ILNews

Indiana Supreme Court to hear arguments on victim-advocate privilege

Back to TopCommentsE-mailPrintBookmark and Share

Domestic violence victims’ advocates and criminal law attorneys are waiting on the Indiana Supreme Court’s decision in a case involving a criminal defendant’s subpoena for records from a victim’s advocacy organization in southwest Indiana.

The case, Crisis Connection, Inc. v. Ronald K. Fromme, No. 19S05-1012-CR-678 was granted transfer in mid-December and oral arguments will take place Feb. 17.

In Crisis Connection, Ronald Fromme sought records from the organization to be made available to the trial court for an in camera review. He had been charged with two counts of Class A felony child molesting, and he sought the records relating to the alleged victims and their mother.

Claiming the organization’s records were protected by the victim-advocate privilege, Crisis Connection moved to quash the subpoena on Feb. 28, 2008.
 

subpoena Kerry Hyatt Blomquist, legal director for the Indiana Coalition Against Domestic Violence, above, said subpoenas for organizations to produce victims’ files “have been piling up.” The Supreme Court will hear arguments Feb. 17 regarding the issue. (IL Photo/ Perry Reichanadter)

After filing a motion to compel in August 2008, and a renewed motion to compel in December 2008, hearings took place and on May 27, 2009, the trial court granted Fromme’s motions in part:

“1. Defendant’s above motions shall be granted as to information requested regarding any reports made to Crisis Connection by or on behalf of [redacted], subject to the restrictions below, and shall be denied as to Defendant’s request regarding similar information regarding [redacted].

“2. The response of Crisis Connection shall be delivered to the Court, and the Court shall review said records to determine the relevance of any such records. The Court will then inform the parties of its decision.

“3. In finding as above, the Court has determined that the items being sought are sufficiently identified, may be essential for the Defendant in determining the credibility of the complaining witnesses, and may be material to the Defendant’s defense,” according to the July 15, 2010, Court of Appeals opinion that referred to the May 2009 decision.

Crisis Connection then filed a motion to reconsider on June 9, 2009, which was denied on Oct. 5, 2009. The trial court denied the motion, and on Nov. 18, 2009, the Court of Appeals accepted jurisdiction.

A footnote in the Court of Appeals July 2010 decision stated that “Crisis Connection does not confirm or deny that it provided services to M.Y., D.Y., or their mother; however, for sake of appeal, Crisis Connection operates under the assumption that it possesses records responsive to the court’s order.”

In its opinion on this issue of first impression, the Court of Appeals discussed what other jurisdictions have done in similar cases and ultimately found in favor of Fromme, concluding that an in camera review was a fair way to address the situation.

“The interest in privacy asserted by Crisis Connection, while important, is not strong enough to bar an in camera review of its records. Requiring defendants to meet the three-step test before obtaining an in camera review creates the proper balance between a criminal defendant’s constitutional rights and an alleged victim’s need for privacy. This approach is consistent with our decisions addressing other privileges and with the better-reasoned opinions of other jurisdictions. Therefore, we affirm the trial court’s order,” wrote Judge Terry A. Crone.

The three-step test was outlined in Williams v. State, 819 N.E.2d 381 (Ind. Ct. App. 2004), where Williams was charged with rape of K.W.M. and sought her prescription records, which are confidential.

The three-step test comprises particularity and relevance, and if those two requirements are met, “the trial court must grant the request unless there is a showing of paramount interest in non-disclosure.”

Following the July decision, Crisis Connection, which has been represented pro bono by Jon Laramore, Matthew T. Albaugh, and Trina K. Taylor of Baker & Daniels, petitioned to transfer the case to the Supreme Court in October. The case was transferred Dec. 17.

In Crisis Connection’s petition to transfer, the attorneys write, “The Court of Appeals’ opinions, including its rehearing decision, initiate an ‘open season’ on victim-advocate records. It establishes no threshold test or requirement of any preliminary showing before a trial court may order in camera disclosure. Crisis Connection has been informed by its trade association, the Indiana Coalition Against Domestic Violence, that many victim service providers already have heard from defense lawyers that they will be subject to subpoenas or other compulsory process for victims’ records in criminal cases if the Court of Appeals’ opinion stands. Fromme is fishing, which is what any reasonable defendant would do at this stage of his case.”

In her amici brief on behalf of the Indiana Coalition Against Domestic Violence, the Indiana Coalition Against Sexual Assault, and the Battered Women’s Justice Project, Kerry Hyatt Blomquist, legal director for the ICADV, expressed concern as to what the decision could mean for other victims’ advocates.

“Amici agree with Crisis Connection that victim advocate records are privileged communication under Indiana Code Section 35-37-6-9 and that judicially created exceptions to this privilege endanger victims seeking advocacy and create both a chilling effect on potential reporters of abuse and an immediate systemic challenge to victim service providers who do not have the legal infrastructure to respond to broad ‘fishing expedition’ discovery requests,” Blomquist wrote.

She continued that even if these files are reviewed by a judge in camera, “the potential disclosure contemplated by the Court of Appeals’ decision could re-victimize those persons already in crisis by mandating they choose between advocacy services and confidentiality.”

This could be particularly discouraging to victims in smaller communities where there’s a greater likelihood that the judge or others who could potentially access information from domestic violence agencies would somehow know the victim, Blomquist said.

She added that when a victim seeks to leave a violent situation, he or she is in a vulnerable position and at great risk for a lethal situation to occur between the victim and abuser.

She also said that just because someone seeks help from a shelter or other organization that helps victims, it does not automatically make that person a victim who can therefore have immunity from the law. There is a screening process, she said, and if a victim admits they committed a crime, such as child abuse, the advocate already has a responsibility to report that to the proper authorities.

Blomquist also said that it’s likely that if a defendant is seeking evidence, there are other ways of getting that evidence without seeking records from victims’ advocates.

In response to Crisis Connection’s petition to transfer, Fromme’s attorney, S. Anthony Long of Long & Mathies Law Firm in Boonville, wrote that “Crisis Connections’ argument that the opinion of the Court of Appeals declares ‘open season’ on victim-advocate records is simply wrong. As the Court of Appeals stated, the three-step test in Williams should be applied. This test is not simply a formality, but requires: 1) a sufficient designation of the items sought to be discovered; 2) that the items requested must be material to the defense; and 3) if the particularity and materiality requirements are met, the trial court must grant the request unless there is a showing of ‘paramount interest’ in non-disclosure.”

He also disagrees with the argument that the defendant is “fishing” for information.

“Based on the trial court’s decision to conduct an in camera review, neither the defendant nor his counsel will be permitted to ‘fish’ through the records,” Long wrote. “The review will be undertaken by the trial court, and it is ludicrous to believe that the trial court has any interest in the contents of the records other than relevance to the defendant’s request for discovery.”

In the meantime, Blomquist said more subpoenas similar to Fromme’s have been filed against other organizations that help victims of domestic violence and sexual abuse.

She said she was uncertain if it was common practice or not for defendants to subpoena victims’ advocates prior to this case, but that victims’ advocates are now in a holding pattern until the Supreme Court issues its decision following the oral arguments that will take place Feb. 17.•
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT