By Jerry F.
On the night before New Year’s Eve, 1988, Paul Cox and two friends were at a keg party near Larchmont, New York. When the beer ran out, the three went to a local bar where they continued drinking. Then the three men walked toward Cox parents’ house where he was living. On the way they passed the Larchmont home of Drs. Lakshman and Shantu Chervu . Cox’s parents and their son Paul had lived in this house until they sold it to the physician couple in 1974.
On this New Year’s Eve, Cox smashed a window, took a knife from the kitchen, and went upstairs into the Chervus’ bedroom where he sat on the bed. When Shantu Chervus woke up he stabbed her. Lakshman then awoke and Cox stabbed him multiple times. He then slit the throats of both victims. Cox cleaned all the surfaces on which he thought he might have left his fingerprints. He went to his parents’ house and passed out.
On January 2, 1989, police discovered the bodies of the Chevrus couple. It would be four years before the police identified a suspect. During that period Cox had anxiety-ridden dreams and paranoia. He began to realize that he had killed the Chervus. Several years after the killing, Cox was rooming with another man. He told this man that he had awoken the morning after the murders with his clothes covered in blood. He burned the clothes in an incinerator and threw the knife into a body of water.
In the spring of 1990, after another blackout, Cox began to attend AA meetings. Cox disliked the religiosity implicit in AA but, since he was now controlling his drinking, he continued attending the meetings. Several months later he was at Steps Four and Five. One night, following an AA meeting, he went to the home of his girlfriend, also an AA member. Crying, emotionally distraught, he told her that he thought he had killed the Chevus couple. His girlfriend said she did not believe he could have done such a thing and he should take it up with his sponsor. Cox told his sponsor that he wasn’t certain that he had committed the murder because of the blackout. The sponsor asked Cox if it would be alright if he spoke to another AA member who had about ten years of sobriety. After that, Cox spoke to his sponsor “dozens of times” about the killings.
Eventually the old-timer who had been been briefed by the sponsor said that he wanted to call his father who was an AA member and a lawyer. Later, the old-timer spoke directly to Cox and told him that his father’s advice for Cox was “Don’t drink and keep going to meetings.” But the old-timer also suggested that Cox should hire a private detective or a lawyer. Cox met with an attorney, Andrew Rubin who told Cox to stay in AA, stay in therapy, and to talk to no one about the murders.
Over the next two years Cox told a number of AA members that he thought he had killed the Chevrus couple. One night Cox approached a sober biker and asked him if he had ever killed anyone. The biker spoke often about his own gang affiliation in Oakland so Cox thought he might have committed such a crime. The biker told Cox that he had never killed anyone and Cox then told the biker, in detail, about his murders of the Chevus.
In late 1990 or early 1991, after another AA meeting, Cox told yet another AA member that he thought he had killed two people while they slept. He explained about how he burned the bloody clothing and got rid of the knife. He spoke to this member several times about the murders.
In December, 1991, Cox moved into an apartment with another sober AA member. Sometime later, he told this man about having a dream about killing the couple. On two other occasions he told his roommate about the details surrounding the killings.
In January 1993, a sober woman talked to Cox and his roommate about moving in with them. Cox told her that if she was going to become his roommate, he needed to tell her about his recurring dream. He then told her about the murders. She did move in with the men for about two months when, for health reasons, she moved back into her parents house. In May 1993, acting on the advice of her psychiatrist, she went to the Mamaroneck Police Department of New York. She told them all that Cox had disclosed to her. She also told them the names of seven other AA members to whom Cox had confessed. The Larchmont police questioned all of them and they confirmed that Cox had confessed to them.
Cox was arrested on May 20, 1993. In addition to the statements of AA members, police had a matching palm print of Cox’s at the entryway into the Chevru house.
In a pre-trial hearing, a member of the Cox defense team argued that the testimony of the various AA members should be suppressed in part because “These statements were made in reliance upon the historical and necessary blanket of confidentiality which involves the free sharing and communication of issues among AA members.”
The State replied, in part, that Cox’s statements “even if made in express or implied confidence, do not fall within the recognized privileges protecting them from disclosure.”
The Defense responded that Cox’s statements to AA members should be considered as privileged and therefore protected from disclosure or use at trial even though there wasn’t any express statute to that effect. This motion went to the Supreme Court, Westchester County, but it was denied.
At Cox’s first trial the Defense argued that the palm print (the only physical evidence of the Prosecution) should be suppressed because the police would not have had probable cause to arrest Cox and thereby gain the palm print if it hadn’t been for the statements made by the AA members and those statements should have been suppressed. The trial court acknowledged that application for suppression as an issue to be brought up on appeal but nonetheless denied the motion. The first trial ended in a hung jury (11 – 1) and a mistrial.
At the second trial the Defense stated that same objection regarding the purported privileged communication that Cox had with fellow AA members and it was again denied. In this second trial Cox was found guilty of intentional murder but that he had acted “under the influence of extreme emotional disturbance.” (There was testimony that Cox may have thought he was killing his parents at the time). He was sentenced to two consecutive terms of eight and one-third to twenty-five years imprisonment.
At the NY Supreme Court Appellate Division, Defense again argued that statements made to other AAs should be privileged and so suppressed under New York’s cleric-congregant privilege. The State replied that “AA is not a religion” and “members of AA would not be deemed clerics.” Cox’s application to appeal was, therefore, denied.
In May, 2001, Cox petitioned in the District Court for a writ of habeas corpus. He raised six grounds for relief, one of which was that “statements to his fellow AA members constituted confidential communications, the use of which violated Cox’s First and Fourteenth Amendments.”
The court found that, after learning the identities of Cox’s fellow AA members, and noting the confidentiality which AA holds out to its members, the assistant district attorney violated that confidentiality in its interrogation of those members.
The District Court then reviewed the origins of New York’s cleric-congregant privilege, quoting the New York Court of Appeals’ explanation in Carmona that “New York’s test for the privilege’s applicability distills to a single inquiry: whether the communication in question was made in confidence and for the purpose of obtaining spiritual guidance.”
The district court determined that the Appellate Division did not give serious consideration to Cox’s claim of cleric-congregant privilege and that the Appellate Division dismissed, again without serious consideration, the claim that AA was a religion.
The District Court noted that the New York Circuit Court had already held that AA is a religion for purposes of the Establishment Clause. The District Court went on to remark, “Clearly it is possible as a matter of Constitutional law to have and to practice a religion without having a clergyman as such, or where all members exercise the office of a clergyman to the extent of receiving confessions or confidences.” It concluded, therefore, that New York’s cleric-congregant law must be construed to AA communications. It followed, then, that the palm prints were the fruits of the poisonous tree and the court granted the petition for a writ of habeas corpus.
Cox’s federal claim rests on his assertion that he has exhausted all of the remedies available to him under state law. This area is complex and we needn’t go into it in detail. Suffice it to say that the federal court granted Cox habeas corpus. Interestingly, in his brief Cox cited Griffin v. Coughlin, another New York state case. In Griffin, the court found that “doctrinally and as actually practiced in the 12-step methodology, adherence to the AA fellowship entails engagement in religious activity and religious proselytization. ” Cox relied on Griffin and other case law in his claim that “AA is a religious organization for constitutional purposes.”In that case, the cleric-congregant privilege should apply to communications made between any members of AA.
Cox further contended that the Fourth and Fourteenth Amendment prohibited his arrest because the evidence supporting probable cause was derived from inculpatory statements made by AA members. Considered as a whole, Cox’s brief sufficed to alert the Appellate Division to the existence of a potential constitutional defect in an interpretation of New York’s cleric-congregant privilege that excluded from its scope AA, which the New York Court of Appeals deems to be a religious organization for at least some Establishment Clause purposes.
There was yet another matter considered by the federal court. Cox’s defense counsel did not move to suppress the AA members inculpatory statements, seemingly, thereby, waiving this claim. But there is nothing in the language of the Appellate Division to suggest that this claim had been waived.
The question, then, was this. Was Cox’s communication with his fellow AAs made “in confidence and for the purpose of obtaining spiritual guidance?”
A large body of case law was consulted. Importantly, the New York State Supreme Court had twice declared that, for purposes of the Establishment Clause of the First Amendment, AA was a religion. In one case they stated:
The AA program to which [the plaintiff] was exposed had a substantial religious component. Participants were told to pray to God for help in overcoming their affliction. Meetings opened and closed with group prayer …. We have no doubt that the meetings [the plaintiff] attended were intensely religious events.
In the Cox case the court wrote “Asking that we reject the district court’s conclusion, the appellant cautions us against “establishing” AA as a “religion” and “concomitantly labeling its members as members of a religious sect, “lest we offend “atheists and agnostics [and members of other organized religions] who have reconciled their personal beliefs with their participation in AA.”
The court noted that, although Step Three invites AA members “to turn [their] will and [their] lives over to the care of God as [they] understand him,” We doubt ,however that many members of AA would therefore identify themselves as members of “the AA religion.”
The court then referred to the Seventh Circuit in observing that the inclusion of qualifiers in the tenets of AA (e.g., “God as we understood Him)”, fails to remove it from the realm of religious activity in which the government may not, consistent with the Establishment Clause, compel citizens to participate ….
True, [the] God [referred to in the twelve steps of the materially indistinguishable Narcotics Anonymous program might be known as Allah to some, or YHWH to others, or the Holy Trinity to still others, but the twelve steps consistently refer to “God, as we understood Him.” Even if we expanded the steps to include polytheistic ideal, or animistic philosophies, they are still fundamentally based on a religious concept of a Higher Power.
Had Cox requested confidentiality before consulting each of the eight AA members to whom he confessed the murders of the Chevru couple, and if he had asked those members for spiritual guidance. the case could have had enormous consequences for AA regarded as a religion. But this was not the case. Though Cox claimed that he sought guidance on how to handle the fourth step of AAs religiously imbued recovery program, the court determined that Cox sought practical and legal advice. He admitted his culpability to several AA members and appeared to be seeking to unburden himself, to receive empathy and emotional support.
There was great public disapproval of the final guilty charge of Paul Cox. Luminaries such as Jessica G. Weiner and Jimmy Breslin wrote articles condemning the court’s decision. But, though the court accepted Cox’s claim that he hadn’t drank alcohol since joining AA and that confidentiality is vital to the success of AA, the culpability of the murder of the Chevrus was the matter at hand and of that there was no doubt.
Of the twenty-two court cases that constitute the body of law that must be consulted when questions arise about AA considered as a religion, the Cox case is one of the five most important as well as being one of the strangest. And it illustrates the potential difficulty of the typical AA members who may, through no fault of their own, be compelled to appear in court and have their anonymity jeopardized by the presence of members of the press.
About the Author, Jerry F
Jerry F. is one of the founding members of We Agnostics in Tempe, AZ and was the instigator of the WAAFT-AZ Convention last November in Phoenix. He has served in many positions in his 27 years in AA and is currently treasurer of his traditional AA group, coffeemaker of his secular group, and is beginning a term as a board member of WAAFT-IAAC. He considers his greatest achievement as being responsible for a change to the Fourth Edition of the Big Book and his greatest asset as being relentlessly anal.