New and Noteworthy
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United States v. Stevens, — F. Supp. 3d —, No. 3:17-CR-00008 (JAM), 2017 WL 888302 (D. Conn. Mar. 6, 2017)
Defendant was arrested for selling heroin lethally laced with fentanyl that resulted in the victim’s overdose and death. Six months following the arrest, defendant appeared in district court to waive indictment and enter a guilty plea to the single charge of distribution of heroin. The judge inquired whether the victim’s family was present and whether they agreed with the plea agreement. The prosecutor informed the court that he was new to the case and had not personally spoken with the victim’s family, but that through the victim-witness coordinator the victim’s family was apprised of the proceedings. The judge proceeded with the plea hearing, but withheld acceptance of the plea until the prosecution could inform him of the views of the victim’s family regarding the plea. The judge then ordered the prosecution to file a statement describing how the government had complied with its obligations under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, and “whether the victim’s family and/or estate concurs with the proposed terms of the plea agreement.” The prosecution submitted a statement informing the court that the victim-witness coordinator notified the victim’s mother that the plea agreement was reached, and that the she “expressed dissatisfaction that the death of her son was not charged.” In deciding whether to accept the plea agreement after receiving this information, the court referred to the CVRA, which provides crime victims with ten individual rights. The judge noted that a court may respect the rights of victims by declining to accept a guilty plea if the government violates the CVRA, reasoning that a district court has broad discretion to reject a plea agreement in the interests of the “sound administration of justice[,]” which he concluded requires respect for the rights and interests of crime victims. Although recognizing that the government may have good reasons for not pursuing the highest charge, the court rejected the idea that the government had a good or defensible reason for not speaking to the victim’s family before it entered into a plea agreement with defendant. In addition, the court explained that victim-witness coordinators are not prosecutors, and that the CVRA does not contemplate that the government “will outsource all ‘victim’ communications to coordinators or other administrative personnel. To the contrary, among the rights guaranteed to victims by the CVRA is the ‘reasonable right to confer with the attorney for the Government in the case.’ 18 U.S.C. § 3771(a)(5).” In addition to the right to confer, the court cautioned that the plea agreement “potentially shortchanges the victim’s family’s right to restitution, contrary to the explicit right of victims under the CVRA to full and timely restitution[,]” because it did not include the potential for payment of future lost income. The court then rejected the parties’ plea agreement, concluding that the sound administration of justice does not support acceptance of a plea agreement under circumstances in which the government “does not respect” the rights of crime victims. The court authorized the parties to renew plea proceedings, and if this occurred, the prosecution must file a memorandum addressing whether and how it fully consulted with the victim’s family prior to committing to an agreement and whether the agreement otherwise protects the victim’s right to restitution.
In re Centerstone, No. M.2016-00308-CCA-WR-CO (Tenn. Crim. App. Jan. 17, 2017) (slip copy).
Defendant in the underlying criminal matter was indicted for incest, rape, and statutory rape by an authority figure. During the pre-indictment investigation, the prosecutor’s office obtained a judicial subpoena for the mental health records of the child-victim. The judicial subpoena was served on Centerstone, a community mental health services provider operating in seventeen Tennessee counties. Centerstone informed the state that it would not comply with the subpoena, and the trial court issued a summons to appear and show cause. Centerstone filed a motion to quash the judicial subpoena. During a hearing, Centerstone’s Director of Health Information Management testified that, as a matter of course, Centerstone responds to judicial subpoenas by informing the requesting party that it should seek disclosure of records using Tenn. Code Ann. § 33-3-105(3), which governs subpoenas for confidential information and which requires a hearing and the application of a specific standard. Testimony further established that a trial court has never ordered Centerstone to disclose mental health records in order to comply with a judicial subpoena, rather than conducting the hearing required pursuant to Section 33-3-105(3). The trial court denied Centerstone’s motion to quash but granted permission to seek appellate review. On appeal, Centerstone argued that a judicial subpoena is not a valid mechanism for discovery of mental health records, which are made confidential by law, and that access, unless granted voluntarily, must follow the procedure set forth in Section 33-3-105(3); the state disagreed. As a question of first impression, the Court of Criminal Appeals analyzed the relevant statutory provisions at issue, concluding that the personal privacy interests of the subjects of the mental health records protected by Tennessee law require that they receive “pre-hearing notice and an opportunity to be heard … rather than being forced to rely on the holder of the mental health records to protect [their] interests after an ex parte hearing.” The Court of Criminal Appeals concluded that a judicial subpoena is an invalid mechanism for the discovery of mental health records made confidential under Tennessee law and that, going forward, involuntary disclosure of such records must proceed in accordance with Section 33-3-105. Because the trial court did not follow this procedure and did not give the child-victim an opportunity to be heard, the trial court order was vacated and the case remanded for an appropriate hearing.