Comments on CACI 4009
For jury trials and bench trials, conservatees are not to arrive in shackles or restraints. CACI
4009. “Physical Restraint” provides in part:
The fact that respondent has been brought before the court in physical restraints is not evidence of grave disability. You must not speculate on the reasons for such restraints.
Directions for Use
When the restraints are concealed from the jury’s view, this instruction should not be given unless requested by the conservatee since it might invite initial attention to the restraints and, thus, create prejudice, which would otherwise be avoided.
The two seminal cases on this topic are:
People v. Duran (1976) 16 Cal.3d 282, 292 [127 Cal.Rptr. 618, 545 P.2d 1322]
Conservatorship of Warrack (1992) 11 Cal.App.4th 641, 647 [14 Cal.Rptr. 2d99]
Although patients are not allowed to be shackled, the definition of shackles; “refers to all forms of handcuffs, shackles, manacles, leg irons, and other restraining devices” (People v. Duran, 16 Cal.3d 282, 288 n.5 (Cal. 1976), a case should also be made to include gurneys as most conservatees arrive on gurneys and certain courts do not allow the conservatee to leave the gurney and they must sit in a bright yellow gurney; the same that they are detained during their initial 5150.
Given that mental health court usually handles only LPS matters and probate court only probate and limited conservatorships, mental health commissioners/bench officers should be intimate with mental illness and stigma.
Significant differences exist between probate court and mental health court. In LPS Conservatorship court proceedings the conservatee is involved in the court proceedings because they may be subject to a determination that they are gravely disabled beyond a reasonable doubt. Conservatorship orders are not made until the conservatee has been declared by proof beyond a reasonable doubt that they are gravely disabled. The issue of the patient’s ability to provide their food, clothing, or shelter due to a mental illness is the only central issue. The presumption of psychiatric fitness that underlies probate law in the probate court just does not apply to LPS Conservatorship cases. Rather the mental health court, which has been intimately involved in the treatment of the conservatee, is best situated to make involuntary treatment determinations based on the best interests of the conservatee without any preferences or presumptions.
Based on this, presenting the conservatee on a gurney would create this “preference or presumption”. People v. Duran, 16 Cal.3d 282, 288-89 (Cal. 1976) opined that without “evident necessity, [shackles] impose physical burdens, pains and restraint upon a [detainee] during the progress of his trial and inevitably tends to confuse and embarrass his mental faculties, and [therefore] materially to abridge[s] and prejudicially affect[s] his constitutional rights of defense and … would materially impair and prejudicially affect his statutory privilege of [serving as] a competent witness and testifying in his own behalf”.
The Duran court held accordingly that it was prejudicial error for the trial court to refuse to allow the defendant to appear before the jury without physical restraints unless there was "evident necessity" for the restraint”.
Conservatorship of Warrack is the California opinion that extends the Duran findings to LPS Conservatees. Conservatee’s attorney first brought to the jurors' attention that he had been brought to court in restraints, but stated that the jurors were not to presume him gravely disabled as a result of those restraints”. “During the first two days of trial, he was brought in here in leather handcuffs and leather foot restraints and with a male nurse sitting there behind him”. Conservatorship of Warrack, 11 Cal.App.4th 641, 645 (Cal. Ct. App. 1992)
When the conservatee presented in front of the jury with restraints and nurse attendants in the courtroom, counsel instructed the jury to “not draw any inference from those restraints, [and] what [they] hear from [appellant's trial counsel] about the restraints . . . is not evidence and is not to be considered”.
The court refers to criminal case law that cites that the shackling of a criminal defendant will prejudice him in the minds of the jurors as a criminal accused of a violent act makes his appearance before a jury in shackles will likely to the jurors inferring that he is a violent person predisposed to commit crimes of the type alleged. Just like a criminal defendant, “the image of a person bound hands and feet with leather restraints and closely attended, as in this case, with two male nurses gives an image of a person out of control”. Conservatorship of Warrack, 11 Cal.App.4th 641, 647 (Cal. Ct. App. 1992)
Now drawing on these two cases, plenty of media outlets show images of mentally ill persons being loaded onto ambulances on stretchers/gurneys and thus creating the “modern” image of shacking. Because of such, bench officers should consider that the image of a conservatee strapped into a gurney is aligned with the same image of people being immediately detained off the street on the initial 5150 hold where they were “out of control” and acutely ill.
Even if the conservatee were not in shackles per say, wheeling them into the courtroom in a gurney creates the same image of “out of control” mentally ill patient in the jury’s mind no matter what admonishment the court gives.
The notion that “a curative jury instruction is a very practical and useful way, in many circumstances, for the trial court to have an immediate opportunity to correct its own perceived errors before it is too late” may not apply here. U.S. v. Lowis, 174 F.3d 881, 885 (7th Cir. 1999). However, “Trials are rarely, if ever, perfect” and “gross imperfections should not go unnoticed”. Id. Having a conservatee appear before the court in a stereotypical manner of being restrained on a gurney without good cause can be viewed as a “gross imperfections which would overpower the [trial] court's instruction to the jury to disregard [any jury] statement/[advisement]”.
U.S. v. Lowis, 174 F.3d 881, 885 (7th Cir. 1999)
A gross imperfection renders. “a curative jury instruction” useless as once a jury has heard seen the “gross imperfection”, it is very difficult to un-ring the bell with a cautionary instruction that the weight of the expert's opinion is dependent upon the facts upon which it is based and not the appearance of the conservatee alone. Although case law addresses this issue, this aphorism has no real power as the human mind cannot simply forget or ignore something.
When viewed in the context of “society”, even if initially admitted in error, presenting a conservatee bound to a gurney can be a very “loud bell”; one which is impossible to cure.
Additionally, an appellant cannot raise an issue without evidence of such in the trial court record. Unseen or unconscious bias is impossible to “record”. Anything after “read and considered” is the record and this bias almost never makes it into what the judge reads or says.
Juvenile Dependency and