Proceedings Below Immediately following a hearing held pursuant to People v. Marsden (1970) 2 Cal.3d 118, in which the court denied Kevin A.‟s apparent request to replace his attorney, the following colloquy occurred:
“THE COURT: [L]et‟s go ahead. I do believe the other parties are back here. They may come back into court now that we‟ve had this confidential hearing. “Okay. We‟re going back on record with all parties present here in the matter of the conservatorship of
[Kevin A.] [¶] …[¶] … I think we‟re ready to proceed. The matter was assigned to this court for a jury trial. “But, [conservatee‟s counsel], you wish to be heard on that—that issue.
“[CONSERVATEE‟S COUNSEL]: Yes, your Honor. I‟m prepared to enter a waiver of jury trial at this point and have a court trial in this case. And I have the authority of People vs.—Conservatorship of Maldonado, 173 Cal.App.3d 144. “THE COURT: Okay. 6.
“[CONSERVATEE‟S COUNSEL]: I‟m sorry. Yes. I‟d like to enter waiver of jury trial pursuant to the case of Conservatorship of Maldonado. “
THE COURT: [Does] petitioner wish to be heard on that issue?
“[PUBLIC CONSERVATOR‟S COUNSEL]: We have no objection to waiving the jury trial today, your Honor.
“THE COURT: Okay. [Kevin A.]
“[KEVIN A.]: I—I would like a full jury trial, please, your Honor, for today.
“THE COURT: What‟s your position with regard to your client‟s wish, [conservatee‟s counsel]?
“[KEVIN A.]: Denial of due process. “
[CONSERVATEE‟S COUNSEL]: I believe that because the jury trial right in this case is a statutory right, it could be waived by counsel. It could be waived by [Kevin A.]‟s attorney. “
THE COURT: I take it, you know, goes without saying that you believe what‟s in your client‟s best interest to waive statutory right to jury trial under the circumstances that exist at this time. “
[CONSERVATEE‟S COUNSEL]: Yes, your Honor.
“THE COURT: Okay. I‟m going to grant the waiver. My understanding is for conservatorship proceedings, it‟s a statutory right, and it‟s counsel‟s determination that it‟s in his client‟s best interest to do so; so, I find that that‟s a valid waiver, and I‟ll grant that waiver. “
[KEVIN A.]: It‟s—it‟s invalid. Your Honor, for a clarifying question—can I ask a clarifying question?
“THE COURT: Talk to your attorney …. “
[KEVIN A.]: I can‟t ask a clarifying question? “THE COURT: You cannot, sir. “
[KEVIN A.]: Okay. “
THE COURT: Do you want to take a break, talk to your lawyer.
“[KEVIN A.]: I had a quick question. Don‟t take a break. Just one question. “Your Honor, he doesn‟t makes [sic] sense. He says I don‟t have a constitutional right to a jury trial. What are we here for? I don‟t have the constitutional right to have a trial? Why am I here? “
THE COURT: Because we‟re going to have a trial in front of the Court; not a jury. “
[KEVIN A.]: He said I have a constitutional right to have a jury. Why am I not— “
THE COURT: No, you do not.
“[KEVIN A.]: I do not have a constitutional right? “
THE COURT: You only have a right by California statute, sir. That statutory right is different from a constitutional right and may be waived by your attorney if he feels it‟s appropriate to do so. [He] has made that determination, so the Court has accepted that.”
The purpose of this is in the case a conservatee lacks capacity to make such decisions. If the conservatee demonstrated out of control behaviour such as yelling and fighting it would not be in his best interest to have a jury trial. The jury would see that he is mentally ill to the point of incapacitation, However, there are many cases where the conservatee may be denied a jury trial. The court deferrs to the judgement of the patient's counsel if the court deems that the conservatee is too ill to make their own decisions. However, I disagree citing that the conservatee should have a basic right to a jury trial. It is not as if the jury trial means an automatic win for the conservatee. The conservatee should be allowed to present their case in front of a jury should the judge be bias or their counsel is ineffective. In ambiguous cases what determines a conservatee unfit to enter a preference for a jury trial or not? Is there a standard of proof for determining this and should there be one if not? What degree of mental illness symptoms do they need to exhibit before their right to express an interest in whether they want a jury trial is withheld. In this case the order establishing a conservatorship over his person was reversed but what about the many cases where it is a very grey line between sane enough to make such decisions. Also in the case of public defenders how well do they know their client to make such a decision. Due to such a high case load they only get a few minutes to meet with their clients.
Just as a witness can be impeached a conservatee's statements can be used against them in court. It is common issue in family court that any witnesses can be impeached no matter what credentials or where they stand. Same with LPS conservatorship court. The conservatee can be confused by the process and in the middle of testifying they can make mistakes in what they say leading to county counsel can lead the patient to make inconsistent statements. Use of legaleese, leading questions, and challenging their perceptions. In this case it is not the conservatee's fault as the court system is already complicated.
Expert witnesses play a role in LPS conservatorships because the doctor themselves provide the primary testimony that will be used against the conservatee during their trial or hearing. The expert witness serves the purpose of providing testimony based on scientific knowledge and research. In the case of LPS conservatorships the treating psychiatrist serves as the expert witness. During the hearing the doctor's testimony carries most of the weight and in many cases does not give a conservatee a proper chance to defend themselves. In practice the doctor's status carries precedence over most matters the conservatee has to say. In this case I will be reviewing some of the potential ways for patient's counsel to impeach an expert witness. I find that patient's counsel tends to not advocate for the patient as aggressively as they should leaving the patient high and dry.
Qualification and tendering the witness
This issue matters when counsel wishes to know if the doctor is really qualified to testify about any matters regarding the conservatee. Questions about where the doctor received his education, training, specialization, and how long the doctor has been treating and seeing the patient. The first several questions about the doctors background rarely can impeach the doctor as a witness. In very few cases specialization in a certain of psychiatry such as geriatric psychiatry or child psych may be presented as grounds but it would be a long stretch to impeach a doctor over that alone. Does time play a role? There are many advocates who will argue that a psychiatrist who has only known the patient for the period of the hospitalization is not qualified to make such statements about a patient's status. They believe that the doctor has only seen part of the patient's condition and may be missing key factors about how and why they are the way they are. One of the questions that could be asked would be "How long have you been treating this patient?" "Were you the treating doctor during the patient's past hospitalizations?".
Statement of opinion/theory
Once the doctor has stated his opinions such as "I believe that the patient is gravely disabled due to a mental disorder and cannot provide for his needs of food clothing and shelter. I find that the patient at this time suffers from psychosis NOS and autism spectrum disorder" the doctor's opinion will need to be backed up by statement of theory. Statement of theory is the doctor's reasoning behind his opinion. Counsel can help dissect the doctor's statement with question such as "why did you based your statement on the diagnosis", "what are the signs and symptoms of said diagnosis", "what behviours have you observed that made you arrive at your conclusions", "how do said symptoms affect the patient's ability to care for themselves", and "are there any other explanations that might have caused such symptoms", Once the statement of the theory has been made, counsel should move to examine the method of how the doctor arrived at his conclusions.
Explanation and support
Here is where counsel can dissect the doctor's statements. Too often expert witnesses rely on assumptions that a properly trained attorney can reveal and use to impeach the witness or demonstrate the witness is unreliable. Every statement that the witness makes should have some factual basis behind it.
Several points that can help counsel dissect the matter
Degree of certainty can be used to ascertain whether the psychiatrist is really confident behind his assumptions. "Do you think that this diagnosis really is the cause behind the patient's grave disability?" "Do you think that it is possible that x organic disorder may have caused that patient to deteriorate not said diagnosis?". If the answer is it is possible then the psychiatrist has opened the door for questioning their credibility.
If possible for counsel omissions in how the psychiatrist has ruled out other disorders. Ask if they have screened the patient for differential diagnosis such as anxiety or an organic illness. This can help find holes in the doctor's opinion and theory.
Challenging the psychiatrist's impartiality by finding out if there any degree of bias or influencing factors is also important during cross.
Area of expertise
This is a harder area to impeach the doctor as the doctor that is testifying is usually a psychiatrist who has trained and practiced for many years. In the rare case counsel may try to determine if the doctor is a specialist in a specific area of psychiatry and if that is relevant to the patient. For example of the conservatee is a minor and his or her treating doctor is a geriatric psychiatrist then this may be a possible ground for impeachment.
Together all of these can help counsel find flaws in the expert witness's testimony giving more weight to the conservatee's argument. But in the next section I will cover how the conservatee's statements can be used against them.
What is this I hear about conservatee's being conserved with diagnosis of autism and OCD? I thought that never happened. I was under the impression that ASD was a case for the regional center not the PC.. When I was being conserved in 2015, I recall that the public conservator denied my case on the basis that autism spectrum disorder was not a Dx that was worthy of an LPS conservatorship.
This patient who I am watching currently has a Dx of autism and OCD. His GAF is unknown. He exhibits a variety of odd mannerisms but appears to manage his ADLs daily. He has an unknown Hx of hospitalizations and conservatorships. His Tx is closed locked facility and Rx is currently and risperidone 1mg cap qd and fluoxetine 20mg cap bid. He is alert and 3x oriented and regarding orientation to the situation there are many "normal" patients who would be equally confused by the conservatorship information being presented or in his case lack of. When detained under his 5150 he did not demonstrate any Sx that indicated DO/DS. He was held for GD. He had his 14 day cert hearing and writ of habeas corpus. Around the middle of his 14 day hold he was riesed based on the allegations that his symptoms of psychosis and agitation warranted involuntary treatment with anti psychotics.
Upon review of his historical course of treatment and prognosis, he does not appear to be lacking in ability to care for his self. Rather the report contains many instances of his erratic behaviour which has led to public annoyance. He also has attachment to several odd objects but I know plenty of normal people who have special objects of affection. He has been without stable shelter for many years now. He receives around 1000 a month in SSI. He has a rep payee.
Regarding his GD status I would contest the matter that erroneous behaviour should not be a qualifier. In re the conservatorship of Smith, supra, 187 Cal.App.3d at p. 909, “Bizarre or eccentric behavior, even if it interferes with a person’s normal intercourse with society, does not rise to a level warranting conservatorship except where such behavior renders the individual helpless to fend for herself or destroys her ability to meet those basic needs for survival”. He demonstrates a degree of noncompliance but this is due to his belief that the meds he is taking is in appropriate for his present conditions. And I believe there may be a case somewhere that states a conservatee is not GD for denying treatment if he refuses for valid reasons. (In re to Conservatorship of Early 1983 [35 Cal. 3d 245]. He has been homeless for quite some time and has a degree of difficulty adjusting to living with roommates due to his OCD tendencies. However, this inability to coexist should not be reason for placing him in a CL facility. His treatment plan drafted by the PC has Alpine Special treatment centers or lakeside special care facility as his least restrictive placement option.
He asked his attorney for a jury trial so as his case progresses I will keep updated to his progress. It is a different case from the norm which is why I find it an interesting one to follow.
I would like to address a problem that is not too common but does occur. I have seen it personally with my own eyes a couple of times and can testify that it does occur on some level.
Attorney's are supposed to treat their clients with respect and regardless of mental orientation are supposed to verbally instruct their clients. There are some instances where the patient's counsel treats the client as if they are incapable of understanding the basic LPS procedures. Even if the client does not maintain a presence of mental stability they are entitled to equal protection under the law. And that should include equal treatment and explanation of the law. Not all of these patients have the privileged of access CEB onlaw, legal opinions, and other literature that will inform them of their legal rights and processes they are facing, I can say for myself that when you first enter the system, it can be very intimidating. There are lots of doctors, administrators, social workers, and other legal people involved when dealing with court. This would confuse anyone.. And more often than not the patient is not informed of the process in of itself. The doctors may something along the lines you may have a court hearing or yes you have started your fourteen day hold three days ago. "Three days ago?!" There was one time I was involuntarily detained and it was not until four days after my cert review hearing that I had learned they placed me under a 14 day hold.
The instance I speak of occurred during the patient's P-con hearing. When the patient was wheeled into the waiting area outside of the courtroom he appeared visibly upset and confused. When I listened in he was under the impression that he was still on a fourteen day hold. After he briefly conferenced with his counsel she entered for another hearing. I was able to talk to him. I gleaned that he was placed on a 14 day hold and after it had expired, he was not served notice of establishment of T-con until five days had passed the expiration of his 14 day hold. He was visibly upset that no one has bothered to tell him the reason for delayed service. As we spoke more he revealed that this was the first time talking to his counsel. His counsel had not prepared him at all for his upcoming hearing. She asked him if he wanted to contest the matter and the basic process he was facing. When pressed for more she dismissed his questions and concerns. He was left high and dry. When county counsel walked by him again he asked her who she was and if she could help him. As far I am concerned she made no effort to answer his question and just walked by. It does not take too much effort to say I am an attorney who represents the public conservator. The only reason I knew it was county counsel was that I had sat in on hearing for a long time. Otherwise I would not have known either. When he asked for more information about challenging his position his counsel did not answer his question. She just said we will see what the judge has to say. Mind you if I was his counsel I would have answered his question by explaining the process of challenging it. Even if he faced a large chance that he would have lost I would have still explained it and added that you will probably be conserved. If that is the case we will discuss how to prepare a proper strong argument that hopefully demonstrates to the judge that you are not gravely disabled and do not need to on conservatorship.
I am personally facing a the same issues with large delays in responses and lack information with a juvenile dependency court case and I know how frustrating it feels for a conservatee. The feeling that you are denied access to the knowledge to winning a case in this case your freedom. As I vaguely recall doesn't professional responsibility cover basic manners. Or does it?
Juvenile Dependency and