Judge Vs. ‘Lynch Mob’ in Mental Health Court

When she volunteered to hear cases for the unpopular and decidedly unglamorous county Mental Health Department after six years on the appellate bench, Los Angeles Superior Court Judge Florence Bernstein had a twofold mission.

She wanted to immerse herself in what she describes as a “large, troubled area of the law with a great deal of convulsion and movement.” And, after having a job that was “all paper, no people,” she says, “I wanted to get back to people.”

But in mid-February, only six weeks after her arrival, the 58-year-old judge suddenly found herself in the midst of a crisis. A majority of the deputy public defenders assigned to the two courtrooms that handle psychiatric cases started refusing to appear before her.

“It was like a lynch mob,” the embattled Bernstein said in an interview. “They had decided: ‘We run this court, not you.’ ”

To Bernstein, the conflict is a power struggle. But Public Defender Wilbur F. Littlefield says the defense attorneys are legitimately concerned about the way she makes her rulings.

“They feel in (some) cases her heart is too big, that she lets her heart rule her head,” said Littlefield, who has known Bernstein for more than two decades.

Patients Caught in Middle

Caught in the middle are mental patients who sometimes must wait for hours or travel considerable distances in order to find out whether they will be released or remain in institutions.

At first, the impasse between Bernstein and the lawyers threatened to stymie the Mental Health Department, which handled 255 contested cases from January through March. While it has not brought the system to a halt, it has caused serious disruptions, according to Deputy Dist. Atty. David H. Guthman, head of the psychiatric section.

No precise figures are available, but the number of cases taken away from Bernstein has ranged from five a week to 35, Guthman said. Last week, for example, Bernstein was disqualified in 13 cases.

In those cases, the defense attorneys were exercising a legal right that gives them one chance per case to disqualify a judge without stating a reason. In courtroom parlance, they were “affidaviting” or “papering” Bernstein.

Guthman said the feud has “greatly inconvenienced” doctors and mental hospital patients who either have to wait until late in the day for their cases to be heard by the only other Mental Health Department bench officer, Commissioner David A. Ziskrout, or go to courtrooms elsewhere in the county.

Converted Pickle Factory

Located in a converted pickle factory in Glassell Park, about four miles from downtown, the mental health courts are principally devoted to non-criminal matters, such as determining whether a patient should remain institutionalized.

The department also handles proceedings to determine whether a defendant is competent to stand trial or whether patients sent to state hospitals after being found “not guilty by reason of insanity” or declared a “mentally disordered sex offender” are ready to be released.

Dr. Imtiaz S. Basrai, a staff psychiatrist at the Penn Mar Therapeutic Center who frequently testifies in the courts, recently complained about the “busing” of cases in a letter to Jack E. Goertzen, presiding judge of the Superior Court.

Noting that “for a person who is already suffering from severe mental problems, coming to court entails significant stress,” Basrai wrote that political battles should not be waged at the expense of “the most underprivileged and under-represented members of our society.”

Controversy is no novelty for Bernstein, a former public defender who once headed that office’s civil division. In 1976 she successfully challenged an incumbent Municipal Court judge, and two years later was elevated to the Superior Court.

Praised by Lawyers

In a July, 1984, profile, the Los Angeles Daily Journal said many lawyers praise Bernstein for her “intelligence, good humor and grasp of the law.” But some attorneys, according to the article, “say Bernstein’s involvement in the women’s movement and friendship with (then-Chief Justice Rose Elizabeth) Bird have played a greater role in her career progress than her judicial aptitude.”

Last year, Bernstein shocked many members of the legal community by her outspoken criticism of Bird, a close friend for 10 years. Bernstein told a reporter that Bird’s “destructive, pathological suspicion” and need for “complete control” had caused the chief justice to run an ineffectual retention campaign. Bird was swept out of office last Nov. 4.

The current crisis erupted during final arguments in a jury trial to decide whether a mentally disordered sex offender met the legal test for being released from Patton State Hospital. According to Bernstein, she and Deputy Public Defender Jack T. Weedin Jr. exchanged harsh words over a procedural matter while the jury was present.

“I made it very clear that I thought what he was doing was improper,” Bernstein said. “He thought that was unforgivable.” Weedin lost his case.

Refuses to Be Interviewed

Weedin, like the other deputy public defenders who have disqualified Bernstein, declined repeated requests for interviews, as did his supervisor, Edgar B. Gilmore. But Public Defender Littlefield said the incident occurred as Bernstein described it.

After Weedin and one of his colleagues began affidaviting her, Bernstein asked to meet with the public defenders. She said she told them: “I’m really very unhappy with the way we are treating each other as people. I don’t understand what is happening. I don’t enjoy coming to work anymore.”

At the meeting, the judge said, the attorneys accused her of “interfering” with the voir dire process of questioning prospective jurors. They also told her she was wrong--an allegation she staunchly disputes--when she authorized electroshock treatments for a patient without hearing testimony from his doctors.

And they criticized her handling of petitions seeking a patient’s release.

“They feel that she lets her heart rule sometimes, that she feels sorry for someone and thinks that the person will benefit by treatment, but under the law the person should be released,” Littlefield said. “(The public defenders’) job is to get the patient released; they’re not making the determination as to what is best for them.”

Offers Statistics

When Bernstein produced statistics showing that she had actually released more patients than her predecessor, the attorneys replied that some of the patients she had freed should have remained confined, according to both Littlefield and Bernstein.

The meeting did not satisfy Bernstein’s opponents. One source who has spoken to some of the public defenders said they were disappointed in the way Bernstein conducted herself at the meeting. “She did not say she had made any errors . . . She clearly didn’t back down, back away, say ‘I’m sorry, I made a mistake.’ ”

As other attorneys joined the boycott, Guthman, the head prosecutor, decided he would no longer allow cases in which Bernstein was disqualified to be heard by Ziskrout. For a case to go before a commissioner, rather than a judge, approval by both sides is required. Otherwise, the case must be shipped out to a courtroom in another building.

“I had to bring matters to a head,” Guthman explained.

But Guthman stopped using this tactic on a consistent basis when he discovered that cases were being sent as far away as Pomona instead of nearby court buildings. “When the cases are transferred to Pomona, in most instances the doctors are throwing up their hands and saying, ‘I can’t follow that case,’ ” Guthman said. A doctor’s testimony is needed to keep a patient institutionalized.

Protest ‘Dwindles’

Just what will bring the conflict to an end is anybody’s guess. “Time heals a lot of wounds. It really does,” said Littlefield, who contends, in contrast to others, that the protest has already “dwindled a lot.” One disgruntled public defender has already moved to another office, and Weedin is taking another assignment.

Yet only last week, a new deputy public defender arrived and immediately began disqualifying Bernstein in every case. And the judge disclosed that Gilmore, who supervises the public defenders, recently told Guthman: “Either she goes or I go.”

Meanwhile, Ziskrout is standing behind his beleaguered colleague. “Hang in there!” he wrote on a group birthday card to Bernstein.

“I’m more than happy to support her, whether or not I have to take extra cases,” the commissioner said. “. . . I would almost concede that maybe she did make some mistakes. So? I make mistakes. You make mistakes. She’s a nice lady.”

And Goertzen, the presiding judge, said he has no intention of stepping into the fray--unless the public defenders present him with a list of complaints, which they so far have failed to do.

But whatever the outcome, the conflict has already taken its toll on Bernstein, who bemoans what she sees as a wasted opportunity.

“The thing I resent the most about it is that it has interfered with my getting into the mental health puzzle,” she said. “I came here really gung ho.”