by Steve Horn
The landmark case of Coleman v. Brown, a federal lawsuit that forced California to provide better mental health treatment for state prisoners, has taken an unusual turn after the state’s prison psychiatry chief blew the whistle about falsification of records related to mental health care in California’s prison system.
The whistleblowing by Dr. Michael Golding was made public through a court document filed in the case on October 5, 2018. That document noted Dr. Golding first sent his report to then-Governor Jerry Brown’s office and the state’s Attorney General, Xavier Becerra, who in turn provided a copy to the attorneys representing the plaintiffs in Coleman.
“On Thursday October 4, 2018, I received a phone call from Gabriel Sanchez, counsel for the Governor’s Office, and Andrew Gibson of the Attorney General’s Office informing me that Dr. Michael Golding, Statewide Chief Psychiatrist for the California Department of Corrections and Rehabilitation, had sent a lengthy report with voluminous exhibits to the Receiver’s office the night before,” wrote Golding’s attorney, Lisa Ells, with the law firm of Rosen Bien Galvan & Grunfeld LLP.
On October 31, Dr. Golding’s report became part of the public court record and, from there, the saga and issues underlying his claims have taken on a life of their own. His 161-page report contended that, in the name of complying with mental health guidelines set forth in the settlement in Coleman v. Brown, prison officials have misled the public as to what they’ve done to comply with requirements for mental health treatment.
Ripping Out Her Eye
In his report, Dr. Golding pointed to one case in which a female prisoner removed and then ate her own eyeball. She did not receive enhanced mental health treatment following that horrific 2017 incident at the California Institute for Women in Chino.
“In the case of the woman who ripped out her eye, the psychologist who evaluated her did not call a psychiatrist to administer drugs, despite doctors later saying the patient had given every indication that she needed medication immediately even if it was given by force,” reported the Los Angeles Times. “Nurses and psychologists later said the failure to provide medicine was not a root cause of the patient removing her eye.”
“The tragedy is that any competent psychiatric physician or general medical physician would have medicated the patient, and likely the patient’s eye would still be in her head had that happened,” Dr. Golding stated in his report.
On the whole, he surmised that that incident, and how it was handled by the California Department of Corrections and Rehabilitation (CDCR), was not a departure from but rather an indication of the norm for mental healthcare within the state’s prison system.
“Vital information has been monopolized and its access restricted to a select group of mainly psychologists at [CDCR] headquarters,” Golding wrote. “This group has created a biased and inaccurately positive picture of what is actually a troubled system of care.”
Further, according to Dr. Golding, the CDCR alleged that prisoners attended 90 to 94 percent of mental health appointments made in 2017-18, but in reality only 50 percent were timely seen by mental health practitioners.
According to a news report by the Los Angeles Times, “A study published by Stanford Law School in 2017 notes that even as the overall state prison population declines, the prevalence and severity of mental illness among those in the state prison system is on the rise. More than 30% of California prisoners currently receive treatment for serious mental disorders, an increase of 150% since 2000, according to the study.”
CDCR “Strongly Disagrees”
The CDCR, for its part, has vociferously denied the allegations laid out in what has become known as the Golding Report.
“The department strongly disagrees with this individual’s allegations, and looks forward to a fair and thorough review and hearing of all the facts,” a spokesperson for the prison system said. “We have worked closely with lawyers representing prisoners, as well as the court appointment [sic] monitors, for many years to improve the mental health of inmates, and our dedicated and well-trained staff will continue to provide appropriate care and treatment.”
Despite the denials from CDCR officials, two other whistleblowers have come forward alleging similar misconduct with respect to mental health treatment.
Going public prior to Dr. Golding’s report via a lawsuit filed in state court in June 2018, Dr. Karuna Anand told the Sacramento Bee that after blowing the whistle on similar problems in the state prison system, she was demoted from her $389,000-a-year psychiatrist job with the CDCR and “assigned to work in a mail room, where she was told to search incoming inmate mail for pornographic photos.” See: Anand v. California Department of Corrections and Rehabilitation, Sacramento County Superior Court (CA), Case No. 00226894.
The other whistleblower, Dr. Melanie Gonzalez, has made allegations which have yet to see the light of day other than in a November 7, 2018 order filed by U.S. District Court Judge Kimberly J. Mueller in the Coleman case. Judge Mueller wrote that the court had received the information from Dr. Gonzalez and that CDCR officials “shall not retaliate against Dr. Golding or Dr. Melanie Gonzalez or any person who assisted Dr. Golding in preparing his report.” Gonzalez is represented by the same attorney who represents Dr. Golding.
Further, a prison psychologist-turned-whistleblower raised unrelated complaints about the treatment of LGBTQ prisoners by CDCR staff. That complaint, filed by Dr. Lori Jespersen, resulted in a $275,000 settlement in May 2018.
As a result of the accusations raised by Drs. Golding, Gonzalez and Anand, Judge Mueller ordered the state to conduct an independent investigation into their claims.
“It is no secret the court was not initially inclined to proceed by way of an independent investigation,” Muller wrote in November 13, 2018. “But after further consideration of the arguments the parties have made, and having learned of the identification of at least one other – if not more – whistleblowers, the court is persuaded that appointment of an experienced, highly competent independent investigator is necessary to an efficient resolution of the issues presented by the Golding Report. As the parties have suggested, such an investigator can establish a solid foundation for any future proceedings on the question of whether there has been any fraud on the court or, in the alternative, whether defendants have intentionally presented false or misleading information to the court.”
That independent investigator will have a busy job, Mueller explained in outlining what his or her responsibilities will entail once hired.
“This person will be tasked with (1) gathering all evidence relevant to questions raised by the Golding Report concerning whether there has been any fraud on the court and/or whether any defendants or their designees have intentionally misled the court, and (2) with preparing a report containing findings in response to these questions,” Judge Mueller wrote.
California prison officials have pushed back against the appointment of an independent investigator, however, filing a response in opposition on November 20, 2018.
“The Court lacks the authority for its unprecedented proposal to appoint an ‘independent investigator’ with wide-ranging, quasi-prosecutorial extrajudicial powers. The Court’s role is to resolve disputes brought to it by the parties – but neither Plaintiffs’ nor Dr. Golding’s counsel have filed a pleading or motion concerning Dr. Golding’s assertions,” the state’s legal team said in its response. “Federal courts are generally prohibited from investigating disputed factual issues outside the adversarial system contemplated by the Federal Rules of Civil Procedure and Evidence. Rather, it is the parties’ obligation to bring issues to the court for resolution. It remains unclear why Dr. Golding’s allegations are to be treated differently than similar allegations previously received by this Court.”
Judge Mueller disagreed, however, and ordered the appointment of an independent investigator on December 13, 2018. That investigator, Charles J. Stevens, with the law firm of Gibson, Dunn & Crutcher LLP, formerly worked as the U.S. Attorney for the Eastern District of California. He leads the firm’s San Francisco office and serves as co-chair of the White Collar Defense and Investigations Practice Group.
“It is a gross understatement to say the court is extremely frustrated by the turn of events occasioned by its receipt of the Golding Report, at a time when it had appeared the proverbial light at the end of tunnel of this case was coming closer and shining brighter,” Judge Mueller wrote. “But the court cannot ignore the possibility that the brightness of the light is illusory if not a tunnel effect and that it has been presented with false or misleading evidence; nor can it ignore the potential implications for a full, fair and final resolution of this case when the time is ripe. While the court does not presume the truth of the averments in Dr. Golding’s report, it must ultimately assess them fully, fairly and openly.”
She also noted that traditional tools for discovery in the legal arena would be insufficient in this case.
“[I]t is evident that reliance on discovery methods designed for use by litigation adversaries, particularly given the length, complexity and stage of this case, do not fit the court’s needs to ensure the integrity of the proceedings still required prior to termination,” Mueller said. “Having heard from the parties, the court confirms its conclusion that Mr. Stevens’ impeccable credentials and extensive experience make him an ideal candidate to assist the court and the parties in developing the factual foundation necessary to allow the court ultimately to make an informed and just decision resolving the questions raised by the Golding Report.”
In an amended order issued by Judge Mueller on January 8, 2019, she offered additional details about what Stevens’ job will include. Among other things, he will have the authority to hire a team that can – but does not have to – include his Gibson Dunn colleagues. That team will have the legal authority to depose former Governor Jerry Brown, members of his staff and CDCR officials, as well as the ability to access prison records.
“Such access shall include all departmental, institutional, and inmate records, including but not limited to, central files, medical records, and mental health records,” the court stated.
Addressing the Problem
The Sacramento Bee, which has extensively covered this ongoing issue, concluded that one way to put a damper on the problems described by the CDCR whistleblowers would be to stop locking up so many people suffering from mental illnesses.
“We urge the judge to get to the bottom of the Golding allegations, and we urge state lawmakers to focus their attention on funding community-based mental health care,” the newspaper’s Editorial Board wrote in October 2018. “The most humane and least expensive way to reduce the prison budget is to prevent mentally ill people from entering state prisons in the first place.”
Until that happens, however, the federal district court’s investigation into the Golding Report and the other CDCR whistleblowers’ claims will serve as an important intermediate step.
Sources: rbgg.com, cdcr.ca.gov, sfchronicle.com, gibsondunn.com, courtlistener.com, caed.uscourts.gov, correctionsone.com, sacbee.com, latimes.com
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