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In an unusual murder case, a California judge has appointed a lawyer to represent a dead man in order to protect any privilege the murder victim has against disclosure of his psychiatric history. In an upscale suburb 30 miles east of San Francisco, housewife Susan Polk is accused of stabbing her 70-year-old psychologist husband to death in 2002. She insists she acted in self-defense. Central to her case is her husband Felix Polk’s psychiatric history, including Navy records that allegedly show he was hospitalized for a year in 1955 for schizophrenia and psychotic behavior, according to defense attorney Daniel Horowitz. People v. Polk, No. 05-031688-7 (Contra Costa Co., Calif., Super. Ct.). “I have never heard of a case of a judge appointing a lawyer for the missing privilege holder,” said Gerald Uelmen, law professor at Santa Clara University School of Law. California’s evidence code requires a judge to exclude information subject to a claim of privilege, even if the privilege holder is not present, Uelmen said. “I think there may be a question of whether the [psychiatrist-client] privilege exists once the person is deceased,” he said. Uelmen said he believes the judge is proceeding appropriately to appoint a lawyer for the dead man given the competing issues of privilege and the defendant’s constitutional due process and confrontation rights. ‘Our whole defense’ Contra Costa County Superior Court Judge Laurel Brady recently appointed attorney Lawrence Kaplan of Walnut Creek, Calif., to represent Felix Polk. She will have to decide whether the dead man’s records are privileged before the trial opens this week. “It is our whole defense,” Horowitz said. “The judge has got to decide before opening statements,” he said. Kaplan did not return several calls for comment, but outside the court after his appointment he told reporters, “Because I can’t consult with my client, I suppose I claim a privilege.” The quandary for the judge will be whether the murder case can survive if the privilege does not give way to the defendant’s constitutional rights. If the privilege applies and if it prevents a defendant from access to evidence, the case would have to be dismissed, Uelmen said. He noted that judges sometimes dismiss informant cases if the government refuses to supply informant identities to the defense. It is currently a central point in the Guant�namo Bay terror cases. The government won’t release details about the credibility of its informant sources, and the defendants argue that requires dismissal of charges. The Polk case pits Susan Polk against one of her three sons who is scheduled to be the prosecution’s star witness. Another son will testify on her behalf while a third has sued her for the wrongful death of his father. Polk, now 47, met Felix as a troubled 15-year-old who went to him for therapy. She has accused him of raping her at age 16. By the time she was 25 and he was 50, they married. Polk, in the midst of a bitter divorce, allegedly stabbed her husband 15 times in the guesthouse of their $2 million Orinda, Calif., home. She maintains that he attacked her with a knife and she wrestled the blade from him and stabbed him. She claims he was physically and emotionally abusive during the marriage. The prosecution has indicated the motive was greed. She did not call police the night of the stabbing; instead her son Gabriel, then 15, discovered his father’s body and called police. Deputy District Attorney Tom O’Connor did not return calls for comment.

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