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Indiana Supreme Court to hear arguments on victim-advocate privilege

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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.•
 

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  1. 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)

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