Rulings opening mental health reports in criminal trials
The Oregonian has won rulings in three Oregon counties (Multnomah,
Tillamook and Lincoln) that mental health reports ordered by the court
to determine the competency of a defendant to stand trial are public
under the open courts provisions of the state Constitution. Here is one
such ruling in the case of State v. Morris (note that the defendant
specifically is notified that there is no confidentiality). The evaluation follows the court ruling:
David W. Hantke Circuit Judge(503) 84.2-8014 Ext. 114
Rick W. Roll, Circuit Judge (503) 842-2598 Ext. 112
CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF TILLAMOOK
Tillamook County Courthouse
201 Laurel Avenue
Tillamook, Oregon 97141
Trial Court Administrator (503) 842-2596 Ext. 124
Calendering (503) 842-7914 Ext. 110
FAX (503) 842-2597
January 2, 2004
William B. Porter, Tillamook County District Attorney
Office of the Tillamook County District Attorney
201 Laurel Avenue
Tillamook, OR 97141
Glenn Faber, Attorney at Law
Moberg, Canessa, Faber & Hooky, P.C.
842 Broadway
Seaside, OR 97138
Charles M. Fryer
Attorney at Law
101 SW Washington
Hillsboro, OR 97123
Charles F. Hinkle, Attorney
Stoel, Rives, LLP
900 SW 5th Avenue, Suite 2600
Portland, OR 97204
Re: State of Oregon vs. Edward Paul Morris Tillamook County
Circuit Court Case No.: 02-1283
On December 1, 2003, oral argument was heard on the Oregonian
Publishing Company’s Motion to Unseal the reports prepared by. Dr
George Suckow, Dr. Richard Hulteng and the Oregon State Hospital
regarding the defendant’s capacity to proceed pursuant to ORS 161.360
and ORS 161.365.
During oral argument, defendant objected to release of the
reports claiming the psychotherapist-patient privilege pursuant to OEC
504. Following oral argument, the Court permitted the Oregonian to file
additional argument to address the psychotherapist-patient privilege.
With regard to the privilege, the burden rests with the
defendant to show that he and the information sought to be protected are
within the ambit of the privilege. In its Memorandum regarding the
privilege, the Oregonian identifies three (3) reasons why the defendant
cannot meet the burden.
Taking the Oregonian’ s third argument first, the Oregonian
argues that the reports fall within a general exception of the
psychotherapist-patient privilege under OEC 504 (4)(b)(A) in that the
communications are relevant to the issue of the mental or emotional
condition of the defendant in a proceeding in which the defendant relies
on the condition as an element of his claim or defense. However, as was
argued by Mr. Faber on December 1, 2003, the defendant’s capacity to
proceed is not a claim or defense. ORS 161.365(1) provides that whenever
the Court has reason to doubt the defendant’s fitness to proceed by
reason of incapacity, the Court may call to it’s assistance in
reaching it’s decision, any witness and may appoint a psychiatrist or
psychologist to examine the defendant and advise the Court. In this
case, Dr. Hulteng’s report was submitted to the Court, providing the
Court with reason to doubt the defendant’s fitness to proceed. The
State then requested that Dr. George Suckow evaluate the defendant,
which was done. Finally, the Court had the defendant evaluated at the
Oregon State Hospital. The exception contained in OEC 504(4)(b)(A) does
not apply.
However, the other two (2) arguments made by the Oregonian have
merit. Specifically, that the reports were prepared for the purpose of
drawing the Court’s attention to the issue of the defendant’s
fitness to proceed and assist the Court in evaluating the defendant’s
capacity to procee
d. Although communications made to Dr. Hulteng may
have been confidential communications made for the purpose of diagnosis
or treatment of the defendant’s mental or emotional condition, the
submission of the report to the Court would constitute a waiver of any
privilege as to the contents of the report and for the purpose of
determining the defendant’s capacity to proceed. As to Dr. Suckow’s
report and the Oregon State Hospital report, there would be no
confidential communication issue in that the defendant participated in
the evaluations understanding that the reports were for the Court’s
use in determining the defendant’s capacity to proceed and each was
intended to be disclosed to at least the Court and the State. In any
event, any privilege was waived as to the contents of the reports when
submitted to the Court.
Even if the psychotherapist-patient privilege applied and was
not waived, it is this Court’s opinion that Article 1, Section 10 of
the Oregon Constitution requires that the reports be unsealed. Although
in this case there was no testimony taken nor formal Court proceeding
held, the three (3) reports were used by the Court, pursuant to
agreement of the parties, in reaching its decision on whether or not the
defendant had the capacity to proceed. Therefore the Court relied upon
the reports in reaching its decision and the reports were filed with the
Court for the purpose of allowing the Court to carry out its role in
“administering justice” under Article 1, Section 10.
If the reports were to be received in evidence at a formal
hearing to determine the defendant’s capacity and testimony were taken
from the doctors or other persons, the public would have a right to be
present at that hearing and then would have access to the testimony and
the reports.
What would have been public in a Court hearing should not be
allowed to be kept secret when the Court relied on the same information
in reaching its decision.
Finally, the Court must balance the public’s right of access
to the reports against the defendant’s ability to receive a fair
trial. One interest of the public is to know that their Courts are
operating in a lawful manner. There may be no other way to accommodate
this interest without disclosure of materials relevant to the purpose of
the Court proceeding. In this case that would be the determination of
the Defendant’s capacity to proceed.
However, there may be a way to accommodate the Defendant’s
ability to receive a fair trial by allowing time to pass between
allowing public access to the records and through the use of voir dire.
Since it appears the Defendant’s interests can be appropriately
protected, the balance tilts in favor of the public’s right to access.
The Oregonian’s Motion is allowed.
DAVID W. HANTKE
CIRCUIT COURT JUDGE
DWH/mh
Department of Human Services
Oregon State Hospital
2600 Center Street NE
Salem, OR 97301-2682
(503) 945-2800 (Voice)
(503) 945-2996 (TTY)
FAX (503) 945-2807
FILED
CIRCUIT COURT
TILLAMOOK COUNTY STATE COURTS
2003 AUG 14 PM 1:08
TRIAL COURT ADMINISTRATOR
BY
August 12, 2003
The Honorable David W. Hantke
Tillamook County Courthouse
201 Laurel Avenue
Tillamook, Oregon 97141
RE: MORRIS, Edward
OSH#: 69987
WARD: COE
Dear Judge Hantke:
Please find enclosed the report of the evaluation on the
above-named individual.
If you have any questions, please do not hesitate to contact the
author of the report, who can be reached at the telephone number listed
at the top of this page.
Sincerely,
Steven Fritz, MD
Chief Medical Officer
Oregon State Hospital
SF/rp
Encl.
03-07-15.COV/087.WRD/69987
OREGON STATE HOSPITAL
REPORT OF EVALUATION
NAME: MORRIS, Edward
OSH#: 69987
TYPE: Court Ordered Evaluation
UNIT: Forensic Evaluation Service
DATE OF REPORT: 8/4/03
DATE OF EVALUATION: 7/15/03
DOCKET NUMBER(S):02-1283
IDENTIFYING INFORMATION: This is the first Oregon State Hospital
referral for Mr. Edward Morris, a 38-year-old widowed white male, born
on March 10, 1965. He is charged with seven counts of Aggravated Murder,
an unclassified Measure 11 felony in Tillamook County Circuit Court. The
defendant was referred for a 30-day inpatient evaluation of his ability
to aid and assist in his own defense pursuant to Oregon Revised Statute
(ORS) 161.365, in an order dated June 20, 2003, signed by the Honorable
David W. Hantke.
EVALUATION PROCEDURES AND INFORMATION: The defendant was
interviewed by Carlene Shultz, PsyD, on July 15, 2003, for five hours
and 35 minutes and an additional 50 minutes for psychological testing on
July 16, 2003, at the Oregon State Hospital Forensic Evaluation Service.
Present throughout the first three and a half hours of the evaluation
was Gail Mason, PhD, as an observer. Additional information considered
in this evaluation included:
1. Tillamook County Court documents, including an indictment
dated January 23, 2003.
2. A factual brief of the case provided by William B. Porter,
District Attorney for Tillamook County, in a phone conversation on July
17, 2003, for 50 minutes.
3. Law Enforcement Data System (LEDS) criminal history sheets.
4. A report from jail medical staff to Linda Brandeberry, LCSW,
on June 23, 2003.
5. A Psychological Report by Richard J. Hulteng, JD, PhD, dated
May 28, 2003.
6. A Psychiatric Report by George R. Suckow, MD, dated June 6,
2003.
7. Summary and case notes by Teresa Shelby, MD, for visits on
February 28, 2003, April 11, 2003, and May 23, 2003.
8. A letter written by the defendant, dated April 24, 2003.
9. Raw psychological test data obtained by Dr. Laura Sebastian
for prior Minnesota Multiphasic Personality Inventory Second Edition
(MMPI-2) and Rorschach administrations.
10. Minnesota Multiphasic Personality Inventory Second
Edition, completed July 11, 2003.
11. Personality Assessment Inventory (PAI), completed July 11,
2003.
DOCUMENTTION-EVALUATION
OSH-STK: 75069-MR 1-3/2002
MR#: 62-00-0779-00
NAME: MORRIS, Edward
OSH#:69987
TYPE: Court Ordered Evaluation
UNIT: Forensic Evaluation Service
DATE OF REPORT: 8/4/03
DATE OF EVALUATION: 7/15/03
DOCKET NUMBER(S):02-1283
PAGE: 2
12. Structured Interview of Reported Symptoms (SIRS),
administered July 15, 2003.
13. Rorschach Inkblot Test, administered July 16, 2003.
14. MacArthur Competency Assessment Tool Criminal
Adjudication (MacCAT-CA), administered July 15, 2003.
15. Phone conversation with Chuck Fryer, counsel for the
defense, for 30 minutes on July 14, 2003.
16. Phone conversation with Richard J. Hulteng, JD, PhD, on July
21, 2003, for 90 minutes.
17. Phone conversation with George Suckow, MD, on July 21, 2003,
for 15 minutes.
18. A note written by the defendant to the evaluator on July 18,
2003.
19. Consultation with the Ward 48C Interdisciplinary Treatment
Team (IDT).
20. The Oregon State Hospital record for the current inpatient
psychiatric admission.
21. Evaluation observations by Gail Mason, PhD, dated July 25,
2003.
NOTIFICATION OF RIGHTS: Prior to interview, the defendant was
advised of his rights and of the limits of confidentiality.
Specifically, he was informed of his right to refuse to answer questions
and to consult with his attorney or to have his attorney present during
the interview. He was told that none of the information he provided
would remain confidential and that a report of the evaluation results
would be sent to the court and the attorneys in the case. The defendant
expressed a clear understanding of these rights, including his right to
have his attorney present as “there might be all kinds of sensitive
questions asked that a
person might not be in their best interest to
answer.” He further reported a conversation with his attorney in which
his attorney had advised him to proceed with the evaluation without his
attorney present. Mr. Morris indicated that he understood his rights,
signed the Patients Right form, and agreed to proceed with the
interview.
BACKGROUND INFORMATION: The following information was obtained
from the defendant’s self-report and available records.
SOCIAL/DEVELOPMENTAL HISTORY: The defendant, Mr. Edward Morris,
was born and raised in Portland, Oregon, by his mother and her parents
as his parents divorced when he was 2 years of age. He describes his
mother as “a very nice overweight woman.” He reports having had a
stepfather as a
DOCUMENTATION-EVALUATION
OSH-STK 75069-MR 1-3/2002
MR#: 62-00-0779-00
CONFIDENTIAL
George R. Suckow
Physician
773 Linda Ave NE
Keizer, OR 97303-4549
June 6, 2003
William B. Porter
District Attorney
Tillamook County Courthouse
201 Laurel Ave
Tillamook, OR 97141
RE: Edward Paul Morris
Dear Mr. Porter:
At your request I conducted a psychiatric evaluation of Edward
Paul Morris on June 3, 2003 at the Tillamook County Correctional
Facility in a conference room. Present were myself, Mr. Morris, his
attorney Charles M. Fryer and yourself, William Porter, District
Attorney of Tillamook County. Prior to examining Mr. Morris he was
advised of his rights including the right to remain silent, knowledge
that anything he said could be used in a court of law, the right to
consult his attorney before making any statement, the right to ask his
attorney to be present (he was), the right to not discuss or answer any
question at any time and to understand that there is no privilege or
confidentiality between doctor and patient in a court-ordered or
forensic examination. Mr. Morris understood those rights and consented
to proceed.
Prior to the interview I was asked by Mr. Fryer not to inquire
into the charges pending against Mr. Morris other than his knowledge of
what he might be accused of.
Prior to examining Mr. Morris I also had the opportunity to
review a report by Richard J. Hulteng, JD, Ph.D. concerning his
examinations of Mr. Morris; the report being dated May 28, 2003. I had
previously been furnished by you with transcripts of interviews of Mr.
Morris and had previously reviewed them, dated January 4, 2003 and
January 4, 2003 approximately three hours earlier. I also reviewed a
copy of Mr. Morris’ military records and an affidavit for a search
warrant dated December 23, 2002 concerning the investigation of the
offense for which Mr. Morris is currently charged. I also reviewed a
copy of a letter written by Mr. Morris on Thursday the 24th of April,
2003.
Diagnosis:
Axis I: v71.09, no diagnosis
Axis II: 301.9, personality disorder, mixed
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