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The case for Detectives Briscoe and Green is literally fished out of the water in the latest Law and Order episode. The body of Karen Hill, an investigator with the New York Attorney General's office, is found under a bridge. Alec Conroy, Karen's supervisor and the deputy director of the criminal division, tells the detectives that the State Police investigation of Karen's disappearance struck a dead end with a witness who claimed Karen exited a train station in Albany. Unlike last week's episode, there is no turf war; the state Attorney General's office is quite cooperative with the local authorities.

The state troopers on the case confide to Briscoe and Green that they feel Conroy is trying to misdirect the investigation for fear of learning that Karen's death was related to a case she was working on. Karen's past credit card statements show several charges to a Manhattan restaurant, where a waiter identifies Karen, stating that she had eaten there with Conroy. When confronted with this information, Conroy admits having had an affair with Karen, but claims it was broken off; he names an alibi witness for the time of the killing. However, Conroy gets arrested anyway, after blood is found in the bathroom of his old apartment.

At arraignment, the defense moves to suppress a Tarasoff letter Conroy's therapist sent to Karen, warning her that she was in danger. This motion was based on the grounds of psychotherapist-patient privilege and spousal privilege. On the basis of the information presented to the judge at the time, the judge initially holds that both privileges apply, precluding both Conroy's wife and therapist from testifying, and suppressing the letter to Karen. His ruling on the spousal privilege is correct. Unlike the federal courts, most states do not allow the witness spouse to waive the privilege. However, with respect to the psychotherapist-therapist privilege, I believe the judge should have ruled in the government's favor. Since the wife only attended one therapy session in order to have a "safe haven" where she could announce plans for a divorce, rather than being involved in joint therapy, she constituted an "unnecessary" third person that destroyed the psychotherapist-patient privilege.

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The defense attorney then makes a significant error in cross-examining Detective Green. During one of his questions, he lets it slip that Conroy was legally separated from his wife. And in another attempt to get the letter admitted, Jack argues that, under these circumstances, spousal privilege does not apply since there is no longer any need to protect the sanctity of the marriage. The judge agrees with Jack, and the therapist is allowed to read his letter into evidence, in addition to testifying to the fact that Conroy stated he felt like killing Karen. While Jack is correct in bringing the new information to the judge's attention, I would have expected the prosecutor to have been aware of the defendant's marital status, even before the trial had started.

The impact of the therapist's testimony is sufficiently damaging to bring the defense into negotiations over a plea. Conroy pleads guilty to second-degree murder, and gives McCoy the allocution that he often requires for such pleas. With twenty years to serve, he will have plenty of time to appeal the evidence admissibility ruling, providing that the plea has a condition allowing for such an appeal of the issue.

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