ANALYSIS: “Profound” ethical violations undermine expert testimonies in California’s bid to lift federal oversight of prison system
SACRAMENTO — Experts hired by the state of California have been accused of clandestinely interviewing prisoners, including those with serious mental illness, to collect information in support of the state’s request to lift federal oversight of the mental health system in California prisons.
U.S. District Judge Lawrence K. Karlton expressed deep concerns over the “profound” ethical violations allegedly committed by state officials and their experts, who conducted “secret” tours of 10 state prisons and interviewed inmates involved in the landmark class action lawsuit, Coleman v. Brown, without notifying their attorneys.
“This is a serious matter,” said Karlton told Deputy Attorney General Patrick McKinney during Wednesday’s hearing on Coleman v. Brown. “You’ve been talking to their clients about this case without either telling them, getting their permission or anything the rule of ethics requires…This is an extraordinary violation because most lawyers know better.”
Michael Bien and Donald Specter, attorneys representing the prisoners, said they were not notified of the prison visits by the state nor did they grant retroactive permission for contacts with their clients.
Bien is seeking to exclude the state experts’ opinions and findings to support the oversight termination request, arguing that the ethical violations undermined the credibility of the experts’ assessments.
“The ethical violations committed by the opposing counsels, higher ups in the [Brown] administration, and experts themselves reflect [poorly] on their credibility,” said Bien.
Bien also pointed out that the state also violated the court’s order requiring “reasonable notice of any scheduled site inspection” by a state expert to give the prisoners’ attorneys and experts and the court “the ability to observe and analyze the experts’ methodology and who they avoided, what documents and records they inspected and copied and what documents they ignored and left behind.”
“This court has previously acknowledged the importance of joint inspections and a shared and undisputed factual record to its ability to evaluate expert opinions on their merits,” the plaintiffs argued in a brief. “[The state’s] secret program of inspection deprived the court of this important benefit, needlessly multiplied and complicated this already complex proceeding, and undermined principles of fundamental fairness.”
McKinney denied that there were any ethical violations in how the state’s experts conducted their evaluations of the prisons.
He told the court that the prison visits were “not done in secret” because the state had notified the court-appointed “Special Master” of the visits and that Specter, a lead counsel for the prisoners, was told of the visits by one of the state’s experts.
But Specter testified that his personal conversation with the state expert, Steve Martin, whom he’s known for 20 years, was mostly about their family and professional lives.
“At some point in our conversation, Mr. Martin mentioned that he was hired by the [state] to undertake some kind of evaluation,” Specter told Karlton. “I don’t recall him mentioning the Coleman case, and he never explicitly or implicitly asked for permission to speak to my clients.”
McKinney also claimed that the state experts’ report was “extremely fair and balanced”. He maintained that the experts’ interactions with the inmates were “innocuous” and “brief” and were actually “attempts to identify any inmates who were not getting the care they needed.” In fact, McKinney said, the information collected by the experts would have “gone to the benefit of the inmate[s].”
“There’s no systematic constitutional violation,” insisted McKinney. Referring to the 50 affidavits filed by the state to support its oversight termination requests, McKinney told the court that “People are so excited that they wanted to come forward with the truth.”
McKinney’s comments were followed by a long, uncomfortable silence in the courtroom. Karlton shook his head and sighed.
If Karlton blocks the state experts’ affidavits because of the ethical violations, then the state’s request for oversight termination will likely be denied because there will be no support for their motion.
And even if Karlton finds that the state violated ethics but allows the experts’ affidavit to considered, he made it clear that “the weight given to those affidavits is seriously undermined.”
In January, Gov. Jerry Brown announced that he is seeking to terminate the federal court’s oversight of the state prison’s mental health programs, declaring that “the troubled situation in California prisons has been remedied.”
“We’ve gone from serious constitutional problem to one of the finest prison systems in the United States,” Brown said. “Most of the people in prison get far better care for mental health problems or their physical well-being inside the prison than they’ll get once they’re released on the streets.”
Bien argued that the state’s efforts to fix the prison mental health system have not been sufficient and that “very serious problems” persist.
“[The state] told this court, ‘This is the plan – the minimum of what we need to do’, and they knowingly and consciously fail to follow through on those plans,” said Bien. And even “the discovery done in this case and the attitude of the public officials raise concerns about the sincerity of this administration of complying with this court’s order” to alleviate prison overcrowding and improve mental health services to inmates.
- WhatTheFolly.com: ANALYSIS: California seeks to terminate federal oversight of prison mental health system
- WhatTheFolly.com: Transcript: Excerpts from the Coleman v. Brown hearing at U.S. District Court for the Eastern District of California on March 27, 2013
- WhatTheFolly.com: Transcript: Gov. Jerry Brown’s remarks on terminating federal oversight of CA’s prison system & lifting the prison population cap
- WhatTheFolly.com: Transcript: Press briefing Q&A w/ Gov. Jerry Brown on CA’s prisons
- Coleman v. Brown: Order to show cause why state experts should not be stricken – March 18, 2013 (PDF)
- Coleman v. Brown: State’s response to order to shaw cause regarding expert reports and declarations March 25, 2013 (PDF)
- Coleman v. Brown: Plaintiffs’ evidentiary objections to state’s expert reports and declarations – March 19, 2013 (PDF)
- Coleman v. Brown: Plaintiffs’ opposition to state’s motion to terminate federal oversight – March 19, 2013 (PDF)
- Coleman v. Brown: State’s motion to terminate federal oversight of prison system – January 2013 (PDF)