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March 5, 1998

MICHAEL KAVANAUGH, Ulster County District Attorney; and KATHLEEN KEATING, Assistant District Attorney, Ulster County, Defendants.

The opinion of the court was delivered by: HURD



 Plaintiff, Dwayne Schwenk ("Schwenk" or "plaintiff"), brought this action pursuant to 42 U.S.C. § 1983. All federal and state law claims were dismissed except his due process claim under the Fourteenth Amendment. See Schwenk v. Kavanaugh, 1995 U.S. Dist. LEXIS 21901, No. 94-CV-773, Report-Recommendation (N.D.N.Y. Oct. 11, 1995)(Hurd, M.J.); Order (Aug. 8, 1996)(Scullin, D.J.). Familiarity with the prior decisions is assumed.

 The defendants are Michael Kavanaugh ("Kavanaugh"), the Ulster County District Attorney, and Kathleen Keating ("Keating") who was an Ulster County Assistant District Attorney at the time of the incidents leading to this action. Keating is now an Assistant District Attorney in Kings County. The defendants have denied the material allegations in the complaint. However, defendants did not allege qualified immunity as an affirmative defense, nor have they asserted qualified immunity in motions or submissions. Therefore, it will not be considered. See Gomez v. Toledo, 446 U.S. 635, 640, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Castro v. United States, 34 F.3d 106, 111 (2d Cir. 1994).


 A one day bench trial was conducted on September 30, 1997. The plaintiff was the only witness on his own behalf. The defendants were the only witnesses on their behalf. The parties entered into three fact stipulations, (Ct. Ex. 1,2,3), and also stipulated to the admission of a number of exhibits. In addition, the defendants failed to produce the Ulster County District Attorney's file concerning the criminal prosecution of the plaintiff. This file was "lost" while under defendants' control, and after defendants had produced it at a deposition but then refused to permit the plaintiff's attorney to examine it. The explanation given at trial for losing the file and failing to produce it was unsatisfactory. Therefore, an inference will be drawn that the missing file did, in fact, contain information adverse to the defendants. See Coates v. Johnson & Johnson, 756 F.2d 524, 552 (7th Cir. 1985); Knightsbridge Mktg. Servs., Inc. v. Promociones y Proyectos, S.A., 728 F.2d 572, 575 (1st Cir. 1984); Boyd v. Ozark Air Lines, Inc., 568 F.2d 50, 53 (8th Cir. 1977); Grace Line, Inc. v. Imperial Commodities Corp., 517 F.2d 404, 409 (2d Cir. 1975); Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975); Rosario v. Coughlin, 1995 U.S. Dist. LEXIS 1721, No. 88- CV-56, 1995 WL 57417, at *5 (N.D.N.Y. Feb. 8, 1995). In particular, the inferences will be drawn that the missing file would have shown that the records from Benedictine Hospital were delivered to the District Attorney's office; that Keating came into possession of the hospital records; and that she reviewed them prior to trial. These inferences are, of course, subject to rebuttal.

 Post trial briefs and supplemental proposed findings of fact and conclusions of law were filed on October 28-29, 1997. Based upon all of the evidence, including the credibility of the witnesses, stipulations, inferences, and exhibits, the following are the Findings of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52.


 During the fall of 1992, Schwenk was indicted by the Ulster County Grand Jury for the felony crime of burglary. The trial was scheduled in Ulster County Court for January 12, 1993.

 On November 30, 1992, the plaintiff was committed to the psychiatric wing of Benedictine Hospital located in Kingston, New York. He remained there until December 2, 1992. He was committed by members of the New York State Police as the result of excessive drinking and a suicide attempt. He was placed on "involuntary" status. During his three day stay at the hospital, he interacted with doctors, nurses, and counselors, and divulged intimate personal details of his life and the lives of other members of his family.

 Keating was directly in charge of prosecuting the criminal case against the plaintiff. When she learned about Schwenk's confinement at Benedictine Hospital, she decided to subpoena his hospital records on the chance that they might contain information which could be helpful to her direct case or to impeach the plaintiff in the event he testified in his own behalf. She caused a judicial subpoena duces tecum ("subpoena") to be prepared, (Pl.'s Ex. 1), obtained Kavanaugh's signature, and presented it to Ulster County Court Judge Francis T. Vogt. Judge Vogt "So Ordered" the subpoena. Keating had no conversation with Judge Vogt regarding her need for Schwenk's hospital records. Neither did she notify the plaintiff or his criminal defense attorney, Assistant Public Defender Paul L. Gruner ("Gruner"), that she was subpoenaing the hospital records. Judge Vogt did not hold a hearing or make a finding weighing the prosecution's need for the hospital records versus Schwenk's right to confidentiality.

 Keating then caused the subpoena to be served upon Benedictine Hospital. In response thereto, Benedictine Hospital delivered a certified copy of Schwenk's hospital records directly to the District Attorney's office. Based upon a review and evaluation of Keating's testimony, the inferences drawn from the Ulster County District Attorney's "lost" file regarding the criminal prosecution of Schwenk, and the entire record, the conclusion is reached that Keating did, in fact, review the hospital records prior to appearing in court for the start of the plaintiff's criminal trial on January 12, 1993. She came into the possession of detailed intimate, private knowledge and information about the plaintiff. There is no evidence that Kavanaugh reviewed the hospital records at any time.

 Neither the plaintiff nor his attorney raised mental capacity or mental disability of any type as a defense to the prosecution against him for burglary. Neither the plaintiff nor his attorney consented to the release of any of plaintiff's private medical or psychiatric records, or waived the right to keep those records confidential. Keating never asked for such consent.

 Schwenk was present only on the first day of the trial, and at some point Keating informed Gruner that she had subpoenaed the Benedictine Hospital records. He, in turn, advised Judge Vogt about the hospital records, and objected that it was improper for Keating to have them in her possession. Judge Vogt agreed, and ordered Keating to turn the Benedictine Hospital records over to plaintiff's defense ...

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