or is their loss not the same? Must we always side with vengeance and “justice” over mercy and compassion? Where do you want to be, at the end?

Connecticut’s capitulation to the person in question is well documented: our former Governor Rell repeatedly invoked his name in defeating criminal justice and death penalty abolition bills. Public opinion polls routinely separate one particular case from the idea in general when asking about the death penalty. And apparently, a majority of Connecticut’s citizens would agree with Sen. Prague.

It is one thing, however, for the general populace to voice such opinions – they should and are entitled to it. It is quite another for an elected representative, who takes an oath, to put aside policy considerations for the specific interest of one individual.

Make no mistake: this is the State of Connecticut explicitly stating that Joshua Komisarjevsky and Steven Hayes are to be murdered. This should trouble you. The machinery of two governmental branches of the State have now maneuvered and conspired to bring about the deaths of two individuals.

If two elected representatives to State Government are so moved by their desire not to “make it more difficult” for this survivor, what chance do 12 members of a jury have?

I offer an analogy – admittedly weak, because nothing can adequately capture the gravity of the State’s decision to murder someone – but nonetheless: If this were not an abolition bill, but a bill to raise taxes and Sen Edith Prague made public comments that while she supports raising taxes and it will benefit the State, one individual from a city not in her jurisdiction came to her and begged her not to, because it would affect him personally, and so she will be voting against raising taxes this time. How hard would you laugh at her?

If the State can so contort itself to train its crosshairs on these two individuals – so explicitly, so blatantly and without any shame – why do you think you’re not next?

I suppose, on balance, an abolitionist might gain some small measure of hope from the fact that these public comments, with their explicit emphasis on the desire to please one individual over greater policy, would make it almost impossible for an appellate court to affirm the death sentence for a man so clearly and publicly marked for death. Upon rumination, however, I do not share that optimism. I have no faith in any of the branches of Government of this State. And they haven’t given me any reason to.

Whether you are for or against the death penalty is, in my opinion, entirely irrelevant to this post. Sen. Prague’s comments and her willingness to cow-tow to the emotional machinations of one individual should put the fear of God in all of us.

Today, we can no longer say that there is a divide between “them” and “us”. Today, Sen. Prague has made us all animals.

 

It only takes one

We have a saying, those of us in this field, that “it only takes one”. It’s said with a slight wink and an imperceptible smile, the legal defense equivalent of “anything’s possible”. Said in reference to cases that present near insurmountable challenges to the defense, it implies that all you need is one juror and you have a hung jury. And if that occurs, anything can happen: the state may not re-prosecute, they may offer a more palatable plea bargain, or at the very least, you’ll have a free preview of their evidence. “It only takes one” is the outcome you’ll gladly accept when all hope of an outright acquittal is lost.

Paul Kennedy, in this post today, writes about a recent Texas trial and the jury’s failure to unanimously agree on a verdict. He references the “reasonable doubt” posts written by both Scott and yours truly last week to ask:

What is clearer evidence of reasonable doubt (other than a unanimous not guilty verdict)? Why should los federales get another bite at the apple when they couldn’t prove up their case the first time? Why should Mr. Eversole be forced to cough up even more money to defend himself against charges the prosecutors couldn’t prove beyond all reasonable doubt?

Rephrased, in the words of Judge Gee, writing for the 5th Circuit in US v. Becton, the issue becomes this:

Arrest warrant for judge rejected…if it existed in the first place

Updating the humdinger of a story from last Friday, wherein a State Trooper was allegedly seeking an arrest warrant for a judge who failed to sign an arrest warrant, there are two conflicting sets of stories out today. First, we have the Waterbury Republican-American, which reports that the trooper did indeed submit an arrest warrant application, but it was rejected (by whom, we don’t know), and that now the Chief State’s Attorney’s Office is “reviewing the allegations” that were made in that application:

A state trooper’s arrest warrant application that charges a Bantam Superior Court judge with coercion and hindering an investigation has been rejected, but the allegations it raises have been forwarded to the Chief State’s Attorney’s Office for review. … On Friday, state police spokesman Lt. J. Paul Vance declined to say why the application was denied or by whom. Vance said the document, stamped in bold with the words “arrest warrant application” at the top, is not considered an application for arrest unless and until it is signed by the investigating trooper and a supervisor.

BUT then we turn to the Register-Citizen, which has a different story. According to the R-C, no warrant was ever submitted by any police agency to any prosecuting authority:

Significant CT Supreme Court cases

Justice Old White Dude 1, Justice Old White Dude 2...

The Connecticut Judicial Branch, in keeping with its image of being speedy and up-to-date with news and technology, just posted a new link on its website. The link is to the celebrations held in honor of the 100th Anniversary of the Connecticut State Library and Supreme Court building, which was November 10, 2010. So, you know, only 5 months late.

There actually is interesting information on that site, including really old photographs of really old dudes with names like Samuel Prentice and Silas Robinson and Elisha Carpenter, who, apparently sat on wooden chairs at floor level. No wonder it was called the Supreme Court of Errors. Now there’s an appropriate name, if there ever was one.

There’s also this lovely link to a list of all Connecticut Supreme Court (I’m just going to call it that, okay? Let the Court of Errors thing go. Act your age.) Justices, dating back to the ubiquitous and inimitable Tapping Reeve. [And if someone can explain to me just what the hell is going on with the layout of this page, I'll buy you a drink.]

But – and what I’m getting to – is this nifty little list created by world-renowned Connecticut Appellate Lawyer Wesley Horton, of some “significant” CT Supreme Court decisions.

Being someone who once went to treatment for list-addiction, I cannot but permit myself a sip o’ the ole vice and present a list of my own and invite you to do the same. So, finally, here’s a list of the most significant Connecticut Supreme Court cases, in my opinion. Obviously, since no one really gives a shit about civil cases, there are few on this list.

1. State v. Golding – holding that unpreserved errors of Constitutional magnitude can and should be reviewed by appellate courts

1a. State v. Kitchens – effectively reversing State v. Golding above and making it near impossible to get any review of any sort of unpreserved claim of Constitutional magnitude.

2. Kerrigan v. Comm’r of Public Health – gay marriage is a-okay!

3. State v. Geisler – delineating a 6-part test to evaluate claims under the State Constitution.

4. State v. Stoddard – Police are required to timely inform suspects in custody of legal counsel’s attempts to contact them and render legal assistance.

5. State v. Oquendo – declining to adopt the restricted meaning of seizure under Hodari D. and holding that Connecticut’s Constitution provides greater protection.

6. State v. Randolph – reinstating the old common law rule of favoring a strict preclusion of “propensity evidence” in non-sexual assault cases.

6a. State v. DeJesus – actually putting ink on paper to say that, in sex assault cases, once a sex offender, always a sex offender.

7. State v. Marsala – under the State Constitution, there is no such thing as a “good faith exception” to the exclusionary rule.

8. Sheff v. O’Neill – something about racial segregation and schools and who the hell knows. They’re still fighting over this one, nearly 20 years later. (No, I’m kidding. This case is very big deal.)

9. State v. Courchesne I – a death penalty reversal based on statutory construction and “plain meaning” of words written on paper, which led the legislature to pass CGS 1-2z, which essentially says mean what they mean.

10. Lozada v. Warden – that whenever the right to counsel attaches (in this case in post-conviction hearings), that right is the Sixth Amendment guarantee of the effective assistance of counsel. Prosecutors hate this one.

11. Kelo v. New London – something about eminent domain and taking and – seriously, all I remember about this is that after SCOTUS’ opinion, some justice had almost had his house taken by eminent domain or something?

12. State v. Nelson, State v. Griswold – the name should give you a hint.

13. State v. Littlejohn – proving the old adage that a criminal defendant can waive whatever the hell she wants, including the statute of limitations.

14. Kohlfuss v. Warden – there is a double jeopardy provision in the State Constitution. It’s right there, umm, taking the shape of the Due Process Clause.

15. State v. Carpenter – holding, somehow, that recklessness (as required for manslaughter) is a subcategory of specific intent (required for murder).

16. State v. Morales – entitles the defendant to a jury instruction when the police fail to preserve potentially useful evidence.

17. State v. Ledbetter; State v. Marquez; State v. Outing – slowly but surely coming in line with the modern scientific thinking on the uselessness of eyewitness identification.

I’m sure there are others you find significant. Let’s hear them in the comments.

[PS: I was really, really tempted to add another: She Who Must Not Be Named v. DiNardo, for my good friend Ryan. But I give him enough crap about it already.So I leave it to you, mischievous reader, to suggest it in the comments.]

 

 

 

 

 

 

 

 

 

 

Wrong time, wrong battle

There are several “rules” of practice that all criminal defense lawyers would be well served knowing and understanding. One of them is that we must and should engage in battles with the prosecutors and courts for the sake of our general clientele. But one that is even more paramount, one that goes to the core of our mission to represent each and every client individually, is that you must never fight a battle to the detriment of a specific client.

And I get that this is even more of an issue with public defenders offices across the country, where the ever-increasing pressure of funding cuts leads to the inevitability of “taking a stand” and showing the clueless politicians in the state legislature just how devastating the impact of their poorly thought out budget reductions will go. I get that, even in the relative nirvana of Connecticut, we are severely understaffed in most of our public defender offices. And I get that it’s worse in places like Georgia and Florida and South Carolina.

But just like you’d never forgo a misdemeanor with a suspended sentence in favor of testing out your latest brilliant challenge to the constitutionality of a serious felony statute, there’s a place and a time to fight these fights. And that time isn’t at a critical stage of a criminal proceeding. So it irked me to read Bobby G.’s post today, about a seemingly office wide policy of the public defender’s office in Horry County, SC, to automatically waive all preliminary hearings for clients who are entitled to them.

South Carolina is an odd place to people from the Northeast, like me. They use terms like “general sessions courts” and “solicitors”. They still utilize a grand jury, and – although he doesn’t use it in his post – I bet they have something mechanism whereby cases are “bound over” to some other place.

But the commonality in the language we use this: