Plea to DA Eyster: Compel the Divorce Mediator to Talk

We believe it is urgent that Mendocino County District Attorney David Eyster subpoena Ukiah attorney and divorce mediator Norm Rosen so that he can talk freely about what happened in his office the day before Susan Keegan’s death.

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Note:  The Justice4Susan Committee gave Norm Rosen a courtesy call on October 3 to alert him to this blog post.  His comment: “I’ll wait to hear from Dave Eyster… if I do.”

DA Eyster, Mr. Rosen is waiting.

Norm Rosen was the mediator for Susan and Peter Keegan’s divorce settlement. On November 9, 2010, Peter “went ballistic” with rage in his office as financial terms were being discussed, according to what Susan told at least two friends.

One day after that meeting, Susan was dead.

Mr. Rosen has told law enforcement authorities, and family, that attorney/client privilege prohibits him from talking about the blow-up, or sharing any notes that he might have taken.  Confidentiality is a pillar of his profession, and we respect that.  But our reading of the law suggests he has an obligation to speak with the DA.

He may decline to come forward voluntarily, but Mr. Eyster has the authority to compel his testimony.

What the Courts Have Said

Mediation privilege is strongly protected in California, most recently in a 2011 state Supreme Court decision, Cassel v. Superior Court – but exceptions do exist.

California’s stringent standards focus on civil cases.  Most communication that occurs during a mediation is protected “in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding” (California Evidence Code, Section 1119).  Criminal proceedings are not included on that list.

When a crime is involved, the balance of concerns shifts.  For example, in a case involving juvenile vandalism (Rinaker v Superior Court), the California Court of Appeals decided in favor of a mediator’s obligation to testify, observing that the confidentiality provision of Section 1119 was not “designed to overcome the right to a fair trial.”  (all bold-face emphases added to the quotes). 

Likewise, in the Cassel decision on mediation privilege, the court stated that “judicially crafted exceptions are permitted only where due process is implicated.”

And, in a case relating to a California home foreclosure, where privilege is surely less urgent than for a homicide, the court indicated that “the need for the confidentiality protection” could “give way to significant competing public-policy concerns” (Olam v. Congress Mortgage Company).  In its analysis, the court acknowledged the potential harm “to the values that underlie the mediation privilege,” but concluded that the mediator’s testimony offered “a contribution of sufficient magnitude” and was “essential to doing justice.” 

The court also said “the most consequential testimony from the mediator would focus on how the plaintiff acted and the mediator’s perceptions of her physical, emotional, and mental condition” (analysis of Olam by Cassandra Franklin, Mediation’s Confidentiality Controversy).

Three legal precedents, then, suggest that the DA should require Rosen to talk about what happened that day in his office:  because his testimony could advance the cause of a fair trial; because a homicide victim is entitled to due process; and because prosecuting an unsolved homicide is obviously a competing public-policy concern.

Giving “Chai”

Norm Rosen and his wife, Karen, made a donation to the Ukiah Community Center Food Bank in Susan’s honor shortly after her death.  In line with Jewish custom, their contribution was a multiple of $18.  That is because every Hebrew letter has a numerical value – and chai, the Hebrew word for life, has a numerical value of 18.  “Giving chai,” in their tradition, is a good omen and a way to celebrate life in all its vitality.

It was a kind gesture, one that Susan would have appreciated.  But the DA can give Norm Rosen an opportunity to act with even more generosity on his recognition that life is sacrosanct – by compelling him to provide evidence.

The rage that Mr. Rosen saw in his office one day before Susan’s death is only one element in the case, and may or may not be pivotal.  But it demands to be heard.

Karyn Feiden conducted the legal research and consulted informally with other California attorneys to assemble this blog, on behalf of the Justice4Susan Committee.

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