Law

Courts and Judicial Proceedings § 9-109 Patient-therapist privilege, provides that:

(b) Unless otherwise provided, in all judicial, legislative, or

administrative proceedings, a patient or the patient’s authorized
representative has a privilege to refuse to disclose, and to prevent a
witness from disclosing: (1) Communications relating to diagnosis
or treatment of the patient; or (2) Any information that by its nature
would show the existence of a medical record of the diagnosis or
treatment.
(d) There is no privilege if:
(1) A disclosure is necessary for the purpose of placing the
patient in a facility for mental illness;
(2) A judge finds that the patient, after being informed there
will be no privilege, makes communications in the course of
an examination ordered by the court and the issue at trial
involves his mental or emotional disorder;
(3) In a civil or criminal proceeding:
(i) The patient introduces his mental condition as an
element of his claim or defense; or
(ii) After the patient’s death, his mental condition is
introduced by any party claiming or defending through
or as a beneficiary of the patient;
(4) The patient, an authorized representative of the patient, or
the personal representative of the patient makes a claim
against the psychiatrist or licensed psychologist for
malpractice;
(5) Related to civil or criminal proceedings under defective
delinquency proceedings; or
(6) The patient expressly consents to waive the privilege, or
in the case of death or disability, his personal or authorized
representative waives the privilege for purpose of making
claim or bringing suit on a policy of insurance on life, health,
or physical condition.

On February 17, 2009, Dr. Jenkins wrote an email to her attorney, Mark

Muffaletto. (T2 at 129) Dr. Jenkins wrote: “I met with her yesterday to see if we

would be able to keep working together.” (T2 at 129) “She signed a contract

saying she did not have a gun and would work better with me.” (T2 at 130) In red,
it was alleged that Ali wrote “I meant that even if you don’t think so.” (T2 at 130)

Dr. Jenkins also wrote: “today she sent me pictures and text messages that she was

injecting herself with drugs and was going to get her gun.” (T2 at 130) It was

alleged that Ali wrote “Thank you for my death.” (T2 at 130) Dr. Jenkins called

the police on Ali twice. (T2 at 130)

Ali also allegedly wrote: “I was getting worse because you ignoring me, so

obviously I will feel worse.” (T2 at 131) The rest of the letter reads: “I knew you

probably in sessions all day but needed to know that you know I’m going into an

episode. I did handle it that day without hurting myself at all.” (T2 at 131)

Dr. Jenkins wrote “Then doctor writes: I’m sure when I stop working with

her for good she will go forward.” (T2 at 133) Ali allegedly wrote: “not true, I am

not trying to destroy you. I’ve said that over and over again.” (T2 at 133) Dr.

Jenkins wrote “I am going to try and let her down easy to help prevent her from

suing me, but she’s obviously determined to make my life hell.” (T2 at 133) Ali

allegedly inserted “no, I never want you to be miserable or anyone else.” (T2 at

133)

Dr. Jenkins was asked to describe her relationship with Ali, at which time a

bench conference ensued. (T2 at 21) Defense counsel asserted that no privileges

have been waived. (T2 at 21) Despite trial court’s admonition to State to keep the

questions general because no privileges have been waived, the State then

impermissibly asked Dr. Jenkins “is there a patient/doctor privilege between the

information that you know from your treatment of the defendant?” (T2 at 22) Dr.
Jenkins responded, “Yes.” (T2 at 22) The State asked “Who holds that privilege?

Who could waive that privilege?” (T2 at 22) Dr. Jenkins answered “The client.”

(T2 at 22) The State asked “So in order for you to talk about your treatment of the

defendant, that would have to be wavied by the defendant?” (T2 at 22) The

prosecutor answered “Yes.” (T2 at 22)

Dr. Jenkins testified to how often she met with the Ali and how Ali

contacted Dr. Jenkins. (T2 at 28) Specifically, Dr. Jenkins testified to a therapy

session in which Ali brought photographs to the session. (T2 at 28) Dr. Jenkins

told the jury about this meeting in detail, including that it “was the third session

that we had met after we had gone over the safety agreement and signed a safety

contract;” that Ali brought in photographs of “an up-close picture of a handgun

and bullets;” about the communications between Dr. Jenkins and Ali including

where Ali got the gun, how long Ali had had the gun, and how Ali concealed

owning the gun from Dr. Jenkins. (T2 at 29) Dr. Jenkins testified to Ali’s

disclosure about why she owned the gun, that she said she had it because she lived

by herself, that she was applying for a nursing job, that she would be working in

an unsafe area. (T2 at 29)