Nina Reilly 1 - Motion to Suppress by Perri O'Shaughnessy

Author:Perri O'Shaughnessy [O'Shaughnessy, Perr]
Language: eng
Format: epub
Tags: Fiction
ISBN: 9780307423191
Publisher: Random House Publishing Group
Published: 2007-12-17T05:00:00+00:00

18

AFTER A BAD night, Nina slept late and arrived at her office around nine-thirty.

Her recently improved nights had been blasted to hell on May eleventh, several weeks before, when Collier brought his ill tidings and Bruno called to tell her law enforcement was tossing his office. "I would have destroyed the tape if I had had any idea," he had told her in a low tone from his outer office at UCSF.

"Let’s not compound the error, Bruno Just do what they say and fax me whatever they served on you." She had sat at her desk, her brain clicking without progress, like stripped gears. No work-product privilege? How could it be? The affidavit for the warrant cited several cases. She had walked dully over to her California Reporters and started pulling out volumes, ignoring the pain in her arm. Her anxiety blinded her; the words in the cases swam before her eyes. This was it, the ruin that had been waiting for her.

How had she missed this? Looking back, she had simply assumed she knew the law. She had been sure she could deep-six Bruno and the hypnosis if she didn’t like the result. She had never dreamed Collier would find out and pounce so immediately and effectively.

She had spent Saturday at the law library, looking up more cases. She had to file her Motion to Suppress for the June 10 hearing as soon as possible. She needed to reshape the case holdings Collier had cited, to draw distinctions, to find a critical dissent, anything she could use in her motion to suppress Michelle’s statement under hypnosis.

Summary of Legal Arguments, she wrote now on her yellow pad. The phone was ringing in the outer office. Sandy fielded it. There are at least five legal grounds for a finding that the seized material may not be considered at trial. She sorted her research into five piles on the desk.

First. The psychotherapist-patient privilege, codified in Evidence Code Section 1014, allows the defendant to refuse to disclose a confidential communication between a patient and her psychotherapist. This privilege supersedes the public policy and due process arguments advanced by the prosecution in its declarations supporting issuance of the warrant at issue herein. Menendez v. Superior Court, 3 Cal. 4th 435.

Sounded good. But this privilege was a trap. It had an exception, called the patient-litigant exception. Nina read the Menendez case again; two brothers from Beverly Hills, accused of killing their parents, had gone to a therapist and confessed on tape. The Menendez defense lawyers had raised some of the same arguments Nina would raise, but in the end the tape had been allowed in, because the boys’ defense required some testimony about their emotional and mental states before and during the killings.

Unfortunately, Nina had the same problem. Michelle had told the police she couldn’t remember what happened after she hit Anthony the first time. The jury would never believe that, unless Dr. Greenspan, Bruno, and perhaps Michelle herself testified about her previous amnesia.

Let Collier point out the exception to Judge Milne.

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