The Supreme Court said Monday that it will decide whether conversations with psychotherapists and counselors can be kept out of federal court, an issue that has arisen recently in cases as varied as those involving police brutality, child abuse and Medicare fraud.
Nearly every state, including California, says by law that conversations with therapists and counselors are privileged and cannot be forcibly disclosed in state court proceedings. But no such broad rule exists in federal court. Indeed, attorneys say, most federal judges have refused to shield sessions with psychotherapists and counselors from disclosure in federal court.
The justices agreed to review an Illinois police brutality trial in which a federal judge in Chicago tried to force an officer and her counselor to reveal their private conversations in the weeks after the officer shot and killed a suspect.
When the officer and the counselor refused, the judge told the jurors they could assume the two had something to hide. The jury then returned a $545,000 verdict against the officer and her suburban police department.
"If you can't trust a counselor 100% and know that what is said will be kept confidential, no one will open up. They were fishing for anything that might show the officer gave inconsistent accounts of what happened," said Chicago attorney Gregory Rogus, who defended the suburban Hoffman Estates Police Department.
The case began on June 27, 1991, when the officer, Mary Lu Redmond, was called to an apartment complex because of a reported fight. When a man came running out of the building with a knife and tried to stab another man, she shot and killed him.
The dead man's family said the shooting was unjustified and claimed that police planted the butcher knife found at the scene.
Kenneth Flaxman, a Chicago attorney who represented the dead man's mother in her damage suit, said the officer gave a clear account of the incident only after repeated visits to a counselor who was employed by the police department.
"We said this raises a concern about synthetic memories," he said. He referred to an issue that has arisen in sexual abuses cases in which, some experts say, a victim's memory can be shaped by conversations with a therapist.
U.S. District Judge Milton I. Shadur, who tried the case, agreed that conversations with a psychiatrist or a clinical psychologist could be shielded, but not those involving social workers or counselors.
"If you add in social workers, addiction counselors and what not, there are too many people doing counseling to shield everybody," Flaxman argued.
Nonetheless, the U.S. 7th Circuit Court of Appeals threw out the entire damage verdict and ordered a new trial. It ruled that conversations with all manner of counselors must be shielded from disclosure. Flaxman appealed that ruling.
In a one-line order, the Supreme Court said it will review the case (Jaffee vs. Redmond, 95-266) to determine whether conversations with psychiatrists, psychotherapists and all types of counselors are entitled to confidentiality.
Oral arguments will be heard early next year, with a ruling due by late June.
In other actions, the court:
* Agreed to decide whether local labor unions must be informed 60 days in advance before a plant closes. A 1988 federal law requires such notification, but an appeals court ruled that a local union is not entitled to receive the notice (United Food and Commercial Workers vs. Brown Group, 95-340).
* Refused again to hear a free-speech challenge involving abortion pickets. A San Jose ordinance bans such picketing within 300 feet of a doctor's home. Two years ago, the high court upheld the notion of a "buffer zone" around abortion clinics and a doctor's home (Thompson vs. San Jose, 95-342).
* Let stand a Coral Gables, Fla., ordinance that strictly regulates the size and appearance of newspaper boxes on public sidewalks. In the past, the court has said cities cannot ban news boxes, but they can regulate them (Gold Coast Publications vs. Corrigan, 95-160).