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Reviewed by Frank Barrepski November 29, 2000
This week, Detectives Briscoe and Green re-open a twenty-year old homicide case due to pressure placed on Lieutenant Van Buren to raise her case closure rate. The victim was sixteen-year old Mary Beth Mosley, who was killed with a one-inch ratchet. Briscoe and Green learn that the victim's clothing, the ratchet used to kill her, and much of the paperwork regarding the case is missing from the property room at the police department. The original investigation was conducted by Briscoe's former boss, Tommy Brannigan. The detectives discover that Michael Sarno, the son of a U.S. ambassador, was not thoroughly investigated the first time. Focusing their attention on Sarno, they find witnesses that seemingly implicate him: an AA member who states that Sarno had confessed to killing a girl with a ratchet in an AA meeting a few days after the murder, a college classmate who claims Sarno raped her, and a high school classmate of Mary Beth's who said the victim had broken off her relationship with Sarno. For me, the most intriguing legal issue of the episode arose when Sarno's attorney moved to suppress his confession to the AA group. Sarno argued that this was covered by psychotherapist - client privilege, as a psychologist had led the sessions Sarno attended. While there is a psychotherapist - client privilege, the courts have repeatedly held that claims of privilege are waived when "unnecessary" third parties are present to the communication in question. Thus this raises two issues: 1. Whether the other members of Sarno's group session are "unnecessary" and 2. Whether any privilege that may exist binds the other members of the group as well as the therapist. The judge agreed with the defendant on both of these points and suppressed the confession. There may be a strong argument that the group members are "necessary" for the therapy to be effective. However, I think it is quite a stretch to hold that other members of the AA group are also bound by psychotherapist-client privilege, despite the implied agreement to maintain each other's confidences. At this point in the trial, things are going well for Sarno. As Abbie Carmichael observed, they had no murder weapon, no DNA, no eyewitnesses, and now no confession. In these circumstances, Sarno stood an excellent chance of gaining an acquittal from the jury. Thus, the best strategic move for Sarno would have been not to put on a defense at all and to request the judge to grant a motion for a required finding of not guilty, due to Jack McCoy's failure to present sufficient evidence upon which to base a conviction. Instead of following this tactic, Sarno's attorney calls Brannigan to the stand to testify that he had not considered Sarno a suspect in the first investigation. This backfires quite badly when McCoy cross-examines Brannigan and gets the ex-detective to admit that he had been told by a superior to shift the investigation away from Sarno in exchange for a promotion. The superior in question has since retired and now works for the Sarno family. Brannigan also testifies that he was told to make sure the weapon was checked into the property room so it could be "taken care" of. As a result of Brannigan's testimony, a plea bargain is reached in which Sarno agrees to plead guilty to second-degree manslaughter for a sentence of 8 1/3 to twelve years. But Sarno agrees to this plea after a confrontation in which his father attempts to talk him out of accepting the deal, even though McCoy threatened to charge Sarno Sr. with obstruction of justice. It struck me as odd that Sarno would suddenly be stricken by conscience, after concealing the murder for twenty years and going through the ordeal of a trial. Likewise, it also seems odd that Brannigan had stuck by his claims of not having considered Sarno as a suspect and not knowing what happened to the missing evidence until McCoy cross-examined him. I felt this particular episode fell short on presenting legal issues; the only issue of significance was the admissibility of the AA confession. Hopefully this will not be the case with next week's episode.
Frank Barrepski is an attorney licensed in Massachusetts. Along with other practice areas, he handles criminal defense matters and appeals in his practice. |
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