Should therapist-client privilege have exceptions? Minnesota Supreme Court hears arguments

During a required therapy session for anger management, Jerry Expose Jr. threatened to seriously hurt a child protection worker if a future court case didn't go his way. He promised to break her back or to get somebody else to do it.

A therapist for the 46-year-old St. Paul man, believing she was ethically and legally bound to report the threat, notified the worker and police. The threats, which Expose assumed were made in a confidential setting, were admitted as evidence at his trial. He was convicted on a felony charge of making terroristic threats.

Last year, his conviction was reversed on appeal because Minnesota law doesn't recognize a "threats exception" to breaking the client-therapist confidentiality privilege.

But on Monday, the Ramsey County attorney's office continued its argument for Expose's conviction in front of the Minnesota Supreme Court, stressing that such an exception is necessary to protect people and punish those who make serious threats.

"This wasn't just somebody who was venting," said Thomas Ragatz, assistant county attorney. "... The therapist said she'd never seen anybody so angry."

The October 2012 therapy session took place as part of Expose's court-ordered therapy involving his child protection case. He was upset because his child protection worker had canceled a planned unsupervised visit with his children.

When he started making threats, the therapist told him she was a "mandated reporter," to which Expose replied, "I don't give a [expletive]!" She contacted her supervisor, who agreed that she should alert the child protection worker and police.

Before his trial in Ramsey County District Court in 2012, Expose wanted to prohibit the therapist from testifying that she had called the child protection worker and police. He contended that the therapist wasn't a licensed mental health professional and thus that the state's "duty-to-warn" statute didn't apply. The motion was denied and the district court concluded that his statements weren't protected as privileged because they contained threats of harm to another person.

At Monday's hearing, Ragatz reiterated several of the district court's rulings allowing the testimony, adding that Expose didn't object to its admission in a timely manner. He argued that the prosecution could have found somebody other than the therapist, such as the police officer, to testify about the threats. Expose knew his threats would come up in court, he said.

Assistant public defender Jenna Yauch-Erickson said Minnesota doesn't have a "threat exception" statute to therapist-client confidentiality laws and that the state Supreme Court doesn't have the authority to rule on the existing privilege law.

Justices David Stras and David Lillehaug asked why a third party couldn't have testified about the threats and if information can be used in court if somebody knowingly violates privilege.

Yauch-Erickson said third parties can't testify unless they were in the room with the psychologist and client when the statements in question were made.

During opening statements by Expose's attorney at his district court trial, Ragatz said the prosecution was surprised that the threats were mentioned. At that point, a hearing should have been held to determine if the therapist could testify, he said Monday.

In reversing Expose's conviction, the state Court of Appeals wrote that the Legislature intentionally excluded a "threats exception" from the privilege statute. "Expose didn't waive privilege," the appeals court said. "Without the therapist or worker's testimony, the jury likely would not have found him guilty."