I was listening to National Public Radio's "Talk of the Nation " the other day, and they were discussing the refusal of a domestic violence counselor to release her notes to a military court when the defendant's attorney in a rape trial subpoened them. The military court had the typical rule that for potentially priveleged materials, the judge reviews them in private and then decides whether anything is relevant to the defendant's case before releasing them. The domestic counselor refused to release them, even to the judge, and he threw her in jail.

The first attorney on was a law school dean, and he made the expected argument that if the alleged victim had admitted to the counselor that the sex had been consenual or that she hadn't been penetrated, it's information that ought to come in. On the other hand, having a judge to screen it would prevent an overzealous defense attorney from airing in public non-relevant details of the victim's sexual history. All of which makes sense to me.

Then the rape-counselor's attorney came on and stated that 1) the defendant's constitutional right to confront his accuser only applies to trial and not to pre-trial discovery procedures, and 2) that the victim's right not to release the material was part of her Constiutional right to privacy. Therefore, it was the defendant's non-Constitutional right to obtain discovery materials versus the victim's Constitutional right to privacy. The attorney went further to say that the other half-dozen or so counselors who had just sent in the materials should have known this and could potentially be sued now.

By end of this second attorney's speech, my eyes were practically coming right out of my head. It To a lay person this might sound perfectly reasonable, but to any attorney worth a damn this is insane. The right to confront one's accusers has to extend to pre-trial procedures. Otherwise, how will an attorney what to prepare for at trial, or what line of questions to persue. It also strikes me as completely ludricous to expect that the right to privacy extends to protecting lies.

The fact that this attorney was saying these things in a Nationally broadcast forum, heard by millions, with an absolute sense of correctness in her voice, made me amazed at her daring. At the very least she had to know that she was putting forth a controversial position, but she treated it like absolute fact, well established in the law. Reminded me of the defense attorney who was stabbed by client in the court room at trial, who immediately announced triumpantly, "See! You should have allowed our insanity defense. I told you he was nuts!" (That's a true story. It's in my journal somewhere, but I can't remember and I'm too lazy to look.)


This is what we do: We don't lie, we just advocate. When there is vagueness in a factual situation or set of laws, we find the position that best advances out client's interests. Some people just get a little carried away.