Tuesday, February 26, 2013
Court of Appeal Rules:
Attorney-Client Privilege Extends to Appointed Psychological Expert
By KENNETH OFGANG, Staff Writer
A juvenile whose competency in a delinquency case is in question may go outside the court’s panel to obtain the assistance of an expert witness, and is entitled to the protection of the attorney-client privilege as to statements made during an evaluation, the Court of Appeal for this district ruled yesterday.
Div. Seven sided with the Public Defender’s Office, which had requested the appointment of a non-panel expert after every expert on the panel said they would feel obligated to notify law enforcement or child welfare authorities if the client said that he or she had been subject to child abuse or neglect, or if the child made threats against others.
The situation arose after the juvenile, identified in the opinion as 10-year-old Elijah W., was charged in December 2011 with arson and recklessly causing a fire. The public defender asked that Dr. Catherine Scarf be appointed to assist the defense as a mental health expert.
Superior Court Referee Robert Leventer denied the motion in accordance with the court’s “Amended Competency to Stand Trial Protocol.” Under the protocol, if the court entertains a doubt as to a juvenile’s competency, it is to appoint an expert from the Juvenile Competency to Stand Trial panel to perform an evaluation.
Appointments from the panel are to be made on a rotating basis.
The public defender argued in support of the motion to appoint Scarf that all five JCST panelists for Pasadena had said that regardless of attorney-client privilege, they would have to report evidence of abuse or neglect under the Child Abuse Neglect and Reporting Act, or of threats, pursuant to Tarasoff v. Regents of California (1976) 17 Cal.3d 425. Scarf, Elijah’s counsel declared, had said she would only report such statements to defense counsel.
In a lengthy written opinion, Leventer called the issue “merely academic” because there was no indication that a case had ever occurred “where a minor has divulged child abuse or made a threat to commit a crime during a competency evaluation and the statement was later introduced in court or even prompted a report” and there was only a “remote” possibility of this occurring.
He added that the protocol was consistent with the controlling statute, Welfare and Institutions Code Sec. 709, and concluded that it does not violate the attorney-client privilege.
Right to Counsel
The public defender sought a writ of mandate, arguing that the protocol violates the federal constitutional right to counsel.
Justice Fred Woods, writing for the Court of Appeal, said the writ should be granted.
The protocol, Woods noted, deals only with competency-to-stand-trial evaluations, pointing out that there was no indication in the record that the case had gotten to that stage.
“To the extent that petitioner is only seeking the appointment for assistance in the defense and not to evaluate petitioner’s competence to stand trial, we find that he is entitled to the appointment of Dr. Scarf and is not limited to a psychotherapist from the JCST panel,” the justice wrote.
Woods went on to say that if a competency evaluation does occur, a juvenile is entitled to the benefit of attorney-client privilege.
The issue is not merely academic, as the trial jurist suggested, because “we cannot conclude petitioner will not say something incriminating just because it has never happened before,” Woods explained.
Part of the Team
A mental health expert appointed to assist the defense, including a member of a court panel, is in a position no different than that of any other defense expert, and is a member of the “team” subject to attorney-client privilege, the jurist said.
“The conclusions of the therapists on the JCST panel that they would be compelled to reveal any disclosures made by petitioner are therefore incorrect,” the justice wrote. “In this situation, as experts appointed to aid the defense, they are bound by the attorney-client privilege. Dr. Scarf’s position that she only need report information about child abuse or neglect or threats of violence to petitioner’s attorney is correct.”
He went on to say that Tarasoff, which renders mental health professionals potentially liable for tort damages for failure to disclose that a patient has threatened physical harm, “does not apply to the situation here, where an attorney seeks the assistance of a psychotherapist in the defense of a juvenile delinquency proceeding.”
Given the court’s conclusion, Woods added, it is unnecessary to determine whether the protocol violates the Constitution.
Attorneys on appeal were Deputy Public Defenders Albert J. Menaster, Lara Kislinger and Megan N. Gallow for Elijah and Deputy District Attorneys Roberta Schwartz and Cassandra Hart for the prosecution.
The case is Elijah W. v. Superior Court (People), 13 S.O.S. 974.
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