From the Archives: Psych’d Up And Ready To Fight

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I don't know who decides to work at a psychiatric lockdown hospital and then is surprised when someone says something crazy to them. The psychiatric tech who testified, I was just ready to shred him.

Everything about the way he was answering questions suggested he found himself to be far more important than he is. The DAs are standing in as the voice of the system and they're out there on their soapbox and they're preaching public safety and righteousness. And I'm looking at this old man be dragged across the floor. There was nothing about that that said justice. So I got pretty fired up.

Welcome to another Not Guilty. I'm David. I'm Nikhil.

We're public defenders here to share the untold stories of the criminal justice system.

Objection! That assumes there's justice in the system, which there ain't. I prefer calling it the American criminal system.

Okay, stories from the American criminal system from the forbidden point of view. The one that the man doesn't want you to know about.

Also known as the point of view of the defense. These stories are about the many not guilty we public defenders get on a daily basis in an unjust criminal system with the deck stacked against us.

All right, we're rolling. How you doing this week David? I'm great. I'm doing good. Like I switched that up right there. Yeah, I thought I was gonna be busy in trial. And they they dismissed my case. And so now I'm not busy in trial. And I feel like I got like a bunch of free time on my hand or it's just like I'm working on borrowed time or you know, just sort of like these moments weren't supposed to be so borrowed time like you.

Yeah, just be cancer this week or like, oh, wait, I must, you know, I should be at my desk right now. I should be in courtroom like working really hard, but not at my desk.

It's a nice surprise though. It's a nice surprise. It's like I could I could be doing anything I want right now. Yeah, you know, I don't need to be working hard and you're here with us.

I am here with us today doing this recording another episode of another not guilty. They're not guilty.

We have with us a unique guest, right? Someone's bringing a new perspective to the criminal system. We have Loren with us this week. Welcome to another not guilty. Thank you.

Yeah. And Loren, you know, you think you're can you focus and tell us about your legal work?

Are you gonna be focused on the dog right now that you found? Oh, on the way over here on the way over here.

Because Loren's a public defender by day. Also, also a secret dog rescuer a secret or not so secret obsession with rescuing dogs.

So but Jaeger is is on his way home. Oh, I'll be good.

OK, good. Good. Reunited. Nice. Yeah, that's a good deed for the year. Yeah.

Well for the day for the day. There's always more dogs.

Well, tell us about the the the recent victory you had in court where you rescued the client from what three strikes is the clutch.

Yes. The clutches of the of the American indifferent American criminal, the American criminal system.

Yes. I had a client who is 68 years old. OK.

And he was charged with this third strike for 22 criminal threat.

And he was charged based on conduct from inside of a mental institution.

Oh, nice. Yeah. Nice. Yeah.

So he already was mentally he was stable, right? Correct.

He was a diagnosed paranoid schizophrenic for most of his life.

He's been in and out of either jail or psychiatric hospitals.

He was in the psychiatric hospital this time on a conservatorship.

So that's kind of a big deal. He wasn't just there pending another case where they were worried he might not be competent.

But he he's under a conservatorship, so he's not going to live on his own ever again.

And a conservatorship means that somebody else makes his legal choices for him.

Right. Correct. And legal medical.

He's house. All of those things.

Kind of like Britney Spears had a conservatorship when she shaved her head and went nuts.

Oh, OK. Yeah. You know, remember when she was attacking cars with an umbrella and stuff?

But she had a special kind of conservatorship that allowed her to be out and be sort of supervised.

Her dad was her conservatorship. My client had the kind of conservatorship where especially since he didn't have anybody to sort of take care of him on the outside.

And he very clearly did not have Britney Spears money that he was going to have to stay institutionalized in the psychiatric facility with the hospital making his decisions for him.

So is this a special type of hospital that he was staying at?

This hospital is one of the two main hospitals that services our area for mentally incompetent or mentally ill patients and defendants.

This particular hospital. OK, so the client picks up a four twenty two criminal threats for yelling something at like what's the factual basis of what happened?

So let me just tell you, my client is hanging out in the hospital and he goes over to the nurse's station, which we found out later was actually a like a secure room.

Picture like at a bank or a police station where they have the the workers behind like the bullet glass and it's locked and no one can get in there if they don't.

If the people inside don't let them in like a vestibule, like, you know, yes, a vestibule. Yes.

So my client went over to the nurse's station and started banging on the glass or the plastic, whatever it may have been,

and was insisting that he be provided diapers and reasonable request.

Well, it's a reasonable request if you need diapers.

He did not need diapers, which should have been the first tip off to the staff that something was happening with him.

And then he proceeded to ask to see a psych.

That was his direct quote. He wanted to see a psych.

So he was looking for a psychiatrist. I don't know if he wanted to adjust his medication or if he was ready to talk about whatever the break is that he was having.

But as he's banging on the nurse's station and demanding a psych and no one is helping him.

So my staff, the psych techs, leave the safety of the locked vestibule at the nurse's station and they go to try and deescalate the situation with my client and my client continues to say things of a threatening nature.

I better get this. My client also apparently said things like, you don't know me.

I've killed people before.

Side note, that's not true.

So again, my client's there in this hospital on a conservatorship because he's so mentally ill that he cannot function in the real world on his own.

He's supposed to be taking medication.

At this point, they weren't sure if he had been cheeking it or he wasn't taking it.

So according to the police report, at some point, a doctor is called.

A doctor arrives at the hospital to try and calm him down.

And they actually forcibly injected him with the medication to calm him down.

Right at that moment or?

It all happened very quickly.

So as the technicians are engaging him, they take him to a side room and the doctor is there.

And the doctor went ahead and gave him an injection to calm him down.

And then he was handcuffed and removed from the facility.

And then taken where?

County jail.

So he's conserved in a facility that's designed to take care of him.

Correct.

And after they inject him with some kind of, you know, sedative.

Anti-psychotic sedative.

Anti-psychotic.

Yes.

And then they decide to take him to the luxurious.

County jail.

Yes.

And this is because you said a threat.

What was the threat again?

Correct.

So the initial threat was, I want to see a psych.

I want to see a doctor.

I'm going to kill somebody.

Uh, one of the tech said that as the doctor was coming at him with the, uh, the needle,

the needle, he was saying to one of the female staff members and come in here, bitch.

And I'll show you that I can kill someone.

And stuff of that nature.

But he's, yeah, he's 68.

And crazy.

In a mental hospital.

It's interesting.

And I think that's a good thing.

I think that's a good thing.

And just this is what strikes me just from, you know, practicing.

Let me see a psych or or I'm going to kill someone tonight.

Seems to me it could be interpreted just as much as a warning as a threat.

Like, hey, guys, like I need to see a doctor or else I might do something crazy like kill someone like more so than like I'm going to kill you.

And I mean, like, I mean, I'm just I'm just I'm just thinking this out loud.

It's easy to laugh about it.

But in truth, I think it was more egregious to me to get this case and see that you have somebody who's specifically asking to see the doctor.

The doctors aren't with them 24/7, but these other staff members are when they have a problem.

If they don't have a regularly scheduled appointment, they go to see the doctor.

So you have somebody who was aware enough to be saying, look, I need a doctor.

And he was trying to get his needs met.

And this is how they responded.

Wow.

OK, so you got this case.

Are you are you pretty.

Do you get a lot of these cases from this hospital?

You said that is in the county.

So something that's frequent for you.

This was my first one.

What it reminded me of.

I used to get a lot of cases like this in juvenile practice.

There is a lockdown level 14 mental health placement for minors.

This is it's the only one of its kind that we send a lot of our our.

Seriously.

Clients seriously mentally ill.

There's there's a lot of requirements.

You don't just send any one of the juvenile offenders there.

And when I was practicing in juvenile court, we started to see a bunch of cases where the kids would spit or push or or threaten the staff who worked there and they would file new charges.

What we did in juvenile court was we all got together and talked about our cases.

We kept track and we we ran it up the chain so that the D.A.'s office could be confronted with the idea that these kids are here for exactly this type of behavior.

You can't punish them for behaving in the way that they are required to behave in order to get into the facility.

And they're supposed to be getting treatment.

This case really reminded me of that.

And that made me extra angry that this is something that's happening where someone the consequences are so high.

Remember, this guy was facing his third strike.

So he was looking at life in prison and not even.

I mean, pretty much any meaningful prison sentence for this guy means it could be life for him.

Correct.

So old.

I mean, in all honesty, if he didn't have any strike priors, the fact that he was looking at a violent or a serious offense and looking at a strike on his record in prison time.

For this kind of behavior, I think should be something that bothers everybody.

Yeah.

So you get the case and you meet the client.

Yes.

And was he the appear competent at the time?

So I got the case in the end of November, beginning of December.

The case actually came to my court in July.

And the EDP attorney, the early disposition attorney, sent him to the mental health court saying, I don't believe him to be competent.

So he was gone for several months in another psychiatric facility while they could medicate him to try and restore him to competency to face trial for his behavior in the first psychiatric facility.

Oh, because you can't you can't prosecute or criminalize the people who are of not sound mind because the whole point of justice system is to punish evil minds.

Correct.

Not insane mind, crazy mind.

Yeah.

You know, so we got to make sure you understand why we're punishing you.

Right.

Otherwise, it's just pointless.

Right.

I mean, right.

So and I again, there is a lot of things about this case that made me furious.

The fact that immediately upon the filing, he was deemed to be incompetent to stand trial and had to go to a hospital to be medicated and and restored to competency.

I mean, it's just ridiculous.

So we declared a doubt saying he was not competent to stand trial.

Then we sent him to the hospital.

The hospital agrees.

Yes.

And he is declared incompetent.

Correct.

So proceedings are suspended.

So everyone agrees this guy is not of sound mind.

It's not of sound mind.

It's not just the defense attorney.

Yes.

Everybody agrees.

That's correct.

And he came back four or five months later.

By the time I met him, he was just very subdued, which is something that's pretty common.

I think in our practice, all of us have seen clients with severe mental illnesses and the jails just kind of dope them up so that they don't put up much of a fight.

So then what were some of your goals at this point then?

My immediate and ultimate goal was to get a dismissal.

Okay.

I began by subpoenaing his records from the state hospital so that I could get a sense of exactly why he was there and what the issues were.

And I could hopefully find or put something together to show to the district attorney to say this is somebody this is this wasn't just a moment.

This is somebody with a long history of this sort of psychiatric illness.

And he does not deserve to be punished for his words.

I feel like that's quite some lofty goals like I like I get a case.

I'm like, this is ridiculous.

And I'm like, I don't have to go to trial now.

And you're like, oh, this is ridiculous.

I'm just going to ask for a dismissal.

You know, like.

Yeah.

Go big or go home.

You know, you must have credibility with your fellow prosecutors if they're just going to like.

Well, it didn't work.

We had to go to prelim, but I tried.

No, I really just felt like we've all gotten cases that seem kind of ridiculous.

But this one in particular, it it seemed ridiculous and it didn't make any sense to me.

He was exactly where he was supposed to be in this psychiatric facility in this mental hospital.

It's a lockdown facility.

So all of the D.A.s or the police, they're they're concerned for public safety.

He's not going anywhere.

It's a lockdown facility.

And it's the place that's appropriate for the level of care that he needed.

So it didn't make any sense to me to remove him from a facility that, in theory,

all of the people are supposed to be trained to handle everything about his illness

and put him in county jail or state prison where he would never get the same level of care

and where you would be endangering not only him, but the people around him

or even the staff at county jail or state prison because they don't have the training

or the tools to deal with somebody with that level of mental health issues.

So.

All right.

So that you subpoena a bunch of medical records, right?

Yes.

And what what are you doing or what are you receiving?

Just a packet of his history.

How are you putting this package together for the D.A.?

Well, I didn't end up putting anything together for the D.A.

The amount the sheer volume of records I received was a bit overwhelming.

And I got a lot of notice that a lot of the records were so old they had been destroyed.

So they were saying there was more records.

But I ended up getting a huge box of just his psych records from the various places.

And all I did really was use them as a visual aid.

I later went and met with the D.A. and just sort of dropped the box on the desk and was like,

do you want to look at these with me here or you want to go over them on your own?

It was slightly effective.

So you mouthed it.

Is this is when you mouthed the D.A. to ask for the dismissal?

Yes.

So another frustrating thing about this case that I would like to point out is that what

I what I did was go to the D.A. in the courtroom, which all of us have done.

And all of us have heard the same response.

I don't have the power to do anything about this.

So the calendar D.A. actually said to me that he agreed with my outrage, but he didn't have

the power to dismiss because it was a third strike case.

Is that right?

It was a third strike.

So I had to go to some special of the head deputy, I'm sure.

Right.

Of the office.

You know, actually, I don't think I've met a D.A. who can just outright dismiss the case,

even if it's not a third strike without getting their boss's approval.

I mean, either.

But at least that's what they tell us.

I don't think a D.A. exists.

Yeah, I don't.

I think it's an urban legend.

Yeah.

So I talked to the calendar D.A. and he suggested that I make an appointment with the head deputy

of the D.A.'s office.

I love those.

Those are my favorite type of meeting.

Aren't they great?

I was coming away so satisfied.

It's actually like a rewarding, fulfilling meeting where I feel like it was a meeting of

the minds.

All my arguments were taken very seriously.

Oh, I feel like I'm talking to someone that like in the best their time and education and the criminal justice,

excuse me, criminal system like I do.

Yeah, totally.

And then your plan was to say, hey, look, I read this case that you also read and decided to file three strikes.

I read it and thought you should dismiss it.

How'd that go?

Yeah.

Well, my hope was that, you know, the head deputy is not usually the filing deputy.

Yeah.

Okay.

Fair enough.

Well, we'll comment.

Yeah.

Watch.

Watch your sass over there.

Yeah.

Fair enough.

There are a lot of types of different types of D.A.'s.

And my hope was that there was an over eager.

Filer.

Filing deputy or someone who hadn't really paid that close of attention.

Yeah.

And that, you know, the head of the district attorney's office has publicly made speeches

and comments and has stated that part of her platform is criminal justice reform as it pertains

to mental health issues.

Yeah.

So I had kind of hoped that the head deputy wasn't aware that these filings were happening

or wasn't aware of the sort of the circumstances of this case, meaning that there were there was

no actual physical harm that came to anybody or or anything close to resembling physical harm.

And I was hoping that if I spoke to him and I presented that information to him that he might go ahead

and reverse the decision of his filing deputy.

So you met with the head deputy.

Yeah.

How long was that meeting?

In actual time or what it felt like?

What it felt like.

It felt like a good four hours.

I was probably in there for about 10 minutes.

Did you bring the big box of health mental health records?

I did.

I brought the box.

He saw the box and was not interested in reviewing any of its contents.

The elephant in the room that no one's talking about.

Correct.

So what?

So they give you an offer in that case?

They tell you.

He did not at that time.

Speaking to the head deputy, he was, what's the word?

Snarky?

Pompous?

Hmm.

In the in the sense of, you know, as soon as I walked in before I could say anything,

he's like, let me guess.

You just think this is an assumption of the risk.

What?

Yeah.

I get it.

A little bit.

I have I have more to say than that.

But yes, his thing is that he he thinks that our office routinely objects to these filings

because we think that if you work at these facilities, these lockdown psychiatric facilities

that are predominantly inhabited by criminal defendants, that you sort of assume the risk

of this type of behavior, which I don't disagree with, but it was not going to be my main argument.

But that was the tenor that he set as soon as I walked in.

It's like, you know, if you go on Splash Mountain, there's signs posted saying you may get wet.

Correct.

You know, like all along the you wait in line, you may get wet, you know, and that it's just part of the ride.

I don't know who decides to work at a psychiatric lockdown hospital and then is surprised when someone says something crazy to them.

I really I don't I don't I don't I don't understand how that even happens.

But do you think like let me ask you this?

Do you think and it's maybe very abstract question, but do you think some of it is just like the criminal justice inertia?

Like, you know, once the police are called and they have to take a report and that report goes to the days got got to file a case

because I'm the DA and police officer filed a report.

I mean, there's very rarely do I think that they just get a report and they talk.

I feel like they just have so much bureaucratic pressure to just file the cases for the sake of filing them once the report is taken.

You know, like I agree.

I think that you had somebody saying they were afraid and a crime was committed.

You had multiple police agencies if you count the hospital police who work on site and initially responded.

And I think it actually goes deeper than that, which was another thing that offended me about this case.

Everyone knows that we don't have enough beds to house our mentally ill clients.

We just don't.

And I personally believed that and still believe that a lot of the reason that you're seeing these filings is that it's a way to move people out and create space for the more deserving sometimes.

Yeah, I don't I don't know if they're, you know, quote, more deserving or who's making that determination.

And honestly, I would love to find out how their funding works.

If if the number of people they treat increases their funding, because then it's not necessarily about deserving.

But I do. I do believe that at least part of the reason, maybe not from the perspective of the district attorney, but from the hospital, is that you have somebody.

It's easier to deal with the patients who are walking around like zombies.

Yeah.

So you have somebody who's going to cause more work and more effort and you can get rid of them and open the bed to somebody else.

What can I ask you just what race was your client?

Black.

I mean, do you think I mean, I feel like that there's just so much subconscious or even conscious racism in the system, like an inherent bias against African-Americans.

And some of my friends we talked to about, like, bias in the medical system for how African-Americans receive substandard care.

Yes.

So to me, your case kind of kind of presents this overlap of these two issues, right?

Definitely.

There's such a like a viewing of his words are seen as such a threat because he also is black.

Correct.

His actions are amplified.

He was also large.

So you have a large black man who's yelling and being sort of demonstratively aggressive and how that is seen.

It's so criminalized.

Correct.

As opposed to like someone who might just be, oh, that's a crazy white guy or maybe some crazy Asian.

And I think that's a really important point to say that his behavior was immediately criminalized as opposed to being exactly what it was, which is a symptom of his mental illness.

Yes.

So DA meeting.

Yes.

Didn't go well.

No.

What else did he say that the supervisor say?

One of the things he said was that really bothered me was that he didn't want to give a dismissal or excuse me.

He didn't want to even consider reducing the charges.

So he when I told him I was looking for a dismissal.

One of the things I also did was tell him we would accept a misdemeanor, which I didn't want to do.

And I always feel like is a little bit of selling your PD soul because, you know, your client doesn't deserve these charges at all.

But it was a third strike case.

So as far as I was concerned, if he was willing to give my client a misdemeanor, I was I thought maybe that would give him a way to save face the DA.

I thought that would give him an out to say, you're right.

On some level, we shouldn't be prosecuting this as as a third strike or as a felony.

But we have to send a message that they can't be abusive with staff so he can have a misdemeanor.

We have to send a message assuming they receive it or comprehend it.

Right.

Which we know at the time he could not.

So we have to send a message to all the other people in where he lives.

Right.

Those people need to know it's a deterrent to them.

The other crazy people who are incompetent.

Who were able to clearly see that because he was arrested.

He made a threat.

He got arrested.

He's been gone for nine months.

He got a misdemeanor when he came back.

I will not.

That's going to deter me from doing it.

I wonder sometimes if they think that's the way out.

To get arrested.

They want to leave.

That might be the way out.

They don't know what happens to him after that.

Yeah.

But in all honesty, I also explained to the DA in that meeting, the head deputy, that there

was nothing about this case.

Nothing about the words my client said.

Nothing about his behavior that would warrant this being a felony filing, even if it should

have been a filing.

So even if I agreed that they should have filed charges, there was nothing about this that

made it a felony.

There were no weapons.

There was no lunging.

There was nothing that elevated these words to a felony.

Other than your client's record.

Other than his record and that he was a big, scary black man.

Okay.

Got it.

Yeah.

So the DA indicated to me, to go back to your question, that he would not give a misdemeanor.

He said he would either dismiss the case or they would proceed as filed.

And he would get back to me with an answer as to what he wanted to do.

And the DA was particularly interested in finding out what would happen if they did dismiss the

case.

Where would this guy go?

Because, you know, he would be a public safety threat running around, being crazy out on the

street.

Which was difficult to listen to because it doesn't get me anywhere to be a smart ass

with the head deputy of the DA's office.

But I don't know if anyone else has picked up on the fact that if you just left him where

he was in the first place, we wouldn't be having this conversation about where he's going

to go.

Yeah.

See, it's my job to protect the community.

Right.

You know, I got to factor this in as something you defense attorneys don't quite get.

Right.

We think about the victims, the community at large, you know, public safety, officer safety.

Yeah.

So I left that meeting completely.

Nothing was resolved at that point.

And one of the frustrating things is that remember, I got the case end of November, beginning

of December.

the holidays.

So we had to waive time to accommodate this guy's vacation schedule so that we can have

this meeting.

And then I walk into this meeting and he doesn't know anything about the case.

He hasn't looked into it and he's not able to make any decisions.

So we waive more time to see if he's going to dismiss the case or give us an offer that

gets my client out of jail or out of prison and back into a hospital.

So let me ask you, I have this follow up question since we're talking about these DA meetings.

Do you think, because I feel like your experience is very similar to my experiences meeting with

head deputies and I think David's also.

Probably everyone's.

Yeah.

Do you think that they, I think they all have this, they feign this ignorance of the case.

Do you think, I mean, I don't know if they feign it or they just really don't know.

Do you think it's a power play on their part to kind of play dumb?

Or do you think that they're really haven't paid attention, looked into it or a mix of both.

I mean, yeah.

I don't think they're mutually exclusive variables.

I think that there's a little bit of a, well, why don't you tell me?

Right.

I'll pretend I don't know.

You go ahead and tell me.

What you want so they can see what we want.

Right.

And how, how we've sort of evaluated the case and what our perspective is.

But I also think that there is a measure of sort of not being prepared.

I mean, I think every public defender has sort of experienced the DA's not really looking

into a case until the last minute, meaning when you're ordering jury panels, which is very,

very frustrating.

But in this case in particular, where you have a client who you think hasn't committed

a crime and should be in the hospital and a case shouldn't have been filed and you've

had to waive time just for this stupid meeting, it was very disappointing to not have the DA

prepared to actually get into the case and discuss it and come to a decision at that point.

To treat you like the professional that you are and to meet you on that level field.

Right.

And say, hey, let's talk about this and resolve it.

Correct.

Because I'm interested in maybe saving taxpayer dollars.

Right.

Or, you know, getting this guy where he needs to go.

It begins to feel like a farce, like a show.

Like the DA is agreeing to meet with you so that they can say they did.

So when the judges get all upset about things being set for trial, they say, well, we tried.

We had these meetings with these crazy public defenders, but they want dismissals and apologies

and, you know, it begins to feel.

This is a third strike case, your honor.

Yeah.

This is life in prison we're talking about.

Right.

This is a dangerous man.

Yeah.

So.

All right.

So the meeting doesn't work out.

No.

What's your next?

What's the next step?

What happens?

I'm and I ended up getting an email from one of the lower level days to say that they were

going to proceed as a felony, but that they could maybe consider striking a strike prior

so that it wouldn't be a third strike.

Oh, so he'd be looking at like six max.

Well, yeah.

Minimum of six.

If you're not if you're not including the priors, the nickel priors and you're not including

any other prison priors, then it would just be the maximum of the four twenty two, which

is three years doubled.

So again, this guy's sixty eight.

How correct?

Pretty much any prison time.

Not to mention.

I mean, we mentioned something about being brutalized in prison, too, right?

Yes.

Prison really doesn't have the resources to protect people who are this mentally ill.

And oftentimes they're raped or physically assaulted or just brutalized by deputies.

Right.

You know, they don't even really always have the proper medications to give to people.

So even on just sort of that level that you have somebody who is ill and needs medication

and he may not have access to the proper medication and on the proper schedule, just on a basic

level, they're not equipped to deal with this.

So you don't resolve the case.

No, I did not resolve the case.

I set the case for trial or for preliminary hearing.

I when he showed up for prelim, he was wearing brown, which lets you know that he's been in

the hospital.

All of the county jail inmates have color coded jumpsuits.

So he's wearing brown.

And I went to go see him in the attorney room on the first floor lockup.

So it's outside of court.

You can have some privacy.

And his physical health had deteriorated to the point where he couldn't sit on the little

metal stools.

So he was on the ground, sort of lounging on the ground of the cell.

And he was so pitiful.

It was really, really heartbreaking to meet with him.

He was very aware of what was happening.

He was pretty hopeless.

He'd been on his meds.

So he was he was very cognizant of everything that was happening.

And he was just very sad.

Mentally, physically, everything about him was this.

This is the day of the prelim, the day of the prelim.

And actually, he couldn't get up.

So I had to watch as the sheriff's deputies opened the door to the interview room.

And he's on the other side of the glass.

It's very small space.

And they dragged him out because the space wasn't big enough for them to get in and physically

lift him or help him.

So he just put his arms up and they grabbed his arms and they just dragged him across the

floor out of the cell so that then a group of them could assist him in standing up so that

he could get upstairs to court.

I mean, and what's funny also is that I mean, I know this is a year later, essentially, but

one of the elements of 422 is the capacity to commit, right?

Like, correct.

The present ability to carry out carry out the threat.

Right.

That's one of the elements.

And it's give me a give me.

I mean, give me a fucking break.

Right.

Like it's like this, like 60 year old.

You can't stand on his own.

It's like reminds me of grandpa from the Simpsons, like yelling at the clouds.

Right.

Like, really?

Do you think this guy is going to do something?

I mean, how many old people say crazy shit?

You're just like, whatever.

And you move on.

Right.

And here he is being like, I mean, how many?

I mean, he's probably this frail man that the deputies are like, you know, he was very

cooperative.

The deputies who worked in the court system all couldn't believe this was going on.

What was happening.

But he just wasn't really able to care for himself on a basic level.

And so just watching that, it got me pretty fired up for the prelim because I, I was down

there with him and I just kind of wanted to cry and was just furious that this was somebody

who I think was being victimized by the system.

The system, the DAs are standing in as the voice of the system and they're out there on

their soapbox and they're preaching public safety and, and righteousness.

And I'm looking at this old man be dragged across the floor.

I mean, there was nothing about that that said justice.

So I got pretty fired up and ready for that prelim.

Good.

And you didn't really, I mean, you haven't done any other side investigation leading into

the prelim, right?

You kind of just set up a prelim and you were just going to respond to whatever they threw

up there, right?

Perfect.

My, my goal pre prelim was to get all of the records necessary.

Um, so that not only would they be mitigation, but that if we were going to go to trial, I

could have an NGI expert look at the, uh, the records.

An NGI expert is a doctor that would testify the defendant is not guilty by reason of insanity.

The burden to prove NGI is on the defense, which must show by a preponderance of the

evidence more likely than not that the defendant was legally insane at the time of the alleged

offense.

Um, and that could be an additional thing I could present to a jury at trial to say he

really had no idea what he was saying.

Um, but I didn't do any sort of investigation.

The statements were pretty, I thought favorable to our case.

I didn't want to clarify the alleged threats.

As we talked about earlier, they seemed pretty conditional.

Um, and I didn't think interviewing the complaining witnesses on the case would

have been helpful and we didn't have our own witnesses.

So, okay.

So you're fired up.

You're ready to go.

Yes.

Uh, you sit down for prelim.

Does your client walk into the courtroom or is he dragged into the courtroom?

He walked heavily assisted over to his little wooden chair.

Okay.

And he was a handcuffed to the chair.

Correct.

And let me tell us about this prelim judge.

Is this the regular prelim judge that you go in front of?

Is it special?

Do you feel good, bad, neutral?

I know.

Honestly, I didn't know how to feel.

I like him as a trial judge.

Um, but as you know, the standard for prelim is so much lower than at trial that I feel

like a lot of judges, even the ones that I really like, they sort of rubber stamp stuff.

You know, they'll, they'll say, I've had judges say to me, as I'm sure every public defender

has, I agree with you and I don't think they can win at trial, but it's enough for prelim.

So I wasn't really sure how to feel going in.

I was trying to be hopeful and I was, I was hoping to make a fool, honestly, of the prosecution's

witnesses.

Um, so just so people know, preliminary hearing is a hearing where the prosecutor has to present

evidence of the crime by only by probable cause though, but just for each element of the crime.

Right.

And it existed, right.

To prevent the government from basically fabricating or, or kind of creating or charging people

with crimes when they really had no evidence to do so.

And so it's basically a certification of, of whether the police made an appropriate arrest

or the charge was appropriately filed.

And, and we find like, it's really devolved into this.

I mean, now with prop 15, it's really devolved into this like rubber stamping.

Everybody just kind of says, well, it just like what you just said.

Yeah.

It's enough for prelim.

Whereas it really, I mean, the common law reason we have preliminary hearings is because

we want to stop the government from kind of doing what we're talking about right here.

Right.

So, and you don't present a defense.

Oh no, you can.

You can, but we don't put, put on defenses.

No, I don't typically find that to be a good idea.

Tried that once.

Didn't go so well.

Okay.

So how's, how's the, how's the prelim roll out then?

The, the DA puts up the first witnesses.

The DA called three witnesses.

The first witness they called was one of the psychiatric technicians who was in the nurses

station.

And he testified that he had been doing that job for 17 years.

Okay.

And, uh, this was his first threat ever.

He's received.

No, I don't think that it was.

Um, but he did indicate that every time this happens, he thinks the people should be arrested.

Oh, I think he might consider a new line of work, but that's just a personal opinion.

Um, but the thing that he testified to, one of the things that he testified to that I found

really interesting was that, um, he was able to give us a generalized idea of the safety

of staff members in this hospital.

And so he was the one who indicated that the nursing station is locked and no one can get

in.

He also indicated that, um, they have a lanyard.

Every single staff member has a lanyard.

What's that?

The little necklace with a, you can like a rope necklace.

Do you not know what a lanyard is?

No.

Sorry.

We're going to edit this out.

Cause you know, people at Disneyland put pins on them and stuff.

Yeah.

Like the flare on Disneyland.

Like in college, did you get one of those long, like rope key chains for your dorm?

It has like the little, the clip.

How do you not know what a lanyard is?

I'm going to grab one.

You know, I, uh, how do you not know that?

All right.

These are kind of like the chapstick that's hanging from the chapstick necklaces.

Sort of.

It's the same basic idea.

It's this thing that hangs around your neck.

Yeah.

And something connects to it.

Okay.

Come on, man.

All right.

So, so they have a lanyard.

Everybody has a lanyard.

They have a lanyard that has a personal alarm system.

Okay.

The person who invented it, is their last name lanyard?

I really don't know about that.

Dan lanyard.

We'll discuss the etymology of this.

We're going to discuss the etymology of this word later.

Let's keep going.

They have a lanyard.

They have a lanyard with a personal alarm.

With like a, I've fallen and I can't get up alarm system.

Basically.

Yes.

So they have, every office has one, right?

Or banks.

People know that banks have these alarm buttons they can push.

The tellers can push something.

Okay.

Under the table.

So they have those, but they also, each person walking around, which makes sense.

You're walking around this psychiatric hospital with people who have violent tendencies and severe

mental illness.

They're walking around with their own personal alarm.

So that was important because it was yet another added safety feature that they had that I

was able to discuss and question about to show that, in fact, my client was not a threat just

because he was saying something.

Right.

So real quick, the elements for 422 are a threat.

What are the elements?

There's five of them.

Does anybody remember them?

Yeah.

So the threat has to be verbal or in writing.

The person has to be in sustained fear.

Hearing the threat has to be in sustained fear.

The person making the threat has to.

They have to intend that it be taken as a threat.

Correct.

It has to be a knowing and intelligent, as they like to say in court, and a purposeful threat

that they mean for the other person to interpret as a threat to their safety.

And they have the ability, a perceived ability to carry out the threat.

Then it's unequivocal, unconditional, immediate, and specific as to convey the immediate prospect

of execution.

The immediate and specific is especially important.

Important, yeah.

So the DA has to put on a little bit of the evidence for each of these elements we just

went over.

Yes.

All right.

So the lanyard, the button.

And just for our listeners now, since we brought up the etymology, it comes from the old language.

It does not come from some guy named David Lanyard.

It's like an old French word.

Kind of disappointing.

Yeah.

It comes from some French word for like a long row for necklace.

Oh.

And then it became lanyard as it turned into English.

Oh, okay.

I wish I'm, we're going to put up on our website, a picture of David Lanyard for everybody

though.

Find some guy.

I can't believe you don't know the word, dude.

Um.

Okay.

It's kind of crazy that you don't know that.

Like, in case anybody doesn't know, David is white.

And like, I feel like, like if you did not know about lanyards, I mean, come on, man.

Yeah.

I'm also French too.

I, uh.

Oh, wow.

My middle name's Lucien.

Lucien.

Or Lucien.

You definitely should know about lanyards.

Yeah.

Come on, man.

Yeah.

So this guy had it though.

He had it.

Did, uh, did he testify that anybody pushed the button?

Yes.

So everybody pushed the alert button.

It was him.

And there was another woman who her testimony came in with, through the detective prop 115,

who was the second witness.

But it was him and a woman and they each had their alarm systems and they each triggered them

and chose to leave the safety of the nurse's station to confront my client in the main hallway.

So those are, that's conflicting evidence for one element.

They hit the button that shows, which shows that they are scared.

Yes.

But then they leave the safety of the, of their little confine to go out to and approach the threat.

And remember that there are different levels of trained staff.

And maybe most importantly, there's hospital police.

So if they really felt that this was a situation where their lives were in danger, if they're in a locked vestibule at the nurse's station, why not just wait for the hospital police to show up?

Right.

Because nobody testified that my client was in any way being aggressive or threatening to anybody else who might have been in the hallway or to other patients or other staff members.

So.

Wait, was there a video of this incident?

No.

Oh, I'm surprised there's no video of the, of what goes on in these psychiatric institutions.

Yeah.

You'd think there would be, right?

Yeah, maybe.

I'll say if there was video, none was discussed or made available to me or the DA.

Okay.

What else did this first witness testify to anything else?

Yeah.

Um, I started to get really aggressive with him on cross examination.

Okay.

And, um, I got him to, yeah, I got him to admit that, um, there are training protocols in place and it is not part of their protocol to go on their own.

They're supposed to wait for backup before engaging a client or a patient in their case, um, who's in the middle of some sort of breakdown.

So you got him to admit that the client appeared to be in some sort of psychotic breakdown, right?

Correct.

He acknowledged that this person was probably.

He acknowledged that my client was having some sort of breakdown.

I asked him specifically if the fact that my client was asking for diapers was a warning trigger to him that something there that that a meltdown was approaching that that was not normal behavior.

He indicated that that did cause him some concern.

I got him to admit that there would have been no way for my client to get into the nursing station.

Um, I got him to admit a lot of things that were quite favorable to our case.

So then what, and then who was the second witness?

Was it this other woman?

The second witness was the detective who worked for the hospital police department and he worked there also for like 17 or 18 years.

So these were sort of longtime veterans of this hospital.

With the most training and experience out of anybody.

Background training and experience.

A detective at the hospital police department.

Correct.

I'm just, I'm sorry.

I just, I, what does this detective do?

The detective was actually a really nice guy.

The psychiatric tech who testified, I was just ready to, to shred him.

Everything about the way he was answering questions suggested he found himself to be far more important than he is.

I like that loss prevention officers.

Yes.

That are like, you know, aggressive.

Yes.

Listen, I'm wearing my, I have my earpiece and I'm just dying to be a hero.

Yeah.

Tackle somebody.

Stealing a candy bar.

Yes.

Like calm it down guy.

The detective testified.

Um, and mostly I think the DA called him to ask him questions about the other alleged victim.

The woman who was in the nursing station.

His testimony, by the way, the hospital police qualify.

Under 115.

So that they can bring in hearsay testimony under prop 115.

Cause they're, they're peace officers.

Got it.

Um, but what I use the detective for was to ask about, um, the things he was able to observe that would in fact make it clear that no staff members were in any danger.

There was not a clear and immediate ability to carry out any sort of threat, even if the client wasn't making a conditional threat, which was a separate argument that I had.

I used him for that.

And the judge actually questioned him about what he sort of saw on, since he'd been there for 17 years and how regular these types of so-called threats happen.

And he was great.

He was like every day, all the time.

He was so chill.

And he was just like, this is in my opinion, this is just what happens.

That's what happens in these places.

It's a mental institution.

Yeah.

I know.

It was pretty great.

I mean, at that moment I just looked over at the DA, like, are you getting this?

Because he gets it.

The judge seems to be getting it.

That was great.

And then what about the third witness?

The third witness was nobody worth mentioning.

It was really a quick officer who went back the next day to speak to the witnesses.

And he's the witness the DA was trying to use to show the witnesses were in sustained fear.

However, that witness also testified that at the time, the alleged victim who didn't come in and testify, the woman, said she wasn't afraid because the client didn't have any ability to harm her in the hospital.

Wow.

Wait, one of the victims said that she was not afraid because it sounds like a verbatim contradiction to what they did after he was banging on the nurse's station.

They asked him to go to a side room, which my client did, by the way.

It's all on the record.

Voluntarily, he wasn't forced or dragged or threatened.

He complied with their orders.

And then the doctor gave the order to put him in what's called a lock and seclusion room.

The lock and seclusion room is it's basically a cell, a padded cell with just the little like mail slot hole.

OK.

Do you know what I'm talking about?

That wasn't super articulate.

Right.

The mail slot hole.

If there's food or if he has to be handcuffed or to hand him medication.

Yeah.

That's the only access that he has to the outside.

And so once you're in the lock and seclusion room, all danger is removed to the staff, to any other patients because he can't come in contact with anyone.

So my client continued yelling.

That's when he was saying things allegedly like, bitch, come in here and I'll show you to this woman while he was in this lock and seclusion room.

So she couldn't be touched.

Also conditional on her coming in there.

Correct.

Yeah.

Multiple levels of argument.

Yeah.

There was two for two criminal threat charges.

Then there were three.

There's three charges.

Two people in the nurses station and the psychiatrist who arrived to give him the forcible injection.

Bitch, come in here so I can show you.

That was one of the threats.

One of the threats.

Yes.

That's the felony threats that can end up locking this guy away for the rest of his life.

Life.

Correct.

Wow.

That's right.

So you put on that.

Did you put on any affirmation?

Did you bring in any of your own evidence through any of these witnesses beside cross-examination?

No mental health records or anything like that?

No, I did not introduce any of the records.

I simply, in my cross-examination, asked the psychiatric technician if he was familiar with my client and his file and how long he'd been in the hospital, that he was there on a conservatorship, that what his diagnosis was, and that he had to be given medication, anti-psychotic medication.

So I was able to get all that in through cross-examination at the prelim.

Great.

And so then?

Then the argument, huh?

Then it was time for argument.

Truthfully, I was ready to argue a lot.

I didn't have to argue that hard.

I can't take all the credit.

The judge that I was in front of, he was great.

And he actually called us up to the bench and asked the DA what he was doing, which is one of my favorite moments maybe in my whole career.

But he said, what are you doing?

It doesn't make any sense to me that this man was exactly where he was supposed to be.

What are you doing?

Why would you force this man on the sheriffs who don't have the training or ability to care for him?

Which I noted as another argument for us to make going forward at the head deputy meetings.

Because that's an argument that appeals to them, protecting the police.

You're placing this burden or liability with the county sheriff's department.

Correct.

The jails already have a lot of problems and then put this person with such high needs there.

Yeah, so the judge asked the DA like, am I missing something?

Why are you guys going forward with this?

And the DA, to his credit, was sort of there on marching orders.

He was very nice and he was like, I'm here because I was told to be.

So we went back to our chairs and I made my argument and the judge said he did not find that this rose to the level of a crime.

That he was clearly psychotic.

That although he may have been aggressive and people were probably afraid of him, it still didn't rise to the level of a criminal threat.

And he dismissed the case.

Wow.

That's amazing.

Yeah.

It was great for my one client.

I was very relieved.

And what I learned after that though, which is very disturbing, is that these are not unique cases.

So I sort of took it upon myself and went around to the attorneys in my branch to ask them if they also had cases like this.

And everybody had at least one.

And so I spoke to my head deputy about compiling all of the data and creating some sort of committee to see if we can do something about this.

To try to address it like a higher level.

Right.

I mean, I feel like we are at a disadvantage if we're not sharing this information with each other, where we're coming at this one by one.

And if our office stands united, I think that we're far more powerful.

But also just arming each other with the knowledge of this is what worked and this judge agrees with us.

And you can go in and if the DA does try and pretend like they don't know what's going on.

I have since learned the head deputy is very aware of the DA's office.

The head deputy is very aware of these filings.

The head deputy of the DA's office is aware of that.

Correct.

He's very aware and very comfortable with these filings.

What bothers me a little bit about this, like, you know, it's a great that you have this moment, but it also sucks that like the head deputy doesn't get to get that like scolding or admonition by the judge.

He gets to send in a soldier, you know, and say, hey, you go try this case.

You go stand up there with with nothing to argue with.

Everybody looking at you like you're the most unreasonable prick in here.

And I get to sit behind my desk in my office, not meeting, not talking, interacting.

And the DA is really just a soldier obeying orders.

Yeah.

I mean, he's not the filing.

The DA who does the prelim and even the trial is not the filing deputy.

Yeah.

He's not the DA head deputy who makes decisions about dismissals.

So he really didn't have any authority to do anything differently than what he did.

So my hope is that we're having a meeting next Thursday at my branch.

And my hope is that we will.

I'm not really sure what this committee will look like that I'm trying to form or exactly how we're going to handle this.

But particularly my branch, because it's it's right next to this hospital.

We actually see a lot of these filings.

And so our meeting next week is going to be with the head deputy of our mental health court as well.

Oh, wow.

To see what she suggests and how she thinks we should go forward with this.

But I would really like to see these cases not be filed anymore or at the very least filed with more discretion.

I think I'm over at our branches.

We get we get those two like they're they've already been found not competent or they're we declared a doubt.

They're going to go to court or whatever.

Then they like kick up a vandalism.

Yeah.

The jail vandalism while they're waiting to go to the hospital.

Right.

Yeah.

Already already declared incompetent.

Ridiculous.

Yeah.

Or maybe they do get a little scuffle with the sheriff because they don't they don't know that they have to go to court.

I know one client of mine was like the sheriff opens their cell says you got to go to court today.

He's like I don't have to go to court.

You do have to go to court.

He didn't realize that he he thought his court day was at the court and he actually was going to go to the hospital.

So they're trying to take him.

They're trying to take him to the hospital because he's mentally insane.

Yeah.

And he doesn't understand that.

And so he gets in a scuffle.

Now we got battery on a cop, which is a felony because it's inside the jail.

And then it delays him going to the hospital by a month because nice to go through the whole process again.

All of these issues are really cyclical and very intertwined.

I mean, again, with the my client being removed from the hospital and placed in the jail where the sheriffs are not trained on how to handle someone with mental illness.

And also, I mean, even if they're trained, what are they going to do?

They have to there's there's so many inmates, you know, they have to handcuff people and keep them moving.

But coming after a paranoid, schizophrenic person who doesn't understand what's happening and putting your hands on them understandably doesn't end well all the time.

So your guy gets arrested.

He's removed from the hospital.

Yes, he gets thrown in the court.

Then he's decompensating.

Right.

Yes.

So now there's a doubt declared.

He goes to the hospital.

He gets better.

Air quotes on better.

Kind of gets stable.

Gets stable.

Yes, he's stable.

Gets stable.

He comes back to you and then he's decompensating and his health is now at risk and he has to get dragged out.

Correct.

Only to go through a process just so a judge could be like, you know what?

We shouldn't do this.

Dismiss the case.

Put him back into the hospital.

Well, yeah, that's the real kicker.

At the end of it, the case was dismissed.

And not only does he go back to a hospital, he goes back to the exact same hospital.

I can only hope he's on a different unit.

So he's not interacting with the same staff so that those same people don't call the police again when he starts behaving in exactly the way you would expect.

Maybe your case like was a deterrent to them.

Maybe.

Like they were like, this was dumb and a waste of time.

Let's not do this.

Maybe the way the DA hopes it's a deterrent to the other people in the mental hospital.

Maybe.

Maybe you were really deterrent.

It's really nice that we can still keep that kind of hope.

Yeah, I do.

I do.

It's really nice.

I keep on thinking like what if they had like cops for like mental hospitals though?

Like the cops TV show.

Like bad boys, bad boys.

What you gonna do?

Like throwing their poop.

Yeah.

Going into the lock and secure room.

Hands out.

Doing yoga naked.

Yeah.

Well, thank you very much for coming.

You really brought like a lot of stuff.

We talked about our prelim, which was really, you know, different than a lot of our faces.

And we talked about some of the more how you ticked this lesson from your win and kind of trying to do some policy changes.

So that's really like to applaud you on that and hope that you have some changes.

Hopefully the exposure you get from the podcast.

Right.

Really takes the policy committee that you're working to the next level.

Right.

The primitive forming of this committee.

Yes.

By the time this episode airs, you know, this might be like a hot issue in the DA election possibly because of our podcast.

That would be great.

Yeah, I hope so.

All joking aside, as I said earlier, that the head of the district attorney's office has publicly stated that mental health is on her radars as something she'd like to approach in what I call a position of more humanity as opposed to a law and order approach.

So hopefully.

But that's bullshit because we all know that's not the truth.

She's been in office for six years now, and I don't think I've seen any real signs.

Your case is not the exception that this is normal.

Well, I feel that the marching orders may not have trickled down.

I feel like I hear that a lot.

But I am trying to keep an open mind because we really need their cooperation at the DA's office.

As much as I love a good fight and as much as I was ready to tear people up at prelim and set stuff for trial, it's better to have their cooperation.

And so the head of--

Hey, they're doing their best.

Yeah.

The head of our office's mental health court, the head deputy, she's coming next week to be part of this meeting to discuss forming this committee.

And I've spoken to her on the phone.

She indicated that she's actually had conversations with the head of the district attorney's office, and she feels some amount of hope that perhaps we can move progressively in the right direction with this.

Well, you know what?

I'll keep a little hope alive for that.

Fingers crossed.

Right.

I'm going to say that I don't think we're going to see change until we put another DA in an office.

Yes, but we're public defenders.

If we have no hope, what are we left with?

That's true.

Well, let me ask you this.

We're public defenders and we try to ask all our guests, why did you become a public defender?

It's such a complicated question.

But I guess it boils down to the fact that I wanted to do something meaningful.

I wanted to do something challenging.

And I think that at the end of the day, the biggest boogeyman, the scariest thing to me is the government and the power that they have, the power that they so sort of freely wield without really thinking of the consequences.

And the deck is really stacked against our clients.

So I wanted to be part of protecting the people who were most vulnerable, even the people who maybe didn't deserve so much sympathy.

I think that it's important.

I think it protects all of us by protecting the most vulnerable.

So I guess that's the easiest answer.

I guess a more complicated answer is what separates us from our clients.

One bad moment.

One.

It's just a different set of circumstances.

Right.

I mean, one parent or one teacher or one trip when you're running from the police and you fall down and they catch you.

I mean, there's not a lot that separates us from our clients.

And to be able to stand up and and argue that people should be given second chances and should be looked at as people and not as penal code sections is pretty great.

I think that like that there are there are just people.

I mean, I'm just picking back off what you said, though.

Like like that the criminal justice system tries to make it act like there's a separation between human decency and human civilization and then the bad people.

Right.

I think most of our clients are not bad people.

They make bad decisions or they make desperate choices or they are just in the wrong place at the wrong time.

But even if you can say that whatever the percentage of bad people are out there, they're still not as scary to me.

I mean, you can't legislate away or lock away all of the bad people or bad things that are going to happen.

We tried that.

Yeah, it doesn't work.

That's it's never going to be a thing that you can get rid of.

But you you can give a government too much power.

I think we should try love next time the criminal justice system.

I'm going to campaign on love, you know, not not punishment, but love.

OK, so I think rehabilitation is a little better than love if you're looking for a campaign platform.

I'm a Bob Marley guy.

Love and courage, man.

You know, about black eyed peas.

It takes a lot of.

Yeah.

Where is where's the love?

I just impersonated one of our favorite prosecutors right there.

Start singing to you.

Thank you so much for being here.

Yes.

Thank you.

You're having me.

Yeah.

A trial victory.

Right.

Maybe an update on some victory for this committee.

Sure.

Yeah.

We'll do it.

Yeah.

Where is she now?

Hey, if that DA's office doesn't change their tune, you're going to be a guest here again.

OK.

I know it.

OK.

Well, so then I'll just I'll be looking forward to that.

Yeah.

All right.

Thanks, Loren.

Thanks, guys.

Thanks for tuning in to this week's episode of another not guilty.

Shout out to Daniel Mark, creator of A&G's original theme music and our audio engineer,

Chris Adams.

And guess what?

We have another not guilty story coming your way next week because we public defenders fight

injustice every single day in the American criminal system.