The Government on Friday filed a motion with the Court seeking to subpoena the psychiatric records of Joe Nacchio’s son, David Nacchio. Joe Nacchio has asked the Court to reduce his sentencing guideline range due to the condition of an unspecified family member. The Government initially responded that other members of Nacchio’s family could provide for the distressed family member. Now the Government wants to review David Nacchio’s pyschiatric records. The motion, which I obtained from PACER, the court’s electronic filing system, states:

Defendant Nacchio has submitted two letters from David Nacchio’s psychiatrist, Harvey M. Hammer, M.D., P.A., that make allegations regarding David Nacchio’s condition. Defendant Nacchio has put his son’s medical condition in issue. The United States should be able to review David Nacchio’s entire medical file maintained by Dr. Hammer in order to be fully informed, and respond accordingly, to this position.

The Government states that Joe Nacchio has refused to voluntarily supply the records.

It is the understanding of the United States that counsel for Defendant Nacchio does not currently anticipate that Dr. Hammer will be present at the sentencing. However, if this is incorrect (i.e., if Dr. Hammer will testify), and to the extent that the requested materials include some statements of Dr. Hammer, the United States requests production of any such materials pursuant to Rule 26.2 in the alternative.

It seems like the Government wants to make sure Dr. Hammer won’t testify at the hearing. If Nacchio decides to call Dr. Hammer, the Government wants to argue it can’t effectively cross-examine him without first seeing his records. If Dr. Hammer doesn’t take the stand, the Government has very little to argue about. The Court can consider hearsay at sentencing so long as it is “accompanied by some minimal indicia of reliability.” The Tenth Circuit has ruled several times in recent years that a defendant has no constitutional right of cross-examination with respect to hearsay at a sentencing hearing. If the Defendant doesn’t have that right, why should the Government? I doubt Joe Nacchio, or any parent, would agree to turn their child’s privileged medical records over to the Government under these circumstances. What do you think about the Government asking for them?