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Supreme Court hears arguments in victims' advocates subpoena case

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The Indiana Supreme Court heard oral arguments today involving the subpoena of records from a domestic violence agency by a defendant who had been charged with two counts of Class A felony child molesting. The agency argued that due to statutory privilege between victims and advocates they did not need to provide the requested information.

In In re Subpoena to Crisis Connection, No. 19S05-1012-CR-678, defendant Ronald K. Fromme requested that Crisis Connection, a domestic violence agency with locations in Jasper, Tell City, and Rockport, release records on a person who had talked with advocates at the Jasper location.

The trial court ordered Crisis Connection to produce the records for an in camera review, but the organization asserted that Indiana Code 35-37-6-9 creates an “absolute privilege” for advocacy organizations. The Court of Appeals affirmed the trial court’s decision July 15, 2010.

In today’s oral arguments, Jon Laramore, representing Crisis Connection, said that the privilege between a victim and advocate was the same as that between a psychotherapist, social worker, or physician and a patient or client.

Justice Frank Sullivan Jr. asked Laramore if, because Crisis Connection received government funding, it should be considered a government agency similar to the way law enforcement is a government agency, and information from law enforcement is available to the defendant.

Laramore said that his client did receive federal funding, as do many domestic violence agencies, but that it is run as a private organization.

It was pointed out that if a counselor for victims learns that there might be child abuse, the counselor must issue a report to Indiana Department of Child Services. The organizations don’t release their clients’ entire files in those cases, just the information needed for those reports.

The counselors for these organizations also tell their clients that everything they say is confidential, and they explain that if there is suspected child abuse they are required to file a report with DCS, Laramore said. A victim can also sign a waiver if he or she no longer wants the record to remain confidential.

If the court considers balancing when a defendant can subpoena a domestic violence organization with the right to confidentiality, Laramore asked the justices to consider People v. Stanaway, a Michigan case that said defendants must have concrete evidence showing why they are seeking information and not just speculation.

He added that there are currently at least 25 subpoenas pending against domestic violence advocacy organizations around Indiana.

S. Anthony Long, Fromme’s attorney, said the request was justified for his client’s defense. He also said that his client met two of the three steps used in balancing this kind of request based on Wlliams v. State of Indiana: a sufficient designation of the items sought to be discovered; the items requested are material to the defense; and 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.

Long and the justices discussed the statute, and examined the question, “if the Legislature took the time to carve out exceptions to the privilege for advocates, why didn’t they include situations like Fromme’s?”

They also discussed the difference between Williams in Indiana and Stanaway in Michigan.

Justice Sullivan asked how Long knew there was something in the records and that he wasn’t just “fishing,” as Laramore put it in his briefs.

Chief Justice Randall T. Shepard also commented that as someone who reads child molestation cases for a living, what Long described as strained family relations and other issues that lead Long to believe there is something in the record that could help his client’s case were “extraordinarily ordinary” circumstances and did not seem to show any concrete evidence for this particular case.

This case was previously reported  in the Jan. 5-18, 2011 edition of Indiana Lawyer.
 

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  1. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  2. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  3. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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