       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                             September 2016 Term                       FILED
                               _______________                     November 2, 2016
                                                                        released at 3:00 p.m.
                                 No. 16-0439                          RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
                               _______________                           OF WEST VIRGINIA



                    STATE OF WEST VIRGINIA EX REL.

                       RALPH A. LORENZETTI, JR.,

                               Petitioner


                                        v.

                THE HONORABLE DAVID H. SANDERS, and

                          MICHAEL W.F.,

                           Respondents


      ____________________________________________________________

                        Petition for Writ of Prohibition

                                WRIT DENIED

      ____________________________________________________________

                          Submitted: October 12, 2016
                            Filed: November 2, 2016

Brandon H. Sims, Esq.                        Tracy Weese, Esq.
Assistant Prosecutor                         Shepherdstown, West Virginia
Jefferson County Prosecuting Attorney        Counsel for Respondent, Michael W.F.
Charles Town, West Virginia
Counsel for the Petitioner


CHIEF JUSTICE KETCHUM delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



               1.     “There are three components of a constitutional due process

violation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),

and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue

must be favorable to the defendant as exculpatory or impeachment evidence; (2) the

evidence must have been suppressed by the State, either willfully or inadvertently; and

(3) the evidence must have been material, i.e., it must have prejudiced the defense at

trial.” Syl. Pt. 2, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).

               2.     Before allowing a defendant to review records concerning a child

that are confidential under West Virginia Code Section 49-5-101 [2015] but may contain

exculpatory or impeachment evidence which is material to the defense, the circuit court

should conduct an in camera review of the records to determine whether and to what

extent they will be disclosed to the defense under Brady v. Maryland, 373 U.S. 83 (1963).

In conducting its in camera review, the circuit court must balance the Defendant’s

interest in a fair trial with the State’s interest in protecting a child’s confidentiality and

determine whether an order limiting the examination and use of the records is necessary

for the child’s safety.




                                              i
Chief Justice Ketchum:


              Petitioner, the prosecuting attorney for Jefferson County (“the Prosecutor”),

seeks a writ of prohibition to halt enforcement of an April 29, 2016, order by the Circuit

Court of Jefferson County. The circuit court’s order concerns files in the Prosecutor’s

possession, but maintained by the Department of Health and Human Resources (DHHR),

regarding a child who alleges she was sexually abused by a criminal defendant. The

circuit court reviewed these files in camera, and it determined they contained exculpatory

information which is material to the defense, and therefore, the Defendant (through his

lawyer) had a constitutional right to review the files.

              The Prosecutor asserts the circuit court erred by finding the Defendant had

a constitutional right to review the DHHR’s files on the alleged child victim. Moreover,

the Prosecutor contends that files maintained by the DHHR concerning children are

confidential under West Virginia law.

              Upon review, we find no error. The circuit court, after an in camera

review, correctly found that the Defendant (through his lawyer) has a constitutional right

to review the DHHR’s files on the alleged child victim because they contain exculpatory

information which is material to the defense. Furthermore, this case falls under one of

the exceptions to the general rule that DHHR files concerning children are confidential.

Finally, the circuit court followed the correct procedure in determining that these files

would be reviewed by the Defendant’s lawyer. Accordingly, we decline to issue the




                                              1

Prosecutor’s requested writ of prohibition halting enforcement of the circuit court’s April

29, 2016, order.

                                    I.

                   FACTUAL AND PROCEDURAL BACKGROUND



              Michael W.F.’s eight-year-old daughter, S.F., accused him of having sex

with her.1 In September 2014, he was indicted on eight charges arising from S.F.’s

accusation. His trial has been stayed pending our resolution of the Prosecutor’s petition

seeking a writ of prohibition.

              S.F. received treatment from the DHHR through a multidisciplinary team,

whose function is to “identify, diagnose, and treat specific cases of child abuse and

neglect.”2 The DHHR maintained notes on S.F.’s treatment (DHHR files), to which the

Prosecutor has access because it represented the DHHR in a proceeding to terminate

Michael W.F.’s parental rights to S.F.

              Michael W.F.’s defense lawyer learned the following two things about the

DHHR’s treatment of S.F.: (1) S.F. may have recanted her accusation that the Defendant

had sex with her; and (2) S.F.’s mother may have been misled by the DHHR in telling her

to take a certain position against Michael W.F. in order to be reunited with her daughter.


              1
               Because S.F. is a minor, we follow our traditional practice in cases
involving sensitive facts and use only her initials. Moreover, S.F. is related to the
Defendant, so we refer to him by the initial of his last name. State v. Edward Charles L.,
183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990); W.VA. R. APP. P. 40(e)(1).
              2
                  See W.VA. CODE § 49-1-207 [2015].


                                            2

Michael W.F. claims he was told by S.F.’s mother that the DHHR employees “catch”

S.F. “lying all the time,” and “they also said that she takes things that she sees or hears

other people doing and turns it into a story of something that she did.”         Evidence

confirming these claims is purportedly in the DHHR files.

               Michael W.F. requested S.F.’s DHHR files on the ground that, under Brady

v. Maryland, the Prosecutor is required to turn over evidence in its possession which may

be materially helpful in preparing a defense, particularly, exculpatory evidence.3 The

Prosecutor responded that the DHHR files are confidential per a West Virginia statute,

unless the circuit court enters an order after examining the DHHR files for “relevancy

and materiality.”4 Due to this conflict, the Prosecutor sought guidance from the circuit

court by filing a motion for the DHHR files to be reviewed in camera for relevancy and

materiality.

               The circuit court reviewed the DHHR files in camera. It then conducted a

hearing, which was closed to the public (including the family of Michael W.F. and S.F.),

on whether the Defendant would have access to the DHHR files. At the hearing, Michael

W.F. asserted that the DHHR files would be helpful in preparing his defense because they

contain proof of S.F.’s recantation, along with the circumstances surrounding it, i.e.,


               3
                 See Brady v. Maryland, 373 U.S. 83 (1963). We discuss Brady and a
criminal defendant’s constitutional right to access exculpatory evidence in greater detail
in our analysis section.
               4
                 See W. VA. CODE § 49-5-101(b)(4) [2015]. We discuss this statute in
greater detail in our analysis section.


                                            3

when she recanted and what she said. He also stated that “apparently [S.F.’s] mother has

recanted. . . . But we have received nothing from the [Prosecutor] telling us what the

change is and what she is now saying.” Finally, Michael W.F.’s lawyer suggested he

could better inform the circuit court if/how the DHHR files are material to the defense if

he were allowed to briefly review them.

              The circuit court found that the DHHR files appear “highly relevant” to the

defense, in part, because they contain recantations of S.F.’s accusation. Therefore, the

circuit court allowed Michael W.F.’s lawyer to briefly review the DHHR files in the jury

room while he was supervised by the Prosecutor. The circuit court did not grant Michael

W.F. himself access to information contained in the DHHR files or entry to the jury room

during his lawyer’s review of the files.

              Afterwards, Michael W.F.’s lawyer argued that the DHHR files contained

“many” instances in which S.F. recanted her accusation against him, and the DHHR

improperly bolstered S.F’s testimony by filling in the gaps in her story. Thus, he planned

to present expert testimony at trial that “what [DHHR] did was basically . . . create these

memories for [S.F.]”

              In an order dated April 29, 2016, the circuit court found that all of the

DHHR files contained “an indicia of potentially exculpatory material.” It explained its

conclusion as follows:

                     The Court did find in making that review that there
              were references to recantations, there were references to a
              difficulty in articulating a trauma narrative, that there was
              work in the persons from the Department in helping to bolster
              the trauma narrative on the part of the [S.F.] – of the

                                            4
               equivocation on the part of the mother that she was being
               required by this process to channel herself down into a more
               steady course as part of the process for reunification with her
               daughter.

The circuit court further stated that “the Defendant would have had no way of knowing

all of those things[,]” and this information is “obviously material for impeachment.”

Therefore, the circuit court concluded that Michael W.F.’s lawyer and his retained expert

would have access to the DHHR files. However, to protect S.F.’s confidentiality, it

prohibited Michael W.F., his family members, and the general public from accessing the

DHHR files.

               The Prosecutor now seeks a writ of prohibition from this Court against the

enforcement of the circuit court’s April 29, 2016, order. Enforcement of the order has

been stayed pending our resolution of the Prosecutor’s petition seeking a writ of

prohibition.


                                        II.

                                STANDARD OF REVIEW



               When considering a petition for a writ of prohibition, we have held:

               In determining whether to entertain and issue the writ of
               prohibition for cases not involving an absence of jurisdiction
               but only where it is claimed that the lower tribunal exceeded
               its legitimate powers, this Court will examine five factors: (1)
               whether the party seeking the writ has no other adequate
               means, such as direct appeal, to obtain the desired relief; (2)
               whether the petitioner will be damaged or prejudiced in a way
               that is not correctable on appeal; (3) whether the lower
               tribunal’s order is clearly erroneous as a matter of law; (4)
               whether the lower tribunal's order is an oft repeated error or
               manifests persistent disregard for either procedural or

                                              5
             substantive law; and (5) whether the lower tribunal’s order
             raises new and important problems or issues of law of first
             impression. These factors are general guidelines that serve as
             a useful starting point for determining whether a discretionary
             writ of prohibition should issue. Although all five factors
             need not be satisfied, it is clear that the third factor, the
             existence of clear error as a matter of law, should be given
             substantial weight.5


                                          III.

                                       ANALYSIS


             In this Petition, we are asked to determine whether the circuit court

committed “clear error as a matter of law” when it granted Michael W.F.’s lawyer access

to the DHHR files.      The DHHR files purportedly contain recantations by S.F. and

evidence that the DHHR bolstered S.F.’s story. The Prosecutor’s argument that the

circuit court exceeded its jurisdiction is based on two premises: (1) Michael W.F. did not

have a constitutional right to the requested DHHR files; and (2) the DHHR files are

confidential. We examine these arguments in turn.



                 A. Defendant’s Constitutional Right to the DHHR Files

             Beyond dispute, a defendant has a constitutional right to exculpatory

evidence which is material to the defense. In the seminal case, Brady v. Maryland, the

United States Supreme Court firmly established that:         “[T]he suppression by the

prosecution of evidence favorable to an accused upon request violates due process where

             5
                 Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12
(1996).


                                            6

the evidence is material either to guilt or to punishment[.]”6 Clearly, “A prosecution that

withholds evidence which if made available would tend to exculpate an accused by

creating a reasonable doubt as to his guilt violates due process of law[.]”7

              In State v. Youngblood, we established the three components of a

constitutional due process violation under Brady as follows:

                      (1) the evidence at issue must be favorable to the
              defendant as exculpatory or impeachment evidence; (2) the
              evidence must have been suppressed by the State, either
              willfully or inadvertently; and (3) the evidence must have
              been material, i.e., it must have prejudiced the defense at
              trial.8

              The second Youngblood element, whether the evidence has been

suppressed, is not in dispute. Therefore, we examine the other two Youngblood elements

to determine whether, going forward, withholding the requested DHHR files from the

Defendant would violate Michael W.F.’s right to due process.




              6
                Brady v. Maryland, 373 U.S. 83, 87 (1963). See also Pennsylvania. v.
Ritchie, 480 U.S. 39, 56 (1987) (Prosecution’s suppression of exculpatory and material
evidence is evaluated under the Fourteenth Amendment’s Due Process Clause.) The Due
Process Clause of the Fourteenth Amendment to the U.S. Constitution states: “nor shall
any State deprive any person of life, liberty, or property, without due process of law[.]”
              7
                  Syl. Pt. 4, in part, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402
(1982).
              8
                  Syl. Pt. 2, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007).


                                              7

1. The DHHR Files were Favorable to Michael W.F. as Exculpatory or Impeachment
                                        Evidence
             For Brady to apply, the evidence must be favorable to the Defendant as

exculpatory or impeachment evidence. The Prosecutor argues that the requested DHHR

files do not fall under Brady because S.F.’s recantations and the DHHR purportedly

bolstering her story are mere “impeachment” evidence. In raising this argument, the

Prosecutor splits hairs between “impeachment” and other “exculpatory” evidence in the

context of Brady.

             We have squarely rejected this argument, noting: “The United States

Supreme Court has expressly ‘disavowed any difference between exculpatory and

impeachment evidence for Brady purposes.’”9 Clearly, “Impeachment evidence . . . as

well as exculpatory evidence, falls within the Brady rule. Such evidence is ‘evidence

favorable to an accused,’ so that, if disclosed and used effectively, it may make the

difference between conviction and acquittal.”10

             It is undisputed that S.F. recanting her accusation against Michael W.F. and

the DHHR’s purported bolstering of S.F.’s story is favorable to him as impeachment

evidence. Therefore, the requested DHHR files satisfy the first Youngblood element.




             9
               Id., 221 W.Va. at 28, 650 S.E.2d at 127. (quoting Kyles v. Whitley, 514
U.S. 419, 433 (1995)).
             10
                  United States v. Bagley, 473 U.S. 667, 676 (1985) (internal citations
omitted).


                                            8

                2. The DHHR Files are Material to Michael W.F.’s Defense

                Furthermore, the evidence is material, i.e., without it, Michael W.F. would

be prejudiced at trial. “Evidence is material . . . if there is a reasonable probability that,

had the evidence been disclosed, the result of the proceeding would have been

different.”11    “A ‘reasonable probability’ is a probability sufficient to ‘undermine

confidence in the outcome.’”12          In other words, “if the omitted evidence creates a

reasonable doubt of guilt that did not otherwise exist, constitutional error has been

committed.”13

                The Prosecutor essentially argues that S.F. recanting her accusation against

Michael W.F. and the DHHR’s purported bolstering of her story would not, to a

reasonable probability, change the outcome of Michael W.F.’s proceeding. We disagree

because evidence casting doubt on a key witness’s (e.g., the alleged victim’s) credibility

is undeniably material Brady evidence.14 It is undisputed that S.F.’s recantation and the


                11
                     Pennsylvania. v. Ritchie, 480 U.S. 39, 40 (1987).
                12
                State v. Roy, 194 W.Va. 276, 284 n.9, 460 S.E.2d 277, 284 n.9 (1995)
(quoting Ritchie, 480 U.S. at 57).
                13
                     U.S. v. Agurs, 427 U.S. 97, 112 (1976).
                14
                 Giglio v. U.S., 405 U.S. 150, 154-55 (1972) (“[W]ithout [the witness’s
testimony] there could have been no indictment and no evidence to carry the case to the
jury. [His] credibility as a witness was therefore an important issue in the case, and
evidence of any understanding or agreement as to a future prosecution would be relevant
to his credibility[.]”). See also Benks v. Dretke, 540 U.S. 668 (2004) (Impeachment
evidence was material because it would have undermined the testimony of a witness who
proved crucial to the State’s case); U.S. v. Arnold, 117 F.3d 1308, 1317-18 (11th Cir.
1997) (Brady violated when prosecution failed to turn over to the defense taped
                                                                        (continued . . .)
                                                 9

DHHR possibly bolstering her story would cast doubt on her credibility as a witness in

Michael W.F.’s trial.

              Nevertheless, the Prosecutor asserts that granting Michael W.F. access to

the DHHR files would not make a difference in his criminal proceeding because he

already knew S.F. might have recanted her accusation. We disagree. The DHHR files

contained proof of S.F.’s multiple recantations, along with the circumstances surrounding

them, including what she said and when she said it. Furthermore, the circuit court found

the DHHR files contain evidence concerning the DHHR possibly bolstering S.F.’s story.

The circuit court further stated: “the Defendant would have had no way of knowing all of

those things[.]” The Prosecutor has provided no legal reason to find the circuit court was

wrong in that regard. Therefore, we find the third prong of Youngblood is met.

              The DHHR files contain exculpatory evidence which is material to Michael

W.F.’s defense. The suppression of this evidence at trial would violate his constitutional

right to due process.

                         B. Confidentiality of the DHHR Files

              Still, the Prosecutor contends the circuit court erred in granting Michael

W.F. access to the DHHR files because they are confidential. West Virginia Code

Section 49-5-101(a), provides:



conversations containing inconsistent statements and a promise of reduced sentence in
exchange for cooperation); Atkinson v. State, 778 A.2d 1058, 1063-64 (Del. 2001)
(Failure to disclose inconsistent statement of complainant in sexual assault case required
new trial.).


                                           10

                     Except as otherwise provided in this chapter or by
              order of the court, all records and information concerning a
              child or juvenile which are maintained by the . . . [DHHR] . . .
              are confidential and shall not be released or disclosed to
              anyone[.]15

However, this statute is subject to several exceptions. West Virginia Code Section 49-5­

101(b)(4) states:

                      Notwithstanding the provisions of subsection (a) of
              this section . . . records concerning a child or juvenile . . . may
              be made available: . . . .(4) Pursuant to an order of a court of
              record. However, the court shall review the record or records
              for relevancy and materiality to the issues in the proceeding
              and safety, and may issue an order to limit the examination
              and use of the records or any part thereof.

              Thus, under the clear and unambiguous terms of West Virginia Code

Section 49-5-101, there are exceptions to the general rule that DHHR files concerning a

child are confidential. Among these exceptions is when the circuit court finds, upon

review, that the evidence is relevant and material to the issues in the proceeding, and

thus, should be made available to the Defendant.

              In Pennsylvania v. Ritchie, the United States Supreme Court examined a

similar statute and held:

                      Because the Pennsylvania Legislature contemplated
              some use of CYS records in judicial proceedings, there is no
              reason to believe that relevant information would not be
              disclosed when a court of competent jurisdiction determined
              that the information was “material” to the accused’s defense. .
              . . Respondent is entitled to have the CYS file reviewed by


              15
                   Emphasis added.


                                              11

              the trial court to determine whether it contains information
              that probably would have changed the outcome of his trial.16

However,

                      A defendant’s right to discover exculpatory evidence
              does not include the unsupervised authority to search the
              State’s files and make the determination as to the materiality
              of the information. Both respondent’s and the State’s interests
              in ensuring a fair trial can be protected fully by requiring that
              the CYS files be submitted only to the trial court for in
              camera review.17

Therefore, we hold that, before allowing a defendant to review records concerning a child

that are confidential under West Virginia Code Section 49-5-101 [2015] but may contain

exculpatory or impeachment evidence which is material to the defense, the circuit court

should conduct an in camera review of the records to determine whether and to what

extent they will be disclosed to the Defendant under Brady v. Maryland, 373 U.S. 83

(1963).    In conducting its in camera review, the circuit court must balance the

Defendant’s interest in a fair trial with the State’s interest in protecting a child’s

confidentiality, and determine whether an order limiting the examination and use of the

records is necessary for the child’s safety.

              We are provided with no compelling reason why the relevant and material

information in the DHHR files should not be disclosed pursuant to the circuit court’s

determination that they were exculpatory and material to Michael W.F.’s defense. The


              16
                   Ritchie, 480 U.S. at 40.

              17
                   Id., 480 U.S. at 41.



                                               12

circuit court reviewed the DHHR files in camera, and allowed the Prosecutor to present

argument on the exculpatory issue before determining that the Defendant (through his

lawyer) would have access to them.18 Importantly, the circuit court considered S.F.’s

safety by restricting access to the DHHR files to Michael W.F.’s lawyer and his retained

expert on the DHHR’s possible bolstering of S.F.’s story. It prohibited Michael W.F., his

family members, and the general public from accessing the DHHR files.

              Moreover, it is inconsequential that the Prosecutor, not Michael W.F.,

requested the in camera review of the DHHR files. The Defendant has the burden of

showing that the DHHR files are likely to be useful to his defense.19 However, the circuit

court, acting on the Prosecutor’s motion, found exculpatory information, which is

material to the defense in the DHHR files. Under the Prosecutor’s logic, the circuit court

should have nevertheless conducted Michael W.F.’s trial without him having the benefit

of the DHHR files. As we have already discussed, if the jury in this scenario would have



              18
                 The circuit court’s decision allowing the defense lawyer to briefly review
the DHHR files so that he could better argue if/how they are material to his case was not
error. Despite the Prosecutor’s contention, it was not an unsupervised authority to search
the Prosecutor’s files. The Prosecutor supervised the defense lawyer during this review
of the DHHR files. Importantly, the circuit court did not allow the defense lawyer to
review these files until it had already conducted an in camera review and determined that
the DHHR files appear “highly relevant” to the defense.
              19
                 Syl. Pt. 3, in part, Roy, 194 W.Va. 276 (“Before any in camera inspection
of statutorily protected communications can be justified, a defendant must show both
relevancy and a legitimate need for access to the communications. . . . [I]f a defendant
can establish by credible evidence that the protected communications are likely to be
useful to his defense, the trial judge should review the communications in camera.”).


                                            13

found Michael W.F. guilty on the charges against him, there would be a high probability

that the verdict would be reversed on appeal because of a Brady violation.

              Finally, we address the Prosecutor’s concern that this case presents an

ethical dilemma for the Prosecutor’s office. The Prosecutor represented the DHHR in a

proceeding to terminate Michael W.F.’s parental rights to S.F., and thus, it maintains an

attorney-client relationship with the DHHR regarding S.F.’s DHHR files.20 Even though

a lawyer is ordinarily prohibited from revealing “information relating to representation of

a client,”21 he/she may nevertheless do so “to the extent the lawyer believes is necessary .

. . to comply with other law or a court order[.]”22 Here, disclosure of the DHHR files to

the Defendant is necessary to comply with both other law (in Brady) and a court order.


                                          IV.

                                      CONCLUSION



              Upon review, we find no error. The circuit court, after an in camera

review, correctly found that the Defendant (through his lawyer) has a constitutional right

to review the DHHR files because they contain exculpatory information which is material

to the defense. Furthermore, this case falls into the court order exception under West

              20
                 See Syl. Pt. 4, in part, State ex rel. Diva P. v. Kaufman, 200 W.Va. 555,
490 S.E.2d 642 (1997) (“[A]ll of the legal and ethical principles that govern the attorney-
client relationship in general, are applicable to the relationship that exists between DHHR
and county prosecutors in civil abuse and neglect proceedings.”)
              21
                   W.VA. R. OF PROF’L RESP. 1.6(a).
              22
                   W.VA. R. OF PROF’L RESP. 1.6(b)(6).


                                             14

Virginia Code Section 49-5-101(b)(4) [2015] to the general rule that DHHR files

concerning children are confidential.     Finally, the circuit court followed the correct

procedure in determining that these files would be reviewed by the Defendant’s lawyer.

Accordingly, we decline to issue the Prosecutor’s requested writ of prohibition halting

enforcement of the circuit court’s April 29, 2016, order.

                                                                            Writ denied.




                                            15

