Government Response to Defense's Motion to Compel Disclosure of Medical Records

					 Case: 1:08-cr-00888 Document #: 702 Filed: 05/13/11 Page 1 of 15 PageID #:5670



                   UNITED STATES DISTRICT COURT
                   NORTHERN DISTRICT OF ILLINOIS
                        EASTERN DIVISION

UNITED STATES OF AMERICA            )
                                    )   No. 08 CR 888
      v.                            )
                                    )   Judge James B. Zagel
ROD BLAGOJEVICH                     )

       GOVERNMENT’S RESPONSE IN OPPOSITION TO
  MOTION TO COMPEL DISCLOSURE OF MEDICAL RECORDS


      The UNITED STATES OF AMERICA, by its attorney, Patrick J.

Fitzgerald, United States Attorney for the Northern District of Illinois,

respectfully submits this response in opposition to defendant Rod Blagojevich’s

Motion to Compel Disclosure of Medical Records

                       In the motion, defendant seeks an order compelling (1)

disclosure by the government of the name of the witness’s physician; and (2) the

physician’s production of medical records in response to a subpoena to be issued

by the defense. As demonstrated below, the defense has made no showing of any

need for the requested records; therefore, the motion should be denied.

                               BACKGROUND
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                                    ARGUMENT

I.       The Government Cannot Be Compelled to Disclose
         Information That is Not in Its Possession.

         Defendant now requests a court order compelling the government to

disclose                                                              As defendant

acknowledges, however, government counsel has informed the defense that it

does not possess any records or reports                                         Mot.

4, n. 3. The government likewise is not in possession

           physician. Accordingly, the government cannot be compelled to disclose



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the name

                            See, e.g., United States v. Hach, 162 F.3d 937, 947

(7th Cir. 1998) (rejecting claim of constitutional error due to government’s

failure to require witness to disclose medical records, and holding that, because

the “evidence [was] not and never was in the government’s possession,” the

government had no obligation to disclose the records and “no obligation to seek

out such information from third parties”) (citing United States v. Skorniak, 59

F.3d 750, 756 (8th Cir. 1995) (upholding denial of motion to compel production

of witness’s medical records where defendant failed to “show[ ] that the records

he sought were in the possession of the government,” and noting that the

government has “no obligation . . . to seek out such evidence.”) (emphasis in

original)).

II.   The Defendant Is Not Entitled to                       Medical Records.

      The government agrees that questions related to

                                                                      are, within

limits, proper cross-examination subjects.1


      1




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      The Sixth Amendment grants defendants the right to confront and

cross-examine witnesses testifying against them at trial. Delaware v. Van

Arsdall, 475 U.S. 673, 678-79 (1986); United States v. McLee, 436 F.3d 751, 761

(7th Cir. 2006). A defendant is not guaranteed “cross-examination that is

effective in whatever way, and to whatever extent, the defense may wish,”

however. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam). As the

Supreme Court has made clear, “trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on . . . cross




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examination based on concerns about, among other things, harassment,

prejudice, [and] confusion of the issues.” Delaware v. Van Arsdall, 475 U.S. at

679.

       Moreover, a defendant’s entitlement to a witness’s medical records does

not turn on whether cross-examination would be permitted. “Generally, the

need for evidence to impeach witnesses is insufficient to require its production

[under Rule 17(c)] in advance of trial.” United States v. Nixon, 418 U.S. 683, 701

(1974). Since the right to confrontation protects only trial rights, it does not

include the power to require the pretrial disclosure of any and all information

that might be useful in contradicting unfavorable testimony. See Pennsylvania

v. Ritchie, 480 U.S. 39, 53 (1987) (concurrence by Powell). Thus, a denial of

access to medical records neither implicates the Confrontation Clause nor

impinges on the defendant’s right to subpoena relevant, admissible and specific

evidence under Fed. R. Crim. P. 17(c).

       Case authorities make clear that defendants are not entitled to obtain

access to the medical records of every witness who has been prescribed, or who

takes prescription medication                                              To the

contrary, such access is only warranted where it is necessary to put before the

jury information regarding the witness’s ability to perceive, recall and relate

events accurately. Where a defendant is capable of putting these issues before


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the jury without gaining access to medical records, a refusal of access in no way

violates his constitutional rights to confrontation, representation, or due process.

See, e.g., United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982). In Raineri,

the court upheld the quashing of a subpoena for a witness’s medical records,

holding that the defendant’s rights were not violated because, among other

things, the defendant was able to make “an extensive attack on [the witness’s]

credibility and her ability accurately to perceive, recall, and relate events”

without access to the records. Noting that the medical records “may have added

little or nothing to the extensive onslaught,” the court found that the defendant’s

ability to cross-examine the witness was not impaired.




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      To begin with, the lines of cross examination defendant describes as

essential are fully available to him without the need for access to the witness’s

medical records; indeed, the majority of those points have absolutely nothing to

do with




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Obviously, the defense is fully capable of pursuing this line of questioning

without access




                  In fact, cross-examination of witnesses regarding potential

flaws in their hearing or interpretation of statements made by others is routine

in cases of all kinds and in no way requires access to medical records.

      More specifically, two of the cross-examination points



          focus on the passage of time–




             Once again, these lines of cross are in no way dependent on

defendant’s gaining access to records of the witness’s medical condition or

treatment. To the contrary, the failure of witnesses to mention details earlier,

and the fact that memory decreases over time are points routinely made in cross-

examination in all types of cases–




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                                                  Assuming the truth of these

arguments, the fact that defendant has made them in his motion vividly

illustrates his ability to pursue them in cross-examination and argument at

trial–without the need for access
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    2




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       In sum, defendant has not come close to providing a basis for concluding

that                        will contain specific information that is relevant and

admissible, Nixon, 418 U.S. at 701 (noting that a defendant seeking a Rule 17(c)

subpoena must establish that the evidence he seeks is relevant, admissible, and

specific)–much less that access to such records is sufficiently crucial to warrant

encroaching on the witness’s substantial privacy interests.

III.   This Court Should Prohibit the Issuance of a Subpoena.




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                                                        Taking into account the

witness’s interests in this context fulfills the Court’s duty to “protect [the

witness] from questions which go beyond the bounds of proper cross-examination

merely to harass, annoy or humiliate [him].” See Alford v. United States, 282

U.S. 687, 694 (1931). The defendant’s request in this case is at most a fishing

expedition, and at worst, harassment. Therefore, the Court should deny the

defendant’s request for permission to issue a subpoena for the witness’s medical

treatment and prohibit such issuance.




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                               CONCLUSION

     For all of the foregoing reasons, the government respectfully requests that

the defendant’s motion be denied.

                                         Respectfully submitted,

                                         PATRICK J. FITZGERALD
                                         United States Attorney

                                     By: /s/ Debra Riggs Bonamici
                                        REID SCHAR
                                        CHRISTOPHER NIEWOEHNER
                                        CARRIE HAMILTON
                                        DEBRA RIGGS BONAMICI
                                        Assistant United States Attorneys
                                        United States Attorney's Office
                                        219 S. Dearborn St., 3rd Floor
                                        Chicago, Illinois 60604
                                        (312) 353-3741




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                       CERTIFICATE OF SERVICE

      The undersigned Assistant United States Attorney hereby certifies that

the following document:

       GOVERNMENT’S RESPONSE IN OPPOSITION TO
  MOTION TO COMPEL DISCLOSURE OF MEDICAL RECORDS OF


was served on March 18, 2010, in accordance with FED. R. CRIM. P. 49, FED.

R. CIV. P. 5, LR 5.5, and the General Order on Electronic Case Filing (ECF)

pursuant to the district court’s system as to ECF filers.



                                         Respectfully submitted,
                                         PATRICK J. FITZGERALD
                                         United States Attorney

                                     BY: /s/ Debra Riggs Bonamici
                                        DEBRA RIGGS BONAMICI
                                        Assistant United States Attorney
                                        United States Attorney’s Office
                                        219 S. Dearborn St., 5th Floor
                                        Chicago, Illinois 60604
                                        (312) 353-3741

				
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