This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Joseph Donn Schneider,
Filed May 25, 2004
Anoka County District Court
File Nos. K2-02-4507
Mike Hatch, Attorney General, NCL Tower, Suite 1800, 445 Minnesota Court, St. Paul, MN 55101; and
Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113 (for appellant)
Considered and decided by Harten, Presiding Judge, Randall, Judge, and Klaphake, Judge.
This is an appeal from a pretrial order requiring both the prosecutor and defense counsel to review a five-year-old victim’s CHIPS and social services files to determine if there was any discoverable Brady material in them. The state argues that: (1) the district court abused its discretion in allowing defense counsel and the prosecutor to review files in which the court had previously found no exculpatory information; (2) the court clearly erred in concluding there was nothing in the files that should be treated as confidential; and (3) the defendant’s right to disclosure of exculpatory material does not include the right to unsupervised review of a confidential file. We affirm.
On May 13, 2002, respondent Joseph Donn Schneider was charged in Anoka County with one count of first-degree criminal sexual conduct and two counts of second-degree sexual misconduct. The alleged victim is respondent’s ex-wife’s daughter, who was five years old at the time of the alleged offense.
On September 9, 2002, through his first attorney, respondent filed a motion under Paradeeto review the victim’s confidential “school, therapist, medical and child protection records” for information that “relates to, or negates Schneider’s guilt.” Alternatively, defense counsel asked the court to conduct an in camera review of the records. Following the motion, respondent changed attorneys. The reason for the change is not in the record and not at issue in this appeal.
Over a year later on September 29, 2003, through his second attorney, respondent filed a “motion to discover additional record” including the CHIPS, social service, psychological, medical, and school records of the victim. Respondent’s second attorney alternatively requested that the district court conduct an in camera review of the records. Attached as an exhibit to defense counsel’s motion was a report summarizing the contents of a videotaped interview between the victim and a detective. The report indicated that the victim disclosed that a boy might have sexually abused her while she was in foster care.
Two weeks later on October 7, the parties appeared for a hearing on respondent’s motion to have the district court conduct an in camera review of the victim’s confidential files. During his argument to the court, defense counsel referenced the report that indicated a boy might have sexually abused the victim while she was in foster care. The district court agreed to conduct an in camera review of the court records, CHIPS records, and social services records for any evidence of fabrication, unconscious transference, and experimentation/suggestion.
At that hearing, the district court stated that the prosecutor had a duty to disclose Brady material to the defense. The prosecutor told the court that he did not review the CHIPS files and social service records for Brady material. The district court stated that the victim’s CHIPS and social services records were kept in the county attorney’s office, and the files were within the prosecutor’s possession or control and that the prosecutor had an obligation to review them for Brady material. The district court noted that it was dealing with a motion under Paradee, and not Brady material.
On October 8, the district court ordered the prosecutor to turn over to the court, for an in camera inspection, all of the county attorney’s files including CHIPS and social services files relating to the victim and her biological mother. On October 15, 2003, the county attorney’s office complied with the district court’s order and turned over the records. The files consisted of three volumes including several Anoka County Juvenile Court files, and one adoption file.
On October 22, the district court reconvened the hearing after conducting an in camera review of the files. After reviewing the files, the court determined that there was “nothing discoverable” in the files pursuant to defense counsel’s request. Respondent’s attorney responded by requesting that either the prosecutor or the district court review the files for Brady material. Defense counsel indicated that he wished to expand the scope of the search to include exculpatory material because the volume of the files was more than he anticipated. The district court stated that it had already gone through the files looking for information in three specific categories. The court also stated that it was the prosecutor’s duty and not the district court’s duty to review the files for Brady material.
After further discussion, the district court ordered the prosecutor to review the files for Brady material to be turned over to the defense. The prosecutor objected on the basis that it would be unethical to cross department boundaries to search through confidential files for Brady material. He also explained that the files contained information that has special statutory protections. The district court responded by telling the prosecutor that if he would not go through the files, it would “turn over the file [respondent’s attorney] and let the defense muck through it.” The court stated that “[i]t’s already caught my attention to the extent that I’m beginning to wonder whether I should disclose it. If I wonder whether I should disclose it, then I should disclose it.”
The district court then devised a “modified Paradee process” in which the court ordered the prosecutor and defense attorney to jointly review the files for Brady material. The court stated that “[d]uring this inquiry, the attorney for the Defendant shall have the opportunity to review the files and select materials it believes may or may not have exculpatory value, and then consult with the prosecuting attorney to determine whether or not it is agreed that such value exists.” The prosecutor argued that regardless of whether counsel reviewed the files separately or together there would still be a privacy breach. The district court reminded the parties that they were both officers of the court and would not be able to disclose the materials. The court determined that nothing would be copied for both parties until a hearing was held on the specific piece of evidence requested.
On October 27, the parties appeared and the prosecutor gave notice of the state’s intention to appeal the court’s pretrial order and sought a stay of the proceedings to perfect the appeal. At that hearing, the district court indicated that the files it reviewed were “essentially run-of-the-mill CHIPS and termination files.” The court stated that their disclosure was not “harmful to the victim or to the process of preserving confidential records” and there was nothing in the records that was “potentially embarrassing or highly confidential that should be withheld from the defense, specifically the defense attorney.” The court also noted:
[W]e won’t be facing this in the future because everything now in juvenile court in regards to CHIPS or termination files is a public record. So we are fighting about something that the statute has already -- or at least the Supreme Court -- has already changed and made accessible. Anybody can sit through the CHIPS trial or the termination trial. So it seems to me that in the spirit of discovery and access on the defendant’s part to vindicate his right to a fair trial, to have the attorney go through the file and then make arguments as to what is relevant or not would appropriate to do so, rather than hide this and seal this approximately 12-inches thick file from view.
That same day, the district court issued an order granting the state’s request for a stay of the proceedings and ordering that the pretrial order dated October 22, 2003 be stayed for five days. The state appeals.
1. Standard of Review
Historically, the state in a pretrial appeal must show that (1) the district court clearly and unequivocally erred and (2) that the error will have a critical impact on the trial’s outcome unless reversed. See State v. Joon Kyu Kim, 398 N.W.2d 544, 547 (Minn. 1987). The critical impact test originally applied to all pretrial suppression orders. See Joon Kyu Kim, 398 N.W.2d at 551 (noting history of the “critical impact” test and origin in statute requiring that suppressed evidence have a critical impact on prosecution). However, a logical exception has developed for the pretrial appeal of discovery orders because it may be impossible to show that the “discovery order” does or does not have a critical impact until the discovery is complete, meaning disclosed. See State v. Renneke, 563 N.W.2d 335, 337 (Minn. App. 1997). Thus, in this narrow area, appellate review is an abuse of discretion standard when reviewing pretrial discovery orders granting or denying discovery. See id.; see also State v. Cain, 427 N.W.2d 5, 9-10 (Minn. App. 1988); State v. Solheim, 477 N.W.2d 785, 786-87 (Minn. App. 1991). Early on, this court acknowledged the awkward use of the critical impact test to a pretrial discovery order like this one. See State v. Hunter, 349 N.W.2d 865, 867 (Minn. App. 1984). We have concluded that an abuse of discretion is the appropriate standard for appellate review of the state’s appeal of a pretrial discovery order.
2. District Court’s Order
The state argues that the district court abused its discretion by ordering the prosecutor and defense counsel to jointly review confidential files for Brady material. The state requests that this court reverse the district court’s order, and remand for the district court to conduct another in camera review of the confidential files. The state further requests that if the court finds any exculpatory evidence in the files, the court should disclose only those portions of the files to defense counsel.
In Brady v. Maryland, the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S. Ct. at 1196-97. The Brady rule is embodied in Minn. R. Crim. P. 9.01, subd. 1(6) (2002). See Hathaway, 379 N.W.2d at 506-07. Under the rule, the prosecutor must disclose evidence “that tends to negate or reduce the guilt of the accused as to the offense charged” in accordance with the due process demands expounded in Brady. Minn. R. Crim. P. 9.01, subd. 1(6). The state argues that in Pennsylvania v. Ritchie, the Supreme Court discussed the tension between protecting a defendant’s right to a fair trial and protecting confidential files of a sexual abuse victim. 480 U.S. 39, 57-58, 107 S. Ct. 989, 1001-02 (1987). In concluding that defense counsel was not entitled to full disclosure, the court in Ritchie concluded that the best way to balance these interests was to require the district court to review in camera the confidential files. Id. at 61, 107 S. Ct. at 1003. The Minnesota Supreme Court followed Ritchie in Paradee, 403 N.W.2d at 642.
After recognizing defense counsel’s concern that the files might contain potentially exculpatory information because the victim had disclosed that a boy sexually abused her while she was in foster care, the district court conducted an in camera review of the files under Paradee. The district court stated it reviewed the files for information relating to “fabrication, unconscious transference, and experimentation/suggestion,” and concluded the files did not contain such evidence. Defense counsel then asked the district court to review the files for Brady material or other exculpatory information to see if the victim had recanted her sexual abuse allegations. The district court declined to conduct yet one more in camera review of the files and ordered both the prosecutor and defense counsel to jointly review the files for Brady material, specifically pointing out that attorneys as officers of the court had an obligation not to inappropriately disseminate what should be held confidential.
The issue is whether the district court acted appropriately in response to defense counsel’s subsequent request to have the files further reviewed for Brady material. On these facts, the court properly balanced the victim’s privilege in keeping her confidences private and appellant’s interest in obtaining all relevant evidence. See Paradee, 403 N.W.2d at 642. Recognizing defense counsel’s concern that the files may contain information relating to whether the victim had recanted, and that it had not specifically reviewed the files for this information, the district court allowed both parties to review the files. The district court had a concern and was somewhat in doubt about whether the files contained exculpatory information for the defense. Requesting information about whether the alleged victim recanted is exculpatory information that, if provided, would outweigh the victim’s privacy interests.
The state argues that the district court erred by determining that nothing in the files should be treated as confidential. The district court concluded that there was “nothing discoverable” contained in the files and further opined that nothing in the files was “harmful to the victim or to the process of preserving confidential records.” The state did not make the files part of the record. Thus, we are unable to determine if the information contained in the files is confidential. See State v. Medibus-Helpmobile, Inc., 481 N.W.2d 86, 92 (Minn. App. 1992) (affirming denial of discovery of in camera materials in part because appellant failed to ensure their inclusion in record on appeal), review denied (Minn. Mar. 19, 1992). Even assuming the files are confidential, the district court properly balanced the respondent’s right to obtain exculpatory information and the victim’s privilege to keep confidential information private. The district court could have conducted yet another in camera review of the files by itself, but on these facts, we conclude the district court did not abuse its discretion in ordering the prosecutor and defense counsel to jointly review the files for Brady material.
HARTEN, Judge (concurring specially)
I concur with the result. In appropriate circumstances, it is a trial judge’s duty to solely conduct an in camera inspection of documents appropriate for a Brady review. This duty cannot be shared or delegated.
Under State v. Paradee, if defense counsel has reason to believe that potentially exculpatory or relevant evidence is contained in confidential files, the district court should obtain the requested documents and conduct an in camera review of the files to determine whether they are material and relevant to the defense of the charges. State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987).
 Minn. R. Crim. P. 9 et seq. sets out Minnesota’s broad discovery rules incumbent on the parties to abide by. In addition, Minn. R. Crim. P. 9.01, subd. 1(6), specifically codified the Supreme Court’s holding in Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963), mandating disclosure of all material evidence before trial. See State v. Hathaway, 379 N.W.2d 498, 506-07 (Minn. 1985). Rule 9.01 sets out the scope of the prosecutor’s obligation. A prosecutor cannot say, “well we looked at the evidence, it was not exculpatory, so we don’t have to disclose it.” What Brady emphasizes is the strict penalties on the state for failure to disclose exculpatory information. Nondisclosure of Brady material by the prosecutor calls for more severe sanctions than for other discovery violations.
 See Minn. Crim. P. 9.01, subd. 1(7) (stating the scope of the prosecutor’s obligation).