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American Morning

Federal Appeals Court Ruling Rekindles Argument Over Right to Privacy

Aired July 19, 2002 - 09:31   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BILL HEMMER, CNN ANCHOR: There's a federal appeals court now, a ruling from the federal appeals court, rekindling an argument over the right to privacy. This time it centers on whether you have right in or near quasi-religious groups like Alcoholic Anonymous. The murder conviction of Paul Cox, this man, overturned by a federal judge last year, because he made his confession to fellow members of AA, and his words were protected, but that ruling, reversed just this week by a federal appeals court, and the conviction allowed to stand.

With me to talk about the matter, defense attorney Mickey Sherman, who you know, defended Michael Skakel in the recent trial there.

Mickey, good morning to you. Nice to see you.

MICKEY SHERMAN, DEFENSE ATTORNEY: Good morning.

HEMMER: Also former federal prosecutor Jason Brown as well is with us as well.

Gentlemen, good to have both of you here.

Jason, first to you. And the court is saying here, and correct my interpretation I'm off on any of this stuff. Essentially, it's saying that these confessions were not privileged because they did not take place during an AA meeting. Is that the right read?

JASON BROWN, FMR, FEDERAL PROSECUTOR: I'm not sure that it's that narrow a ruling, because the court wasn't presented with that actual question. They did say that because these statements were made to individuals for purposes other than spiritual guidance they were not privileged. And left open the question whether a statement at an AA meeting would be privileged, but it's probably a fair inference, that even if so, it would not be held to be privileged.

HEMMER: So just to stress that then, this court, this ruling, Sidestepped that issue about whether or not AA is protected.

BROWN: As courts usually do, they construe the facts as narrowly as possible. So that's right.

HEMMER: Mickey, what about this ruling? Do you have a problem with it? SHERMAN: I do. And you know, people hate these kinds of cases, and they figure, this is another one of these loopholes that guilty people are trying to sneak by with, but there's really a greater good that I think is being thwarted here, and when you start telling people you can go to therapy, whether it's AA or any other organized program, or private therapy session, and -- but, however, you can be open, you can be honest, you can try an and deal with your problems, but if you say something that might incriminate you, you're going to get it. It has a chilling effect. I think what the carnage on the highways, the mass amount of problems we have from alcoholism and the great number of people who suffer from it, I think this is not a great price to pay by letting this one case go down the tubes in order to get people to come out and deal with this problem.

HEMMER: Mickey, you're saying then -- and you would have no problem with AA getting the same treatment as a priest or a lawyer, as we have seen in attorney-client privilege, or things of that matter.

SHERMAN: Or a psychiatrist. I think that's the better analogy. They're there to get rid of a problem, to get rid of the demons inside them. More important, it's an illness, and they're there to cure that illness, and there is no reason that that privilege would extend to a doctor...

HEMMER: But the court wasn't there to interpret his illness; they were just there to interpret the law and whether or not these conversations were protected, right?

SHERMAN: But they can go whichever way they want. That chose to go to cleric-congregate privilege as opposed to the doctor-patient privilege, which I would have preferred to see them do.

HEMMER: Jason, had this man, Paul Cox, in his discussions with his members of AA, had he said, listen, this goes nowhere. Right now, we're essentially in session. Would that have settled the argument?

SHERMAN: It certainly wouldn't have settled it. It would have made it a slightly more difficult question. But the problem is that Mr. Cox has taken upon himself to assert that by virtue of having made these confessions, they are privileged. The people who heard those confessions certainly didn't have that understanding at the time that they heard them, and were only asked after the fact, after they had heard these chilling confessions, to say that they should not be divulged to law enforcement.

HEMMER: Jason, what about Mickey's point, though? When it comes to AA, when it comes to such a chilling effect, to borrow Mickey's words, in fact, a few moments ago, is there an impact there that should be measured i this?

BROWN: The court went out way to stress that they were in no way suggesting that AA was not a good organization, not a worthwhile one, and it certain I will helped innumerable people over the years. But the court's function here is to construe what historically has been construed as a very narrow privilege, a clergyman to a congregate,and to open that up to all AA members would really be a dramatic change in the law.

HEMMER: But again, do you think this could have some sort ripple effect, where it impacts and effects people who are honest, trying to seek help for themselves, it may have an impact on them?

BROWN: Well, I think what it suggests, is that if they are really going to need counseling about serious criminal activity that they may have committed, they should do that in the privacy of a therapy session, and not to fellow AA members.

HEMMER: Mickey, if you were advising clients on this, what would you tell them, then, given the ruling you heard yesterday.

SHERMAN: Well, sadly enough, I would say, you know something, if you go to AA, you can't be totally honest, you can't talk about things that have happened. Somebody there may rat you out.

HEMMER: You think it's that severe?

SHERMAN: I think it will have a chilling effect. I think people need to be open and honest. Those folks who go through AA become very, very into the program, as well they should, and they follow these 12 steps. And if they can't do it, they are going to go someplace else, or they are not going to go.

HEMMER: Mickey, if it were you case, I pardon you for the interruption, where would you go right now?

SHERMAN: It would be appealing on the basis of client-physician privilege. I think that the therapy that's conducted in AA is the same as if you're sitting in psychiatrist office, regardless of whether talking to the doctor, to a staff member, or to a fellow member of AA. I think they're there as therapy.

HEMMER: We should point out Paul Cox back in 1989 brutally stabbed two people, a man and a women, in bed, and that was what got this case kicked off 13 years ago.

Jason, quickly wrap it up here. Is this case finished? What happened next?

BROWN: I think this will be virtually impossible to reverse on appeal. It would have to either go on bonk (ph), or to the second circuit, or to the Supreme Court. The law is going to stay the way it is.

HEMMER: Virtually impossible, huh?

BROWN: I would think so.

HEMMER: Mickey?

SHERMAN: I have to agree. It's just not a popular cause. People don't want to see people get off on technicalities, simple as that.

HEMMER: Mickey Sherman, Jason Brown, thanks for talking. Fascinating topic here.

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