Transcript: Excerpts from the Coleman v. Brown hearing at U.S. District Court for the Eastern District of California on March 27, 2013

Excerpts from the Coleman v. Brown hearing at U.S. District Court for the Eastern District of California on March 27, 2013.

(Compiled from editor’s notes.)

In attendance:

  • U.S. District Court Judge Lawrence Karlton
  • Michael Bien, Attorney representing the Coleman plaintiffs
  • Donald Specter, Attorney representing the Coleman plaintiffs
  • Patrick McKinney, Deputy Attorney General
  • Matthew Lopes, court-appointed special master (monitor)
  • Jeffrey Beard, Secretary of the California Department of Corrections and Rehabilitation

Part I of hearing:

Judge Lawrence Karlton:
This is an ethical problem. The plaintiffs allege that you’ve been talking to their clients about this case without either telling them, getting their permission or anything else the rule of ethics requires.

Patrick McKinney:
The consultants conducted the site visits to perform a systematic evaluation. We notified the special master. This was not done in secret. Also, the court has relaxed the contact rule.

Judge Lawrence Karlton:
I’m trying not to raise my voice. But if this is true, this is a profound ethical violation. The plaintiffs want to strike the [state] experts’ affidavits. If we can’t use the expert opinions if we did find that the state did violate ethics, the state will have to get new experts.

Patrick McKinney:
I disagree. There is no violation of the rule of ethics. Defendants denied receiving notice of the [state-hired] experts speaking with inmates but Mr. [Michael] Bien’s declaration is sly.

The experts were looking at this systematically. Their conversations with the inmates were side points used to confirm their general assessments on the prison conditions.

Judge Lawrence Karlton:
This is a serious matter. This is an important lawsuit to both the plaintiffs and the defendants. The affidavits can be strike – can be denied on the basis of [the ethical violations]. This are extraordinary violations…Most lawyers know better.

Michael Bien:
Let me assure the court that I was never notified and Mr. [Donald] Specter was never notified that these tours had taken place. There is no way that Mr. Specter gave retroactive permission for tours and contact with our clients.

This is not just an ethical violation. This prejudices the plaintiffs in understanding what the experts did, which units were show or not shown, what records they saw. The defendant’s experts should have been accompanied but we didn’t get that chance with the state. When you get a chance to accompany the experts in prison, you can inform the court about what really happened. Here it’s a mess. We still don’t know what they saw.

The ethical violations commited by opposing counsel, higher ups in administration, and experts themselves reflect [poorly] on their credibility.

Judge Lawrence Karlton:
Assuming that the court finds there is serious ethical violation but under the circumstance the court [allows the affidavits], it appears to the court the weight to be given to those affidavits is seriously undermined.

Patrick McKinney:
That’s incredibly unfair. Mr. Bien admitted he engages in ex parte contacts with the special master, contacts with inmates and CDCR. This is simply the way the case has worked in the past 17 years.

There is no prejudice issue. The report was extremely fair and balanced. If anything, the information [collected from the brief interactions with inmates] would have gone to the benefit of the inmate. The plaintiffs can’t point a single – they got all of the experts’ notebooks, deposed each of the experts. We’re looking at the systemic issue. They’re over-emphasizing the importance of these interviews [with inmates]; they only play a small part [in the overall evaluation].

Judge Lawrence Karlton:
There is no time under the PLRA [Prison Litigation Reform Act] to hold hearings to determine the credibility of the [experts’] affidavits.

Michael Bien:
I’d propose that the court allow the stay of orders to take effect. The special master will retain power during this period. And we’ll see whether the state, during the ongoing trial, is going to comply with the prior [court] directives.

Patrick McKinney:
They will carry this forward whether this stays or not. There is no systemic constitutional violation…People are so excited that they wanted to go forward with the truth. [referencing the 50 affidavits filed by the state]

Judge Lawrence Karlton:
[Shakes head. Sighs. Long moment of silence.]

Michael Bien:
We should not be considering the state’s evidence. If they want to make the [termination] motion again next year, that’s their right. The state can repeatedly file the same motion but must set time frame.

Judge Lawrence Karlton:
Only an en banc decision or a decision by the Supreme Court can overrule a finding by the Ninth Circuit [Court of Appeals].

Michael Bien:
The discovery done in this case and the attitude of public officials raise concerns about the sincerity of this administration of complying with this court’s orders. There are very serious remedial problems.

Patrick McKinney:
The state has invested substantial amounts of money [to improve conditions]…

Judge Lawrence Karlton:
Everything the state has done has been by virtue of the fact that the court has ordered it to be done…

Part of the sadness in all of this is the enormous progress that has been made – much of it by virtue of the court order and special master’s intervention and changes in personnel. And here we are. I look at what’s being done – considering where we were, they are astonishing.

Patrick McKinney:
There comes a point where – there are appropriate system of dispensing medication, management, staffing is adequate, the records system though not perfect but up-to-date, dealt with serious suicide issues.

Judge Lawrence Karlton:
The legal question is whether or not the state is deliberately indifferent to the mental needs of prisoners. It’s bizarre because you can’t be deliberately indifferent anymore because I have a special master on your shoulders everyday.

Michael Bien:
Deliberate indifference in a systemic case can be demonstrated by knowing what needs to be done – the state has told the court “This is the plan to do the minimum of what we need to do” – and then knowingly failing and consciously failing to follow through on those plans. The decisions that they’re making to overcrowd certain prisons and choose to not fund certain construction – that’s evidence of deliberate indifference.

Judge Lawrence Karlton:
Clearly, the constitution doesn’t require perfection. If perfection is not the standard, the question then becomes – and if something less than perfect conditions will suffice for the constitution, then at what level must the court say, “Yes, it’s not perfect but it’s good enough for government work – good enough for the constitution’s definition of government work?”

Michael Bien:
Perfect[ion] is never the issue. What we have seen in the system are serious problems.

Patrick McKinney:
There is no current or ongoing violation of a federal right. The concerns raised by the plaintiffs are not constitutional in scope and not systemic. They are relying on one or two individual grievances. They are also confusing the means with the end. The program guide is a guide to get the state to a certain level. When the experts came back and said that we have among the best [prison mental health systems], that’s when we sought termination [of the federal court oversight]…Federal oversight should not continue unless there’s a violation of federal law.

Judge Lawrence Karlton:
What is the state’s position that if it did X, Y, and Z, they could have prevented two people from committing suicide? Would it be your argument that those two people must die because there would not be a constitutional requirement to prevent their suicides?

Patrick McKinney:
It would depend on those two individual cases; it doesn’t address the system.

Judge Lawrence Karlton:
So your answer is that the constitution will tolerate preventable suicide as long as we have a system in place to…

Patrick McKinney:
If the question is are there zero suicide permitted in a systemic level, then that can’t be…

Judge Lawrence Karlton:
Of course. You can’t prevent people who are determined to kill themselves. That’s impossible. That’s not the question. You’ve got a system in place but it doesn’t have X, Y, and Z in place to prevent suicide. Those two people died because we don’t require perfection. It’s as clear that you can’t prevent all suicides, but what standard applies to determine whether constitutional violations are continuing?

Michael Bien:
Did they know of things that could be done to prevent harm, death and taken reasonable steps to do so? That’s a constitutional violation. They don’t have to accept every recommendation, but they cannot hide from the recommendations. They have to have a real and appropriate basis to reject them. We have not seen that.

[Donald Specter sworn in.]

Judge Lawrence Karlton:
You heard the defendants say that you were fully informed about their proceeding, that you knew from the beginning that they would talk to your clients…

Donald Specter:
I don’t remember exactly the date the conversation I had with Steve Martin, who I’ve known for 20 years. It was a personal conversation about our family and professional life. At some point, Mr. Martin mentioned that he was hired by the defendants [state of California] to undertake some kind of evaluation. I don’t recall him mentioning the Coleman case, and he never explicitly or implicitly asked for permission to speak to my clients.

[Patrick McKinney declined to cross examine Donald Specter.] [Court adjourned for a brief recess.]

Part II of hearing:

Patrick McKinney:
The plaintiffs have the burden of showing – that as a system – the prison mental health care is so insufficient that it violates the Eighth Amendment. Plaintiffs have no evidence.

The state is spending $400 million annually in prison mental health. Some recent construction projects have been completed. The year-to-year system getting better and better. CDCR is continually self-improving and correcting issues that it identifies…The state is committed in preventing suicides in the system.

As for waitlists, the Department of State Hospitals has opened a new L2 wing in Vacaville. [In one inspection], there were 3 patients waiting for intermediate care for about 10 days.

What the constitution requires is that the state has a basic mental health system in place. The state does follow the program guide, but it may comply in every recommendation but the basic system is in place.

The plaintiffs presented no evidence about screening evaluation, acceses to care. The plaintiffs have focused on exceptions – things that they say the state hasn’t been doing.

The quality of the management system has been described as “robust” by the special master’s report…

The plaintiffs’ arguments are not supported by fact. The system is well beyond adequate, functioning, and self-critical. That’s a pretty good example of federal oversight that is not appropriate. What they focus on are the problems and the exceptions.

As for suicide prevention, what the law requires is a basic system to be in place. The suicide prevention system – it’s transformed as of today. There is standardized forms for screening inmates at risk of suicide, training of clinicians to properly use the forms. CDCR has created a new suicide prevention workgroup. Staffs monitor suicide high-risk inmates.

CDCR has also addressed suicides in ad seg [administrative segregation]. From 2004 and last year, suicide rates have been cut in half. The state has retrofitted intake cells, [implemented] emergency response training, a thorough process for investigating suicide [attempts] and completed suicides. The state is taking this issue seriously. Judicial oversight is not the best approach.

…I strongly disagree that there has been slippage. This administration is committed to [the prison] mental health care program.

Michael Bien:
The defendants have left undisputed the fact that they are not taking appropriate measures to hire and retain sufficient mental health [professionals] and staff. Two doctors have come forward to make statements about the dangers [understaffing pose] to patients. We don’t know what is holding them back in this effort.

The policies and practices and how people are handled in ad seg and SHU [secure housing unit] unit – they are strip-searched to go outside to exercise. The state’s policies of holding people in ad seg and SHU for unlimited amount of time.

Patrick McKinney:
…The law is clear that inmates may be housed in segregated units as long as receiving adequate treatment. This is a philosophical disagreement and not a legal issue.

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