Opinion
Case No. 3:13-cr-037
02-15-2014
United States of America, Plaintiff, v. Lashawnda Robinson, Defendant.
ENTRY GRANTING MOTION IN LIMINE BY LASHAWNDA ROBINSON. DOC. 31.
Pending before the Court is Motion in Limine by Defendant Lashawnda Robinson. Therein, Defendant requests that the Court exclude from trial:
1. Any testimony offered by Good Samaritan or Crisis Care hospital personnel (physician, therapist, nurse) concerning any statement [Defendant] made in the course of mental health diagnosis and/or treatment.Doc. 31. Because the admitting nurse, Crisis Care counselor and emergency room doctor were all part of a team that Defendant sought out for psychiatric treatment, the motion will be granted.
2. Any medical/hospital records related to [Defendant's] mental health treatment and/or diagnosis.
I. Background
According to the Government complaint, on January 10, 2013, Judge Timothy S. Black sentenced Defendant's brother to 162 months' imprisonment. Doc. 1, ¶ 9. Defendant's brother was convicted of two counts of being a felon in possession of a firearm and possession of marijuana with intent to distribute. United States v. Robinson, 3:12-cr-032 (S.D. Ohio 2012). Defendant claims that she received the guns by inheritance and she brought them into the house. Doc. 28-1, at 13. Representing the government in that case were Sheila Lafferty and Mona Guerrier. Id. Defendant's brother was represented by Danny O'Brien. Id.
Defendant reacted to her brother's sentencing with outrage, including thoughts avenging her brother. She also suffered from suicidal ideation and migraines. Doc. 28-1 at 12. While Defendant had been treated for Multiple Sclerosis by a neurologist, she understood that she could not see that neurologist for another 10 months. Doc. 28-1, at 12.
She sought help. Defendant called East Way Behavioral Health Care, a mental health care provider. Id. She told them she felt like killing herself and had access to a gun. Id. She was told to go to Crisis Care at Good Samaritan Hospital. Id., at 13. Defendant's hospital records memorialize that upon arrival at the hospital, "Patient present[ed] with psychiatric problems." Doc. 41 at 11, 28, 41. Defendant reported suicidal ideation, homicidal ideation and migraines. Id. As she was being admitted to the hospital, an attending nurse, Dianne Wilz, was preparing to secure Defendant's purse, Defendant asked if the purse would be searched. Doc. 1, ¶ 4. Wilz told her that if Defendant was admitted, her purse would be inventoried and stored until she was released. Id. The complaint alleges that Defendant then stated that when she was released from the hospital, she intended to kill some people. Robinson then is alleged to have claimed that she had syringes filled with bleach in her purse and she intended to use the syringes to kill them. Upon questioning, Defendant said that her brother was sentenced to thirteen and a half years in prison for a crime he did not commit, claiming that she had actually committed the crime for which her brother had been sentenced . Id. ¶ 5.
When Wilz asked whom Defendant intended to kill, Defendant rattled off: Judge Black, his family, nieces, nephews, and grandchildren. Wilz thought Robinson was angry and serious about the threats.
A mental health counselor, Iris Blanchard, then interviewed Defendant. Defendant is alleged to have told Blanchard that she wanted to "hurt Judge Black, Judge Black's family, the assistant federal prosecutor, and Danny O'Brien." Id. ¶ 6. Defendant is alleged to have claimed that she planned to inject these people with the bleach in the syringes. Id. Defendant is then alleged to have said that she wanted these people to feel the pain and anguish her family was going through. Id. Blanchard informed Defendant that she had a duty to report what she considered to be threats, at which point Defendant is alleged to tell Blanchard, "We never had this conversation." Id. Blanchard recommended involuntary hospitalization, an individualized treatment plan, and a warning to law enforcement officers. Doc. 41 at 5. The emergency room physician agreed. Id.
The hospital called the Dayton Police Department. Their interview caused Defendant to become combative and uncooperative. Doc. 41 at 15. The Police arrested Defendant and charged her with misdemeanor carrying of a concealed weapon, based upon the possession of the bleach filled syringes. Upon being informed of the charges, Defendant indicated that she did not want to make any statements. However, the government alleges that Defendant made unsolicited incongruous statements to the effect that she had the syringes for personal protection, that she did not intend to inject anyone with the bleach, but she intended to shoot them.
The federal government charged Defendant with one count of threatening to assault and murder a United States Judge and one count of threatening to assault and murder a United States Attorney, both charges constituting violations of 18 U.S.C. § 115(a)(1)(B). As trial approaches, Defendant has moved the Court to exclude statements and records relating to her efforts to obtain psychiatric treatment. Doc. 31.
II. Analysis
The Sixth Circuit recognizes the existence of a psychotherapist-patient privilege protecting communications between licensed psychotherapists and patients made in the course of treatment or diagnosis, from compelled disclosure. United States v. Hayes, 227 F.3d 578, 581-82 (6th Cir. 2000), citing, Jaffee v. Redmond, 518 U.S. 1, 15 (1996). This privilege extends not only to psychotherapists, but to licensed mental health providers, including social workers and third parties participating in the patient's diagnosis and treatment at the provider's direction. Jaffee, 518 U.S at 15. Thus, in Jaffee, the Supreme Court recognized that the privilege extends to the entire team necessary for delivering mental health treatment to a person voluntarily seeking that treatment.
Recognizing that "[t]he mental health of our citizenry . . . is a public good of transcendent importance," the Supreme Court noted that
a psychiatrist's ability to help her patients "is completely dependent upon [the patient's] willingness and ability to talk freely. This makes it difficult if not impossible for [a psychiatrist] to function without being able to assure . . . patients of confidentiality
and, indeed, privileged communication. Where there may be exceptions to this general rule . . ., there is wide agreement that confidentiality is a sine qua non for successful psychiatric treatment.Id. at 10-11.
The government advances three positions against applying the psychotherapist-patient privilege in the instant case: (1) Rule 501 of the Federal Rules of Evidence does not provide for it, (2) a claim that Robinson was not seeking psychotherapy, but hospital admission, and (3) Ohio case law and that of one federal circuit would narrowly construe the psychotherapist-patient privilege to only cover communications with licensed psychotherapists. The government itself admits that the Sixth Circuit has rejected its first position in Hayes.
The Court finds no factual basis for the government's assertion that Defendant was not seeking psychotherapy. She was seeking treatment for homicidal ideations, suicidal ideations and migraines. She called a mental health provider and was directed to go to the hospital. She went to the hospital and presented "psychiatric problems." Doc. 41 at 11, 28, 41. The government complaint asserts that Defendant "was being treated" and her statements occurred "[d]uring her treatment." Doc. 1, ¶4. Defendant did exactly what society wants anyone in her situation to do. Unfortunately, she has now languished in jail for over a year, creating misgivings as to whether she will choose so well in the future.
As to the Ohio case, In re Smith, 7 Ohio App. 3d 75, 77-78 (2nd Dist. 1982), Federal Rule of Evidence makes clear by its text that privileges in cases governed by federal law are likewise governed by federal case law. Fed. R. Evid. 501 ("But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision."); see also United States v. Bek, 493 F.3d 790, 801-802 (7th Cir. 2007). While Jaffee looked to the states to discern a consensus for recognizing a psychotherapist-patient privilege in federal law, federal courts do not look to state law to define its scope. This would contravene the direction in the committee note that "privileges shall continue to be developed by the courts of the United States under a uniform standard applicable in both civil and criminal cases." Fed. Rule Evid. 501 (comment).
In re Smith, is inapposite in any event, since, as counsel for Greene County Child Services Board established in that case, the party seeking to assert the privilege was not voluntarily seeking help. In re Smith, at 78. Rather, one of the board's caseworkers had brought the party to be examined. Here, Defendant voluntarily went to the hospital seeking psychiatric help.
Much more supportive of the government's position is United States v. Ghane, 673 F3d 771 (8th Cir. 2012), wherein the Eighth Circuit found statements made to an intake nurse by a man who had requested to see a psychologist were not covered by the privilege, as the intake nurse was neither licensed in psychotherapy, nor engaged in treatment. The defendant in Ghane sought treatment for suicidal and homicidal thoughts. The Eighth Circuit perceives the intake nurse as limited to hospital admission. However, how would a person in Ghane's position or the instant Defendant's position be admitted for treatment if not by disclosing symptoms to an admitting nurse? The result of the Eighth Circuit position is a heightened possibility that troubled individuals will avoid treatment that might help them manage their behavior, leaving society to deal with them after they have succumbed to the thoughts that torment them and made an attempt, successful or not, to carry them out. This Court rejects that position.
United States v. Romo, 413 F.3d 1044, 1045 (9th Cir. 2005), upon which Ghane relies, is inapposite, as it concerned statements made to a correctional officer who was "a licensed professional counselor [but] whose job included providing inmates with psychological counseling and a host of other duties, ranging from arranging social events to providing classes and acting as a case manager." In Romo there was no indication the defendant was seeking psychological counseling when he spoke. In the instant case that ambiguity is absent.
The Ninth Circuit has rejected the notion that the psychotherapist-patient privilege is limited to licensed therapists. Oleszko v. State Compensation Ins. Fund, 243 F3d 1154, 1157 (9th Cir. 2001) (extending privilege to employee assistance program counselors)(citing United States v. Lowe, 948 F. Supp. 97 (D. Mass. 1996)(extending the privilege to trained but unlicensed rape crisis counselors who report to nurses); and Greet v. Zagrocki, 1996 WL 724933, *2 (E.D. Pa. 1996)(extending privilege to employee assistance program counselors)). For the privilege to have meaning, it must extend to individuals engaged in admitting a patient for mental health treatment.
The Court is particularly persuaded by the analysis of Bull v. City of San Francisco, 2003 WL 23857823 (N.D. Cal. 2003), which rejected an assertion of the privilege to cover intake nurses at a jail. There defendant in Bull made statements to jail intake nurses as part of a process to determine where in the jail defendant should be placed. The court reasoned:
Even if the Court assumes that confidential communications between a nurse and patient are covered by the privilege, the privilege does not apply for several reasons. First, based on the Court's examination of the two withheld documents (which Ms. Bull submitted for in camera review), there was no psychotherapy involved. Second, the communications between the nurses and Ms. Bull did not take place during the course of diagnosis or treatment. That is, Ms. Bull was not seeking a diagnosis or treatment from the nurses; rather, the nurses were seeking information from Ms. Bull as part of intake screening, more specifically, for the purpose of determining where to place her in the jail. Third, for similar reasons, Ms. Bull did not have a reasonable expectation of confidentiality in the communications. She was not speaking to the nurses for the purpose of diagnosis or treatment but rather to the nurses as representatives for the jail.Bull v. City and County of San Francisco, 2003 WL 23857823, *1 (N.D. Cal. 2003).
Here, Defendant sought treatment at the hospital; her statements were made in the course of treatment. Defendant was speaking to the nurse for the purpose of being admitted to receive treatment. Moreover, she was seeking this admission at the direction of East Way Behavioral Health Care. By the Northern District of California's reasoning, which this Court adopts, the privilege should apply.
III. Conclusion
Because Defendant was seeking psychiatric treatment, any statements she made to the team involved in providing her that treatment are necessarily privileged. If they were not, persons in Defendant's position would not be able to seek the treatment they desperately need and that society wants them to seek. Any statements made by Defendant at the hospital to hospital personnel are privileged and are excluded from trial. Similarly, hospital records concerning Defendant are excluded from use at trial.
The privilege does not apply to evidence derived from the protected statements, such as Defendant's statements to police officers, as the privilege does not extend to fruits of the tree, as the privilege is not constitutionally mandated. See United States v. Highsmith, 2007 WL 2406990, *4 (S.D. Fla. 2007). Evidence relating to the syringes in Defendant's purse is relevant. --------
DONE and ORDERED in Dayton, Ohio on Saturday, February 15, 2014.
s/Thomas M. Rose
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE