|
Robert Diaz had always
proclaimed to want to be a doctor. He eventually settled for nursing.
This apparently wasn't a powerful enough position for Diaz. In April of
1981 an anonymous call was placed to the San Bernadino County coroner
claiming that Diaz had possibly killed as many as 19 persons at a
hospital in Perris, California. An investigation was immediately begun
and it wasn't long before it was obvious that Diaz was responsible for
the deaths.
Diaz had been the nurse on
duty when all the patients died, which was only a 12 day period. He
repeatedly predicted the time that some patients would die, almost
precisely. He was even witnessed giving some of the same patients
injections prior to their death. Medical records of some of the
intensive care patients were missing, and Diaz had access to these
records. He worked just one night at San Gregorio Pass Hospital but a
patient had died there that night under the same circumstances as the
victims in the Perris Community Hospital.
Diaz was arrested in
November of 1981 and charged with the deaths of twelve patients. His
trial did not take place until March 1984. Samples taken from exhumed
bodies showed overdoses of the drug Lidocaine, which was also found in
Diaz' home along with syringes and quantities of morphine. He was easily
convicted on March 29, 1984 and sentenced to die.
Robert Rubane Diaz
(born 1938), also known as David Robert Diaz, is an American nurse who
was sentenced to death in 1984 for the murders of 12 hospital patients.
He is currently still on death row.
Early
years
Robert Rubane Diaz was born in 1938 and raised in the
Midwest. One of 13 children, he was ill often as
a child, which kept him out of school. Unable to finish school, he
dropped out after completing 10 grades and joined the United States
Marine Corps at age 18. After going AWOL for six weeks, he was
discharged due to his inability to acclimate to military life.
Adulthood
Pursuing his childhood dream of working in the
medical field, Diaz joined a vocational nursing program and insisted
that his relatives call him "Dr. Diaz". He also
believed that he was an Egyptian mystic who had been a member of royalty
in a former life.
He was married in 1961 and divorced in 1972.
Crimes
In early 1981, Community Hospital of
the Valleys in Perris, California experienced an abnormally large number
of deaths among its most elderly patients. To gather evidence, the
coroner exhumed or intercepted all the patients who had recently died
and he collected tissue samples from them. The coroner found that 11
patients had a supposedly lethal level of the heart drug lidocaine in
their system. Investigators focused on Diaz, a male nurse, who worked at
the hospital during many of the deaths. They also investigated his
previous employment and came up with a 12th patient from another
hospital whose exhumed body showed a supposedly lethal level of
lidocaine.
High levels of lidocaine were not necessarily
indicative of poisoning, as hospital staff often used the drug on its
patients. There was no direct evidence against Diaz. No one had seen him
inject a patient with a fatal dose of anything. He had no apparent
motive to kill anyone. A syringe filled with an especially high solution
of lidocaine was found hidden in the Valleys hospital seven months after
it closed.
Following his arrest, numerous pre-filled lidocaine
syringes were found in Diaz’ home. At least two of these syringes
contained 20 percent solutions of lidocaine while marked as two percent
(i.e. 10 times the concentration marked). Also found in his home were
vials of 20 percent lidocaine and empty syringes, implying that syringes
were being refilled with higher concentration than their labels
indicated. Diaz explained only that these articles were mistakenly taken
from the hospital when absent mindedly left in his shirt pocket. No
explanation was given for the apparent tampering.
Diaz claimed the ability to predict patient seizures
and encouraged coworkers to take meals/breaks early in anticipation of
seizures that shift. In at least one case the predicted seizures did
occur. According to his wife, Diaz also spent time staring at the family
cat trying to control it with his mind.
Investigators from the public defender’s office found
that the hospital’s care was lax. Employees were
often unable to read heart monitors and other basic equipment. Doctors
often failed to respond to emergencies. During the deaths Diaz
reportedly blamed the doctors who showed up late.
It was not unusual for Code Blue
alerts to occur nightly and these were not limited to Diaz’ employment
tenure. However it was noted during the trial that the death rate at
Community Hospital of the Valleys was less than one per month during the
12 months prior to hiring Diaz. During the 3 ˝ weeks following Diaz’
employment there were 17 deaths; 14 of these patients were under Diaz’s
direct care at the time of seizure and death. This is a monthly death
rate of 19.43 per month.
Following standard procedures, Diaz’ defense would be
extraordinarily costly to the cash strapped public defender’s office. A
new administrator fired all the investigators and implemented a budget
defense for Diaz. At trial, Diaz’ defense
motioned for a bench trial.
The judge convicted Diaz of 12 counts of first-degree
murder. At sentencing the defense failed to present a single character
witness; his five children and his wife did not make an appeal. Diaz’s
wife believes her husband was responsible based on the evidence
presented as well as her personal experiences with him. Initially,
however, she supported her husband. The defense’s short plea for mercy
was that Diaz had saved the state a considerable amount of money. The
judge was not impressed and sentenced Diaz to die by either the gas
chamber or lethal injection.
Diaz has since exhausted his state appeals, but in
1998 a federal judge granted him an evidentiary hearing. As of 2007,
Diaz remains on death row at San Quentin State Prison.
Supreme Court
Decision
The trial became a constitutional test case heard by
the United States Supreme Court when The Press Enterprise newspaper, of
Riverside, California, was denied their request for the transcripts of
pretrial hearings. The case, Press-Enterprise Co. v. Superior Court
of Riverside County, California, was won by the newspaper in 1986.
At the beginning of the trial Diaz had requested that
the public be excluded from preliminary hearings. The Magistrate granted
the unopposed request because of the national attention that the case
had garnered. At the end of the hearings the Press-Enterprise requested
that the transcripts be released, but the request was denied and the
records were sealed. The United States Supreme Court decided that the
public has the right to witness pretrial hearings in criminal cases,
including preliminary hearings.
Wikipedia.org
'Angel of Death' dies in prison
By Richard K. De Atley - The Press-Enterprise
August 11, 2010
Robert R. Diaz, the "Angel of Death" nurse convicted
of killing a dozen of his patients in Riverside County, died of natural
causes Wednesday, 26 years after he was sent to San Quentin's Death Row.
He was 72.
Mr. Diaz died at a community hospital near the prison,
California Department of Corrections and Rehabilitation spokeswoman
Terry Thornton said. He had a lengthy illness. No other details were
released.
In an era of bizarre serial killing cases in
California, Mr. Diaz's was one of the most unusual. His victims, ages 52
to 95, all had to be exhumed; he shunned a jury trial on his attorney's
advice; and a challenge to his closed-to-the-public preliminary hearing
resulted in a major First Amendment decision by the Supreme Court.
Patrick Magers, a retired Riverside County Superior
Court judge who was the prosecutor in Diaz's case, said the case began
when officials at what was then Community Hospital of the Valley in
Perris had a cluster of patient deaths in 1981.
"They realized something was very, very, very wrong,"
Magers said. The officials contacted the coroner's office, which in turn
talked to the district attorney's office. The investigation grew to
other care facilities. Eventually 38 bodies were exhumed.
Tissue from the bodies was sent to a lab in Utah,
which worked on analyzing the samples for three months, Magers recalled.
The conclusion was 12 of the patients died from a
huge overdose of the drug lidocaine, a heart muscle relaxant. And
further investigation showed that the nurse on duty when each of the
patients died was Robert Rubane Diaz, Magers said.
"We are not talking about a therapeutic misadventure,"
Magers recalled in a phone call interview from Florida. "We are talking
about a huge amount of lidocaine -- 1,000 to 2,000 milligrams. The
average dose is 100 milligrams. So the victims received one injection
that was 10 to 20 times higher than any injection should have been."
The Trial
Diaz was charged with killing 12 patients, 11 from
Community Hospital and one from San Gorgonio Pass Memorial Hospital in
Banning. Magers said a 13th victim who died in a San Bernardino hospital
when Mr. Diaz was in attendance was used in the trial to establish a
pattern in the slayings, but was not charged as a murder.
Mr. Diaz testified at the trial.
"I cross-examined him for two days at trial and he
denied any wrongdoing," Magers recalled. "He testified he gave the
proper medication to his patients and had no explanation of how or why
they had massive doses of lidocaine injected into their systems."
Mr. Diaz was convicted by Judge John Hawkins Barnard,
who sentenced him to death. After Barnard died in 2006, his wife said
the jurist spent a week taking walks along the beach and pondering the
sentence before handing it down.
"I can't tell you how many thousands of hours we put
into that case," said Magers, who led the investigation leading up to
the prosecution. Because of the case's unusual origin, all the inquiry
was done by district attorney and coroner's investigators, he recalled.
Mr. Diaz's conviction and sentence was upheld by the
California Supreme Court. He claimed the case against him was largely
circumstantial and that he was given bad advice by his public defender
attorney to have a non-jury hearing.
Since California reinstated the death penalty in
1978, 51 death-row inmates have died from natural causes, 17 committed
suicide, 13 were executed in California and one was executed in
Missouri. Five have died from other causes and one cause of death is
pending. Of the 706 inmates on death row, 68 are from Riverside County.
Landmark case
Mr. Diaz's preliminary hearing was closed to the
public. Magers said he was concerned about publicity leading to a
successful change of venue motion.
The Press-Enterprise newspaper filed a lawsuit
challenging the shutdown of the 41-day hearing. The sealed transcript of
the hearing was eventually released, but the Supreme Court said the
issue still had merit for review.
In what became a landmark ruling, U.S. Supreme Court
Chief Justice Warren Burger ruled in a 7-2 decision in 1986 that those
who seek to close courtrooms or deny the public and press access to the
criminal justice system must meet a high standard to overcome the
presumption of openness.
"It was a very important case," said retired Press-Enterprise
managing editor Mel Opotowsky on Wednesday. "It said for any criminal
proceedings, even if it wasn't a trial, the public had a constitutional
right to be there, and to override that a judge had to have substantial
evidence that it could cause harm to the defendant. It's been cited
hundreds of times over the years."
The case is known as Press-Enterprise II, the numeric
reference to Press-Enterprise I, another key U.S. Supreme Court case won
by the paper in 1984 that allowed public access to examination of
potential jurors.
Information released Wednesday gave no survivors or
other background about Mr. Diaz.
A 2007 New York Times Magazine article identified a
son, Matthew Diaz, and said Matthew also had an older sister and two
younger brothers who were Robert Diaz's children.
The article said Matthew Diaz, while a lieutenant
commander in the United States Navy, was convicted and imprisoned for
insubordination when in 2005 he surreptitiously handed over to the
Center for Constitutional Rights the names and prison serial numbers for
551 men who were then being held by the United States at Guantanamo Bay.
Diaz, Robert R.
One of thirteen children, born and raised in the Midwest, Robert Diaz was frequently ill during childhood, completing only ten years of formal education.
He joined the Marine Corps at age eighteen, then went AWOL for six weeks and was discharged soon after his return to duty.
Married in Jacksonville, Florida, during 1961, he was divorced in 1972. By that time, Diaz had decided to act on his long-standing desire for a medical career, and after the divorce he enrolled in a school for vocational nurses. At family gatherings thereafter, he insisted that the children introduce him to their friends as ''Dr. Diaz."
By early 1981, Diaz was working his way through a series of temporary nursing jobs in several Southern California hospitals.
Coincidentally administrators noted that their older patients had begun to die in record numbers; by the end of April, there were 30 suspicious deaths on file in Los Angeles County, with an equal number spread over Riverside and San Bernadino Counties.
Autopsies revealed high levels of lidocaine -- a drug used to control irregular heartbeats -- in most of the corpses. While normal readings should have indicated 50 to 100 milligrams of lidocaine, the recent dead showed levels of 1,000 milligrams and more -- enough to bring on cardiac arrests instead of saving lives.
A search for common links between the victims demonstrated that a single nurse -- Diaz -- had worked at each and every institution where abnormal death rates, were recorded.
Attention focused on Diaz after the death of Estel Jones, age 62, at Chino Community Hospital. First ascribed to "natural causes," her death was later ruled a homicide, and officers began examining the high mortality rate on Diaz's graveyard shift.
A search of the suspect's home turned up bottles of lidocaine, but charges of illegal drug possession were later dismissed. Diaz fired back with multimillion-dollar lawsuits charging defamation of character and civil rights violations, but skeptical judges dismissed each in turn.
The investigation rolled on, detectives examining fifty deaths, finally narrowing their sights to a dozen where evidence seemed incontrovertible.
On November 24, 1981, Robert Diaz was arrested on twelve counts of first-degree murder: eleven victims, ranging in age from 52 to 89, were killed at Community Hospital of the Valleys, in Perris, California, between March 30 and April 22, 1981; the twelfth, a 79-year-old man, died of a lidocaine overdose at San Gorgonio Pass Memorial Hospital, in Banning, on April 25.
Diaz entered his formal plea, innocent on all counts, at the end of September 1982.
His trial was scheduled to open in March 1983, but various postponements delayed the event until Halloween. Waiving his right to a jury trial, Diaz placed his fate in the hands of a judge, who convicted him on all counts on March 29, 1984.
Two weeks later, on April 11, Diaz was sentenced to die in the gas chamber at San Quentin.
Michael Newton - An Encyclopedia of
Modern Serial Killers - Hunting Humans
Robert Diaz
Coronary-care nurse Robert
Diaz was accused of killing 12 elderly patients with lethal doses of a
heart drug in March and April of 1981. In 1984, he was convicted of
murdering 11 patients at the Community Hospital of the Valleys in
Perris, Calif., and one patient at San Gorgonio Pass Memorial Hospital
in Banning, Calif. He received the death penalty and is on death row at
San Quentin. He
maintains he is innocent.
Nurse sentenced to
die in slayings
The New York Times
April 12, 1984
A nurse convicted of killing 12 elderly
patients with overdoses of a heart-regulating drug was sentenced today
to die in the gas chamber.
The coronary care nurse, Robert Rubane Diaz,
46 years old, received the sentence from Judge John H. Barnard of
Superior Court with little show of emotion.
On March 29, Judge Barnard found Mr. Diaz
guilty of the killings at two Riverside County hospitals in 1981. The
verdict ended a five-month nonjury trial in which prosecutors asserted
that Mr. Diaz had murdered elderly patients in his care by injecting
them with lidocaine, a powerful drug used to control irregular
heartbeats.
Judge Barnard based the sentence on a
finding of special circumstances under a state multiple-murder rule.
Mr. Diaz was arrested Nov. 23, 1981, after
an investigation into the mysterious deaths of several elderly patients
at the Community Hospital of the Valleys in Perris and the San Gorgonio
Pass Memorial Hospital in Banning. Eleven of the 12 deaths occurred at
the Perris facility in March and April 1981.
Autopsies Determined Cause
Investigators determined through autopsies
that the patients were homicide victims and that the bodies contained
more than 1,000 milligrams of lidocaine at the time of death. A normal
dose ranges from 50 to 100 milligrams.
Prosecuting attorneys had argued that Mr.
Diaz, who worked as a temporary nurse on the night shifts at both
hospitals, was the only link between the two facilities' intensive care
units at the time.
''We feel justice was served,'' said Patrick
Magers, a Deputy District Attorney who prosecuted the case, in which the
state never established a motive. ''How many lives can you take without
facing the penalty of losing your own? He was placed in a position of
trust, and violated it in the most appalling way.''
The sentence will automatically be appealed
to the State Supreme Court, and Mr. Diaz's attorneys plan to file a
motion for a new trial. ''I wasn't surprised by the verdict, and I don't
think Mr. Diaz was either,'' said Michael Lewis, a public defender. ''We
had hoped for better. I think he had already reconciled himself to the
outcome.''
Diaz Had Predicted Trouble
At the trial, defense attorneys sought to
support Mr. Diaz's assertions that he was not guilty by arguing that the
buildup of lidocaine in the patients' systems could have been brought
about by therapeutic doses administered over a period of time. John L.
Lee, the chief defense attorney, and Mr. Lewis asserted there was no
evidence the drug had been administered all at once.
But testimony given by nurses who were on
duty at the time of the deaths indicated that Mr. Diaz had predicted
some of the victims would have problems shortly before they began
exhibiting lidocaine-overdose symptoms, which included dizziness,
violent seizures and blueness in the face and extremities.
Lynn Race, a critical-care nurse at the
Perris hospital, testified Mr. Diaz had foreseen patients' sudden
medical problems and had carried medical syringes and vials in his
pockets, a violation of hospital procedure.
The original investigation in the case had
been based on the unusual pattern of deaths among elderly patients in
Los Angeles, Orange and Riverside Counties. Investigators said as many
as 50 patients might have been involved, but said evidence allowed them
to formally charge Mr. Diaz in the deaths of 12.
SEX:
M RACE: H TYPE: T MOTIVE: PC
MO: Male nurse; killed patients
age 52-89 by injection.
DISPOSITION: Condemned on 12
counts, 1984.
New York Court of
Appeals
82 N.Y.2d 211, 624 N.E.2d 156, 604 N.Y.S.2d 28 (1993).
IN THE MATTER OF ROBERT RUBANE
DIAZ, APPELLANT,
v.
LESLIE LUKASH, &C., RESPONDENT.
November 16, 1993
KAYE, CHIEF JUDGE:
On this appeal, we must decide whether petitioner, an
inmate on California's death row, has a "substantial interest" in
certain records of the Nassau County Medical Examiner, so that he may
inspect them. We conclude that the Appellate Division applied an
erroneous legal standard and that in the circumstances presented,
petitioner does have a substantial interest, as a matter of law, in at
least some of the requested records. Accordingly, we reverse dismissal
of the petition and remit for further proceedings.
I.
In March 1981, Robert Rubane Diaz, a registered
nurse, began work on the night shift in the intensive care unit (ICU) of
a community hospital in California. In the next three and one-half weeks,
at least 13 patients on the night shift suffered violent seizures, which
were generally followed by cardiac and respiratory arrest. Nine of these
patients died. Following closure of the ICU at that hospital, Diaz began
work at a different hospital and within three days, while he was on duty,
another patient, displaying the same symptoms, died. Diaz was thereafter
arrested and charged with killing a total of 12 patients by injecting
them with massive doses of lidocaine, a drug commonly used to control
rhythm disturbances in the heart (People v Diaz, 834 P2d 1171,
1176 [Cal 1992], cert denied ___ US ___, 113 S Ct 1356 [1993]). Diaz
waived a jury trial, and after a bench trial was convicted and sentenced
to death.
At trial, experts testifying for the prosecution
relied largely on three types of evidence to conclude that each of the
12 patients--at least 11 of whom received therapeutic doses of lidocaine-
-died of a massive overdose: first, the concentration of lidocaine in
their body tissue upon autopsy; second, the evidence of seizures; and
third, electrocardiograph (EKG) readings (834 P2d at 1185-1187). On
appeal to the California Supreme Court, Diaz attacked the sufficiency of
this evidence. Although concluding that there was sufficient evidence to
support the trial court's finding that someone had administered large
overdoses of lidocaine to the patients (834 P2d at 1188), the court's
opinion suggests that the evidence was not beyond dispute.
As the court noted, for example: "Although
recorded cases involving massive overdoses of lidocaine are rare,
prosecution experts, after reading the scanty literature on the subject,
concluded that these [seizure] symptoms * * * would be the most likely
response to a massive overdose of lidocaine." And responding to Diaz's
argument that the EKG readings were inconclusive: "although the
possibility of other causes may reduce the weight to be attached to the
evidence that the patients had broad QRS complexes [on their EKGs], this
evidence was one link in the circumstantial chain of evidence that the
patients died from overdoses of lidocaine, and was properly relied upon
by the prosecution experts." (834 P2d at 1187.)
The lidocaine concentration in the patients' body
tissues was thus important evidence of causation, but the significance
of that evidence, too, "was hotly contested at trial" (834 P2d at 1187).
Following Diaz's conviction, his appellate counsel
learned of an unpublished doctoral dissertation titled "Lidocaine
Toxicity," authored in 1981 by W. Christopher Long, a graduate student
at St. John's University. Long was at the time a toxicologist with the
Nassau County Medical Examiner's office, and based his dissertation on
measurements of lidocaine found in brain tissue of more than 140
decedents autopsied between 1976 and 1981. Twenty-four had brain tissue
concentrations of 20 mcg./gram or greater--an amount (according to the
petition) the prosecution had claimed at trial was indicative of a
lethal dose. Thus, Diaz argues, either these 24 were also victims of
lethal doses of lidocaine or the prosecution expert testimony was
seriously flawed.
Because the Long dissertation identified patients not
by name but only by Nassau County Medical Examiner case number, in the
present petition Diaz seeks access to the Medical Examiner's records to
help establish his factual innocence. After reviewing the records to
determine the identity and hospital of each decedent, Diaz's
representatives will then attempt to obtain the decedents' hospital
records to learn the exact dose of lidocaine administered and other
variables such as the patient's clinical condition and weight. After his
experts (including Long) synthesize the information in the dissertation,
autopsy reports and hospital records, Diaz intends to seek post-conviction
relief on the ground that "newly-discovered evidence" establishes no
murders occurred.
The petition before us, brought under
County Law § 677(3)(b) and CPLR article 4, involves only the Medical
Examiner's records. (We express no view on the availability of hospital
records.) In this litigation Diaz has disavowed any interest in the
decedents' names, expressing willingness to accept redacted records and
suggesting that disclosure can be coordinated with the hospitals in such
a way that he will never learn the patients' identities. Moreover,
apparently recognizing the substantial administrative burden his request
entails, Diaz has also offered to pay for the costs associated with
searching for, redacting and copying the records.
Supreme Court dismissed the petition, concluding that
Diaz had "not demonstrated that his interest in the records is
sufficiently substantial to overcome the general need to maintain the
confidentiality of the records of the Medical Examiner." The Appellate
Division affirmed, noting that Diaz had "no direct and personal interest
with respect to the individuals whose records he seeks" and that
disclosure would undermine "the legislative concern for confidentiality,
as reflected in the statute." (__ AD2d ___). We granted Diaz's motion
for leave to appeal, and now reverse.
II.
With reference to autopsy reports, County Law § 677
(3)(b) provides:
Such records shall be open to inspection by the
district attorney of the county. Upon application of the personal
representative, spouse or next of kin of the deceased to the coroner
or medical examiner, a copy of the autopsy report, as described in
subdivision two of this section shall be furnished to such applicant.
Upon proper application of any person who is or may be affected in a
civil or criminal action by the contents of the record of any
investigation, or upon application of any person having a substantial
interest therein, an order may be made by a court of record, or by a
justice of the supreme court, that the record of that investigation be
made available for his inspection, or that a transcript thereof be
furnished to him, or both (emphasis added).
The statute thus identifies four
categories of persons who may obtain access to autopsy reports. The
district attorney and close relatives of the decedent may obtain records
as of right, while persons who "may be affected in a civil or criminal
action" or anyone else with a "substantial interest" in the records,
must make judicial application. Diaz seeks release of the records as
someone with a "substantial interest" in them.
The legal question before us is whether an applicant
under that provision must have a "direct and personal interest" in the
autopsy reports, as suggested by the Appellate Division, and if not,
whether the circumstances presented establish a substantial interest as
a matter of law.
By creating a residual category of persons who may
receive autopsy reports--anyone who can demonstrate a "substantial
interest" in the records--it is plain that the Legislature did not
intend to limit access only to the three enumerated classes of persons,
or to persons who have a direct and personal interest in the records.
Instead, the Legislature left open the possibility that a broader range
of persons might obtain records, so long a judicial officer is satisfied
that the applicant's interest in the records is "substantial"--itself a
flexible term. Thus, we agree with Diaz that the Appellate Division
applied an erroneous legal standard.
In determining whether a substantial interest has
been shown, a court should consider, among other things, the reason the
records are sought, the importance of that reason, and the availability
of the information from other sources. Assuming the applicant's interest
in the records is substantial, the court may then consider other factors--for
example, confidentiality concerns--as part of its discretionary power
under the statute.
This two-step analytical framework is reflected in
Central General Hosp. v Lukash (140 AD2d 114, affd for reasons
stated 74 NY2d 619), the only case in which this Court considered the "substantial
interest" requirement. There, a hospital sought autopsy reports for 17
deceased patients who were transferred to the Medical Examiner for
autopsy. Because the attending physician in each case could not
determine the cause of death, the hospital sought the autopsy reports to
further the education of its staff. The Appellate Division, and this
Court on appeal, agreed that this was a "substantial interest" within
the statute:
The educational value of autopsy
findings is well recognized in the field of medicine. The results of
an autopsy can confirm or disprove the diagnosis of the attending
physician and place that physician in a better position to treat
patients with the same or similar illnesses in the future. Indeed, it
would not be overly dramatic to surmise that the information obtained
could save the life of another patient. It is, therefore, logical and
reasonable to hold that the hospital's concern for furthering the
education of its staff is a "substantial interest" within the meaning
of County Law § 677 (3)(b) (140 AD2d at 116).
After determining that a substantial interest was
established, the court then considered whether there were "any
countervailing concerns militating against granting the petitioner's
application" (178 AD2d at 117), and determined that privacy was not
implicated because the hospital was required to keep all information
confidential except in certain circumstances.
In the present case, Diaz argues that the records
will help him establish that no murders in fact occurred. There is a
serious question whether Long's dissertation and the follow-up
information sought constitutes the type of "newly discovered evidence"
that will be considered on Diaz's applications for post-conviction
relief. Manifestly, if the "evidence" is unusable in vacating the death
sentence, Diaz would have no interest in the records within the meaning
of the statute.
While we might be justified in denying the petition
on that ground, or remitting for briefing and consideration of the
question, in this unusual case we decline to do so. It is unwise to
embroil the Nassau County Medical Examiner and the courts of this State
in collateral litigation of an issue that may be central in the
California State and Federal courts. Moreover, the willingness of the
California courts to consider the evidence may turn on what is in fact
uncovered.
Consequently, in the unique circumstances of this
case it is our view that Diaz has established the requisite substantial
interest in the Medical Examiner's records. These records may enable
Diaz to show that he was convicted and sentenced to death for murders
that did not occur. This asserted interest is at least on a par with the
"staff education" identified in Central General (supra). Moreover,
the Long study appears to be the only instance where lidocaine
concentrations in human tissue were studied on such a large scale, and
thus the potentially valuable information is unavailable elsewhere.
It is unclear, however, whether Diaz has a
substantial interest in all of the cases considered by Long. Indeed,
many of the decedents in Long's report had minimal levels of lidocaine.
On remittal, Supreme Court may consider this question. The court may
also, in the exercise of discretion, fashion an appropriate order to
balance any privacy concerns and Diaz's interest in the records, and may
wish to consider Diaz's offer to defray redaction and production
expenses.
Accordingly, the order of the Appellate Division
should be reversed, with costs, and the case remitted to Supreme Court,
Nassau County, for further proceedings in accordance with this Opinion.
*****
Order reversed, with costs, and matter remitted to
Supreme Court, Nassau County, for further proceedings in accordance with
the opinion herein. Opinion by Chief Judge Kaye. Judges Simons, Titone,
Hancock, Bellacosa, Smith and Levine concur.
|
