32 Tape 16
Judge: All parties are present with the counsel, as well as foster parents are
present, and we now have resolved at least I believe whatever little
technical issues we all were experiencing those of us who are using the
internet to access ———court. So, with that, we are down to the motion to
suppress testimony and records in laminae. That’s it, right?
Mr. Kirby: Yes, ma’am.
Judge: Okay. Mr. Kirby. Go ahead.
Mr. Kirby: And the reason I filed a motion to suppress was I couldn’t find
in laminae motion…
Judge: Oh, when you were talking about the drop-down boss…
Mr. Kirby: The drop down boss and out of court, yes, ma’am. I believe we
———-to suppress records. I think we’ve already dealt with paragraphs 1
through 6. 1 through 7, I would just like to…
Judge: Okay, hold on. Let me…okay. We’re one through seven…
Mr. Kirby: Well, actually I just want to bring back to the court’s attention
that even if the record from DHR were produced today, it makes it hard to
produce a fully viable defense for the Holms in this matter, even though
the records were produced today. We’ll move on.
****(Wha??? Wait a minute! What about when Mr. Schlenker threw up
such a big fit about getting his five days to prepare. Why not the same for
Mr. Kirby: One of the issues that we had last week was the father’s
counseling records from Savannah Counseling. We are stating that…or we
are contending that all those should be deemed inadmissible due to several
rules. Rule 503 which is Alabama rules of evidence which is
psychotherapist patient privilege. I go through the definitions what is
patient and what a psychotherapist is, communications is not confidential
if not intended to be disclosed to third persons other than those present to
further the interest of the patient in the consultation, examination, or
interview. It is a general rule the patient has the right to refuse to disclose
and to prevent any other person disclosing confidential information about
themselves and that privilege can be claimed by the patient, and I think
that of course without talking to the medical doctors that were associated
with those records, you know, I think you have to assume the patient
would not want to have that information known at least. There are some
exceptions, of course, to 503 and that’s proceedings for hospitalizations.
(Of course, we believe that none of those records even though we just had
an opportunity to view them for a short time on December 5th, we don’t
believe that any of those records were for hospitalizations.
Another exception is examination by order of the court. This court has not
ordered Mr. Holm to be psychologically examined, so therefore it doesn’t
meet that exception.
Accused in a criminal case…not a criminal case; this is a dependency
Abridge of duty arising out of the psychotherapist patient relationship. Of
course that’s not what this case is about, and then number five it says:
Child custody cases. In a sense, this is not a child custody case. This is a
child dependency case. The state is arguing that the child doesn’t have a
parent and legal guardian that’s willing or able to take care of that child,
so I don’t know that it meets the definition of the child custody case in the
traditional sense as one party against another. Say, in a divorce.)
****(But do the statutes matter when the statutes would appear to go
against what the state has done?)
Mr. Kirby: So, there is no exceptions to the rule that would allow any of
the counseling records of the father. I guess, you know, one question that
would probably arise would be how the state got those records if they
claimed to have gotten those records under a release of information, then
that release of information should have been HIPAA compliant. Of course,
without being able to review the records that the DHR did not produce to
us we weren’t able to see what that release of information was until today.
Glancing at it, I don’t believe the release is HIPAA compliant. I don’t
believe that it has on there that this release is good from this date to this
date, what has to be on a HIPAA release and who the information can be
****(You mean, the state broke the HIPAA law? Doesn’t that have
penalties involving prison time? It says that near the bottom of the HIPAA
page they make all of us sign whenever we go to the doctor or dentist. So,
I bet they don’t get in any trouble for this and Mr. Schlenker will once
again slink out of this corner effortlessly and with the full blessings of the
Mr. Kirby: I know…you know our standard HIPAA release which is in
compliance has a lot more information on it then, “Hey, you know we are
requesting these records!” So, we are claiming that the father’s counseling
records are inadmissible pursuant to rule 503A which is counselor client
privilege for which there is no exception. In applicant in asking that all of
those counseling records be deemed admissible, I will point out to the
court that a communication is confidential if it is not intended to be
disclosed to third persons other than those to whom disclosure is made in
furtherance and rendition of professional counseling service to the client
order those whom the disclosure is reasonably necessary for the
transmission of communication. Uh, now I’ve laid out a couple of
****(Anyone reading or hearing this should realize that this is exactly
what happens. There is NO privacy and no rights. If you go to a counselor
you do it at your own peril. Should it be that way? Of course not. It is
what it is. Smart people need to understand the great danger we live in if
we choose to trust the medical profession. Therapists and Pastors live
under the same rules as mandated reporters, so consider carefully who
you go to for help. I would suggest only Jesus.)
Mr. Kirby: There are some exceptions to the rule, but the counsel and
record sent to be entered by the state don’t meet any of the exceptions. One
of the exceptions is counseling or to assist a person through a counseling
relationship to develop an understanding of personal problems. Well, Mr.
Holm is not subject to those. Appraisal activities, counseling guidance and
personal consulting, ———–activities, research activities, victim
counseling…now the records sought to be introduced by the state don’t
meet any of those exceptions, and once again, the privilege is claimed by
the client. 503A as well as 503. I’m sorry, the exceptions were, excuse me,
examination by order of court, of course which has not been ordered. The
client’s condition is an element of a claim or defense. You know, that’s not
part of the defense in this action. —————–arising out of client
counsel or relationship——————this is not a suit against any
counselors and victims counseling in a civil case.
Further, the parents or the attorneys of record at that time believed that the
state or the department will offer testimony from Mrs. Edith Couch or
some licensed counselor to testify as to the records that they subpoenaed
or they got through request, anyways the father’s counseling records. It is
believed that Mrs. Couch’s testimony will be offered to provide expert
testimony as to the father’s counseling records. The parents, or the
attorneys, Mr. and Mrs. Holm have never seen Edith Couch, and as
such she could not have any personal knowledge of the parents or the
matter at bar. If Ms. Couch does have personal knowledge or does
have any knowledge supplied to her by the department we are
claiming that that would be in violation of HIPAA as well as the
psychotherapist patient privilege and counselor client privilege. Ms.
Couch’s testimony should be deemed inadmissible and not allowed on
those grounds alone. And I threw in there…I think that if the state was
going to call Ms. Couch, they should have notified the other parties
prior to day of court, or any expert…any person that they are going to
try to qualify as an expert to testify to any counseling records.
****( Consider what you just read or listened to. How many violations is
the state willing to incur in order to take this couple’s baby on their
trumped up grounds?)
Mr. Kirby: That brings us to rule 702, testimony by experts or witnesses.
Of course it is not uncommon to have testimony by expert witnesses or
experts, but that testimony has to be based on sufficient facts or data.
Since Ms. Couch or no other counselor has met with the Holms, we
contend that they wouldn’t have sufficient facts or data in front of them to
make any kind of judgment as to the records provided by Savannah
Counseling. Probably one or someone that could testify as to those records
would be the treating physician. In citing Armstead vs Smith and Jones vs
Keith; if the state wants to try to introduce testimony of records that might
involve prescriptions, those records were obviously created by a doctor,
and not a psychologist. We all know psychologist can’t prescribe medicine.
Probably the best evidence would be to have one of the treating physicians
that was associated with those records come testify as to anything that are
on those records. I understand it is out of state but the state has had plenty
of time to issue an out of state subpoena to get somebody here. Course I
know that doesn’t guarantee that they will be here but that could have been
done. I mean this has been going on since October 11th I think.
One thing I would like to remind the court, rule 703 leaves unaffected the
preexisting law requiring the facts or data relied on by the expert and
gotten by the expert other than first hand knowledge, generally must be
admitted into evidence. We don’t believe those records are admissible
under evidence based on the opinion, hearsay, and best evidence and
expert testimony rules. And this came from MacElroy’s Evidence 130.01.
This is how it should be emphasized. Alabama case law generally
precluding an opinion based on the unadmitted record or reports of others
does recognize exceptions. We don’t think that Edith Couch can be
qualified or any local counselor can be qualified as expert to testify on
these records. Once again, Ms. Couch or any other licensed counselor,
unless they can testify as a medical doctor, would be able to give any
expert testimony as to somebody who was a doctor that made any
diagnosis or wrote any prescriptions for those records. Yet, when we were
here on December 5th, the department attempted to introduce the father’s
counseling records. Gambels Alabama Rules of Evidence 8036, it should
be emphasized that satisfying the hearsay exception does not give the
evidence carte blanche admissibility over independent objection such as
those relating to opinion, irrelevancy, best evidence, etc. So, even if the
court found that Ms. Couch could be qualified as an expert we still got to
address the issues of best evidence…well, we got to satisfy all the 503 to
503A, best evidence which is 1002 I believe, 802 which is hearsay.
What we going to next is the hearsay rule for hearsay is not admissible
except as provided by these rules or as adopted by the court . Course we
know there is a business rule exception to the hearsay rule but who is to
testify the records in question, the father’s counseling records, or who can
Mr. and Mrs. Holm even cross that could testify that these are actual
records kept in the ordinary course of business? In that particular
institution or doctor’s office or whatever it is, there is nobody here to say
that, and I think you have to have that to get by the exception to the
hearsay rule. Especially from somebody that is out of state. We’ll go back
to the best evidence rule and prove the content of writing the original
writing as required. Of course, I know the state wouldn’t have access to the
original. I’m not blind to that fact. The thing is they could have received
copies that weren’t faxed over because nobody knows who is on the end of
that line and who they are in that company. I would think something from
the custodian of record addressed to the state would be more compliant
than something that was just faxed over from somebody who claims to be,
but you don’t know who they really are. I don’t know if that’s a counselor
doing that or is it a counselor who was involved in any of the records they
sought to be admitted. And that is something we will never know. Also the
admission of any counseling records of the father would so prejudice the
father in that neither the parents or the attorneys have had a chance to
thoroughly inspect the record so as to provide their own expert testimony
in rebuttal if the court allows expert testimony to be given.
****(The state has already misidentified this couple. They could just keep
that up by finding records that belong to somebody else, records they
falsified, records they never had permission to access in the first place.
They have presented false statements already in court regarding a mental
condition that Mr. Holm has never had. The state doesn’t appear to have
much concern for accuracy.)
Mr. Kirby: Then we move on to rule 403, which is relevancy, exclusion of
relevant evidence on ground of prejudice, confusion or waste of time,
although relevant evidence may be excluded if its prohibitive value is
substantially outweighed by the danger of unfair prejudice. Confusion of
the issues or misleading the jury or considerations of undue delayed waste
of time and needless presentation of cumulative evidence. Once again, we
believe that it would prejudice the father so greatly not to be able to
provide any rebuttal testimony by his own expert. These records were part
of the records of DHR that were not given to us, although you are correct I
guess they could have been sought by a subpoena, but as such the parents
are indigent and probably couldn’t have afforded to pay for those records
even if they could have subpoenaed them because I am sure there is a
charge to get those records. There certainly is at Regional Medical Center.
That to admit any evidence ——————————————-who is
unable to testify would be a violation of the parents’ 6th amendment
constitutional right to confront witnesses against them. Of course I
understand the court probably understands what the 6th amendment
is but it definitely says to be confronted with witnesses against him. If
those records are allowed to be admitted there is no witness that
would be testifying as to those records except for possibly a counselor
who has no knowledge of Mr. and Mrs. Holm. So how can Mr. and
Mrs. Holm possibly defend against that? She is certainly not a witness
to it, to this case. I don’t know how she would provide a fax or
Judge: She being?
Mr. Kirby: Ms. Couch or any counselor I guess. I’m sorry. How they
would have gotten information, what kind of knowledge they have,
and so I think they should be excluded as per the 6th amendment right
to confrontation as well as Alabama’s Article 1, section 6
confrontation clause. So what we are doing is we are asking the court
to deem these records, deem the counseling records and any records
or counseling records and any testimony concerning the counseling
records, also any records that DHR failed to provide until today or
testimony that had anything to do concerning those records–deem
those inadmissible and direct DHR or the state that they couldn’t
question any witnesses about that, couldn’t call any witnesses if they
were going to testify to something that was either in the medical
records or records not provided. That would be our motion, your
****(Let’s see what the state does with the Constitution, shall we?)
Mr. Schlenker: There’s a lot there.
Judge: There is, and this is one that was filed after 5 o’clock last night so I
am assuming you are okay going forward with this because it sort of
hinged on some other of your motions to alter amend and stuff.
Mr. Schlenker: Your honor, I’m okay going forward with it because on my
very, very brief review of it this morning I assumed these would be the
same objections we would be dealing with in trial anyways, so it’s not as
shocking as the other one.
Judge: Okay. So, bottom line state waives any due process issue as to this
motion in laminae.
Mr. Schlenker: Yeah, I think it will speed up the trial one way or the other.
Mr. Schlenker: Your honor, let me start with the records. So, 503 talks
about an exception for a child custody case. It’s funny, actually in
reviewing the other motion 33B209 talks about child custody cases and
you got to file an affidavit in all child custody cases, and you got to do that
in a dependency case because it’s a child custody case. This is at its very
nature a child custody case. The purpose is determining where is the child
going to be placed? There is nothing other than to call it a child custody
case. It may have a dependency spin on it or whatever, but again, it is
child custody. So, 503 is absolutely satisfied. These records are
admissible. That is satisfied. These records are admissible as a business
record under 902 they are a certified domestic record. The department has
now received certification from Savannah Counseling Services that these
are in fact the records, the whole records. This is submitted by Joyce
Ampinasha, the medical record clerk at Savannah Counseling Services,
800 E. 70th St., Savannah, Georgia, 31405.
****(Now you understand. You DO NOT have 6th amendment rights. You
DO NOT have HIPAA rights. The judge and the prosecutor work hand in
hand together. Any arguments an attorney would make on your behalf will
be whisked away with whatever verbage contests, and you DO NOT have
parental rights. Seriously consider EVER going to mental health
professionals for anything, and seriously consider ANYTHING you ever
tell a medical doctor. Truth.)
Judge: Okay, let me just stop you right there. That was not included in the
records we had in camera, correct?
Mr. Schlenker: That is the only part of that document that was not
included in that.
Judge: Okay. Go ahead.
Mr. Schlenker: And I would proffer that part of the document is for trial
purposes and that is part of attorney word product getting ready for trial.
These records, themselves, have been available to the Holms since
probably the day of their creation. A copy of them has been with the courts
since last week. The issue of dad’s mental health has already come up. In
fact, if the court will recall, he was asked if he was diagnosed with
schizophrenia and he asserted his 5th amendment, so…
****(What a clever snake for stating that and trying to make that false
connection stick because Christian asserted his 5th amendment for every
single thing he was asked. You have proven nothing, but I am sure the
court will not see it that way.)
Mr. Schlenker: …again, this issue is already in play and I would deem that
that could be construed as an affirmative answer by his refusal to answer
such a question. He was also asked whether or not he suffered from
delusional disorder and again, he also asserted his 5th amendment right
which again, can be deemed as an answer of that.
As to the expert witness, the expert obviously has not seen Mr. and Mrs.
Holm. What the purpose of Ms. Couch is to provide expert testimony as to
what schizophrenia is, what delusional disorder is, appropriate levels of
treatment and other concerns that the department has as a result of
statements by Mr. and Mrs. Holm as well as that has been determined by
these records. So, her testimony is more than relevant to this proceeding
and certainly I have no doubt that someone will question her credentials
which she has provided and I think that she certainly meets the appropriate
credentials to provide such testimony. She is a LPC. She has the
authority to make diagnostic impressions…
****(…The authority to make diagnostic impressions…Pay attention to
that. It gives the state power to remove your children with the blessing of
the court after they get a state paid medical professional to “make
diagnostic impressions”. You will never need to be seen by a doctor. None
of us could escape such a trap. None of us!)
Mr. Schlenker: She provides mental illness counseling to people on a
regular basis. That is what she does for her career, and again that is the
manner…she has specialization in that. That is what her expert testimony is
deemed to elicit, and I would also say it is obvious that they…well, I will
strike that. Finally, judge, I will just finish with this. I keep hearing the
parents bemoan the fact that well, there was this and there was
that…we weren’t provided with this and provided with that…the
parents as their own attorneys have a duty to investigate and
prosecute their case in the way that they wanted to. That included
doing subpoenas as they wanted to. Whether they would have
occurred the cost or not, again, that is something that every litigant
curtails and they terminated the representation that they had and
they undertook that responsibility. It is not a legitimate reason for
them to have records denied by the court just because they elected to
not do their own due diligence.
****(Notice how he twisted Mr. Kirby’s defense on the statutes and
ignored arguing on the facts that were presented, then made everything all
the fault of the “so-called legally incompetent parents who happened to
notice their lawyers were not defending them”. Perhaps they are not so
incompetent as it were to be hoped, but Mr. Schlenker will not worry
himself about such things. I’m going to take a guess here and say the
judge will find for Mr. Schlenker on all points. Just a guess. Let’s see.)
Guardian: Judge, I guess I would echo a lot of the department’s arguments.
Rather than repeating them I would just mention only a couple things. I do
think these records are relevant provided there is proper authentication to
admit them into evidence. I think that they should be admitted. The father
testified at the shelter care hearing about these documents, about his
treatment at this facility, about his diagnosis…
****(Which did NOT include schizophrenia or mental delusions!)
Guardian: …and about what he actually received Social Security benefits
****(Those who have children and also receive Social Security benefits,
this should raise a red flag for you.)
Guardian: Certainly I think these documents are relevant to his testimony
under oath about that to either verify that or if there is something different
in there I certainly think that is relevant and provident.
Mr. Kirby: I think the state’s making quite a presumption when they talk
about Mr. Holm taking the 5th on that. I guess they are presuming that he
inferred that he has been diagnosed with that so, you know…Mr. Holm
apparently testified at the shelter care hearing about ADD and depression,
and that’s all that I know that he testified at the shelter care hearing about,
or maybe that is what the disability is based on.
Judge: My recollection, and I’m going to take————-I guess at this
point, Mr. Kirby, you weren’t on here but mom and dad did testify and
they were both represented by counsel. It was a rather lengthy testimony
and my recollection of that, and I am going to take judicial notice of mom
and dad’s testimony of that portion of the proceedings because I did hear it
was…it was bipolar disorder, ADD or ADHD, and depression that had
been medicated and he had stopped medication but I don’t remember at
what point in time. Because I remember asking Mr. Holm what was your
basis for your disability? And it pretty much hinged on the bi-polar..the
mental health issues coming out of and I do believe he said Savannah
Counseling was where he had been treated.
Christian: Judge, I said ADD. I never said bi-polar. I never said bipolar
in my life to anybody.
Danielle: He never said bi-polar.
****(No, he never said bi-polar because I am the one typing these
transcripts and I would have remembered that! Besides, we have both the
audios and the transcripts. I challenge anyone to be able to find where
Christian said he was bi-polar. You won’t find it.)
Christian: I have never even been diagnosed with it…
Mr. Kirby: That is one reason we asked for the transcripts to see exactly
what the testimony was.
Christian: I would be claiming against my own diagnosis.
Mr. Schlenker: Judge, I’m going to object. This is exactly what you were
talking about which is double-barreling.
Mr. Schlenker: Mr. Kirby, if you are the one speaking, I would ask that
anything that Mr. Holm say be struck and that…
Judge: It needs to be directed through Mr. Kirby. He is the one arguing the
motion. Okay, Mr. Kirby, I am sorry. I didn’t mean to interrupt you.
Mr. Kirby: Judge, I guess we would have to take exception and…
Judge: I understand.
Mr. Kirby: …and say that bi-polar was not admitted to at shelter care and it
was ADHD and depression, but either way we are moving to exclude
those records, and as I mentioned earlier all records that DHR has not
provided to us. And again, I question the method in which those records,
the counseling records were received.
And I guess one thing too, remind the court that the child was taken before
the records were gotten so what basis did DHR have to take that child
based on any kind of non professional opinion of a case worker?
****(It is called a fishing expedition.)
Mr. Schlenker: Judge, the petition itself addresses DHR’s concern of
mental health so, again, that has been there, and I do take exception with
the idea that the worker has some non professional assessment,
particularly the social worker that was involved in this is a master’s level
social worker. She certainly has ample qualifications to be concerned
about mental health based on her prior experiences in life, and again, that’s
what she was relying upon as well with regards to her making that
determination. And again, this has been at the crux of this case since the
very inception on October 11th when we filed this. Mental health has been
****(“odd beliefs” scrawled across the top of a document is not a
professional assessment. It is religious prejudice and nothing else.)
Judge: Anything further from the guardian?
Guardian: No, your honor.
Judge: Okay, Mr. Kirby. Anything further?
Mr. Kirby: No ma’am. Well, I guess I would like, before we end this
up what evidence did the case worker observe to make a
determination that should have been done by a psychologist, licensed
psychologist or psychiatrist that would even lead to taking a child
Mr. Schlenker: Your honor, we are not done with evidence and I believe
Mr. Kirby or Mr. Holm or Mrs. Holm will have an opportunity to see that
witness and ask those questions.
Judge: I think you are correct on that issue… You were right, okay. I went
back and looked at the minutes. Gets SSI for severe depression and
ADHD. No bi-polar. Two months on SSI, diagnosed 8 years, taking
Wellbutrin and Adderal, discontinued medications, took himself off pills
which he felt was corrected without medication.
Christian: I agree. Thank you, your honor.
Judge: Sorry, it took me so long to find them up here. And with that being
said as to the department records that they have provided today in total,
uh, again from what I gleaned from the narrative which was not a lot of
narrative, a large part of that was narrative consisting with interaction with
Mr. and Mrs. Holm. So obviously Mr. and Mrs. Holm would have been
present and engaged in that part for the narrative to have been created. The
records as far as the, uh…you know there was some interesting records that
I said, “Here. These appear to be facebook postings by your client. I am
not going to read them here. They are…um…those are what they are.
However the department may want to use them, they can use them. If your
client generated them he certainly had knowledge of them. If his
contention is he did not generate them then I will take that also.
****(ANYTHING you say, i.e. on social media and anytime in your use of
it in history, can and WILL be used AGAINST you. Never forget.)
Obviously I believe they…unless they recall Mr. Holm…as far as the
psychiatric records Mr. Holm is very aware of wherever his records are,
where they were at, signed a release, pulled back that release, I
understand. I understand why he did that, but nonetheless those records if
they were indeed received at the time the release was valid…you know it
was something that was there…it could have been assessed by your client
and he knows what was there. I guess at this point we will tread very
carefully. I do think that the pr—-ative value at this point outweighs the
prejudicial effect. When Ms. Couch testifies you certainly have the right to
raise your issues and I’m sure it may hinge in part whether or not that
release was still valid at that point.
****(Well there you go. I must be a prophet. Did I not predict exactly
this? There was no consideration for ANY of Mr. Kirby’s points argued on
either the statutes or the constitutional arguments. No references
pertaining to anything he said, almost as if the Holms had no
representation at all. Kangaroo court defined perfectly here and that is
just how easy it is done! It almost sounds like it is legitimate, doesn’t it?
Judge: And that does not mean that these records right here that were
deemed not admissible—Exhibit number 5 is still not admitted. So, I guess
the state has to try again if they wish to.
Mr. Kirby: I guess judge I would need to see the state’s new certification.
Mr. Kirby: Well, should we go over this now? You can certainly present
that to the judge. Judge, Mr. Holm revoked his authorization on December
6th, and he did that by way of filing with the court. That certification is for
December 8th. So, we are going to still argue that those records are not
admissible. Basically, what they did was just have somebody send them a
sworn statement of certification and they are trying to admit the same
medical records that they tried to admit on December 5th that were faxed
over on November 14th of 2016 at 3:58 in the afternoon. So we are going
to ask that…they can’t cure that just by giving a certification sent over after
the patient has revoked his authorization.
Mr. Schlenker: Your honor, we can cure it because, again, the records have
already been produced. It was in effect on December 2 if you will look at
#5. The same person said I sent those records. The court deemed that not
to be a sworn statement to make them certified and so she again submitted
the same document except this time it is now certified. So this is not a new
production of record. This is the same records. The way that Savannah
produces them is the way that they produce them. They say that they only
fax records and that she was willing to mail this to us. These are the
records as they have been produced and these are the same records that
Ms. Ampinosh swears are the records in their possession. And again, it is
the same person, it is the same document. It is just a sworn statement and
again, there is no need for a HIPAA to be in place for that because the
production had already been made. Again, it is for the purposes of her
certifying that they are authentic. Also, as I recall, I believe the state also
submitted a trial subpoena to her.
Mr. Kirby: Judge, while Mr. Schlenker is looking that up, the records that
were not admissible last Monday because they had not been properly
authenticated…uh, the person that signed this affidavit that’s a sworn
statement, there is no guarantee that they reviewed these records. Their
records are kept in the ordinary course of business. All they did was they
send another…they sent a sworn statement which basically says I sent what
I sent you before. I guess. I didn’t read the statement fully. I looked at the
date. I was more interested in the date.
Judge: Did you review the statement? Let’s see while Mr. Schlenker’s
Mr. Schlenker: Judge, let me read it. I, Joyce Ampinosh, hereby swear in
writing that I am the medical record clerk of Savannah Counseling
Services organized and operated pursuant to or under the laws of Georgia
located at 800 E. 70th St., Savannah, Georgia, 31405. I am custodian of
records of said organization. The within copies of record is an exact full
true and correct copy of the records for ———Christian Holm. I further
swear that the said records were made and kept in the usual course of
business of said organization. It was in the regular course of business of
said organization to make and to keep said records, and said records were
made at the time of such transactions or occurrences or events therein
referred to, or occurred or arose or were made within a reasonable time
thereafter. This I swear and affirm on the 8th of December, 2016. There
appears to be a signature. Before me the undersigned authority a notary
republic in and for said county and state, and the state personally appeared
before….it says Alexander Buchanan who is known to me and who
appears to be…
Mr. Kirby: Well, there…I mean then we’ve got a problem with…
Mr. Schlenker: I mean that’s the notary’s name. The notary wrote their
name and there is known to me who being…being by my first duly sworn
doth depose and state under oath that the statement of facts put forth in the
above and foregoing petitioner are true and correct to the best of his or her
knowledge information and belief sworn to before me on this the 8th of
December. And then, Alexander Buchanan signed it.
Mr. Kirby: But Alexander Buchanan is swearing to his own, swearing to
Alexander Buchanan, not to Ampinosh.
Mr. Schlenker: I believe Alexander Buchanan assumed that was where he
needed to write his name.
Mr. Kirby: Well, then we have a problem with the notary that doesn’t know
where to write their name and so how can we assume that these are
records kept in the ordinary course of business? This, judge, again is
December 8th. The authorization was revoked on December 6th. If they
weren’t admissible then, they are not admissible now.
****(Don’t worry, Mr. Kirby. I predict this court will sweep all these little
problems under the rug with the bigger ones like the 6th amendment rights.
Let’s just see if I’m right…)
Mr. Schlenker: Again, if the court, while they are not admissible on I
believe is Exhibit 5, the same person, same signature on December 2
saying the same records are the records…again, it wasn’t a sworn
statement. It is now a sworn statement. They are the records, Judge, and
again, I understand that the Holms don’t want them in because they don’t
want them to have what’s heard, but again they are proper…you know…the
department has done everything it can…
****(…to shaft an innocent law abiding couple who were excited to have
their first baby. The department is desperate to dig up some kind of dirt in
order to justify what they have done under color of law and this is exactly
how the government treats all of its citizens. I am learning a lot hearing
Mr. Schlenker: …to get these records appropriately to the court.
****(Appropriately? Seriously? What about what is appropriate for the
rights of the Holms?)
Mr. Schlenker: It is from someone 500 miles away, and again, it was the
intent of everyone early on that that was a sworn document. That
continues to be what they were doing. It was a sworn statement.
Mr. Kirby: Judge, intent doesn’t equate to correctness. Intent…the notary
may have intended to put somebody else’s name there. We will never
know that because that person is not going to be here to testify. The
custodian of records doesn’t say read or reviewing the records that were
sent. All she is saying is that…you know she is going to say that the
records she sent when they weren’t admissible the first time were the
business records. And who knows if that’s true?That person is certainly not
going to testify. So, like I say, if they were not admissible then, they are
not admissible now, and especially since Mr. Holm revoked his
authorization for any kind of release of information whether they are
HIPAA compliant or not on December 6th. That’s made a record in the
Mr. Schlenker: Judge, I think it would be different if it said Jonathon
Schlinker down at the bottom of that instead of Alexander Buchanan. That
is obviously a scribner’s error. It is obvious that the intent was to have that
as a sworn statement.
Mr. Kirby: Judge, I don’t know that that is that obvious. You can’t question
that person. You can’t question that notary. He is supposed to notarize
saying I saw this person sign this document. He didn’t do that. He says he
did it. So, who did it? Did he or did Ms. Ampinosh? I say, still the
certification and authentication of those medical records does not meet
what is required by law, and especially after somebody has revoked any
kind of information release that they might have signed.
Mr. Schlenker: But the release had already occurred. It was the
certification, and again there was no further documents that were released.
That is exactly what she swore. Those are the records. Again, we talked
with her on the phone. She said the only way I send them is by e-mail
pursued by fax and I will send you a certification of the records. That is
their policy. That is their procedure.
Mr. Kirby: Well, judge, we won’t know that because that person is not
going to be here to testify. So, we won’t know that. We have to, I guess
accept the state’s word that it is what it is? And I don’t know that we can
accept the state’s word that it is what it is not what it appears to be.
****(Why accept their word? They have sworn to use anything against
the Holms. That means anything. I don’t believe these are actually
Christian Holm’s records. There is no proof and if there was proof it has
all been done in violation of HIPAA and his 6th amendment constitutional
rights. It also violates the statutes Mr. Kirby presented.)
Guardian: Judge, I’m going to argue that I don’t know it is so much the
state’s word as the woman, excuse me, her name I can’t recall who signed
that affidavit saying that these were records kept during the course of
business. My argument as to the notary would be that the notary was
certifying her signature and provided that were the oath and where the
number is signed provided with that notary saying that she or he did watch
her sign that. A notary isn’t merely saying that anything in there is true or
untrue, just that that person swore that under oath.
Mr. Kirby: And your honor, I don’t disagree with Ms. Miller except for the
fact that the notary didn’t swear that she signed it. He put his name in it, so
for all we know she could have taken this in here and said, Here. Notarize
this. Is that proper? No. Well, we won’t know that because we don’t have
the notary and we don’t have Ms. Ampinosh who certified these records to
testify to that.
****(The state will not be concerned with what is proper. They haven’t
shown that to be a part of their character yet unless it benefits their
Mr. Schlenker: And judge I would say rule 903 goes on the state
subscribing witness testimonial not necessary to authenticate a routing
unless required by laws of the jurisdiction whose laws govern the validity
of the routing, so therefore evidence is not necessary.
Judge: And that’s very true. Their presence is not necessary. We have a
statute as far as medical records in Alabama for a reason…
****(Can statutes override constitutional protections? 6th Amendment
Mr. Kirby: Judge, if you notice the facts, date, and time on the records that
the state is going to seek to introduce is the same facts, date, and time
that’s on the records they tried to admit last weekend, same exact date. So,
they didn’t get records refaxed over. This is all they got and I don’t see any
fax on this so she didn’t bother to take the time to put this in the mail. I’m
saying she could have…you know…we don’t know…well I guess we do
know that all the records are in here are there but I’ll advise the court of
this, we’ve seen instances where one person will go get a set of records
and then another person will go get a set of records, and there is additional
pages or not as many pages. All they are doing is getting a certification
sworn statement after the HIPAA release or whatever release has been
revoked to go along with the records that they have that weren’t admissible
Mr. Schlenker: And they weren’t admissible because there was not a
certificate of authenticity and there is now. Again, it’s the same records. I
don’t dispute the fact of the Nov. 14th records that were produced. There
was no reason to have the records resent because we had them. She had
previously attempted to certify that those were the records and then again,
she now has sworn that those were the records. So, these records are
Mr. Kirby: Well, judge, I further swear that said records were made and
kept in the usual and regular course of business of said organization and it
was in the regular course of business of said organization to make and
keep said records. Well, what is…I mean she doesn’t say on here anywhere
that the records that I sent the department on November 14th…she can’t
swear to those. She is not swearing to the particular records that they have.
This is a blanket authorization that did not come with any records that said
they had been reviewed and were made in ordinary course of business.
She is swearing something that she hasn’t done.
Mr. Schlenker: It was made at or near the time of occurrence of the matter
set forth by or from information transmitted by a person with knowledge
of those matters, was kept in the course of regular conducted activity and
was made by the regular conducted activity as a regular practice. She has
satisfied all of those. It is wonderful the counsel wants to add in to statutes
about what it must say but again it does not say…there is nothing in the
statute that says I hereby certify that the records sent on Nov. 14th hereby
are the records. It is those three issues, was made, was kept, was regular
conducted activity. She has satisfied all of that. The affidavit is sufficient.
Mr. Kirby: But it came with no records, your honor. It came with no
records so if it came with no records then she has got to certify the records
that were sent, that were inadmissible, not just a…
Judge: Who has got the affidavit? My overwhelming concern with it is this
little on the bottom. It says Alexander Buchanan personally appeared
before himself. I have to take that document for what that document is. I
can’t go outside the four corners of that document. I can’t infer intent. It is
what it is. He says he appeared before himself, not Ms. Ampinosh
appeared. I don’t think it’s enough done to meet it as far as that. I just think
that’s an error that’s there unfortunately for the state and very good for part
of the parents, and I don’t mean that ugly the way it sounded.
****(No, but it was truthful. This is a contest or a match between two
opponents, one with unlimited resources and abilities, the other fighting
for their very lives with almost nothing and no warning that this could
Judge:…A scribner’s error, it may be. I don’t know.
Mr. Kirby: So, the medical records from Savannah Counseling are deemed
to be inadmissible, is that correct?
Judge: Yes, however, remember prior to you raising this issue your client
was under oath and took the 5th and I can infer what I want to from his
questions and answers thereto, so…
Mr. Kirby: Yes, ma’am. I understand.
****(Just in case it could be believed that there ever is a way to win…)
32 Tape 16