Opinion
Civil No. 98-1252-ST
October 23, 2001
ORDER
Petitioner, who is currently in the custody of the Oregon Department of Corrections, brings this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Currently before the court is petitioner's motion for subpoenas pursuant to Rule 6 of the Rules Governing Section 2254 Cases (docket #61).
Petitioner seeks an order allowing him to subpoena the files or records regarding the mentally handicapped victim/witness, Pamela Jean Murray, in the custody or control of: (1) the Custodian of Records for the Oregon Department of Human Services, Office of Developmental Disabilities; and (2) the Custodian of Records and Caseworker Annie Eberhart of the Marion County Offices of Developmental Disabilities Services.
At the time of the underlying incident, the agency was referred to as the Mentally Retarded/Developmentally Disabled ("MRDD") and the records were referred to as "MRDD" records. The name of the appropriate agencies have changed. The relevant records are now apparently held by the Oregon Department of Human Services, Office of Developmental Disabilities, and the Marion County Offices of Developmental Disabilities Services.
Respondent objects to petitioner's motion, arguing that neither the Due Process Clause nor the Confrontation Clause compelled the state court to allow access to Ms. Murray's psychological records at petitioner's underlying trial, and that Ms. Murray's psychological records are protected by the federally recognized psychotherapist-patient privilege and therefore inadmissible in this proceeding absent a waiver.
Having heard oral argument on May 16, 2001, and having considered the record, the court grants petitioner's motion for the reasons set forth below.
BACKGROUND
I. Assault
In the early morning of September 2, 1993, a man entered the Salem apartment of Ms. Murray through her open window. The man grabbed Ms. Murray, threw her to the floor, and began to choke her. He also punched her and cut her with a knife. The man pulled down his pants and tried to rape Ms. Murray, but she pushed him away. He then pushed his penis into her mouth and forced to her to commit oral sodomy.
Ms. Murray's neighbors, Kathy Rowntree and Herman Andino, heard banging coming from Ms. Murray's apartment. When Ms. Rowntree knocked on Ms. Murray's door, there was no answer. However, Ms. Rowntree heard someone leave through the bedroom window. She looked around the corner to try to see who it was, but did not see anyone. When Ms. Rowntree knocked a second time, Ms. Murray opened the door. Another neighbor, Lester Menear, also heard noises and got up.
A male caller contacted the 911 dispatcher to report an incident. The man reported that a women in "apartment #4" had been "beaten up." A female caller then continued to report. The female caller, Ms. Rowntree, explained that she and her husband lived next door to Ms. Murray. The following exchange was transcribed from the tape of the 911 call:
Dispatcher/Operator: Who beat her up?
Female Caller: Well, uh, she she told me it was some man with long blonde hair and stuff like that, cause the lights were out and . . .
Dispatcher/Operator: And she doesn't know who did that?
Female Caller: No.
Dispatcher/Operator: How did he get into her apartment?
Female Caller: That's uh, Pam, how did he get in your apartment. He climbed through up this window right here, that's all he climbed up through a window . . .
* * *
Dispatcher/Operator: Okay. She didn't know the guy that did this?
Female Caller: No, she cause I asked her and she said no, the guy just, he must have came up through this window of hers or his or something, I don't know, cause see there's one big window and it doesn't . . .
* * *
Dispatcher/Operator: And she didn't know who he was?
Female Caller: No, cause I knocked on the door, I knocked on the door you know and I said, Pam are you alright, are you alright and and the light was off and stuff in her in her room cause see . . .
Dispatcher/Operator: I need a description of the male, he was a white male adult . . .
Female Caller: Uh, was he an adult Pam? Yeah, he was, with blonde hair.
Dispatcher/Operator: Blonde Hair? Was it long, short, what?
Female Caller: She said it was long to me, it was long.
Dispatcher/Operator: Did he have a pony tail or anything?
Female Caller: Was it in a pony tail Pam?
Background Voice: Yes
* * *
Dispatcher/Operator: She didn't know who he was?
Female Caller: No, no huh uh, huh uh.
Officer Eric Moffitt responded to the 911 call and wrote a report dated September 2, 1993. The report provided the following information regarding the attacker:
Murray described the man as having blond hair in a pony tail, a blue shirt, blue jeans, white tennis shoes, and a rubber band on his pony tail . . .
Murray said that she did know the man but could not remember his name. She said that she thought it was the "same one that worked at the gas station where K-mart is." (w) Rowntree asked Murray if she meant "Butch" and Murray said she did. (Emphasis added)
From that point on, the report refers to the suspect as "Butch." Mr. Andino gave Officer Moffitt a Portland address for "Butch Dispennett." Don Gardner, the owner of a Texaco station, subsequently confirmed that he had employed petitioner at his station and referred to petitioner as Butch.
Ms. Murray was taken to the hospital for an examination. She suffered a black eye and cuts to her neck and stomach. Although vaginal and oral swabs were taken and sent to the Oregon State Police Crime Lab for testing, not enough semen sample was recovered to allow for DNA testing.
Officer Steve Bellshaw was assigned to follow-up on the case and contacted Ms. Murray at the hospital. Officer Bellshaw and Ms. Murray returned to her apartment where the officer found and seized a baseball cap with the words "Ferrell Gas" on it. Ms. Murray said the man was wearing the cap when he entered apartment. Officer Bellshaw sought and received a search warrant to retrieve samples of hair, blood, and fingerprints from petitioner who was in custody on a probation violation. Officer Bellshaw also seized petitioner's brown hiking boots to compare with the shoe imprints.
The sexual assault kit, the cap, latent fingerprints, and shoe imprints were submitted to the state crime laboratory. The evidence was compared with the samples from petitioner. No physical evidence connected petitioner. Hairs taken from the baseball cap did not match petitioner's, the fingerprints taken Ms. Murray's windowsill did not match, and the hiking boots were not related in any way to shoe imprints found outside Ms. Murray's window.
Before trial, Ms. Murray failed to identify petitioner as her attacker in a photographic array.
At trial, petitioner's then-girlfriend Margo Simpson confirmed that petitioner was called "Butch." Although she testified that she and petitioner did not live together, he did occasionally stay overnight with her. Ms. Simpson said that petitioner was "in and out" of her apartment on the evening of September 1, 1993, and that he came back to her apartment at about 4:30 a.m. on September 2, 1993.
II. Pre-Trial Proceedings
On September 29, 1993, petitioner was indicted on charges of Sodomy I, Burglary I, Attempted Rape I, and Assault II. Prior to trial, petitioner's attorney, Jane Aiken, filed several pretrial motions. On January 12, 1994, Ms. Aiken issued two subpoenas duces tecum to the custodian of records for the Marion County Mentally Retarded/Developmentally Disabled ("MRDD") and Pat Farley, Ms. Murray's caseworker. The return date on both subpoenas was the scheduled pretrial motion hearing January 18, 1994. On January 14, 1994, the attorney for the Marion County Mental Health Program filed a motion to quash the subpoenas. The January 18, 1994, hearing was postponed, but some records were apparently delivered to the court.
On January 21, 1994, Ms. Aiken filed a second motion for production and discovery of Ms. Murray's MRDD records or, in the alternative, for their in camera review by the court. On February 10, 1994, Ms. Aiken filed a motion in limine to exclude improper identification evidence, exclude involuntary and improper statements and admissions, and exclude evidence of prior convictions.
On February 17, 1994, the court held a hearing on several of the pretrial motions. The court denied petitioner's January 21, 1994 motion for production of the MRDD records, stating that petitioner was not entitled to production or an in camera review of those records as a matter of law, explaining that they "should be held to be confidential under the statute," O.R.S. 179.505.
At the hearing, Ms. Aiken informed the court that she would raise the issue again in a motion for a hearing on the competency of the victim, Ms. Murray. Access to the records would be necessary as they related to the competency of Ms. Murray and to determining whether the identification made by her was solicited from her or was unduly suggestive due to her mental difficulties.
On March 3, 1994, Ms. Aiken did in fact file a motion for a hearing and another motion for production and discovery, or, in the alternative, in camera review, of the records.
On March 18, 1994, the trial court issued an opinion letter considering and denying the motion for request of the MRDD records as follows:
Counsel for Defendant cites no statute or case law on point to allow for disclosure of victim's mental health records. Counsel argues that mental health records are analogous to CSD records and should be subject to the same procedures. The statutory protections for each are distinct; the statutes for mental health records provide for no exceptions; the case law has not been broadened to include mental health records. The procedures in CSD casefiles as articulated in State v. Warren, 304 Or. 428 (1987) are based upon specific statutory provisions which allow for exceptions. The mental health records statutes provide for no such exceptions.
The trial judge also granted the motion to quash petitioner's subpoenas.
III. Trial
Petitioner's trial was held on April 18, 1994. At trial, the state offered the testimony of Ms. Murray, which contained discussions unrelated to the questioning. During direct questioning, Ms. Murray was asked to identify the baseball cap found at the scene. Ms. Murray said the cap "was put there by him." When asked to identify the person "who came through [her] window," Ms. Murray said, "It's this one," and the record reflects that she pointed toward petitioner. Ms. Murray's in-court identification was the only evidence to counter the exculpatory physical evidence.
Petitioner was found guilty of all charges and sentenced to a total of 328 months' imprisonment.
IV. Post-Trial Proceedings
Petitioner filed a direct appeal, arguing that he was entitled to Ms. Murray's mental health records under state law and under the Due Process Clause of the United States Constitution. He also argued that state law provided for an in camera review of the records. Finally, he contended that even if the state law provided no statutory exceptions to provisions regarding confidential records, petitioner was entitled to review of the records under Pennsylvania v. Ritchie, 480 U.S. 39 (1987). The Oregon Court of Appeals affirmed the convictions without opinion, and the Oregon Supreme Court denied review. State v. Dispennett, 137 Or. App. 155, 904 P.2d 660 (1995), rev. denied, 322 Or. 598, 910 P.2d 1100 (1996).
Petitioner then sought state post-conviction relief, raising several issues of ineffective assistance of trial counsel. Relief was denied, and again the Oregon Court of Appeals affirmed without opinion and the Oregon Supreme Court denied review. Dispennett v. Thompson, 152 Or. App. 805, 953 P.2d 433, rev. denied, 327 Or. 305, 966 P.2d 219 (1998).
V. Habeas Corpus Petition
Petitioner filed this action in October 1998. The two issues before the court as set forth in his Amended Petition, are:
Ground One: The trial court violated [petitioner's] Fourteenth Amendment right to due process when the state trial court judge denied [petitioner's] access to the alleged victim's mental health and developmental disability records files and further denied [petitioner's] motion for an in camera review of the records to determine competency to serve as a witness and/or exculpatory evidence.
Supporting Facts: The witness in this case was mentally disabled and incompetent to stand trial. [Petitioner's] trial attorney subpoenaed the records of the victim witness and moved the court for a competency hearing. The court denied access to records and denied an in camera review of the files ruling that the court had no authority to even look at the records. [Petitioner] was denied access to potentially exculpatory information that would prove his actual innocence.
Ground Two: The trial court violated [petitioner's] Sixth Amendment right to a fair trial when the state court denied access to the victim/witness's mental health and developmental disability records and further denied an in camera review of the records which prevent [petitioner] from being able to present a defense or engage in adequate cross-examination of the victim/witness.
Supporting Facts: The victim/witness, Pamela Murray, was mentally handicapped and incompetent to testify. Ms. Murray's in-court identification was the only evidence against [petitioner.] Ms. Murray did not know her attacker and did not pick [petitioner] from an out-of-court photographic array. The trial attorney subpoenaed records, moved for an in camera review of the records, and moved for a competency hearing. The trial judge denied access to and an in camera review of the records on the basis that he had no authority to either provide or examine confidential records. Because of the trial court's failure to provide even an in camera review, [petitioner] was prevented from any discovery which would allow impeachment of the sole witness's testimony, thereby preventing him from presenting the defense of actual innocence.
Respondent concedes that petitioner exhausted his available state remedies with respect to the issue alleged in Ground One.
Petitioner concedes that the issue raised in Ground Two was procedurally defaulted because it was never presented to the Oregon courts, but argues that discovery is necessary to enable him to show "actual innocence" to excuse his procedural default. He has reason to believe that Ms. Murray's MMRD records contain evidence that she is highly susceptible to suggestion. For example, he points to the record in the post-conviction proceedings revealing that Ms. Murray told an acquaintance that she was three months pregnant with twins and had been raped by a Black man who lived around the corner, when her mother reports that she had a hysterectomy and had never been nor capable of becoming pregnant.
DISCUSSION
I. Legal Standards For Discovery
Rule 6 of the Rules Governing § 2254 Cases ("Rules") allows civil discovery to habeas corpus petitioners "if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." As this court pointed out in Charles v. Baldwin, 1999 WL 694716, *2 (D.Or. 1999), following the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996, the allowance of discovery under Rule 6 must be considered in conjunction with 28 U.S.C. § 2254(e)(2), which limits the scope of federal habeas corpus review to the state court record, except in certain specified circumstances:
If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2) (1996).
Under § 2254(e), "failed to develop" means a "lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432 (2000). A prisoner is not at fault if he "made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Id. at 435. If a prisoner's diligent efforts to develop the facts in state court were thwarted by the prosecutor, state court, or otherwise, then the federal court may proceed to consider whether to hold an evidentiary hearing on a claim not considered by the state court and, likewise, "good cause" may exist to allow discovery under Rule 6.
As this court further noted in Charles, a petitioner may seek discovery for another purpose, i.e., to establish why he should be able to present a claim in federal court despite a procedural default in state court. Charles, 1999 WL 694716 at *2. "That request for discovery would not implicate § 2254(e)(2) and establishes `good cause' under Rule 6." Id.
On the other hand, if a petitioner failed to develop the facts underlying his claim in state court and only seeks discovery to locate new evidence supporting the merits of his claim, then he has no "good cause" for discovery under Rule 6 unless he first convinces the court that he is entitled to an evidentiary hearing. Id.
II. Analysis
A. "Good Cause" to Exercise Discretion
Petitioner made several attempts before his trial to obtain the MMRD records he now seeks. As discussed above, all of his attempts were thwarted by the trial judge, who held that the records were confidential under the state statute and that no exception to the confidentially statute existed. Thus, petitioner did not "fail to develop" the facts underlying his claims before this court. Moreover, petitioner argues that he seeks discovery of Ms. Murray's MMRD records to establish actual innocence in order to overcome the procedural default of his second claim for relief.
Accordingly, petitioner need not satisfy the stringent requirements for an evidentiary hearing under § 2254(e)(2) to establish "good cause" under Rule 6. He must still, however, convince this court to exercise its discretion to allow the discovery requested.
B. Constitutional Issues
Petitioner sought Ms. Murray's mental MMRD records before trial for two purposes: (1) to determine the extent of Ms. Murray's mental impairment and whether it rendered her incompetent to testify at trial; and (2) to examine the records for any relevant exculpatory or impeachment evidence, including evidence of suggestibility. Though the actual content of the records was unknown, it was expected they would contain relevant evidence of the nature and extent of Ms. Murray's mental impairment, and possibly evidence or statements tending to show recantation, accusation and identification of a perpetrator other than petitioner, evidence of suggestibility, or other exculpatory evidence which would have been material and relevant to prove misidentification or to impeach Ms. Murray's veracity and credibility.
Petitioner argues that because the trial court refused to allow production or an in camera inspection of the records to determine their potential exculpatory nature, petitioner was denied due process under Fourteenth Amendment and his right to confront the witness under the Sixth Amendment, relying upon Davis v. Alaska, 415 U.S. 308 (1974), Ritchie, supra, and Mississippi v. Chambers, 410 U.S. 284 (1973). Petitioner further argues that under Brady v. Maryland, 373 U.S. 83 (1963), if evidence of Ms. Murray's mental incompetency was material and should have been disclosed at trial, then that duty survives and continues into post-conviction relief.
1. Confidentiality of Records
a. Oregon Statute
As summarized by the Marion County Counsel in the motion to quash the subpoenas in the trial court, O.R.S. 179.505(2) provides that all written accounts of a client maintained by a provider such as the Marion County MRDD Program "shall not be subject to inspection." Without the prior written consent of the client, written accounts of a client may be released only under very limited circumstances.
Under the current version of the statute, the only remotely pertinent exception to the confidentiality requirement is as follows:
(11) No written account referred to in subsection (2) of this section may be used to initiate or substantiate any criminal, civil, administrative, legislative or other proceedings conducted by federal, state or local authorities against the patient or to conduct any investigations of the patient. If the patient, as a party to an action, suit or other judicial proceeding, voluntarily produces evidence regarding an issue to which a written account referred to in subsection (2) of this section would be relevant, the contents of that written account may be released for use in the proceeding.
O.R.S. 179.505(11) (1999) (emphasis added). Pursuant to this exception, the records may be released only if Ms. Murray, as a "party" to a judicial proceeding, "voluntarily produces evidence regarding an issue to which [the records] would be relevant." This exception technically does not apply in this case because Ms. Murray is a witness, not a party to a judicial proceeding.
It appears this section is identical to former O.R.S. 179.505(4), which was apparently in effect at the time of trial.
b. Federal Privilege
Respondent also argues that Ms. Murray's mental health records are subject to the psychotherapist-patient privilege recognized in Jaffee v. Redmond, 518 U.S. 1 (1996) for federal civil actions and therefore are inadmissible in this civil habeas corpus proceeding absent a waiver. This appears to be a matter of first impression, as the court can locate no cases directly addressing the assertion of the privilege in a habeas corpus proceeding.
On the one hand, it is clear that in some instances, rules of evidence do not strictly apply in a habeas corpus proceeding. For example, in determining whether a petitioner meets the "gateway" actual innocence exception to procedural default, a court is not bound by the rules of admissibility that would govern at trial. Schlup v. Delo, 513 U.S. 298, 327 (1995). Instead, the emphasis on actual innocence allows the court to consider the probative force of relevant evidence that was either excluded or unavailable at trial. Id.
On the other hand, pursuant to Fed.R.Evid. 1101(c), "[t]he rule with respect to privileges applies at all stages of all actions, cases, and proceedings." Further, the Federal Rules of Evidence "apply to the extent that matters of evidence are not provided for in the statues which govern procedure therein or in other rules prescribed by the Supreme Court pursuant to statutory authority" in habeas corpus proceedings under 28 U.S.C. § 2241-2254 . But see Wharton v. Calderon, 127 F.3d 1201, 1203 (9th Cir. 1997) (evidentiary attorney-client privilege waived when habeas petitioner raises Sixth Amendment claim of ineffective assistance of counsel).
Even if the psychotherapist-patient privilege applies to a habeas corpus proceeding, it is not necessarily involved in this case. The privilege protects confidential communications made in counseling sessions with licensed psychiatrists, psychologists, or social workers. Jaffee, 518 U.S. at 15-16. Here, petitioner is requesting records originating from Marion County pertaining to the diagnostic evaluation and competency of Ms. Murray; examination, assessment, and treatment provided by state and county services; and any reports by Ms. Murray of assaults by persons other than petitioner and/or information that Ms. Murray has recanted the charges in this or other incidents. On its face, this request does not seek the production of any psychotherapist records per se. For example, evaluations may be in the form of tests of intellectual capacity, academic achievement tests, social development assessment and adaptive behavior tests, speech or hearing tests, and other tests for other types of learning disorders.
Nevertheless, it is possible that some of the records requested may fall within the federal psychotherapist-patient privilege. Although this privilege may be waived, there is no evidence that Ms. Murray did so.
2. Sixth Amendment
Given that the requested records are protected by Oregon's confidentiality statute and some also may be protected by the federal psychotherapist-patient privilege, they are not subject to production unless required by the United States Constitution. The Sixth Amendment's right to confrontation may overcome a right to privacy in some circumstances.
The Supreme Court held in Davis that the defendant's right of confrontation of witnesses under the Sixth Amendment is paramount to a state policy of protecting privacy rights and anonymity of a juvenile defender. In that case, the trial judge prohibited defense counsel from questioning a witness about his juvenile criminal record because a state statute made this information presumptively confidential. The Supreme Court found this restriction on cross-examination violated the Confrontation Clause, despite the state's legitimate interest in protecting the identity of juvenile offenders. Davis, 415 U.S. at 318-320.
However, the Supreme Court has restricted its holding in Davis to testimony at trial. In Ritchie, a state court defendant charged with sexual abuse of his minor daughter sought to obtain records from a state agency charged with investigating cases of suspected child abuse as they pertained to the alleged victim. The trial judge, without inspecting the records, declined to order their disclosure on grounds of statutory confidentiality. A plurality of the Supreme Court declined to interpret Davis to overcome a statutory privilege when a defendant asserts a need, prior to trial, for protected information for possible use at trial to impeach or otherwise undermine a witness' testimony. Rather, the Court stated:
If we were to accept this broad interpretation of Davis, the effect would be to transform the Confrontation Clause into a constitutionally compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. . . . The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.
Ritchie, 480 U.S. at 52-53 (emphasis in original; internal citations and footnote omitted).
Thus, to the extent that petitioner seeks records for the purpose of impeaching Ms. Murray's trial testimony, Ritchie clearly denies him that opportunity. However, petitioner attempts to distinguish Ritchie by arguing that he seeks not simply pre-trial production of impeachment evidence, but post-trial evidence of suggestibility or other exculpatory evidence. This is a distinction without a difference. The defendant in Ritchie claimed that denial of his the pre-trial requests for the production of unspecified exculpatory evidence, including the names of favorable witnesses and inconsistent statements that his daughter might have made to the counselor, violated his Sixth Amendment right during his post-trial appeal. Just as in Ritchie, petitioner claims his Sixth Amendment right was violated by denial of his pre-trial requests for the production of records for effective cross-examination at trial. Under Ritchie, petitioner has no Sixth Amendment claim and thus cannot establish good cause under Rule 6 for this purpose.
3. Fourteenth Amendment
Under Brady, the suppression by the prosecution of evidence favorable to an accused upon request violates due process. The prosecution's duty to disclose such evidence applies even if there has been no request by the accused, United States v. Agurs, 427 U.S. 97, 107 (1976), and the duty encompasses impeachment evidence as well as exculpatory evidence, United States v. Bagley, 473 U.S. 667, 676 (1985). In Kyles v. Whitely, 514 U.S. 419, 438 (1995), the Court further held that prosecutors are responsible for "any favorable evidence known to the others acting on the government's behalf in the case, including the police."
However, Brady and its progeny do not establish a right to discover privileged information from third parties who are not associated with the criminal defendant's prosecution. There is no evidence in this case that the state or anyone associated with the prosecution ever possessed the records sought by petitioner. In fact, state prosecutors are not allowed access to the MRDD files. Instead, petitioner was denied access to those records because the trial court denied his motions for production.
However, petitioner's request may still be based upon the Due Process Clause of the Fourteenth Amendment. Although the Supreme Court in Ritchie declined to extent the protection of the Sixth Amendment to pretrial disclosure of privileged material, it held that disclosure of privileged records to the trial judge for in camera inspection was necessary to ensure the defendant's right to a fair trial under the Due Process Clause. Ritchie, 480 U.S. at 57-58. The Court took care to note, however, that the Pennsylvania confidentiality statute at issue did not grant the agency "the absolute authority to shield its files form all eyes," but provided "that the information shall be disclosed in certain circumstances, including when [the agency] is directed to do so by court order." Id.
Given that the Pennsylvania Legislature contemplated some use of [the agency] records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is "material" to the defense of the accused.
Id. at 58 (emphasis in original).
Further, the Court "express[ed] no opinion on whether the result in this case would have been different if the statute had protected the [records in question] from disclosure to anyone, including law-enforcement and judicial personnel." Id at 57 n. 14 (emphasis in original).
The Oregon statute differs from the Pennsylvania statute at issue in Ritchie. It has no general clause allowing disclosure to a court of competent jurisdiction, but allows disclosure only in certain specified circumstances. As noted above, one of those statutory exceptions forbids use of the records to "initiate or substantiate" proceedings, but allows their disclosure if the patient is a party and voluntarily produces evidence which is relevant to an issue referred to in the records. In other words, the records would be admissible in a civil case brought by Ms. Murray against petitioner for damages for assault. Although the records are admissible in a civil action involving a claim against petitioner by Ms. Murray, respondent maintains that they are not admissible in a criminal proceeding involving the same act allegedly done by petitioner to Ms. Murray.
This court can discern no rational reason why petitioner would be placed in a better position under Oregon law as a civil defendant than as a criminal defendant. Just as the Supreme Court in Ritchie concluded that "the Pennsylvania Legislature contemplated some use of the [agency] records in judicial proceedings," 480 U.S. at 58 (emphasis in original), so does this court conclude that the Oregon legislature contemplated some use of agency records in judicial proceedings. It may not have contemplated the specific use sought by petitioner, but it clearly envisioned the ability of a defendant to use relevant portions of records to defend himself or herself when sued by the patient. Although the state, not the patient, is suing petitioner in this case, the rationale is the same, namely the relevancy of the records to an issue raised by the patient. The issue in this case is Ms. Murray's competency to testify against petitioner. Ms. Murray, through the state, claimed that she was competent to testify and the MMRD records are highly relevant to that issue. Thus, Ritchie allows the Due Process Clause to trump Oregon's confidentiality statute in this case.
Unlike the Oregon statute, the federal psychotherapist-patient privilege is absolute and has no exceptions. Oleszko v. State Compensation Ins. Fund, 243 F.3d 1154, 1156 (9th Cir. 2001) ("the Jaffee decision created an absolute privilege"), pet'n for cert. filed, ___ S.Ct. ___, 2001 WL 873582 (Oct. 1, 2001). Therefore, this court must decide the issue specifically left open by Ritchie and determine whether the Due Process Clause may ever overcome an absolute privilege.
Although this is a difficult issue, this case presents a perfect example of why the Due Process Clause exists. The requested records may bear directly on Ms. Murray's competency. Given the lack of any physical evidence linking petitioner to the crime, Ms. Murray's testimony was the sole reason for petitioner's conviction. And given the apparent suggestion by Ms. Rowntree to Ms. Murray of the name of her attacker, Ms. Murray's competency was a critical issue to the defense. Under these circumstances, this court concludes that the records may well contain information that may have changed the outcome of his trial. To ensure that petitioner has an opportunity to prove that he may not have obtained a fair trial, the Due Process Clause entitles him to overcome Ms. Murray's privacy interests.
III. Conclusion
Having considered the parties' arguments and having undertaken a significant amount of independent research on this issue, the court concludes that under the particular circumstance of this case, petitioner may obtain access to Ms. Murray's MMRD records, but only through an in camera review. Petitioner meets the threshold requirement for "good cause" under Rule 6 because his due process rights outweigh the confidentiality of the records requested under both O.R.S. 179.505 and the psychotherapist-patient privilege.
ORDER
Based on the foregoing, IT IS ORDERED that petitioner's motion for subpoenas pursuant to Rule 6 of the Rules Governing Section 2254 Cases (docket #61) is GRANTED. Any records produced pursuant to the subpoenas must be submitted only to this court for an in camera review.
IT IS FURTHER ORDERED that respondent's motion to toll the briefing schedule (docket #83) pending a decision on petitioner's motion is GRANTED, to the extent that upon receipt and in camera review of the records, the court will issue a further scheduling order.
IT IS SO ORDERED.