October 2016 Presentation; Team Moyer

The Menedez Brothers Trial including issues of patient-psychotherapist privilege

Transcript

1. TEAM MOYER THE MENENDEZ TRIAL
3. The Menendez Trial
5. Crime Scene Foyer Kitty Jose Den
6. Crime Scene Photo Kitty Jose
7. Kitty
10. Dr. Jerome Oziel
11. Tarasoff v. Regents of University of California (1976) 7 Cal.3d 425
12. Penal Code 1524(c) No search warrant shall issue for any documentary evidence in the possession or under the control of any person who is a… psychotherapist as defined in Section 1010 of the Evidence Code…, and who is not reasonably suspected of engaging or having engaged in criminal activity related to the documentary evidence for which a warrant is requested unless the following procedure has been complied with:
13. Penal Code 1524(c) (1) At the time of the issuance of the warrant, the court shall appoint a special master. (2)(A) If the party who has been served states that an item or items should not be disclosed, they shall be sealed by the special master and taken to court for a hearing.
14. Penal Code 1524(c) (2)(B) At the hearing, the party searched shall be entitled to raise any issues that may be raised pursuant to Section 1538.5 as well as a claim that the item or items are privileged. (2)(C) If an item or items are taken to court for a hearing, the statute of limitations shall be tolled from the time of the seizure until the final conclusion of the hearing.
15. Penal Code 1524(c) (3) The warrant shall be served during normal business hours. In addition, the warrant shall be served upon a party who appears to have possession or control of the items sought.
16. Penal Code 1534 (a) A search warrant shall be executed and returned within 10 days after date of issuance. A warrant executed within the 10-day period shall be deemed to have been timely executed and no further showing of timeliness need be made... The documents and records of the court relating to the warrant need not be open to the public until the execution and return of the warrant or the expiration of the 10-day period after issuance. Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.
17. Oziel v. Superior Court (1990) 223 Cal. App. 3d 1284
18. Penal Code 1536 All property or things taken on a warrant must be retained by the officer in his custody, subject to the order of the court…
19. Evidence Code 1011 As used in this article, “patient” means a person who consults a psychotherapist or submits to an examination by a psychotherapist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of his mental or emotional condition…
20. Evidence Code 1024 There is no privilege under this article if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threatened danger.
21. Menendez v. Superior Court (1992) 3 Cal. 4th 435
22. Question: What about in the case were Defendant undergoes psychiatric treatment as a term of probation, but then commits a new crime. The DA seeks Defendant’s treatment records for admissions that can be used under Evidence Code section 1108 arguing that Defendant is not a patient under Evidence Code section 1011. Is the DA right? The privilege applies – Defendant was a patient.
23. Question: Does Tarasoff apply to Psychotherapist who are hired by the defense attorney to assist in the defense and who believe the Defendant to be dangerous? Psychotherapist may only tell Defense attorney
25. Kitty Menendez
29. Self Defense The Menendez Brothers acted in self-defense if: 1. They reasonably believed that they were in imminent danger of being killed or suffering great bodily injury; 2. They reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND 3. They used no more force than was reasonably necessary to defend against that danger.
30. Self Defense When deciding whether the their beliefs were reasonable, consider all the circumstances as they were known to and appeared to the Brothers and consider what a reasonable person in a similar situation with similar knowledge would have believed. If their beliefs were reasonable, the danger does not need to have actually existed.
31. Self Defense Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.
32. Self Defense Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The Menendez Brothers must have believed there was imminent danger of death or great bodily injury to themselves. Their belief must have been reasonable.
33. Imperfect Self-Defense The killing of Jose and Kitty Menendez is reduced to voluntary manslaughter if the Menendez Brothers killed them because they acted in imperfect self-defense. The difference between complete self- defense and imperfect self-defense depends on whether the Menendez Brothers believed the need to use deadly force was reasonable.
34. Imperfect Self-Defense The Menendez Brothers acted in imperfect self-defense if: 1. They actually believed that they were in imminent danger of being killed or suffering great bodily injury; 2. They actually believed that the immediate use of deadly force was necessary to defend against the danger; 3. At least one of those beliefs was unreasonable.
35. Imperfect Self-Defense A danger is imminent if, when the fatal wound occurred, the danger actually existed or the defendant believed it existed.
36. Imperfect Self-Defense If Jose or Kitty Menendez threatened or harmed the Menendez Brothers (or others) in the past, you may consider that information in evaluating the Menendez Brothers’ beliefs.
37. Dr. William Vicary
38. Deleted Segments from his Psychiatric Notes
39. Leslie Abramson CALIFORNIA | LOCAL D.A.'s Office Won't Investigate Lawyer Abramson October 14, 1997 | From a Times Staff Writer Defense lawyer Leslie Abramson will not be subjected to a criminal investigation for requesting that a psychiatrist delete sections of his notes during the murder trial of Erik and Lyle Menendez…
40. Question: Was it against the law for Dr. Vicary to alter his notes? California Penal Code Section 471.5 states that “Any person who alters or modifies the medical record of any person, with fraudulent intent, or who, with fraudulent intent, creates any false medical record, is guilty of a misdemeanor.
41. Question: Was Leslie Abramson subject to any discipline by the California State Bar? Leslie Abramson converted her Bar status to “inactive” in 2013 without any discipline being imposed on her at any time.