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Confessions at an Alcoholics Anonymous meeting that helped convict a man of manslaughter fall outside of New York’s cleric-congregant privilege because the statements were not made to obtain spiritual guidance, the 2nd U.S. Circuit Court of Appeals ruled Wednesday. Although the court reaffirmed its view that under some circumstances, AA is a religious organization for purposes of the First Amendment’s Establishment Clause, it found that convicted killer Paul Cox “spoke with fellow AA members primarily to unburden himself, to seek empathy and emotional support, and perhaps in some instances to seek practical guidance” such as legal advice. The 2nd Circuit’s ruling in Cox v. Miller, 01-2515, overturned a grant of habeas corpus by U.S. District Judge Charles L. Brieant, of the Southern District of New York. Wednesday’s decision means Cox will continue serving two consecutive prison terms of 8 1/3 to 25 years for the brutal stabbing deaths of a Larchmont couple in 1988. After an evening of binge drinking in 1988, Cox broke into his former home in Larchmont and, seizing a knife from the kitchen, walked up the stairs and killed Drs. Lakshman Rao Chervu and Shantu Chervu. Two years later he entered AA, and between 1991 and 1993, he confessed to at least seven AA members that he had killed the Chervus. Cox made those admissions as he moved to the fourth and fifth steps of the organization’s 12-step program. At that point in the program, members are called upon to make “a searching and fearless moral inventory” of themselves, and then to admit “to God, to [them]selves and to another human being the exact nature of [their] wrongs.” The crime came to light when a former roommate, acting on the advice of her psychiatrist, told police about Cox’s confession. Police immediately began interviewing other members of AA who had heard his confessions, and used that evidence to tie Cox to the crime with forensic evidence that included fingerprints. The statements of Cox’s fellow AA members were allowed to be introduced at Cox’s first trial, which ended with a hung jury, and at a second trial in 1994, in which Cox was convicted of second-degree murder, a charge that was reduced to manslaughter upon the jury’s finding that Cox had acted in a state of extreme emotional disturbance. After unsuccessfully appealing in the New York state courts, Cox petitioned for a writ of habeas corpus in federal court, claiming among other things that the statements were inadmissible under New York state’s cleric-congregant privilege, N.Y. CPLR � 4505. Brieant granted the writ, finding that Cox was convicted in violation of his rights under the First Amendment’s requirement that “Congress shall make no law respecting the establishment of religion.” Brieant found that New York could not exclude from the clergy-congregant protection statements made in the course of unconventional forms of “religious expression,” such as “the disclosure of wrongs to a fellow member [of AA] as ordained by the Twelve Steps.” And he reasoned that but for the statements to Cox’s fellow AA members, who testified under subpoena, the police would never have obtained the forensic evidence needed to convict Cox. On the appeal by Westchester County District Attorney Jeanine Pirro, the 2nd Circuit said that “even were the Establishment Clause to require that some communications between AA members in some circumstances be protected under New York’s cleric-congregant privilege, Cox’s communications here do not qualify for such protection.” Writing for the appeals court, Judge Robert D. Sack said that Cox’s statement to his roommate was made because he felt she should know about his background before they shared an apartment. And Sack said there was no basis in the record for concluding that Cox’s “multiple conversations” with an AA leader as he hesitated before moving on to the fourth and fifth steps of the program “had anything whatever to do with Cox’s desire for spiritual or religious guidance.” CONFIDENTIALITY IN QUESTION Sack noted that some self-help groups were outraged by the Cox conviction and saw it as a threat to the confidentiality of AA, which they contend is critical to the success of what the court has recognized as “a vastly worthwhile endeavor.” “But our role is not to decide the policy issues that underlie the State of New York’s legislative or judicial choice to adopt or reject such an evidentiary privilege — whether the confidentiality of AA, and the social values it may promote, outweigh the State’s interests in enforcing its criminal law and promoting the public’s right to every person’s evidence,” he said. Judge Barrington Parker Jr. and 8th Circuit Judge John R. Gibson, sitting by designation, joined in the opinion. First Deputy District Attorney Richard E. Weill and Assistant District Attorney Diane E. Selker represented the state. Robert N. Isseks and Alex Smith of Middletown represented Cox.

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