Defense Counsel Can Inspect Victim's Treatment Records
New Protocol Replacing 'Bishop/Fuller' Standard Adopted by the SJC

By Eric T. Berkman
Massachusetts Lawyers Weekly [Massachusetts]
January 8, 2007

A rape defendant's attorney can inspect the victim's privileged treatment records under a new rule announced by the Supreme Judicial Court.

The defendant argued that the existing rule — the so-called Bishop-Fuller protocol, mandating that trial judges, rather than defense counsel, inspect presumptively privileged materials for relevance — should be replaced.

The SJC agreed, adopting a new protocol that allows defense counsel, under a strict set of requirements, to inspect treatment records themselves after Rule 17(a)(2) requirements for summonsing materials held by a third party have been satisfied.

"In [the 1993 Commonwealth v. Bishop decision] and again in [the 1996 Commonwealth v. Fuller decision], this court sought to 'strike the proper balance' between a defendant's due process right to such evidence and the protection of a statutory privilege," wrote the SJC as a group. "But the 'stringent' balance ... has given rise to continuing difficulties. ... The amended protocol [adopted today] is designed to give the fullest possible effect to legislatively enacted privileges consistent with a defendant's right to a fair trial that is not irreparably prejudiced by a court-imposed requirement all but impossible to satisfy."

The SJC vacated the defendant's child rape conviction because of numerous errors at trial, including the admission of alleged but uncharged sexual assaults on the victim as well as the admission of a nontestifying codefendant's confession. The new protocol governing the victim's treatment records, the court ruled, will be applicable to the defendant's retrial.

The 45-page decision is Commonwealth v. Dwyer, Lawyers Weekly No. 10-195-06.

'Appropriate balance'

Carlene A. Pennell of Boston, appellate counsel for the defendant, said she was "elated" by the decision, which "confirms what we believed all along — that [the defendant] did not get a constitutionally fair trial."

Pennell also called the adoption of the new protocol for inspection of privileged materials a "victory" for the defense bar. The Bishop-Fuller standard, which limited inspection of such materials to an in camera review by the trial judge, was an insurmountable hurdle to a fair trial, she said.

"If the judge determined that there was nothing [in the records] that would aid the defendant, the defense counsel never saw the records," Pennell explained. "It's virtually impossible to argue on appeal that you were denied access to something helpful when you've never seen the records. Now, if the defendant can at least reach the threshold of showing why the records are relevant and necessary, the defense counsel — and the defense counsel only — gets access subject to a very strict protective order."

Pennell said she hopes the result is fewer innocent people being convicted. "The court has finally struck an appropriate balance between defendants' rights and victims' rights."

Norfolk County District Attorney William R. Keating, whose office represented the commonwealth, was unavailable for comment prior to deadline.

Family tragedy

In February 2001, a female high school student told her boyfriend and then her parents that two of her cousins, Frederick Lomberto and defendant Sean Dwyer, had raped and sexually assaulted her multiple times over a period of several years.

That May, the victim underwent the first of two "sexual abuse intervention network" (SAIN) interviews. In the first one, conducted at the Milford Police Department, she claimed that the abuse by the defendant and Lomberto began when she was 8 or 9 years old and stopped when she was 13. She claimed the defendant raped or sexually assaulted her "almost 50 times."

In her second SAIN interview, at the Bellingham Police Department in July 2001, police questioned the victim about a handwritten list she had prepared of alleged incidents of sexual abuse by the defendant and Lomberto between 1992 and 1997. She described two alleged rapes — one at her home in July 1997, a week before her 13th birthday, and one in the basement of her grandparents' house in August 1997.

Based on these two allegations, the defendant was charged with rape of a child by force and indecent assault and battery on a child under 14.

The defendant's motion seeking access to the complainant's therapy records in accordance with procedures set forth in Bishop was denied on the ground that the defendant had not demonstrated a sufficient basis for ordering in camera review of the records.

After trial, the jury deliberated for three days before returning guilty verdicts on the indictments relating to the August 1997 incident. The defendant received a sentence of four to six years in prison.

Defense counsel then moved for a new trial, arguing that the denial of access to the victim's counseling records had deprived the defendant of a "viable defense" because the records "directly contradict" the victim's testimony that the alleged abuse had occurred in July and August 1997. Superior Court Judge Barbara A. Dortch-Okara denied the defendant's motion without a hearing.

Conviction reversed

On appeal, the SJC vacated the defendant's conviction and ordered a new trial.

First, the SJC ruled that the commonwealth should not have been able to question the defendant about his knowledge of Lomberto's admission.

"The connection between the defendant and Lomberto permeated the trial," the court stated. "Moreover, as the defendant points out, the judge did not instruct the jury that Lomberto's admission had been coerced, which compounded the potential prejudice to the defendant."

The SJC also ruled that the commonwealth should not have been allowed to raise incidents that the defendant had not been charged with.

"The jury heard more about uncharged sexual assaults than they did about the crimes charged," the court noted. "Trial counsel's cross-examination of the complainant, in turn, was directed primarily at discrediting her testimony of the uncharged conduct. Later, much of the defendant's own testimony was devoted to denying the uncharged prior bad acts."

New protocol

Having vacated the conviction, the SJC addressed the issue of access to the victim's therapy records prior to the new trial.

In cases where the third-party records are subject to privilege, the court noted that it had been relying on the Bishop-Fuller protocol, which mandates that a judge inspect the records in camera to determine if they are indeed relevant before allowing the party seeking them to inspect them.

However, the SJC conceded in this decision that the Bishop-Fuller protocol was troublesome.

First, said the court, it created contentious conflicts as to whether the documents were actually privileged.

Additionally, requiring judges to inspect the records in camera for relevance placed them in an inappropriate role, said the SJC. As the court explained, "trial judges examining records before a trial lack complete information about the facts of a case or a defense to an indictment, and are all too often unable to recognize the significance, or insignificance, of a particular document to a defense."

Accordingly, "[t]he absence of an advocate's eye may have resulted in over production, as well as under production, of privileged records, and has repeatedly contributed to trial delays and appeals, jeopardizing the rights of defendants, complainants, and the public."

As a result, the SJC announced a new protocol for inspection of such records.

First, all third-party records will be treated as presumptively privileged unless the privilege holder waives the privilege.

Second, "if a judge orders the issuance of a rule 17(a)(2) summons, all presumptively privileged records that are summonsed shall be retained in court under seal, and shall be inspected only by counsel of record for the defendant who summonsed the records," the SJC continued, adding that counsel will not be able to copy any records or disclose their contents to anyone, including the defendant.

"Disclosure of the contents of any record to the defendant or any other person shall be permitted if, and only if, a judge subsequently allows a motion for a specific, need-based written modification of the protective order," said the court.

The SJC also stated that this new protocol would apply prospectively, and would be used to determine whether or not the defendant in this case could inspect the victim's treatment records prior to his new trial.

Eric T. Berkman, formerly a reporter for Massachusetts Lawyers Weekly, is a freelance writer.


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