Jail confidentiality, Part II: Open season on insanity consultants

Do insanity consultations fall under the attorney-client privilege? 
Not in DeKalb County, Georgia

POSTSCRIPT: In 2015, the Georgia Supreme Court overturned Henry Neuman's murder conviction based on the trial court's harmful error of violating attorney-client privilege by forcing the defense consultants to turn over their records to prosecutors. My blog post on this ruling is HERE.  

In civil court, expert consultants may be kept secret under attorney-client confidentiality rules. Even with testifying experts, an amendment to the Federal Rules of Evidence allows civil attorneys to avoid handing over the experts' reports until they are in their final form.

Is the situation similar in criminal court? Criminal attorneys often assert that the work product of an expert who is retained only as a consultant -- not as an expert witness -- can be kept confidential under the attorney-client privilege doctrine. But consider this scenario:

An attorney wants to know whether insanity might be a viable defense in a murder case. He decides to retain a psychologist as a consultant. The psychologist agrees to meet with the defendant and give the attorney an initial assessment.

Being an ethical practitioner, the psychologist obtains informed consent from the defendant. He explains that since he is just a consultant and won’t be testifying as an expert in the case, the information that he collects will only be shared with the attorney.

But he is wrong. The next thing he knows, he has been slapped with a subpoena ordering him to bring his notes and test data to court and be prepared to be questioned by the district attorney about his findings. If he refused to cooperate, the prosecutor threatens to search his office and seize the records; a search warrant is already in hand.

Peter Thomas. Photo credit: Chris 
North, Reporter Newspapers

This was the rude introduction to forensic psychology that greeted Peter Thomas of Georgia, a novice to criminal work and court proceedings. He was yanked into the middle of the headline-grabbing case of Hemy Neuman, a high-level General Electric manager who had ambushed and shot to death a subordinate's husband, entrepreneur Russell "Rusty" Sneiderman, outside a preschool in a wealthy suburb of Atlanta, Georgia.

The prosecutor in the Neuman case learned of Thomas's involvement through an old trick -- underhanded but effective -- of monitoring the jail's visitor logs.  

Neuman's attorneys vigorously objected to the subpoena and the legality of the pretrial discovery hearing. Allowing prosecutors to interview Thomas would have a "chilling effect" on defense attorneys' ability to use experts, lest they do their clients "more harm than good," attorney Robert Rubin argued to the court. 

"Mr. Neuman was told, at the beginning of his meeting with Peter Thomas, that his disclosures during the course of that interview would be disclosed only to his legal team," Rubin and co-counsel Douglas Peters wrote in a legal motion objecting to the disclosure. "Mr. Neuman was NOT given the standard warnings usually given during a court ordered evaluation that by cooperating in the evaluation he was waiving his Fifth Amendment privilege. Mr. Neuman did not knowingly waive any privilege, including Fifth Amendment or attorney-client."

But DeKalb Superior Court Judge Gregory Adams was unmoved. He ordered Thomas and, later, a second psychologist, to hand over their evaluation notes forthwith. He said he would first view the materials to protect any information that might fall under the protection of the attorney-client privilege.

Case law murky

The U.S. Supreme Court has never clarified whether the prosecution can discover and use evidence generated by non-witness defense psychiatric experts when criminal defendants raise the insanity defense, leaving lower courts divided on the issue, according to an overview in the Fordham Law Review.

The Third Circuit is an example of an appellate court that has ruled that attorney-client privilege applies in this situation. In its 1975 ruling in U.S. v. Alvarez, it held that "effective assistance of counsel with respect to the preparation of an insanity defense demands recognition that a defendant be as free to communicate with a psychiatric expert as with the attorney he is assisting." In that case, a psychiatric consultant rendered an unfavorable opinion regarding the viability of an insanity defense for a defendant facing trial for kidnapping. The defense went ahead with an insanity defense anyway, without calling the expert to testify. Knowing of the initial expert's opinion, the government subpoenaed him and, over defense objection, the trial court compelled him to testify. The Third Circuit overturned the conviction.

Other courts, however, "have held that merely by asserting the insanity defense, criminal defendants waive all claims of privilege with respect to any prior psychiatric evaluations," reports Elizabeth Maringer in the law review. A prime example was the 1976 case of Edney v. Smith, involving a man facing trial for kidnapping and murdering his ex-girlfriend's 8-year-old daughter. Edney pleaded insanity and called a psychiatrist who testified in support of this plea. The court then allowed the prosecution to call, in rebuttal, the original psychiatrist who had examined Edney for trial preparation purposes and who did not believe that Edney was mentally ill. The New York Court of Appeals upheld Edney’s conviction, ruling that pursuing an insanity defense automatically waives the attorney-client privilege.

The threat of prosecutorial discovery puts defense attorneys in a Catch-22 situation as they weigh options in cases in which mental illness is a potential issue. On the one hand, as Maringer notes, counsel “risk creating witnesses for the prosecution” when they investigate a mental health defense, especially if they use court-appointed experts. On the other hand, they risk violating their client's rights if they do not thoroughly investigate this line of defense.

"The obvious chilling effect upon defense attorneys' willingness to investigate and pursue the insanity defense for their clients conflicts with the policies underlying the Sixth Amendment," Maringer states. "In addition, risk of disclosure diminishes defendants' willingness to cooperate with counsel and psychiatric experts."

'Celebrity angels and demons made me do it'

Hemy Neuman

Neuman's insanity defense was ridiculed in the press. The love-struck defendant claimed that he had heard the voice of a demon who sounded like Barry White and seen an angel who looked like Olivia Newton-John, who ordered him to kill the husband of his love interest.

The defense called at least three mental health experts. Psychologist Adriana Flores testified that in her expert opinion Neuman was suffering from erotomanic delusions and was insane at the time of the killing. Neuman told her he had been visited by a "she-demon" who told him the Sneidermans' children were his.

"He believed he was the father of the children, they were his children and were in danger," Flores testified. "It was his duty to rescue them, to protect them by killing Rusty [Sneiderman], then he could be with his children. 

Another defense expert, psychiatrist Julie Rand Dorney, testified that Neuman showed signs of "paranoia, depression, social isolation, confusion and magical thinking, which could mean psychosis."

The prosecution, meanwhile, painted Neuman as a calculating killer who planned Sneiderman's shooting for months, going to gun shows, taking a gun safety course, going to target practice, renting a car for the shooting and wearing a disguise, according to ABC News coverage.

Psychiatrist Pamela Crawford, called by the government, said she believed Neuman was faking his symptoms. "His discussion of [the demons] was inconsistent," she testified. "At one point he says, 'I know they are not real,' then later says, 'I just want the demons to go away.' He's not even consistent in the same interview."

"The defendant is serving up an insanity sandwich and he's been serving it up since 2010 and he wants you to eat it," District Attorney Robert James told the jury.

Not too surprisingly, the jury rejected Neuman's insanity bid. Neuman was found guilty but mentally ill and sentenced to life in prison without parole.

Appeal may clarify law - at least in Georgia

The judge's decision to turn over Thomas's assessment data to the prosecution will likely figure prominently in Neuman's appeal.

Neuman’s attorney, Robert Rubin, said the prosecution's pretrial subpoena ploy forced the defense to change strategies, and to call Thomas as a witness in order to prevent him from becoming a prosecution witness. Thomas, who had never before testified in court, conceded under cross-examination that he did not test for malingering, and that Neuman may have been faking insanity.

The case should serve as a cautionary one for pretrial consultants. Unless and until this murky area of the law gets cleared up, it is prudent when conducting an insanity evaluation -- even if you are just a consultant and not expected to testify -- to let the defendant know that the information you are collecting may ultimately be discoverable.

After all, you never know who is looking over your shoulder when you sign your name on the jail log. It could be a prosecutor with a subpoena in one hand and a search warrant in the other.

The law review article, available online, is: "Witness for the prosecution: Prosecutorial discovery of information generated by non- testifying defense psychiatric experts" by Elizabeth F. Maringer, Fordham Law Review 62 (3), 1993.