DAs can access confidential records for sexual predators, state high court rules

Prosecutors have a right to review otherwise confidential records, such as psychiatric evaluations, when prosecuting civil commitment petitions against sexually violent predators, the California Supreme Court ruled Thursday.

Justice Mariano-Florentino Cuéllar, who authored the unanimous decision, wrote, "Our society uses trials to advance the search for truth. That search generally works best when each side -- and each side's experts -- have access to the records and information on which the opposing side's experts rely." People v. Superior Court of Orange County, 2018 DJDAR 11808 (Cal. Dec. 13, 2018.)

The decision affirms an appeals court that issued a writ of mandate to Orange County Superior Court Judge Kimberly K. Menninger, reversing her denial of the district attorney's motion for a court order to release a sexually violent criminal's records to a retained expert.

"Sexually violent predator" is a legal designation applied to convicted sex offenders deemed likely to commit similar crimes again. As convicts near the end of their sentences, district attorneys may petition courts for civil commitment if they believe the offender meets the criteria of asexually violent predator. Recommendations for these petitions come from the state's prison department and are based on evaluations by prison psychiatrists.

In 2015, the Legislature added a subdivision to the law defining sexually violent predators allowing prosecutors to examine and use these psychiatric evaluations in petitioning for civil commitment, an amendment Orange County public defenders said broke a promise the state government had made to its clients.

"The Legislature made a promise to these clients that their confidential conversations would be kept confidential," said Mark S. Brown, the senior assistant public defender who argued the case before the state high court. "Now the DA can essentially pull up a chair at those evaluations, and our clients have an impossible choice: Let the DA hear all their deep, dark secrets with the hope of getting out or never get out at all."

According to the state high court's Thursday ruling, the Legislature's amendment addressed a split in appellate courts over another California Supreme Court decision regarding access to treatment records. Albertson v. Superior Court (2001) 25 Cal.4th 796, 805.

Discrepancies arose over whether or not the court had intended prosecutors be given access to excerpts or the full records. After the high court granted review of People v. Superior Court of Orange County, the Legislature added the subsection clarifying prosecutorial access to records.

Some groups not involved in the case think the Supreme Court's ruling paves the way for fewer misclassifications when it comes to confining sexual predators, sometimes indefinitely. Janice M. Bellucci, executive director of the Alliance for Constitutional Sex Offense Laws, said the court's decision was based in "fundamental fairness" because it called for a more transparent process.

"I don't often agree with district attorneys in general -- and the DA of Orange County in particular -- but if the shoe were on the other foot, I'd want the same decision to be made," said Belluci, a sole practitioner in Sacramento.

Brown of the public defender's office said, however, that looking at the situation as a two-way street neglects the intricacies of the petition process and creates a slippery slope for other matters statutorily protected by privilege.

"My clients are going to die in there unless they treat, but now if they treat, the DA gets to hear everything," Brown said. "That's a problem for my client, but it's also a little threatening for all of us. It seems to give the Legislature the ability to retroactively remove confidential records protected by privilege."

Belluci said abuse is always a concern, but many sex crime offenders may waive privilege anyway if it means preventing an incorrect label.

"Could this be misused? I think there's that potential," Belluci said. "But if someone actually looks at their records, I think it could help people who have been misidentified."

Deputy District Attorney Elizabeth O. Molfetta made the winning arguments on behalf of the Orange County district attorney's office. The office did not respond to requests for comment.