Reply Brief — Robert Angel Perez, Petitioner v. Colorado

No. 19-1357

In the

Supreme Court of the United States

____________________

ROBERT A. PEREZ,

Petitioner,

v.

STATE OF COLORADO,

Respondent.

____________________

On Petition for a Writ of Certiorari

to the Supreme Court of Colorado

____________________

REPLY BRIEF FOR PETITIONER

____________________

Ned R. Jaeckle

COLORADO STATE PUBLIC

DEFENDER

1300 Broadway, Suite 300

Denver, CO 80203

Meaghan VerGow

Kendall Turner

Counsel of Record

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, DC 20006

(202) 383-5204

kendallturner@omm.com

Jeffrey L. Fisher

O’MELVENY & MYERS LLP

2765 Sand Hill Road

Menlo Park, CA 94025

ii

TABLE OF CONTENTS

Page

REPLY BRIEF FOR PETITIONER ......................... 1

CONCLUSION ........................................................ 12

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Bullcoming v. New Mexico,

564 U.S. 647 (2011) .............................................. 7

Burns v. State,

968 A.2d 1012 (Del. 2009).................................... 3

Chambers v. Mississippi,

410 U.S. 284 (1973) .............................................. 9

Chapman v. California,

386 U.S. 18 (1967) ............................................ 7, 8

Commonwealth v. Barroso,

122 S.W.3d 554 (Ky. 2003) .................................. 5

Delaware v. Van Arsdall,

475 U.S. 673 (1986) .............................................. 6

Foster v. Chatman,

136 S. Ct. 1737 (2016).......................................... 6

Grady v. North Carolina,

575 U.S. 306 (2015) .............................................. 6

Hathaway v. State,

399 P.3d 625 (Wyo. 2017) .................................... 5

Herrera v. Wyoming,

139 S. Ct. 1686 (2019).......................................... 6

Holmes v. South Carolina,

547 U.S. 319 (2006) .............................................. 9

Hurst v. Florida,

136 S. Ct. 616 (2016)............................................ 6

Jaffee v. Redmond,

518 U.S. 1 (1996) ................................................ 11

Maslenjak v. United States,

137 S. Ct. 1918 (2017).......................................... 6

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

McFadden v. United States,

576 U.S. 186 (2015) .............................................. 7

Murr v. Wisconsin,

137 S. Ct. 1933 (2017).......................................... 6

Navarette v. California,

572 U.S. 393 (2014) .............................................. 6

Neder v. United States,

527 U.S. 1 (1999) .................................................. 7

Pennsylvania v. Ritchie,

480 U.S. 39 (1987) .......................................... 4, 10

People v. Stanaway,

521 N.W.2d 557 (Mich. 1994) .............................. 5

R.S. v. Thompson ex rel. Cty. of Maricopa,

454 P.3d 1010 (Ariz. Ct. App. 2019),

review granted (Ariz. Aug. 25, 2020) ................... 4

Rock v. Arkansas,

483 U.S. 44 (1987) ............................................ 8, 9

Skilling v. United States,

561 U.S. 358 (2010) .............................................. 7

State v. Blackwell,

801 S.E.2d 713 (S.C. 2017) .................................. 5

State v. Blake,

63 P.3d 56 (Utah 2002) ........................................ 2

State v. Cressey,

628 A.2d 696 (N.H. 1993) .................................... 5

State v. D.F.,

2012 WL 4849143 (Del. Fam. Ct. Aug. 28,

2012) ..................................................................... 3

State v. Fay,

167 A.3d 897 (Conn. 2017) .............................. 4, 5

v

TABLE OF AUTHORITIES

(continued)

Page(s)

State v. Green,

646 N.W.2d 298 (Wis. 2002) ................................ 5

State v. Neiderbach,

837 N.W.2d 180 (Iowa 2013) ............................... 5

State v. Rekhop,

908 A.2d 488 (Vt. 2006) ................................... 3, 4

Washington v. Texas,

388 U.S. 14 (1967) ................................................ 9

OTHER AUTHORITIES

Russell D. Covey, Abolishing Jailhouse Snitch

Testimony, 49 Wake Forest L. Rev. 1375

(2014) .................................................................... 7

RULES

Del. Super. Ct. Crim. R. 17 ....................................... 3

REPLY BRIEF FOR PETITIONER

The brief in opposition concedes there is a split on

the question presented. It also concedes that, in other

jurisdictions, petitioner would have been entitled to

the relief he seeks. It does not dispute that the issue

presented by this petition recurs frequently and is

critically important. And it includes virtually no argument defending the merits of the decision below.

Instead, the State principally argues that the

Court should deny review because of two purported

vehicle problems. Each is illusory. First, the State

observes that the decision below is an unpublished decision from an intermediate court that applied pre-existing law from the state’s highest court. But this

Court routinely reviews this sort of unpublished decision. For good reason: That neither a published opinion nor state high court review was required here

shows that Colorado’s approach to the question presented is firmly entrenched and that the time for this

Court’s review is now.

Second, the State says any error is harmless. But

no court addressed this issue below, meaning it is a

question for remand, not one that precludes this

Court’s review. In any event, the error was not harmless; petitioner’s entire defense was that his wife

killed herself, and he was denied the only evidence

that could have shown that she had been diagnosed

with depression or struggled with suicidal ideation.

This case is accordingly an ideal vehicle for resolving the question presented and bringing much-needed

clarity to the fundamental and frequently recurring

issue of whether, or to what extent, the Constitution

2

guarantees a criminal defendant the right to discover

potentially exculpatory, privileged mental health records held by a private party. This Court should grant

certiorari and reverse.

1. Split. Colorado is one of many jurisdictions in

which petitioner would not be entitled to in camera

inspection of his wife’s psychotherapy records. These

jurisdictions include those in which defendants are

never entitled to in camera review of privileged psychotherapy records. See Pet. 12–13. And these jurisdictions include Utah and Colorado, both of which

preclude in camera inspection of privileged psychotherapy records unless the defendant shows the records “will, in fact, be exculpatory.” State v. Blake, 63

P.3d 56, 61 (Utah 2002); see Pet. App. 11a–12a.

Furthermore, the State concedes there is a split

among the state high courts and federal courts of appeals on the question presented. See BIO 18–22. In

fact, the State acknowledges that at least three jurisdictions—the Seventh Circuit, Minnesota, and Nebraska—require judicial inspection of psychotherapy

records whenever a defendant shows that the records

“plausibly” contain exculpatory evidence. See id. at

20. Colorado does not dispute that petitioner has satisfied that standard and would have been entitled to

in camera review of his wife’s psychotherapy records

had he been tried in those jurisdictions.

Even if that were the full extent of the conflict

among the courts on the question presented, this split

would warrant this Court’s review. But the State, in

two respects, understates the conflict’s scope.

3

a. Both Delaware and Vermont count among the

States that have adopted the “plausibility” standard.

In Burns v. State, 968 A.2d 1012 (Del. 2009), the Delaware Supreme Court “conclude[d] that a defendant

need only make a ‘plausible showing’ that the records

sought are material and relevant. Otherwise, the defendant would find it impossible in most cases to establish materiality and relevance with specificity.”

Id. at 1025. To be sure, the court said that not “every

defendant will automatically be entitled to an in camera review” because he must also “establish specifically what kinds or categories of records they are

seeking, and must articulate a compelling basis for

the request.” Id. But those are the standard requirements that must be satisfied for any discovery request, see id. at 1026 (citing Del. Super. Ct. Crim. R.

17), not some special, heightened standard that applies in this context alone. Delaware courts have interpreted Burns accordingly, not as Colorado does:

One recent decision cited Burns for the proposition

that, if a defendant “make[s] a plausible showing that

the records are material and relevant, then the State

[must] produce the records to the trial Court for an in

camera review.” State v. D.F., 2012 WL 4849143, at

*2 n.7 (Del. Fam. Ct. Aug. 28, 2012). The court did

not say the defendant has to satisfy any other requirements first.

Similarly, in State v. Rekhop, 908 A.2d 488 (Vt.

2006), the Vermont Supreme Court held that, as long

as a defendant “show[s] that the counseling files in

question may indeed contain material evidence,” the

defendant is “entitled to have the court conduct an in

camera review of the requested documents.” Id. at

4

496–97 (emphasis added). The court made clear that

all the defendant needs to show to satisfy this requirement is some “basis for his claim that [the record] contains material evidence.” Id. at 495 (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987)). That is

a plausibility standard. See Ritchie, 480 U.S. at 58

n.15. Underscoring the point, the Vermont court’s

only example of a situation in which a defendant

would fail to satisfy this standard was one in which

he “made no offer of proof to show that the evidence is

material to his defense and not otherwise available.”

Rekhop, 908 A.2d at 496 (internal citation omitted).1

b. Contrary to the State’s assertions that all other

jurisdictions agree with Colorado, many other jurisdictions follow a “probability” requirement under

which petitioner would prevail. These jurisdictions

do not require a defendant to establish that the privileged psychotherapy records are, in fact, “necessary to

vindicate a defendant’s right to present a complete defense”—which is Colorado’s standard, Pet. App. 11a–

12a (emphasis added). Instead, they require in camera inspection of such records so long as a defendant

satisfies a less demanding “probability” standard. See

R.S. v. Thompson ex rel. Cty. of Maricopa, 454 P.3d

1010, 1017 (Ariz. Ct. App. 2019) (“substantial probability”), review granted (Ariz. Aug. 25, 2020); State v.

Fay, 167 A.3d 897, 911 (Conn. 2017) (multi-factor test

focusing on “the potential significance of th[e] materials in establishing the defense”); State v. Neiderbach,

1 Although Colorado faults petitioner for citing a Rhode Island

advisory opinion, BIO 20–21 n.1, petitioner did not include

Rhode Island in the split, but merely cited the opinion for its discussion of the question presented, see Pet. 10–11.

5

837 N.W.2d 180, 197 (Iowa 2013) (“reasonable probability”); Commonwealth v. Barroso, 122 S.W.3d 554,

564 (Ky. 2003) (“reasonable belief that the records

contain exculpatory evidence”); People v. Stanaway,

521 N.W.2d 557, 574 (Mich. 1994) (“good-faith belief . . . that there is a reasonable probability”); State

v. Cressey, 628 A.2d 696, 704 (N.H. 1993) (“reasonable

probability”); State v. Blackwell, 801 S.E.2d 713, 726–

29 (S.C. 2017) (citing Barroso’s requirement that defendant make “a proper preliminary showing”); State

v. Green, 646 N.W.2d 298, 379 (Wis. 2002) (“reasonable likelihood”); Hathaway v. State, 399 P.3d 625, 641

(Wyo. 2017) (requiring “more than a hunch” or “a conclusory statement that the information is constitutionally material”). At least one of these courts has

expressly recognized that this “reasonable likelihood”

standard is “less stringent” than a requirement like

Colorado’s—i.e., a requirement that defendants show

that psychotherapy records actually do contain exculpatory evidence. Green, 646 N.W.2d at 379.

Colorado nevertheless insists that these courts follow Colorado’s rule of requiring “defendants to make

a particularized factual showing that the requested

records would be material, exculpatory, or necessary

to the defense or otherwise demonstrate a ‘compelling

need’ for the privileged records.” BIO 19. But, as the

petition pointed out, see Pet. 10 n.1, many of these jurisdictions do not require defendants to provide any

factual support for their request for in camera review

of privileged psychotherapy records. See, e.g., Fay,

167 A.3d at 911; Neiderbach, 837 N.W.2d at 197; Cressey, 628 A.2d at 704; Blackwell, 801 S.E.2d at 726–29;

Hathaway, 399 P.3d at 641. And the State does not

6

dispute that, absent such a requirement, petitioner

would prevail.

2. Vehicle. Contrary to Colorado’s contentions, this

case is an excellent vehicle to resolve the conflict over

the question presented.

a. There is no merit to the State’s assertion that

the decision is a poor vehicle because it arises from an

unpublished Colorado Court of Appeals decision that

did not “deepen” any split. BIO 16–18. This Court

has routinely and recently granted petitions in similar circumstances. See, e.g., Herrera v. Wyoming, 139

S. Ct. 1686, 1694 (2019); Murr v. Wisconsin, 137 S. Ct.

1933, 1942 (2017); Foster v. Chatman, 136 S. Ct. 1737,

1745 (2016); Grady v. North Carolina, 575 U.S. 306,

308 (2015); Navarette v. California, 572 U.S. 393, 396

(2014). There is good reason for reviewing cases in

this posture: That a State’s position on a question is

so well established that an intermediate appellate

court’s decision merited neither publication nor review by the State’s court of last resort confirms that

the State’s approach to a question is entrenched. And

that is exactly the context in which this Court should

intervene.

b. While Colorado argues that any constitutional

violation was harmless, no lower court has addressed

harmlessness. And this Court has repeatedly held

that “the determination whether [a constitutional] error” is “harmless beyond a reasonable doubt is best

left to the” court below “in the first instance.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); see

also, e.g., Maslenjak v. United States, 137 S. Ct. 1918,

1931 (2017); Hurst v. Florida, 136 S. Ct. 616, 624

(2016); McFadden v. United States, 576 U.S. 186, 189

7

(2015); Bullcoming v. New Mexico, 564 U.S. 647, 668

n.11 (2011); Skilling v. United States, 561 U.S. 358,

414 (2010); Chapman v. California, 386 U.S. 18, 24

(1967). Where, as here “the court below has not yet

passed on the harmlessness of any error,” this Court’s

“normal practice” is to resolve the question presented

and then “remand th[e] case to the” court below “to

consider in the first instance whether the [particular]

error was harmless.” Neder v. United States, 527 U.S.

1, 25 (1999). Harmlessness is therefore, at most, an

issue for remand—not an issue that precludes this

Court’s review of the question presented.

In any event, the error here was not harmless.

The State’s primary argument why the error was

harmless is that one of petitioner’s fellow inmates testified that petitioner had confessed. BIO 9–12. But

as defense counsel explained during his closing argument, this witness was a repeat jailhouse informant

who was “making it up” to curry favor with the prosecution. R. Tr. 116–18 (May 13, 2016); see also, e.g.,

Br. for Nat’l Ass’n of Crim. Defense Lawyers as Amicus Curiae, 2008 WL 5409458, at *4, Kansas v. Ventris, No. 07-1356 (Dec. 23, 2008) (“snitch testimony is

often fabricated and unreliable”); Russell D. Covey,

Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375, 1376–79 (2014) (similar). Defense

counsel also impeached the inmate’s testimony “by

questioning him regarding his extensive felony history and pending charges.” Pet. App. 5a. This unreliable, impeached testimony hardly proves that precluding petitioner from developing exculpatory evidence was harmless. After all, the question of harm-

8

lessness is not whether the evidence could have supported a conviction, but whether the government has

shown “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”

Chapman, 386 U.S. at 24. Colorado has not carried

that burden here.

The State also says any error in denying petitioner

in camera inspection of his wife’s psychotherapy records was harmless because he was able to introduce

some other evidence that she seemed depressed. BIO

12–14. But none of that evidence—testimony about

the gunshot wound from a forensic pathologist, testimony from his wife’s family and friends that she

seemed depressed but said she would never commit

suicide, and testimony that she was disappointed in

her marriage and her inability to have children, see

id. at 13–14—resolved whether petitioner’s wife had

been diagnosed with depression or whether she was

suicidal. Her psychotherapy records, by contrast,

could have confirmed or refuted a diagnosis of depression and suicidal ideation. See Pet. 20–21. That evidence was essential to petitioner’s claim of innocence,

which hinged on his argument that his wife died by

suicide. See id. at 21–22.

In these circumstances, petitioner’s wife’s psychotherapy records were just as “critical” to the defense

as the evidence in Colorado’s chosen cases. See BIO

13. The facts in Rock v. Arkansas, 483 U.S. 44 (1987),

are especially similar. There, the petitioner sought to

introduce her own post-hypnosis testimony that she

had not killed her husband, but rather he had shot

himself. Id. at 46–47. Arkansas, however, had a per

9

se rule prohibiting introduction of a defendant’s hypnotically refreshed testimony. Id. at 56. This Court

deemed that rule unconstitutional because “[i]t virtually prevented” the petitioner from presenting evidence of her innocence, “despite corroboration of”

much of the defendant’s testimony “by other witnesses.” Id. at 57.

Similarly, Holmes v. South Carolina, 547 U.S. 319

(2006), Chambers v. Mississippi, 410 U.S. 284 (1973),

and Washington v. Texas, 388 U.S. 14 (1967), all invalidated state rules limiting a defendant’s ability to

introduce evidence that someone else committed the

crime with which the defendant was charged. The

Court held the State cannot constitutionally bar evidence of third-party guilt simply because “the prosecution’s evidence, if credited, would provide strong

support for a guilty verdict.” Holmes, 547 U.S. at 330.

So too here: Petitioner’s defense is that he did not

murder his wife; she shot herself. Colorado cannot

prohibit the development and introduction of that evidence of third-party guilt any more than other States

could in Holmes, Chambers, and Washington.

c. Finally, the State says petitioner simply did not

make a sufficiently particularized showing that he

needed his wife’s psychotherapy records to present a

complete defense. BIO 22–25. But this argument assumes that Colorado’s rule requiring petitioner to

make that showing is correct. The entire point of the

petition is that Colorado’s rule is wrong, both as a

matter of first principles and under this Court’s decision in Ritchie. See Pet. 22–35. In Ritchie, Pennsylvania argued—as Colorado does here—that disclo-

10

sure of privileged records should require “a particularized showing of what information [the defendant]

was seeking or how it would be material.” 480 U.S. at

58 n.15. This Court rejected that proposal; it required

in camera inspection even though it was “impossible

to say” whether the records contained information

“relevant to [the defendant’s] claim of innocence.” Id.

at 57. Colorado cannot fault petitioner for failing to

satisfy a test that lacks any constitutional foundation

and has been squarely rejected by this Court.

The facts of this case underscore just how flawed

the “particularized showing” requirement is. Colorado says petitioner did not make a sufficiently particularized showing of his need for in camera inspection of his wife’s psychotherapy records because he

failed to identify the precise dates on which she

sought psychotherapy and because he was unable to

establish that “she was struggling with suicidal ideation.” BIO 23. But petitioner had no way to know

either piece of information without access to the psychotherapy records themselves. The State’s own logic

shows that petitioner was stuck in a Catch-22: If he

had somehow been able to provide more detailed information about his wife’s psychotherapy records, a

court may well have concluded that the records were

not material because petitioner “could elicit essentially the same information from nonprivileged

sources.” Id. at 24. Conversely, because petitioner

did not have more detailed information about his

wife’s psychotherapy records, the decision below held

that he had not made a “sufficiently particularized

showing” to warrant in camera inspection. Id. at 25.

11

This circle cannot be squared, which is precisely why

Colorado’s answer to the question presented is wrong.

3. Merits. Read generously, the brief in opposition

contains one paragraph defending the merits of the

decision below. See BIO 21. That argument amounts

to an observation that “the psychologist-patient privilege” is important to “the public interest,” id., because the “mental health of our citizenry, no less than

its physical health, is a public good of transcendent

importance.” Jaffee v. Redmond, 518 U.S. 1, 11

(1996).

No one disputes that the privilege accorded psychotherapy records serves important public ends. See

Pet. 2. But this Court has repeatedly held that a defendant’s right to present a complete defense overrides evidentiary privileges, even when those privileges serve worthy societal interests. See id. at 26 (citing cases). And Jaffee itself recognized that “there are

situations in which the privilege” accorded psychotherapy records “must give way.” 518 U.S. at 18 n.19.

This is just such a situation. The decision below

allowed Colorado’s privilege law to override petitioner’s constitutional right to present a complete defense. For all the reasons provided in the petition,

that was error. Where—as here—a criminal defendant shows that psychotherapy records plausibly contain exculpatory evidence, the Sixth and Fourteenth

Amendments require that the trial court review those

records in camera. See Pet. 22–35. Colorado never

even addresses those arguments, confirming that its

chosen approach to the question presented has no basis in the Constitution.

12

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

Ned R. Jaeckle

COLORADO STATE PUBLIC

DEFENDER

1300 Broadway, Suite 300

Denver, CO 80203

Meaghan VerGow

Kendall Turner

Counsel of Record

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, DC 20006

(202) 383-5204

kendallturner@omm.com

Jeffrey L. Fisher

O’MELVENY & MYERS LLP

2765 Sand Hill Road

Menlo Park, CA 94025

September 25, 2020