As a member of the conflicts panel, I was appointed to represent the woman in the orange sweat-shirt and trousers seated over there near the male bailiff. She now approached the podium at which I stood.
"Will you accept the appointment, Mr. S.?" asked her honor.
"Yes, Y'r'onah."
"Will you waive formal instruction and arraignment on this MTR?" the judge asked.
"Yes, Y’r’onah," I said as the Public Defender handed me the papers showing that the DA had filed a Motion to Revoke Probation based on the woman's new arrest for buying drugs from a street dealer, under the eyes of the cops. The PD conflicted out, probably because the PD's Office represented the seller.
"What would Ms. H like to do," asked the judge, using my new client's name. To do, as in to deny the allegation, put the matter over for a conference, set the matter for a hearing, etc.
Ms. H told me me to ask the judge not to use her real name. It was unclear to me why, as the judge was speaking again, giving the new date, which I had to get down or lose it. I didn't catch why the client didn't want the judge to use her name. I told her I'd come to see her in the jail and we'd talk.
I visited the women's pod, was assigned a conference room, and set up my yellow-pad when Ms. H entered, a pleasant spoken woman, late thirties, with a few drug arrests, the drug probation, nothing serious. Get her into a program, modify and extend, CTS, no muss, no fuss.
"Hi, Ms. H. What was that you were trying to tell me in court when the judge interrupted?"
"Not to use my name."
"Oh, yes. Why was that?"
"Because they told me not to use my real name in court."
"Who told you that?"
"The sheriff's deputies."
"The sheriff's deputies told you not to use your real name in court?"
"Right."
"Why was that?"
"Because I work for them."
"What do you mean you work for them? You work for the Sheriff?"
"Right."
"Then what are you doing in court? Who do you work for, exactly, doing what?"
"I can't say."
"What do you mean you can't say?"
"They told me not to tell anyone."
"But I'm your lawyer, you can tell me."
"I can only tell the judge."
"Tell the judge what?"
"That I work for the sheriff. My husband's a sheriff. Judge So-and-so knows me, and Judge Other-so-and-so."
"Who's your husband?"
"I can't give you his name."
"Why can't you give me your husband's name? I could call him and find out what's going on."
"I don't want my family involved."
I'm starting to become frustrated and angry.
"Who do you work for? What's your commander's name? What unit? "
"I don't want to say."
"Look, why don't we do this. How about you just tell me who you are. Where were you born. She mentions a city. How far did you go in school. Grade school here, high school there, move to another city, a year or two of college, but dropped out. Married? Yes. Children? A daughter. How old? Three. Name? I can't give you that. Do you live here, in this city now? Yes. For how long? Years. Where? I can't tell you that. I don't want to involve my family.
I'm really getting upset.
And then it dawns on me.
Why am I getting upset?
Because this woman is telling me nothing.
There's absolutely no way I can check out anything she says.
Any time I ask her a question that she realizes I can use to check out her story, she goes blank by denying, evading, or otherwise not answering.
This pleasant-spoken, articulate, lucid person I'm speaking to is stark, raving mad in the most literal sense.
I re-collect myself, settle myself down, and resolve to ask a few more questions along a more pertinent track.
"Have you ever been looked at for emotional reasons, you know, by a psychiatrist?"
"Yes, over at General Hospital."
"What did they say."
"They said I had a few problems."
"Are you getting any treatment?"
"No."
"Is there some treatment that you would like?"
"No."
"What were you doing that got you arrested this time?"
"I'll tell the judge, in private, otherwise I don't want to discuss it."
Okay; I've gotta get going. I'll see you next time.
Okay, bye.
Bye.
I write up an affidavit, submit it under seal, and request the appointment of a psychiatrist because I have a doubt, which I now declare, that my client can cooperate meaningfully with counsel. Dr. L is appointed. He's been around for four decades that I know of. He can check other commitments and hospitalizations throughout the system of jail, hospital, mental wards, etc. I submit my affidavit to him and ask him to check Ms. H out.
Dr. L's report comes back: Ms. H is suffering from a deep-seated, well-constructed, almost entirely coherent psychotic delusion that controls her entire life.
The judge ships Ms. H. off to the State Hospital until she's restored to competency, which in this case turns out to be four months.
Last week, on Thursday, just before Christmas, the court clerk calls, saying that Ms. H has been returned from State Hospital, and will appear on calendar on Monday.
"Do you have the report?" I ask.
"Of course."
"What does it say, bottom line?"
"Restored to competency."
"Great, thanks."
Hang up.
I'll go to see her.
I wonder what she's like, now that she's okay.
I wonder how they restored her to competency.
I visit the women's pod.
"Hi, Ms. H, how are you feeling? Any better?"
"I was feeling okay before."
Oh.
"I mean, after being at the State Hospital, did they do something to make you feel better?"
"No. I took some medication to show them I was cooperating, but that was just for two weeks. Tranquilizers, I think."
"Well, did they do something to help fix you up?"
"No."
Ms. H was personable, articulate, pleasant, smiled appropriately in greeting, and looked and sounded perfectly fine, just as before.
"Have you got in touch with your family since you've been back?"
No.
Has anyone come to visit you in jail since you've returned?
No.
Do you have anyone here?
My husband and daughter.
Do you want me to contact them?
No.
What's your husband's name?
I don't want to involve him.
What's your daughter's name?
I don't want to involve her.
Okay, let me ask you about your arrest because I think we're probably going to have to deal with that now that you're back and all okay again.
I was okay before.
Okay.
What were you doing when you got arrested?
I was working for the police.
Oh. You were a snitch?
No. I was an employee of the police.
Oh. You were acting as a police office, buying drugs to detect crime, which would make possessing drugs legal?
No.
No?
No.
Where did you work for the police.
In this building, for fifteen years.
Great! Why don't you just tell me what floor you worked on and I'll...
All of them.
Oh.
Who was your commander?
I can't say.
Are you a police officer right now?
Yes. But I'm off on disability.
Oh. Who was the police surgeon who certified that you were disabled?
Police surgeon? I just told my commander I didn't feel good and wasn't coming in.
But you need to see the police surgeon, some doctor the police department wants you to see to make sure you're sick before they let you go off duty like that. What did you go off duty for?
Medical reasons, not psychological.
Hmm.
Do you receive any pay check?
I go to Washington to pick up those.
Who do you work for?
FBI, DEA, police, sheriff.
You work for the sheriff?
I work for the sheriff now.
We could go right over to the desk there and ask the deputy to run your name, and then we could clear this matter up right away...
She'll just lie...
Okay, Ms. H, I'll see you in court on Monday.
Will you ask the judge to let me out on bail?
And ask the judge to let me speak to her in private?
Do you have someone to post a bond? Any collateral? You said you owned a building, where is it? You could use that.
I can't tell you.
Bondsmen want collateral, like a building.
I married into several families that were bondsmen. They don't need a building.
Oh.
Is H your maiden name or your married name?
Both.
Ms. H tells me that a police officer once entered her home and chopped off the back of her head with a rifle used as a club. She put her hand in and could feel her brain. She refuses to show me the back of her head.
Okay, later, Ms. H., Monday, I'll ask the judge if you can talk to her, but that's not usually done. Bye...
***
On Monday we appear in court and I get to see the report from State Hospital, which states that Ms. H operates under a chronic fantasy symptomatic of deep seated, bi-polar, schizophrenic conditions, has refused medication, has participated in group and individual counseling, has been made aware of court proceedings, and is now able to cooperate with counsel in her defense, and is thus restored to competency.
I write up another affidavit.
On Monday, the case is called.
"Y'r'onah, Ms. H is back before the court from the State Hospital," I say. "The report says she is restored to competency. Since that's what your clerk told me, on Thursday, I went to see Ms. H on Friday. This morning I read the report from the hospital. Its findings are inconsistent with the conclusion of the report. Ms. H has requested that I ask the court to consider the question of bail. She wants to speak to the court in private, which I've advised is not usually done. May the matter go over to Wednesday for further proceedings. I've prepared an affidavit I'd like the court to consider.
The matter goes over two days for bail and to set.
I clue in the DA.
I call Dr. L., and tell him Ms. H is back, but here's the situation and would he please see her again and write a supplemental. I fax him the report from the State Hospital and my affidavit, which I haven't submitted to the court because I've remembered that since this judge rotated into this department, you can no longer just submit a confidential matter under seal, i.e. in a sealed envelope marked 'Confidential, under seal.'
She’s added a new rule.
Now you have to submit an affidavit, stating reasons, requesting permission to submit an affidavit under seal.
We have rules.
The rules have rules.
The rules that have rules have rules.
If you miss one of the rules with this very smart judge you have to start all over again. She’s not warm-and-fuzzy, is obsessive about rules, and can blow up over trifles.
Things that lawyers think are trifles, anyway.
To her, they're important...like Rules.
Why be a judge if you don't believe in Rules?
This judge invents Rules.
They can be hard to remember.
I remembered reading there was a new Rule on filing under seal.
But I couldn’t remember what it was.
I’ll just think about what it must relate to, I thought.
Maybe you have to seal the envelope and label it “Confidential.”
No, we always did that. That’s what filing under seal is. We want to do that.
Maybe you now had to put the sealed envelope inside of another envelope.
I couldn’t figure it out.
So when I entered the courtroom, I looked around.
On the wall are various notices to counsel.
I approach the wall and start reading the wall.
I’m the only attorney known to have read the wall in years.
The bailiff is looking at me looking at the wall.
No one’s ever done that, read the notices. Some of them are brown and curled, they’ve been there so long. I hope he isn't wondering whether I’m about to do something odd.
But, I can’t find anything about filing under seal. I’m in court. I can’t go on-line. I wouldn’t know where to look up such a local rule. This is a local, local rule, good only for this Department.
I wind up asking the judge at the break what the new rule is.
She says you have to ask permission to file under seal, now.
Thank you, Judge.
This prevents the well-known abuses by lawyers of filing documents under seal that no presiding judge in the past century-and-a-half has felt the need to rectify. Some corner-cutting attorney probably filed a declaration under seal that she shouldn’t have, and this judge felt she had to unseal it. An abuse of the court’s patience, I presume.
“Unseal it,” the judge must’ve said.
So now we have a rule to prevent the judge from having to say “Unseal it,” ever again.
But rules represent progress and this judge has committed progress.
This is her legacy to the law.
You must ask permission first.
As soon as she’s gone, in six long months, the Mother, May I Rule will be ignored with impunity.
But for now you have to ask what the rule is, then ask permission to submit an affidavit of confidential medical condition under seal, then wait for the turn-around, which can take a day or two at best, and then file the affidavit of medical condition requesting appointment of the medical expert, then wait a day or two for the turn-around to get the signed order, if it is signed (there can always be a defect in the request resulting in a denial or a do-over) and each time come back to the court’s out-box to pick up the order.
Or you could think to submit a sealed envelope containing the confidential stuff along with the request for permission stating that in the sealed envelope is some stuff you don’t want to describe in detail because it’s confidential but relates to health, and...is the request for permission confidential?
Does that go into a sealed envelope, also?
For which you need permission?
To be opened by Price Waterhouse?
Mother, May I has added two days and an extra trip to the court to the process.
To prevent abuse by counsel.
So that she doesn’t have to say, “Unseal it.”
The court will abuse counsel to prevent counsel from abusing the court. I like this. It has symmetry.
In the war between the court and counsel, which continues unabated, the court has shown once again that it has the upper hand, as it should.
Counsel is always a day late and a dollar short.
The court, of course, is infallible.
Dr. L tells me he's out with diarrhea. We have this flu-like thing going around. We don't want Dr. L to be feeling ill. He's been around a long time. He's very good. A friend tells me of a case in which the defendant appeared to be faking mental illness in order to avoid responsibility for some act he'd committed.
The friend called Dr. L. Dr. L's response was,
"So he wants to be crazy, does he?
Okay. He can be crazy if he wants."
The defendant was not very happy being locked up with crazy people. It was driving him crazy.
Sane people don’t like to be driven insane.
Insane people don’t like to be driven sane.
He asked to come back. He preferred to face the music rather than to be insane.
On Wednesday we appeared again before "Mother, May I," and I advised that I'd submitted my affidavit regarding Ms. H to Dr. L instead of to the court.
As long as I was going to make myself a witness in a case I was handling, it was better to submit my declaration to an expert who could incorporate the data into his findings when it came to testifying.
I told the court I'd called Dr. L for a Supplemental.
"Mr. S, you cannot just call Dr. L and bring him into the case. We have a Rotation System for court-appointed experts here."
Of course. How stupid of me. I might have been playing games with the court-appointment of experts.
They trust me with people’s lives, but not to re-consult the expert.
There used to be just a list.
Now it’s a rotation system.
"Yes, Y’r’onah, I'm aware of that, but Dr. L is familiar with Ms. H's case, having done the initial work-up that sent her to the State Hospital in the first place, so I just thought that having him do the Supplemental would blah, blah, blah..., so I've sent him copies of the hospital report and my declaration, and spoken to him.
The judge seems pissed. "Would counsel approach the bench."
The DA, who’s been around the block a few times, and I, approach.
The DA says, "Why don't you tell her what you told me."
I explain that Ms. H wants the court to know that she works for the FBI, the DEA, the police and the Sheriff, for the past fifteen years.
I begin to say, “She’s no more competent than...,” but I quit, not knowing which of us I want to make the comparison with.
Mother, May I says, “Let me see that report from State Hospital.”
While she's reading the three pages, in an aside the DA says to me, "How're you going to prove Ms. H wasn't working for the FBI?"
“Funny,” I think, “I was wondering about that myself.”
“I was thinking of asking for funds to have my investigator contact the FBI, the DEA, the police, and the Sheriff...," I begin to say, when the DA says, "I was only kidding.".
The judge looks up from the report:
"It's the end of the year. State Hospital is clearing its books. It's an outrage, sending her back like this."
Thank you.
See, I told you this judge was smart, but you didn't believe me.
"What I had in mind, Judge, was to have Dr. L prepare a brief supplemental report, submit the matter on the reports in a court trial, and spare us all a jury trial on whether Ms. H has been restored to competency."
“Okay, back to your places,” says the judge.
"Here's what I'm going to do,” she announces.
"Dr. L is appointed to do an evaluation and a report, in confidence, to submit to Mr. S. How much time do you need, Mr. S? Usually we do a month, but we can do it in less if you'd like."
“How about two weeks, Y'r'onah, the doctor isn't feeling well...”
“Two weeks is fine.”
“On the question of my client speaking to the court privately, Y’r’onah...?”
"You can speak to the court through counsel, Ms. H."
"Okay, Judge," says Ms. H.
“And bail?”
“Over two weeks.”
I’m off the hook with my client.
***
Next case.