The Georgia Supreme Court has reversed the conviction of Hemy Neuman, saying the trial judge made a mistake when he allowed notes and records of two mental health experts into evidence.
Neuman was found guilty but mentally ill in the 2010 shooting death of Russell “Rusty” Sneiderman, who was slain outside a Dunwoody daycare center.
The court voted 6-1 to reverse the conviction of Neuman, who was sentenced to serve life without parole. The court said in a summary of its opinion announcing the decision that evidence “was sufficient to enable to a trier of fact to conclude beyond a reasonable doubt that Neuman was guilty of the crimes of which he was committed.”
The DeKalb County District Attorney’s office said it will bring Neuman to trial again for the murder.
“The state will be prepared to retry the case as set by Judge [Gregory A.] Adams,” Eric Burton, director of communications for the DeKalb District Attorney’s office said in an email. “Since Mr. Neuman’s request for bond was denied prior to trial, he will remain in custody. Mr. Neuman would have the right to seek reconsideration of the denial of his bond at which time it would be up to Judge Adams to grant or deny such a request.”
Here is a summary of the opinion issued by the Supreme Court on June 15:
NEUMAN V. THE STATE (S15A0011)
In a 6-to-1 decision, the Supreme Court of Georgia has reversed the conviction of Hemy Neuman, who was found guilty but mentally ill of the 2010 murder of Russell “Rusty” Sneiderman outside a Dunwoody daycare center.
In this high-profile DeKalb County case, the high court has ruled that while the evidence “was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Neuman was guilty of the crimes of which he was convicted,” it must reverse Neuman’s conviction because the trial judge erred by allowing in as evidence the notes and records of two mental health experts who examined Neuman before trial.
“Because the trial court erred in admitting evidence, which was protected by the attorney-client privilege, we now reverse,” Justice Carol Hunstein writes for the majority.
The state has the option to retry Neuman, who is currently serving a sentence of life in prison with no chance of parole.
According to the state’s case, on Nov. 18, 2010, shortly after 9 a.m., Russell “Rusty” Sneiderman dropped off his 3-year-old son at Dunwoody Prep Daycare. Before Sneiderman got back to his car, Neuman, donning a bearded disguise, approached him in the parking lot and with a recently purchased .40 caliber handgun shot Sneiderman four to five times in the neck and torso. Despite the efforts of bystanders and ambulance personnel to save Sneiderman, several of the gunshot wounds were fatal to the 36-year-old father of two.
Witnesses described a middle-aged man with a fake beard as the gunman, and a silver or grey Kia Sedona minivan as the getaway car. Investigators discovered that Neuman had rented a silver Kia Sedona the day before the murder and returned it only hours later. Fibers consistent with a costume wig were found in the van. Once police learned of the rental car connection, and found Neuman had worked closely with the victim’s wife, Andrea Sneiderman, at General Electric, they began taking a close look at Neuman as a possible suspect. Investigators found evidence of an ongoing affair between Neuman, a married man with children, and Andrea Sneiderman.
Investigators also discovered that a few weeks before the shooting, Neuman had bought a gun and a box of hollow point bullets from a private seller he found on the Internet. He had gone to a firing range to practice shooting. After the murder, Neuman contacted the young man who had sold him the gun and told him “something bad” had happened with the gun, and he had tossed it into Lake Lanier where no one could find it. He offered the young man money to lie if approached by police.
At trial, two medical experts testified on Neuman’s behalf, and both concluded that at the time of the murder, Neuman was unable to distinguish between right and wrong due to a mental illness diagnosed as “bipolar disorder with psychosis, experiencing delusions.” But two medical experts who testified for the State concluded that Neuman had been able to distinguish between right and wrong at the time he shot Sneiderman and that the symptoms and behaviors he reported were inconsistent with mental illness. One testified he believed Neuman was “malingering,” or faking symptoms of mental illness, while the other said Neuman showed no signs of mental illness, hallucinations or delusions while in jail.
At issue in this opinion are the state’s subpoenas of two mental health experts who were hired by Neuman’s attorneys and were not initially due to testify. After Neuman pleaded not guilty, Dr. Julie Rand Dorney, a forensic psychiatrist, and Dr. Peter Thomas, a licensed psychologist, met with Neuman at the request of his attorneys to evaluate his psychological issues. Based on the doctors’ advice, the attorneys then hired an expert witness to conduct a forensic psychological evaluation of Neuman to assess his criminal responsibility. While initially Neuman had pleaded not guilty, following that expert’s evaluation, Neuman changed his plea to not guilty by reason of insanity.
When state prosecutors learned that Dorney and Thomas had met with Neuman, they sought their records from those meetings, over the objection of Neuman’s attorneys. Following two hearings, the judge ordered the defense to turn over to the State all the doctors’ notes and records concerning their evaluations of Neuman.
In March 2012, the jury found Neuman guilty but mentally ill of malice murder and possession of a Firearm During the Commission of a Felony. He then appealed to the state Supreme Court.
In today’s 20-page majority opinion, “we conclude that the trial court erred in disclosing to the State Dr. Rand Dorney’s and Dr. Thomas’ notes and records concerning Neuman. This evidence was not harmless, and therefore, we must reverse Neuman’s conviction.”
The majority rejects the state’s argument that merely raising an insanity defense waives the attorney-client privilege. In this case, Neuman’s attorneys hired Dorney and Thomas as consultants to assist them in evaluating a possible insanity defense for Neuman. When Thomas met with Neuman, he explained he was there at the request of Neuman’s attorneys, and whatever Neuman told him would be between Thomas and Neuman’s attorneys.
“The attorney-client privilege is ‘the oldest of the privileges for confidential communications known to the common law,’” today’s majority opinion says. It has long been the law of Georgia that the privilege “includes, by necessity, the network of agents and employees of both the attorney and client, acting under the direction of their respective principals, to facilitate the legal representation.” The privilege is not waived if the expert does not serve as a witness at trial. Here, the attorneys never intended to call Dorney and Thomas as witnesses, and only made the strategic trial decision to do so after the judge turned over their communications to the State.
The majority also has rejected the State’s argument that the doctors’ communications with Neuman are not protected by the attorney-client privilege because they were not confidential. Neuman signed a form before meeting with Dorney and Thomas that stated their examination of him was “not confidential” and anything “we discuss in the examination may be included in the written report or may be disclosed in court.”
However, Dorney explained to Neuman that she and Thomas would report their information only to his attorneys, who would decide how to use it. And, “[a]lthough the form states that the exam would not be confidential, it also states that the exam is at the referral of Neuman’s attorneys and information would be reported to trial counsel.”
“We find that the communications between Neuman, Dr. Thomas, Dr. Rand Dorney, and Neuman’s attorneys were intended to be confidential because it would foster an environment in which the doctors could probe Neuman for the truth, as part of the attorneys’ assessment of the viability of an insanity defense,” today’s majority opinion says. “Thus, we conclude that the notes and records of Dr. Rand Dorney and Dr. Thomas, which the trial court ordered be turned over to the State, were protected by the attorney-client privilege.”
Finally, while the State argues that any error in providing it with the doctors’ files was harmless, “We disagree,” the majority states. State prosecutors used the evidence from Dorney and Thomas to argue that Neuman was faking his symptoms and to impeach the statements Neuman made to the defense expert witnesses who evaluated his sanity and subsequently testified. “In this way, Dr. Rand Dorney and Dr. Thomas, although engaged by
the defense to evaluate Neuman, became involuntary witnesses for the State, whose testimony, at least in part, ultimately undercut Neuman’s defense,” the majority opinion says.
In the dissent, Justice Harold Melton argues that he would agree with the majority were it not for the form Neuman signed in jail before he met with Dorney and Thomas. “This document speaks for itself, and the majority has not given any persuasive reason to support its conclusion that the document would somehow do anything other than convey a clear intention to show that the communications between Neuman and Drs. Thomas and Rand Dorney were ‘not confidential,’” the dissent says. The form specifically told Neuman nothing was “off the record” and anything he said was “not a secret.” And the form said that anything in the written report could “be disclosed in court, without specifying that only Neuman’s attorneys would be authorized to make such court disclosures.”
“The fact that the attorneys would receive the report first is to be expected, but it does nothing to change the fact that the waiver form indicated that any such report could also be later disclosed in court and would not otherwise be confidential,” the dissent says.
“The attorney-client privilege protects communications between the client and the attorney that are intended to be confidential; the protection does not extend to communications which are not of a confidential nature.”
“Because I believe that the majority is incorrect for having concluded that the notes and records of Drs. Rand Dorney and Thomas were subject to the attorney-client privilege under the circumstances of this case, I must respectfully dissent.”
Attorney for Appellant (Neuman): J. Scott Key
Attorneys for Appellee (State): Robert James, District Attorney, Anna Cross, Dep. Chief Asst. D.A., Deborah Wellborn, Asst. D.A., Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Clint Malcolm, Asst. A.G.