-: SJC 13633, Commonwealth Fee. Darnell E. Sapee.
(paper rustling)
-: Okay. (door thuds)
Okay, Attorney Schnipper. Good morning.
-: Good morning, Chief Justice Budd.
And may it please the court,
I'm Merritt Schnipper representing Darnell Sapee today.
Simply as a question of fact,
the mandated report made by Clinical & Support Options
to the depart, excuse me,
to the Department of Children and Families establishes
that AR spoke with a therapist about this alleged assault.
-: Can I get into the factual independence for that?
-: Sure.
-: To quote Ronald Reagan about trusting and verifying.
-: [Attorney Schnipper] I mean, so that's one
that stood the test of time for sure.
-: Right. (Attorney Schnipper chuckles)
So, I read your affidavit on your third paragraph,
and the last line of the third paragraph is,
"The DCF report describes Saperstein's
as telling a DCF investigator, and it quotes, 'language.'"
I don't have...
I assume you're referring to the clinician's 51 B report?
-: So, there's two, there's two things going,
there's two affidavits in play, right?
There's counsel's affidavit. I'm not trial counsel, so.
Justice Gaziano: Right, no, I know, right.
-: So my affidavit was proffered to the single justice
for the limited purposes that I discussed in my reply,
if I can go into them here,
but what I'm really talking about
is the recitation by counsel in the Dwyer motion itself,
that Clinical & Support Options conducted
this crisis evaluation,
and then reported to DCF in the wake of that.
So I think it's a plain inference from the fact
that you have a minor child alleging sexual assault.
-: Okay, but what I'm trying to get
is the underpinnings of that.
So, I get from the Commonwealth, the CSO clinicians 51B,
and it seems like we don't have all of it,
but I look through that,
and I don't see the child report in this sexual assault,
in that I have "mother says,"
and I have she participated in the saying,
but those are
two very different things. -: I guess, I'm not sure
I understand the question,
because I mean, obviously a 51B happens
when a 51A happens.
-: Right but the question is, there's a supposition that,
and you do a great job on your brief saying,
"This is what 51A requires,"
and you can infer based upon this,
that she described the assault,
but when I look for the factual underpinnings of that
in the 51 B, I don't get it,
and I'm just wondering if I'm missing something.
-: I don't think you're missing something.
And I don't think the 51B is tendered to the court
in the context of the Dwyer motions.
His really just counsel's affidavits
and the motions himself.
And the motions, of course,
are just a set of factual allegations.
They're not a set
for legal argument. -: Right,
but you have quotation marks in your affidavit,
and I'm just wondering what are you quoting from?
-: What I'm quoting from is the discovery,
and I'm quoting from that for the purpose of saying
to the single justice,
"No, you should not dismiss these motions with prejudice
in the event that you vacate the Superior Court orders."
-: Okay, and when you say- -: And the reason
you shouldn't do that
is that the actual discovery that the Commonwealth provided
shows that there was- -: Right, when you-
-: all this stuff going on.
-: All right, so, we're probably talking past each other.
When you say you're quoting from the discovery,
what discovery?
-: [Attorney Schnipper] PCF reports, right.
-: Okay, that we don't have.
-: These reports, the court does not have before it.
-: Okay. -: I mean,
except whether the Commonwealth chose
to put in its supplemental appendix.
But what I think is really important here, right,
is that what we have, based on, just on the,
with the facts that are alleged by trial counsel
in his Dwyer motion,
are facts sufficient to support a finding
that this minor reported or you know, reported the alleged.
First she goes to an emergency psychiatric intervention,
which is where the initial report of sexual assault occurs.
Then we go to the Clinical & Support Options
crisis evaluation.
That's the one that results in the report to DCF.
And from there, directly to two weeks of inpatient therapy.
So, what we have are a set of facts
sufficient to demonstrate
not only that there was an initial report,
in other words,
a conversation between this minor alleging sexual assault
and a therapist,
which of course, is sufficient to entitle a defendant
to summons records under the first stage of Dwyer
under the court's case law,
but then we have the necessary operation of statute
that that report to DCF
and the case of a minor will be channeled directly
into the investigative and prosecutorial function.
And that direct channeling, so in other words,
from initial complaint to therapist to district attorneys
and police being informed,
immediately, the statute says the word "immediately,"
means we are beginning the process
of a criminal investigation and prosecution.
And once that process begins,
we know that the defendant has rights to the exculpatory,
or potentially exculpatory statements of the alleged victim
that are contained in these treatment records.
-: If we take a step back
and look at what was in front of the single justice,
he had to make a decision
about Judge McDonough's decision, right?
-: [Attorney Schnipper] Yes.
-: Which did not include this 51A theory, let's call it.
-: No, it did not.
And I accept that a better practice would've been
to fully enunciated there.
I think we're in an unusual posture in a Dwyer case.
-: And then we have the single justice at the end saying,
"Well, you could refile."
-: And in the event that this court affirms his judgment,
that's what will happen.
And that's, I think, one of the reasons that it's worth-
-: Yeah, right, you anticipate the question, of course, is,
"Why reach it here when we're deciding
whether or not that single justice abused
his discretion." -: Sure.
That is a completely legitimate question.
-: Thank you.
-: (chuckles) And I think there's...
You've got a lot of them.
And I think there's two good answers for me to provide.
The first is that this is a very unusual Dwyer case
because we're not reaching the court
after a trial conviction in which a defendant is saying,
"My Dwyer motion was improperly denied."
And the court would appropriately say,
"You're not gonna enunciate any arguments
that you didn't bring to the trial judge."
Where an interlocutory posture, where the motion, of course,
was allowed in the Superior Court
such that an appellate court can affirm
on any basis of parent in the record.
-: Maybe the point of me asking the first question is,
about the basis of what you said,
if we were to say that you have that option
that Justice Georges gave you,
trial counsel would go back to the judge,
have an affidavit that quotes from the discovery,
and glaze it out for the judge,
which we could review, correct?
-: That would certainly happen.
And I can tell you what will happen.
I'll insist that not only the facts laid out
in the DCF discovery be more effectively presented
to the trial judge,
but that my argument about the structure of the statute
also be included in a written argument
that's submitted with that motion.
And of course,
we could give Judge McDonough the first pass on that.
And because he allowed these Dwyer motions
without that argument,
and this argument would make these motions
much, much stronger, presumably he would allow them again.
We might then face another 2-11-3
based on the policy arguments we're facing now,
and we could come right back to the single justice,
and then theoretically to this court as well.
But we're four years out from indictments in a case
that is getting a lot of age to it.
So, this issue is, I think of significant importance,
not only to this case, but to many child sex offense cases,
and just the ongoing balancing
of Dwyer versus constitutional rights to present a defense.
And I think it's fully presented for the court
and appropriate to decide now.
And I do think that there's an interesting,
and it's hard to believe, not previously explored issue,
it's not an issue, but it's an interesting balance
that when we look at the tools we have
for legislative interpretation, like you know this,
the legislative set up a protective confidentiality
and privilege system,
and then it basically made 51A and 51A
a relatively significant carve out to that system.
Or not necessarily even a carve out,
but something that works in conjunction with it
to say that when we have minors reporting sexual assaults,
we are downgrading the priority
that we place on confidentiality and privilege
to the extent that we are going to require
that those allegations be basically,
though they go through DCF,
they're directly reported to the police
and the prosecutor's office for purposes of investigation.
And that's a completely legitimate call
for the legislature to make,
that this is what we prioritize,
investigating these alleged crimes against children,
which are so serious.
But anytime the legislature
makes that sort of prioritization,
it's bringing with it in its decisional train,
all the constitutional criminal procedure rights
the defendant has.
-: So your position is the fact of a 51A report
would mandate disclosure?
-: I think it gives a defendant the basis to satisfy Dwyer.
-: Well, here's the point though,
it doesn't mean that the child discussed
the substance of the allegations with a therapist, correct?
-: Well, it means at the very least
that the information that's required by 51A
to be contained in the report is transmitted.
-: But it could also be
that the mother was negligent or neglectful.
-: It theoretically could be, but one of the reasons
there was such a- -: Which is what happened
in this case, too, right?
-: It could, but what's happening here
is that we have a child who's already enmeshed
in the mental health system
and has a bunch of pre-existing conditions, who then comes,
and what we know just from the facts laid out
by counsel and his affidavit in motion is that she runs away
and says she's gonna think about committing suicide.
She's running away from home, she's recovered,
brought immediately to emergency psychiatric care,
where an allegation of rape is made.
So, it's certainly quite possible
that mom could be found negligent
through a DCF investigation.
But these facts,
the timing of the Clinical & Support Options mandated report
strongly suggests, and of course,
we all know that we have to make Dwyer showings
without having seen the records,
strongly supports the factual inference
that this was a discussion of a sexual assault.
-: Right, and that that's really the linchpin,
is whether there was discussion of the sexual assault
to bind for inconsistent statements
or consistent statements, correct?
-: [Attorney Schnipper] I agree with that.
-: All right, that has to be shown through the 51B, right?
-: Well, I just think that the fact that the 50...
I mean, because again, what's the stage of the prosecution?
There's been an indictment, we're in the criminal process,
so obviously, you know-
-: But like in this case you have a 51B that says something,
you have a SAIN interview, you get all the SAIN tapes,
or if there's still tapes, I don't know,
you get all the SAIN information, right?
-: [Attorney Schnipper] Sure.
-: And you get the police reports.
So you have a basis of-
-: But there's a significant amounts of information
that's already been provided.
-: Right. -: Right,
but that doesn't really get to the question.
And one of the things that's so, I think,
crucial about this case, you know,
and this place is in contrast to the mine run of cases
where we talk about, you know,
you're not just entitled to to Dwyer material
simply because someone alleges sexual assault
and then is referred to a therapist.
This isn't a referral to a therapist.
This is a journey into custodial mental health care
for the two weeks following your initial report,
which means, and of course this is a case
in which the only defense is fabrication,
that means that demeanor and state of mind evidence
related to whether an alleged victim may be fabricating,
may not be fabricating,
the Commonwealth presumably will seek to introduce evidence
of her distress and mental health issues
in the immediate aftermath
to show that her complaint is legitimate.
That's a legitimate use under the court's case law
of that behavioral evidence.
But the defendant is also entitled
to challenge the allegations on the basis of fabrication.
And that is going to be based on demeanor
and state of mind that is reflected,
primarily in the way
she's discussing the alleged assault.
And the only evidence of these discussions
is going to be contained, it will have been produced
during this period of therapeutic custodial care.
So, there really isn't any other.
So, I think that makes us much stronger.
-: But you have to get beyond the case law
that says that the mere fact of treatment
doesn't satisfy Dwyer-Lampron, correct?
-: That's right, and I think we are well beyond that,
because not only of the time period
in which custodial treatment is occurring,
but we have the fact that we have a transmission
from a mandated reporter
directly to the police and prosecutors
that's resulted in an indictment.
Judge Wendlandt: Is your position different
for any of the four providers?
-: It definitely is the same for the first three,
meaning the Cooley Dickinson Emergency-
-: But Cooley, was there a 51A?
-: No, there wasn't. So perhaps then, they're out.
But on the other hand,
that is the context in which the initial report occurs.
And it's also not in any way clear just how fast
and what the connection is between Cooley Dickinson and CSO.
So, CSO and Cooley,
those are physically located very close to each other,
and then, so how fast a person goes from one to the other...
You know, what I think is interesting
is that there is no mandated report recited
from Cambridge Hospital,
but that's where she goes immediately for the treatment.
The results from the mandated-
Justice Gaziano: So, the first two 51A reports are filed?
-: Well, the last 51A
is actually from the Northeast Center
for Children and Families- -: Right, so the only 51A-
-: which is the (indistinct)
therapy provider. -: The only 51As
are (indistinct) by CSO and Northeast, right?
-: That's correct. -: Okay.
And so to me,
that might put those two in a different position,
although the Northeast request is entirely too broad.
Would you agree with that? -: It's pretty broad,
but I think
that some period predating the allegations is appropriate
because I think a substantial issue at this trial
is going to be whether these allegations
are themselves manifestations of preexisting conditions,
because of course,
counsel does recite two other crisis events
in the preceding year.
And that's, so I mean, if you wanna go six months back,
I think it's appropriate to go some amount of time back
so that you contextualize the mandated report treatment
that produces that
to what was going on. -: So, six months back
for Northeast?
-: I mean, I think that's fair.
-: Okay, and then not Cambridge Hospital
'cause there's no 51A from them.
CSO, yes, 'cause there is a 51A. And not Cooley.
-: Well, I don't think it's appropriate, frankly,
to treat Cambridge Hospital and CSOs as completely separate,
because what happens is there's the crisis evaluation
and the transmittal,
so there very well may be, basically it's one 51A.
Justice Gaziano: But where is the evidence
You made statements in the initial crisis?
-: It's the fact that it was reported to DCF.
So, I mean- -: By the CSO.
Justice Gaziano: By the CSO.
-: CSO, right. -: All right,
so baby steps, right?
CSO actually did a 51A, and Northeast actually did a 51A,
and you want six months back.
-: Sure.
And there's certainly nothing wrong with saying,
"Those are appropriately granted.
Take a look at those, go back to the court
and make a second showing."
I mean, that is fine.
And I think one thing that,
because going back- -: Why six months?
I'm confused.
Six months is just plucked out of the air,
'cause I mean, the trial judge allows
from January 2019 to December 2020,
the end of December 2021,
why would six months be legitimate?
-: Because there's a period of a year that's described,
a year preceding this alleged assault
that's described in counsel's affidavit that basically says,
"During this period, she was dealing
with all these other behavioral and mental health issues,
and there were two other crisis events."
So I think it's an important consideration for the defense
whether the behavior that, and we don't actually know
whether those crisis events were related
to allegations of sexual assault right now or not,
but assuming that they may have been,
what we wanna to know is were there prior allegations
that were unsubstantiated?
Is there a basis for claiming fabrication in these records?
So, there's some amount of time,
in the mental health context, preceding the allegations.
I think that's appropriate.
-: Counsel, isn't that pretty close to just speculation
on the fact of receiving mental health care equals evidence?
-: I don't think it is when you're in a situation
where like the mental health distress
is such a part of the situation
in which the allegations arose in the first-
-: I understand that argument with respect to the incidents
that we're talking about, the incidents at issue here,
but I'm talking about the two crises that were in the past.
Is there anything beyond sheer speculation
that those may have had to do
with some other allegation by this victim?
-: Well, the only thing that's beyond sheer speculation
is that the victim's mother says,
you know, according to counsel's affidavit,
the victim's mother attributes
the runaway and suicidal ideation to all these other-
-: No, she specifically attributed
to her premenstrual dysphoric disorder,
which has nothing to do with allegations of sexual abuse.
-: Well, I'm not suggesting they do,
but what I'm saying is that the initial concern
is that all this behavioral stuff
is related to something else
other than a sexual assault, right?
So it's quite possible that that's the case.
Right, that's quite possible
that that's the basis of a defense?
And the only way to understand that is to contextualize
that with some access to the records from that provider.
I see I'm over time,
but I do wanna quickly make the point
that finding that a 51A to a 51B to an indictment
basically satisfies the requirement
for a summons under Dwyer
is not some sort of massive setting aside
of legislative priorities of confidentiality and privilege,
for two reasons.
One, obviously the legislature more or less intended it,
but second, this entire case has been argued by both sides,
frankly, except I'm a little bit less responsible
for this on Lampron grounds.
But there's Dwyer, right?
There's a stringent and quite threatening protective order
that counsel has to sign
before counsel can go into a room all by him or herself
and look at these records, right?
And if you mess around
under the terms of that protective order,
you're reported for bar discipline.
and you also have discourse,
have your underlying ethical obligations to think about.
Two additional judicial findings in the Superior Court
are required before there's even a possibility
that these materials can be used at trial.
Those are meaningful and substantial protections
for confidentiality and privilege purposes.
And the fact is that if a defendant fails to show relevance,
it's over.
If a defendant satisfies relevance,
it's one of the multiple steps that might end up
with trial use of these materials.
And I do think that's important
when the court thinks about how Dwyer plays out
in the Superior Court.
Because you know,
the defendant's leaning on constitutional rights here.
and the fact that these protections don't end
upon a showing of relevance,
I just think favors summonsing them.
and then letting a Superior Court judge
who deals with these every day, say,
"Oh, you know, okay, counsel, you've had a look,
now do you have a showing to make about trial use or not?"
And I mean,
that is the protection that the court has imposed
for purposes of privilege records, right?
Lampron applies to anything, you know-
I mean, a negligence suit related to premises liability
by a third party contractor, right?
You don't have the privilege mechanisms there,
but you have the same 17 A2 showing.
-: Do you have a proposed definition
or understanding of the term evidentiary
in the phrase evidentiary and relevant?
-: Sure. I mean, availability for use at trial.
I mean, as the Superior Court judge says,
these are medical records that generally are admissible.
Obviously, statements of an alleged victim about a crime
are admissible largely as of right,
at least for impeachment purposes.
And you have records that are very highly likely
to contain demeanor evidence to be highly relevant
to a showing of potential fabrication.
So I think all those make them both
evidentiary and relevant.
-: It's not just admissible, it's not just admissibility?
-: Well, I mean, I think evidentiary and relevant,
kind of when you add those together, you get admissibility.
-: Okay, thank you. -: Thank you very much.
-: Attorney (indistinct)
-: Chief Justice and Associate Justices,
may I please the court?
My name is as (indistinct)
and together with my colleagues,
Matthew Knowles and David Gachioch,
I represent AR, the victim in this case.
And there are two things
that we're asking the court to do here today
to preserve the delicate balance
that the court set when it established Lampron-Dwyer.
The first is to affirm Justice George's ruling.
Here, there's no dispute that the motion
that Sapee filed before the Superior Court was deficient.
You heard Sapee's counsel,
he does not defend those motions
based on the record he presented to the Superior Court,
nor does he defend the Superior Court's reasoning.
So, affirming Justice George's here
is easy and straightforward to do.
The second thing, your Honor,
is when affirming Justice George's decision,
the court should explicitly reject
Sapee's troubling argument
that the mere statement of a sexual assault
to a mental health provider in a Section 51A report
is sufficient reason alone to allow records
to become accessible under Lampron-Dwyer.
It is imperative that the court reject this argument
as it is not supported under this court's case law.
And if the opposite were true,
it would mean that no child would ever have access
to confidential treatment after being raped.
-: Our case law says, or does it say,
that if psychiatric records or therapeutic records
include a description of the sexual assault by the victim,
then that is grounds for relevance in admissibility,
correct?
-: I think- -: Or it satisfies Rule 17?
-: I actually think that what the case law says
is that it requires more than just the mere statement.
And I have two examples on this.
So, LeBron, for example,
is one instance in which the court has allowed defendants
to access those records.
In LeBron, just for quick context there,
the defendant sought to seek a broad set of records
as defendant is seeking here.
And when the Superior Court denied it,
and then there was trial and he was convicted,
he filed a motion after trial with the Appeals Court,
saying that essentially just because there was a statement
that the victim had made to a psychologist,
that was sufficient of a reason
to allow the records to come in.
The Appeals Court said the mere fact
that a statement exists is not sufficient reason.
So what the defendant did there
when filing his brief before this full court,
was to actually narrow the set of documents
and include allegations of all the inconsistencies
that the victim had previously done in that case.
And that is the only reason
that the court allowed those records to come in,
because of inconsistencies.
-: But let me ask,
'cause that was what caused William Lampron and Dwyer
under the Stockham-Bishop Protocol.
Judges would get records, and they would say,
"Complainant said A, B, and C,"
and then the judge would say,
"Well, I don't know what's out there because, you know,
I don't know it's consistent, inconsistent.
This is an impossible task."
That made us move to Lampron-Dwyer
where the defense attorneys could articulate better
than the need for records
or what the universe of records is.
So, you're trying to take us back
to Stockham and Bishop by that, right?
-: I'm not Justice Gaziano, and here's why.
So, here it's not, first of all,
this is not an impossible standard to be met.
As I mentioned, LeBron came after Lampron-Dwyer,
and there are instances in which defendants can establish
a showing to access records.
This is just not that case.
And here's why, we do actually know what my client has said.
So, as Sapee's counsel noted,
the 51A reports require a broad array of information.
It requires that the mandated reporter
indicate the identification of who caused the rape,
identify the circumstances under which the rape occurred.
And here, if you look at the 51A report,
it actually shows the opposite
of what Sapee is seeking to show here.
It shows that my client has been entirely credible,
because in the mandated report,
it indicates that she met him on September 4th,
that he took her to two different locations,
that they met on Snapchat and communicated via there
that he raped her.
And then, when she disclosed this to her friends,
she indicated that her friends said
that they had the same experience with him.
So this is not a mistaken identity issue
or an issue in which my client has invented things
or recanted things.
-: That's for the trial. That's the ultimate call.
Are there cases...
I just, again, I'm not as familiar with this area
as some of my other colleagues.
Are there cases in which we have a 51A,
51B report of an assault
where it wasn't allowed to be turned over?
That particular part of it?
I understand it can include, like this,
all kinds of stuff that's obviously,
should not have been turned over and is not eligible for,
but if we said in cases that if you have a 51A, 51B report
that reports the assault, the sexual assault,
that doesn't go to counsel?
-: So, your Honor, this- -: Any case.
-: You actually have not evaluated this question before,
and that is why Sapee presented this
as issue one in his appellate brief,
he's asking the court to weigh in on this issue.
And so there hasn't been that discussion before,
but in Commonwealth v. Jones, one of the issues
that the defendant there was seeking records from
was actually based on a DCF report
that one of his daughters made,
stating that she only remembered one incident
in which her father abused her.
And the defendant was saying that that was alone of a reason
for him to access those records.
But this court said,
and this was again under Lampron-Dwyer standard,
that it was entirely speculative,
and that he wasn't showing a particular allegation,
which is the same instance here.
Judge Kafker: Yeah, I just,
I think you're gonna have to come to terms
with the harder question.
-: Yes.
-: Justice George is...
There's not gonna be a abuse of discretion
given the breadth of this and the lack of analysis
by the trial judge,
but we have more difficult questions to answer, right?
Help us out here.
When we have reports, can we really exclude them?
I mean, I'm just trying to understand,
'cause we can't make the ultimate credibility finding
that you want us to do at this stage.
Particularly, defense counsel doesn't know what they said.
-: Your Honor, so two things to that point.
We're not excluding the 51S reports, he has access to 'em.
We're just excluding the four mental health records
that he's seeking on the basis of those,
of Section 51A report.
So this is just like any other request for-
-: The statements within that aspect of it,
within the counseling.
-: So the statements within there, Justice Kafka,
they don't indicate
that there would actually be anything exculpatory there
for the defendant.
And at the end of the day, what is required to establish-
-: Well, I guess, we don't know. That's the problem.
And actually, one of the problems,
that's why I asked counsel about this,
is we don't know what the,
you folks have the records, you have the 51Bs,
you have the police reports.
We're getting snippets of things,
and ask to draw, you know, conclusions that have,
will affect many, many, many cases.
Which I think counsels for taking this in baby steps
as opposed to making broad proclamations,
both the 51A value.
What's your position?
I think you started out
that we shouldn't decide this 51A issue,
'cause it wasn't raised below.
-: So, what we're asking the court to do here today
is to allow the Justice George decision to affirm it
and to allow Sapee to file a new motion,
but in so doing, clarifying that the argument
he has raised before the court today is not sufficient.
That's simply because a Section 51A exists,
and there's a mere statement to a mental health provider
of the sexual assault,
that is not alone sufficient of a reason
under this court's case law.
They have to show more.
And here, as Sapee stated, it's a strict liability case.
The only defense that he has is that my client fabricated,
as is mentioned,
-: Well, wait, here's the problem.
If we have, government may have a very strong case,
they may have Snapchats that show everything,
GPS, I have no idea, again, we're in the dark,
butt if the complainant says that we met at the high school,
and forgive me, I don't know the facts as well as you,
but the complainant says,
"We met at the high school and then went to the McDonald's,"
and then there's a 51A therapist report
that says they met at the town library,
then they went to Wendy's.
That's relevant.
And that would be admissible at trial,
and that would be an inconsistent statement, correct?
-: Under that hypothetical- -: It could show fabrication.
-: Under that hypothetical, yes, your Honor.
But here, again, there's no indication of that.
Justice Gaziano: But we don't know.
(chuckles) That's the problem we have.
-: Well, Justice Gaziano, what I would say to this
is that we do know what could be in the statements
because the 51A reports already require lots of information
to be included there.
So, we actually do know what-
-: Which doesn't help your argument,
because if the 51A requires the circumstances
of the sexual assault,
that means that the therapist has to get details
of the sexual assault from the complainant witness, correct?
-: But that means that we already know
what details they did get.
And so the underlying mental health records
would just be more detailed. -: Are you saying that...
Yes, (chuckles) exactly.
Right, so the underlying mental health records
would have more detail.
And isn't the defendant under our case law
then entitled to that?
-: No, your Honor. -: Well, at least entitled
to pass the preliminary showing
in order for defense counsel under the, you know,
confidentiality protective orders of Dwyer,
to look at it and then make an in-camera presentation
to the judge.
-: No, your Honor, because he has not established
there's actually something relevant there
to prove or disprove an issue material to this case,
which is the relevant standard
that was established in Lampron-Dwyer.
-: But why not?
If the mandatory reporter believes
that he or she has the information that is necessary
to make the report,
it's not a leap at all to suggest
that the records of that mandatory reporter
contain that information.
-: So, it's not about whether it contains that information.
Here, there's no dispute
that my client did disclose the sexual assault.
What needs to be shown is that there's something there
more than just a statement.
And here's another example.
-: Why?
I mean, I'm reading LeBron, and it says,
"Unlike a prior case, Ruggiero,
the defendant in this case alleged, with particularity,
that the complainant's psychological records
contained specific information regarding her complaint
of sexual assault."
-: Yes, your Honor.
And there the allegations with particularity
were specifically that the victim had previously made
inconsistent statements.
And those statements were videotaped-
-: But that's not part of the analysis.
I don't see that anywhere.
It's just the particularity that this complainant,
this victim, did not just seek mental health treatment,
which was the prior case,
but that in connection with the mental health treatment,
there were statements made by this victim
of the specific instance of the sexual assault
for which the defendant is being tried.
There's nothing in here about inconsistencies
in the victim statements.
-: The court does clarify later
that part of the reason why they're granting it
is because the defense has to do with the fabrications
and the prior inconsistent statements that the victim made.
And another case that might be helpful
is Commonwealth v Sealy.
So there, there was a clear indication
that the victim had made a statement
to the Boston Rape Crisis Center about the sexual assault.
She was an undocumented victim.
And so when she made the allegations,
or disclosed the sexual assault,
the rape center referred her to counsel so that she could,
where she expressed her concern that she might be deported
if she disclosed the rape.
And the defendant later
tried to seek access to those records because he was saying
that the only reason she disclosed the rape
to the Boston Rape Crisis Center
was to fabricate it
so that she could ultimately get a U visa.
This court did not allow him to get those records,
even though she clearly made a statement
about the sexual assault.
And one more thing I would like to direct the court to
is footnote 12 in Commonwealth v. Jones.
There the defendant sort of made a similar argument,
where he said, "Well, whether or not a statement is made,
it doesn't matter because those records are relevant
since a sexual assault happened."
And the court said that even if a statement was made,
under footnote 12,
it would render statutory privileges meaningless
because presumably any time a victim speaks
to a rape crisis counselor,
they speak about the sexual assault.
So if we're saying that any time a victim speaks
to a mental health provider, here in this instance, a child,
then a child would never have access
to confidential treatment,
because a mental health provider is obligated
to always create a Section 51A report.
So it simply cannot be that
with this Commonwealth strong public policy in favor
of protecting victims of sexual assault,
we would create a ruling in which children could never seek
confidential mental health treatment.
And that's why it's so important for the court
to reject Sapee's argument.
I see that I'm out of time,
so unless there's any other questions,
we submit on our briefs.
Thank you so much for your time.
-: Thank you.
(paper rustling)
Attorney Von Flatern.
-: Good morning, Madam Chief Justice, members of the court.
Cynthia Von Flatter, Assistant District Attorney,
Northwestern District for the Commonwealth.
As your honors can see,
a lot of the trouble with this case started
with the decision from in the trial court
from the motion judge, which was very broad.
And based on affidavits from counsel and motions,
records for treatment providers, that was very vague,
and really merely stated that the records would be relevant
because they would involve
the victim's state of mind at the time of the assault
and at the time of treatment.
And then listed a number of mental health disorders
that AR, the complainant, had had
and that was reported by the mother,
and particularly reporting
the premenstrual dysphoric disorder.
So that decision, it was clear, and I would submit
that the single justices decision memorandum
was very thoughtful and went through all of the reasons
why that motion judge's decision could not stand.
And that decision was without prejudice
so that the attorneys could go back
and make a more specific showing if they decided to.
The Commonwealth submits that the...
(paper rustling)
the attorney in the trial court,
that those attorneys, that their reference
to the DCF report and the police report was very vague.
They never talked specifically
about what was in the 51A or 51B
that would support a decision like this under Lampron-Dwyer.
And then for now appellate counsel to cite
with a little bit more specificity to the 51A report
by Reena (indistinct) from CSO
and the 51B report, the mention
from the Northeast Center for the Youth and Families
is also very vague.
We're not even sure what the reports were.
-: Does discovery include both the 51A and the 51B
from the reporters, from two reporters?
-: Your Honor, I have gone through the...
Because again, the defense counsel did not submit it
with their memorandum, and they cite to,
we have discovery from the Commonwealth,
and I have not seen a 51A
from the Northeast Center for Youth and Families.
So there is only that one sentence mentioned in the 51B.
-: Okay, what about the CSO?
-: The CSO- -: Records.
-: my brother, appellate counsel, cited to the 51A
and the Commonwealth has provided that.
Judge Gaziano: Okay, that was a question I had.
-: Yes, so the 51A is there.
And I would submit that the 51A is,
the way it is written,
it sounds like that CSO therapist is repeating,
or stating what the mother has said
about what AR said to her.
-: If it's a second, the subsequent 51B investigation,
where allegedly there's an out,
she says that she was raped, correct?
-: Yes. Yes.
So, and again, no specificity,
no thought that there was any inconsistency
in what she has reported.
-: Can you help me out, in prior counsel mentioned Sealy,
which I have in front of me and Lebron,
are those cases inconsistent,
or what do we do with the fact that statements were made?
Is that enough to satisfy Dwyer-Lampron?
-: As my sister has stated, and they have looked,
the counsel for AR have looked carefully
at those briefs in that case,
and that the record would show in those cases
that there was inconsistent reports
on the part of the victim there.
And I think there is one, we have that language about-
-: Can I be specific?
'Cause I think...
I'm doing just what Justice Gaziano was doing,
which is reading Sealy and Jones
while we're up on the bench.
But Jones, there's no report. The footnote has the opposite.
The footnote goes on to make this general point,
but there's actually no report
from the victim to the counselor about the sexual assaults.
The opposite, she says...
And then COE, isn't it...
It's the same thing, it's talking about,
I mean, again, I'm reading it while we talk here,
but isn't COE case in which they speak to a lawyer,
not a counselor at the Rape Crisis Center?
And we don't have a report to a counselor
of a sexual assault, do we?
-: I think the only case with some case law,
and so I think this is sort of an open area,
but would be LeBron,
where the court talks about specific reports
and also mentions inconsistent.
I think there's one mention of inconsistent reports.
So, I would submit that if...
I mean, clearly,
the showing that was made in the trial court
was clearly insufficient.
And I would submit also that it is very important
to know how broad these records were.
We're talking about almost three years of records.
-: Yeah, that's a non-starter of the last one.
But let me ask you
whether or not the statements are facially inconsistent,
how's a judge to make that determination?
-: Well, if you have a motion
that goes before the trial judge,
I think he's in a better position to do that.
-: So if a trial judge gets a...
Forget this case.
So if a trial judge gets a Lampron-Dwyer motion,
and it says that the complainant witness
went to see a therapist,
and the complainant witness described the sexual assault
from the discovery,
is that enough to satisfy the standard?
the, the, the standard?
ADA on this case, that that might be sufficient
for a very short period of records.
Not six months of records, not a a year of record, but-
Justice Gaziano: But at least to get discovery
as to what was said.
-: What was said.
And you know, you have in all of these cases,
this child has gone for a forensic interview at SAIN,
and so the defendant knows exactly what she's saying.
-: Well, the point is though, when you get the saying,
they wanna match up what was said earlier
to see if there were inconsistencies of fabrications.
-: So that might be something arguably
on that specific point,
and that, you know, there's a realization
or a recognition in that perhaps in LeBron
that that could be an issue.
Because of course,
there the defendant is entitled to impeach the witness,
the victim.
-: Chief, may I ask a question?
Chief: Yes, of course.
-: What I in essence understand your argument to be is,
but correct me if I'm wrong,
is that unless there's a showing of inconsistency,
it hasn't been demonstrated
that the information is evidentiary and relevant.
Am I missing something?
-: Well, I think,
if there has been a showing of inconsistency, I think we-
-: Then it meets both. Then it meets both.
So if that's true, can you help me?
What's your understanding, or what's your position
with respect to the meaning of evidentiary
within that phrase?
-: That the defendant would,
it would make something more likely than not.
So, if the defendant were going to use it.
So again, if if you have no showing about inconsistency,
then I think it's hard to get to relevance,
but I think, you know,
I think the court has always been struggling with,
you know, how is the defendant gonna make this showing?
That's why we have Lampron-Dwyer as opposed to Fuller.
But I think it is difficult to get an evidentiary
to meet the definition of evidence.
And that's why you get into speculation.
And there are...
You know, we have decisions
that will reject the defendant showing
because it is speculative.
And here, you know, they even made a...
The court, the trial judge said,
"Well, potential relevance is enough, should be enough."
Well, that is not the standard. It's relevance.
It is not potential relevance.
And that maybe goes to the definition of evidentiary here.
-: Are you taking the position
that evidentiary and relevant is the same as admissible?
-: No, your Honor,
because I think we do have those further steps here
for counsel to show that it could be-
-: Something less than- -: evidence
that you never to, that it's admissible.
-: [Justice Wolohojian] Thank you.