Justices mull case involving mis-sent file

An attorney for the Utah Attorney General told the Utah Supreme Court Monday that a victim of a violent crime should not have to choose between keeping her mental health records confidential and seeking justice.

The high court heard arguments on a case in which the defense attorney for a man accused of sexually assaulting a 16-year-old girl inappropriately obtained the girl's mental health records with the intent to use them as evidence against her at trial.

The case has caught the attention of several national victim's rights organizations, who say the outcome of the case could have a profound impact on a victim's right to seek justice against their accused attacker.

"A victim should not have to choose between therapy and justice," said deputy attorney general Marian Decker.

At issue is whether Arthur Gonzales, who is serving time after a jury convicted him of attempted rape and forcible sodomy, has a right to use his alleged victim's mental health records against her to defend himself.

Gonzales' original defense attorney, Edward Montgomery, had sent a subpoena for the victim's counseling records to the University of Utah Neurophsychiatric Institute. Court records show that UUNI mistakenly sent the record to Montgomery, who did not notify the court or prosecutors that he had the privileged file.

Having read through the file, a district court judge ruled that Montgomery was "tainted" and a new defense attorney had to be found and that the counseling file would not be used as evidence.

Kent Hart, attorney for Gonzales, argued Monday that the mental health file had valuable evidence that Gonzales needed to defend himself at trial. Hart also argued that Gonzales should not be punished for his former attorney's actions and also argued that the district judge did not consider the evidentiary value of the file separate from how the file was obtained.

Decker countered that Montgomery had no business reading through the records, which are clearly protected under law. Had the attorney wanted to use the file, Decker said, he should have turned it over to the judge and filed a motion to introduce it as evidence, giving the victim a chance to have a chance to oppose the move.

Also, Decker pointed out that the file contained no recantation or anything that would contradict the girl's claim that she was assaulted. Tests by police found no physical evidence of the alleged abuse by Martinez.