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High Court to Decide if Talks With Counselors Are Privileged

By David G. Savage
Los Angeles Times
WASHINGTON

The Supreme Court said Monday 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 says by law that conversations with therapists and counselors are privileged and cannot be forcibly disclosed in state court proceedings. But no such rule exists in federal court, and attorneys say most federal judges have refused to shield sessions with psychotherapists and counselors from disclosure in federal court.

The justices agreed to review a police brutality trial in Chicago in which a federal judge tried to force a female 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 can assume the two had something to hide. The jury then returned a $545,000 verdict against the officer and her department.

"If you can't trust a counselor 100 percent 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 moved to stab another man, she shot and killed him.

The dead man's family said the shooting was unjustified and the butcher knife found at the scene was "planted" by the police.

Kenneth Flaxman, the 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 abuse 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.