August 23, 2019

C.R.C.P. 26 and 121 Amended Regarding Privilege Claims in Discovery and Motions to Reconsider

The Colorado Supreme Court released Rule Change 2014(11) on Monday, September 22, 2014. Rule Change 2014(11) creates a new subparagraph (B) in C.R.C.P. 26(b)(5), which addresses claims of privilege for information inadvertently disclosed during discovery, as follows:

(B) If information produced in disclosures or discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must not review, use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and shall give notice to the party making the claim within 14 days if it contests the claim. If the claim is not contested within the 14-day period, or is timely contested but resolved in favor of the party claiming privilege or protection of trial-preparation material, then the receiving party must also promptly return, sequester, or destroy the specified information and any copies that the receiving party has. If the claim is contested, the party making the claim shall within 14 days after receiving such notice present the information to the court under seal for a determination of the claim, or the claim is waived. The producing party must preserve the information until the claim is resolved, and bears the burden of proving the basis of the claim and that the claim was not waived. All notices under this rule shall be in writing.

Rule Change 2014(11) changed C.R.C.P. 121, § 1-15, to add a new subparagraph 11:

11. Motions to Reconsider. Motions to reconsider interlocutory orders of the court, meaning motions to reconsider other than those governed by C.R.C.P. 59 or 60, are disfavored. A party moving to reconsider must show more than a disagreement with the court’s decision. Such a motion must allege a manifest error of fact or law that clearly mandates a different result or other circumstance resulting in manifest injustice. The motion shall be filed within 14 days from the date of the order, unless the party seeking reconsideration shows good cause for not filing within that time. Good cause for not filing within 14 days from the date of the order includes newly available material evidence and an intervening change in the governing legal standard. The court may deny the motion before receiving a responsive brief under paragraph 1(b) of this standard

The committee comment to Rule 121, § 1-15, was amended as well to clarify the limits of subparagraph 11.

Rule 411, “Appeals,” was amended to allow the clerk to certify records.

For the full text of the rule change, click here. For all of the Colorado Supreme Court’s rule changes, click here.

Tenth Circuit: Brady Requires Party to Disclose Mental Health Records in Capital Case

The Tenth Circuit published its opinion in Browning v. Trammell on Monday, May 6, 2013.

This case turns largely on principles the Supreme Court established in Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court held that an individual’s constitutional right to a fair trial obligates the prosecution in a criminal case to turn over evidence to the defense in certain circumstances. Specifically, under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment. Difficulty arises, however, when the Brady obligation to disclose comes up against the various legal privileges that protect sensitive information from disclosure, such as the psychotherapist-patient privilege at issue here. In such a situation, the Supreme Court has directed lower courts to review such information in camera to determine whether it meets the Brady standard. Pennsylvania v. Ritchie, 480 U.S. 39, 57–58 (1987).

On February 18, 2001, Harry and Teresa Hye were shot to death and their house burned to the ground. Their adopted daughter, Cenessa Tackett, was also shot but survived and escaped the burning house. Tackett identified two perpetrators: her former boyfriend, Michael Browning, and another man named Shane Pethel. The State arrested them and charged them with capital murder.

During pretrial proceedings, Tackett’s attorney accidentally faxed two psychiatric reports to the prosecution. According to the first report, Tackett displayed “magical thinking” and a “blurring of reality and fantasy.” The second report described Tackett as manipulative, grandiose, egocentric, and stated that she typically projected blame onto others. The report noted memory deficits. It described Tackett as a “type . . . rarely seen except in inpatient facilities.” Tackett was described as assaultive, combative, or as having a homicidal potential that must be carefully considered.

When the prosecution received these reports, it revealed their existence but not their contents to the defense. Browning moved to compel production, which the trial court denied.

The trial court severed Browning’s case from that of his co-defendant, Pethel. Browning’s case went to trial first. No direct evidence besides Tackett’s testimony connected Browning to the crime. The State’s case therefore stood or fell largely on Tackett’s eyewitness testimony and its credibility. The jury convicted Browning on all counts, and returned a sentence of death for the murders of Harry and Teresa Hye.

Having exhausted all state post-conviction remedies, Browning filed a 28 U.S.C. § 2254 habeas corpus petition in the Northern District of Oklahoma. Browning raised several arguments, including that Tackett’s mental health records should have been disclosed. Reviewing those records in camera, the district court disagreed with the Oklahoma courts’ conclusion that the records contained nothing favorable to Browning. It therefore ordered those records disclosed to Browning’s habeas counsel, and, after briefing, concluded that Oklahoma Court of Criminal Appeals’ (OCCA’s) determination of this issue was an unreasonable application of clearly established federal law. The district court therefore granted a conditional writ of habeas corpus, requiring the State to retry Browning within 180 days or release him.

The federal district court cannot grant habeas corpus simply because it disagrees with the state court. Rather, if “fairminded jurists could disagree on the correctness of the state court’s decision,” then the federal court must defer to the state court. Harrington v. Richter, 131 S. Ct. 770, 785–86 (2011).

The defense argued they should be permitted to view the mental health records for purposes of this habeas corpus petition. The Tenth Circuit disagreed.  The Tenth Circuit held that a Brady claim resolved through the process established in Ritchie, i.e., an in camera review, has been “adjudicated on the merits” for purposes of § 2254(d).

The Tenth Circuit confined its analysis of favorability and materiality to the record before the state trial court. The Court therefore could not consider Pethel’s confession and guilty plea, nor could it consider evidence Browning developed in post-conviction proceedings that he believed favored his theory of the case.

Evidence is “favorable to the defense” if it is exculpatory or impeaching. Banks v. Dretke, 540 U.S. 668, 691 (2004). Evidence is “material” if “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Smith v. Cain, 132 S. Ct. 627 (2012). A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.

On the exculpatory side, Tackett’s records describe her as hostile, assaultive, combative, and even potentially homicidal. Such evidence tends to show that a person with a motive to kill might even have a disposition to kill. On the impeaching side, Tackett’s psychiatric evaluations evinced, among other things, memory deficits, magical thinking, blurring of reality and fantasy, and projection of blame onto others. This is classic impeachment evidence.

Accordingly, the Tenth Circuit disagreed with the district court’s disposition of the favorability question: “There is no reasonable argument or theory that could support the Oklahoma courts’ conclusion that the sealed material contained nothing favorable to Browning’s defense.”

The Court then turned to the question of whether Tackett’s mental health records would have been material to Browning’s case.

Evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.

The Tenth Circuit concluded it was difficult to see how the Oklahoma courts could reasonably conclude there was nothing material about a recent diagnosis of a severe mental disorder that made Tackett hostile, assaultive, combative, and even potentially homicidal, or that Tackett was known to blur reality and fantasy and project blame onto others.

The district court’s grant of a conditional writ of habeas corpus is AFFIRMED.