Judge Bars Statements Made in A.A.
by Daniel J. Wakin

August 02, 2001

A federal judge has ruled that conversations between members of Alcoholics Anonymous have the same sort of privilege as contacts between clerics and parishioners, and has overturned the conviction of a man who killed two people in Larchmont, N.Y., 13 years ago.

The judge, Charles Brieant of United States District Court in White Plains, cited previous cases in which courts had found that the authorities could not force prisoners or people on probation to attend A.A. meetings. Those courts ruled that such a requirement would violate the separation of church and state.

Since courts have found that A.A. is a religion for the purpose of church-state separation, the judge wrote, they must also hold that "disclosures of wrongs to fellow members as ordained by the 12 steps" of the A.A. program qualify as "a privilege granted to other religions similarly situated."

He ordered the release, once appeals are exhausted, of Paul Cox, who is serving a 16 2/3-year sentence for the 1988 killings of Dr. Shanta Chervu and her husband, Dr. Lakshman Rao Chervu.

The couple lived in the house that Mr. Cox, now 33, grew up in. He contended that he committed the killings while suffering from an alcoholic blackout.

One expert on confidentiality and the law, Paul N. Samuels, director of the Legal Action Center in New York, said it was the first case he knew of that extended confidential privileges to A.A. meetings, and a rare decision extending the religious privilege beyond a clergy member.

The case went unsolved for four years, until members of Mr. Cox's A.A. group-which he joined after the killings-came forward to say that he had told them he thought he might have committed the crimes. Several of those A.A. members testified at his trial.

The case, which received national attention, spoke to the fundamental tension that arises when the law crosses paths with private discussions. Although the rules of privilege vary from state to state, they generally apply to lawyer and client, cleric and penitent, husband and wife.

The rules have shifted somewhat. Some courts have extended privilege to parent and child under certain circumstances, and others have reduced it between spouses when one of them is guilty of a killing and someone else has been charged, said Jack Friedenthal, a law professor at George Washington University.

Judge Brieant's decision, which was released Tuesday, "just seems so bizarre," the professor said, "because A.A., as far as I know, is not a religious organization. You're certainly not confiding in someone for religious advice, or for spiritual forgiveness."

Legal experts said that the ruling, if it stands on appeal, would probably have little effect outside New York State.

The children of the Chervus reacted with anger.

"We're just revisiting this stuff over and over again," said Dr. Arun Chervu, the couple's son. "That's the real frustration. I guess the other part of it is, we feel that in many ways he already got away with a much lighter sentence than he deserved for killing two people."

The Westchester County district attorney, Jeanine F. Pirro, said she would appeal the decision.

"This is the first time I've heard in 25 years in law enforcement and on the bench that A.A. meetings are equivalent to a priest-penitent meeting or a psychiatrist-patient discussion," she said, noting that the State Legislature has not established a privilege for an A.A.-type program.

Further, Ms. Pirro pointed out that the conversations took place privately, outside of a meeting.

But that does not matter, said Mr. Cox's lawyer, Robert N. Isseks of Middletown, N.Y.

"The salient fact is that the statements were made within a religious context with the understanding that the communication would remain confidential," he said.

Mr. Isseks represented the clients in the two cases that Judge Brieant used to support his ruling.

In one, the United States Court of Appeals for the Second Circuit found that the Probation Department in Orange County, N.Y., could not force a man convicted of driving while intoxicated to attend A.A. meetings, because of the "religious nature of the 12 steps" in the program, as Judge Brieant put it.

In the other case, the New York State Court of Appeals held that the prison system could not force an inmate to follow the 12 steps as a condition of winning a privilege. Judge Brieant said it ruled that "adherence to the A.A. fellowship entails engagement in religious activity and religious proselytization."

Judge Brieant also found that by admitting the A.A. members' statements at Mr. Cox's trial, the trial court was effectively giving the program a lower status than religions in which the privilege existed, and thus violating the Constitution's equal-protection clause, Mr. Isseks said.