A Court of Refuge Read online

  To Aaron and the Wynn family

  CONTENTS

  AUTHOR’S NOTE

  CHAPTER 1 A Race for Justice

  CHAPTER 2 The Shackles Come Off

  CHAPTER 3 Punishing Loss

  CHAPTER 4 The Raging Voice of Dignity

  CHAPTER 5 Simple Dreams

  CHAPTER 6 I Once Was Lost

  CHAPTER 7 Therapeutic Justice Goes Mainstream

  CHAPTER 8 Brothers and Sisters

  CHAPTER 9 Changing Hearts and Minds

  CHAPTER 10 A Rush to Privatization

  CHAPTER 11 In Honor of Our Elders

  CHAPTER 12 The Power of Human Connection

  CHAPTER 13 A Crying Shame

  CHAPTER 14 A Referendum on Hope

  CHAPTER 15 Recovery Is Real

  ACKNOWLEDGMENTS

  NOTES

  AUTHOR’S NOTE

  In 1996 I was elected a judge of the county court of Broward County, Florida, the Seventeenth Judicial Circuit, and my term formally began in January 1997. Chief Judge Dale Ross (now retired) assigned me to the Criminal Division. On June 6, 1997, he signed the administrative order that established America’s first mental health court.1 This order recognized the essential need for a new system of justice to focus on individuals with mental health disabilities, arrested for misdemeanor offenses and the need for appropriate treatment in a therapeutic environment conducive to wellness (not punishment) as well as continuing to ensure the protection of the public.

  Further, to help defendants who desire such treatment, the order recognized the need for a judge with expertise in the field of mental health and therefore possessed the needed understanding and ability to expeditiously and efficiently move people from jail into community mental health care, without compromising the safety of the public.

  For the first time in the United States, a specialized problem-solving court was dedicated to the decriminalization of people with mental health problems and to use the court process to link individuals with community-based mental health care, from a recovery-oriented perspective.

  Per the order, the court is part-time; technically it is a subdivision of my Criminal Division, so I preside over both a traditional criminal division and the mental health court. The administrative order provided that the court would be voluntary. Its jurisdiction would include all misdemeanor offenses, except driving under the influence and domestic violence offenses. The order also denoted that “battery cases could be accepted, with victim’s consent.” Defendants who may access the court included those with psychiatric diagnoses included in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (commonly known as the DSM-IV) as well as neurological and cognitive disorders such as traumatic brain injuries, dementia, intellectual disabilities, and learning disabilities.2 The court’s ability to respond rapidly to an individual’s clinical treatment needs required that the court referral process be open and consumer-friendly. Anyone could refer a case to the court, and the docketing was spontaneous to allow cases to be heard in court without delay.

  The mental health court is dedicated to decriminalizing those who suffer from various psychiatric conditions and diverting them from the criminal justice system into a context appropriate to their challenges. The administrative order granted me authority over the planning, design, and operational components of the court. Much of the court’s design, values, philosophy, and diversionary structure is based upon my prior training in my position with the Advocacy Center for Persons with Disabilities (now Disability Rights Florida), in a dual role as PAIMI attorney (under the Protection and Advocacy of Individuals with Mental Illness Act of 1986) and plaintiff’s monitor in the federal class-action suit related to South Florida State Hospital. This class action was filed in response to the lack of care and treatment for those confined to South Florida State Hospital. The complaint alleged that residents did not receive even minimal care and that the conditions of the hospital were physically and emotionally debilitating. The case was settled in 1993 with a focus on improvements to the hospital and individualized discharge planning for those returning to the community.

  Even though I was a new judge, at the time the mental health court was established I was appointed because of the skills and experience I had acquired in this unique position. When I was elected judge, at my investiture ceremony I was introduced by my former boss, Circuit Judge Marcia Beach. Judge Beach was the executive director of the Advocacy Center for Persons with Disabilities. She was a fierce advocate of persons with disabilities. When Judge Beach passed away in 2016, the tribute written by the reporter Carol Marbin Miller eloquently expressed the judge’s path-breaking role: “The woman who changed how disabled people are treated has died.”3 Judge Beach was an advocate of human rights in every aspect of her personal and professional life. She was a tireless advocate for persons with disabilities and demonstrated a passion for human dignity, social inclusion, and leading social change. Judge Beach believed in trial by fire—and believed in me. Consequently, I have always looked upon my appointment to the mental health court as a serendipitous acknowledgment of her legacy and her role as my mentor.

  Since that historic juncture in 1996, the insights and lessons learned through the lived experiences of mental health court participants, their families, and their extended families has improved the culture of our court system. It has helped to change minds and attitudes about mental illness and how we think about mental health as a whole. The stories shared in this book reflect actual case histories, but names, identities, and some facts have been altered to protect confidentiality. There are, however, some exceptions: Kathryn Steeves, who graciously agreed to be interviewed for this book, and a few individuals who appeared in the court who have passed, including Jack Kuhn and Seth Staumbach, discussed in chapter 5. I hope that my recounting of their experiences in the mental health court honors their lives and their noble contributions to our community and society.

  CHAPTER 1

  A Race for Justice

  On Tuesday, June 24, 1997, I took the bench as the lawyers and clinical team waited anxiously for me to call the first case. I said a silent prayer and nodded to my deputy to indicate that this new, specialized division—the session held during the lunch break of my regular criminal division court—was ready to begin. We were embarking on a new journey in therapeutic justice. Howard Finkelstein, the catalyst for the creation of the Broward County Mental Health Court, had envisioned “a refuge” for people arrested because of actions they had taken while suffering from mental illness and cognitive disorders. In order to create that “refuge,” I needed my opening remarks to be welcoming, thoughtful, and compassionate. As I called the first case, I never imagined that in fact a new system of justice was beginning. In truth, no one could predict what a mental health court would mean or what it could do. The first defendant, Roger, was in his early twenties and homeless. As the deputies led Roger into the courtroom, I realized that he was not coherent. He had been arrested for causing a disturbance in front of a convenience store. His hair hung in long, unwashed tangles, obscuring his face from view.

  As the deputies led him to a high-back leather chair in the jury box where they seated defendants who were in custody, he released the kind of scream that indicates deep emotional pain. The deputy handcuffed him to the chair, which was attached to the floor. He began to shake, and his unintelligible sounds became louder. As seconds turned to minutes, his noises turned to screams. I tried to speak to him, but it was clear he had surpassed his ability to listen.

  All I could do was watch him.

  His screams continued, hollow and desperate, as though this was the only form of expression he had left. As he became more agitated, he pulled on the chair, trying to free himself from the handcuffs and
the chair. I had no idea if a person could exert enough force to dislodge a chair that was attached to the courtroom floor.

  It was clear that there was nothing I could do from the bench for Roger, and in the interest of calming the situation, I stopped the hearing. I ordered the court staff to clear the courtroom, and since the courtroom had one door, we left the same way that Roger had entered, through the front door. Most courtrooms have two entrances, one for the judge and another for in-custody defendants, so this circumstance was unique to this courtroom. Yet the one door served as a reminder of the humanistic impulse that had led to the court’s founding and my responsibility to ensure that human dignity, as well as justice, was served here today and every day the court would convene.

  In the hallway, the court team huddled in a circle: Assistant State Attorneys Lee Cohen and Melissa Steinberg; Assistant Public Defender Doug Brawley; the mental health court monitor, Bertha Smith; and the mental health court clinician, Greg Forster. They waited in silence for me to do or say something. Keeping in mind the function of the court, I signed the first mental health court order for diversion in the hallway outside the courtroom. The diversion order mandated that Roger would be transferred out of jail, where he had been kept for several weeks; the emergency transportation order directed the Broward County Sheriff’s Office to take Roger from the jail to the nearest psychiatric receiving facility or hospital. The order required performing an independent psychiatric screening and assessment and provision of treatment under Florida’s involuntary civil commitment law (the Baker Act) if Roger met the legal criteria.1

  Diversion orders are common to problem-solving courts. At the time that Broward began its mental health court, problem-solving courts were a relatively new development in the US criminal justice system. Miami-Dade County had established the nation’s first drug treatment court in 1989 which offered substance abuse treatment as an alternative to prosecution, incarceration, or other typical criminal justice sanctions.2 According to Bruce Winick, a professor of law and the cofounder of the science of therapeutic jurisprudence (TJ), “These courts were created to address vexing social problems which were often driven by policy vacuums in our society.”3 TJ offers the promise that a court, acting as a “therapeutic agent,” can respond to psychosocial problems as well as “minister to the law.”4 Judges who write diversion orders understand that there are vacuums in society that must be filled with new laws and options. According to Winick, these vacuums may include a shortage of mental health services and a lack of sense of community, results of society’s ineffectiveness to address a wide range of social problems, which then “get dumped on the doorsteps of the courthouse.”5

  In problem-solving courts, which are voluntary, people can acknowledge that they do have a problem and can participate in a non-adversarial court process allowing a judge, lawyers, and social service and treatment providers to collaborate to help them with their real human problems. Whether it is an alcohol problem or untreated mental illness, problem-solving courts provide a new way for judges to help people with their psychosocial problems and other human needs.

  According to the Bureau of Justice Statistics, in 2012 there were 3,052 problem-solving courts in the United States.6 The most common types of problem-solving courts were drug courts (44 percent of these courts) and mental health courts (11 percent). There are various types of problem-solving diversionary courts in the juvenile level as well and hybrid courts, which address both mental health and substance abuse disorders. There are also driving while under the influence (DWI) courts, which, like domestic violence courts, are not diversionary but focus on accountability and public safety. The diversionary goals of the court are intended to intercept people arrested on low-level criminal offenses, offer a therapeutic approach to the criminal case, and promote access to community-based mental health care, housing, and other support services. For people who appear in need of psychiatric hospitalization, the court’s diversionary order is also designed to break arrest cycles and prevent defendants from being discharged back into the criminal justice system.

  In the Broward County Mental Health Court’s first hearing, I directed that my office would be notified at least twenty-four hours in advance of Roger’s release from the hospital. This part of the process was important because it allowed my office to coordinate with the Broward County Sheriff’s Office to bring Roger back to the court for a follow-up hearing. I did not want Roger going back into the jail system. Upon his return, I wanted the opportunity for the in-court clinician to assess Roger’s stability and introduce him to the mental health court’s process. It would be up to him to choose whether he wanted to participate in the court, which (like all diversion courts) is voluntary. As we stood together in the hallway trying to process what we had just witnessed, Assistant Public Defender Doug Brawley, the designated mental health supervisor for county court, was eager to see the next defendant on the docket.

  “You see, Judge,” he said, “I knew it was important that the court begin as soon as reasonably possible.”

  Clearly, Doug was right.

  “You have no idea what I have witnessed in other court divisions,” he said. “People with serious mental illness who were experiencing psychosis or due to intellectual challenges could not manage their behavior in front of judges.”

  Assistant State Attorney Lee Cohen chimed in: “Doug is right, Your Honor. Judges mean well, but they are not trained in mental health. When something like this occurs, some judges perceive that the defendants are behaving inappropriately on purpose. Doug and I have spent years running from courtroom to courtroom, as judges call for supervisors to assist them.”

  “Some judges threaten my clients with contempt sanctions under the mistaken belief that their behavior will improve,” Doug said. “I’ve tried to explain that what they are witnessing is the manifestation of a mental illness; these people aren’t intentionally misbehaving or disrespecting the court. Nonetheless, there have been times when my clients have been placed in restraint chairs and received disciplinary reports in the jail for their behavior. I do not want what happened to Aaron to happen to anyone else.”

  At the mention of Aaron’s name, we all fell silent, humbled by the sacrifice it took to bring the Broward County Mental Health Court into existence.

  It had been a high-profile case. From the expressions on the faces around me, I knew that the Aaron Wynn situation was on everyone’s mind. I thought about what Broward County’s public defender, Howard Finkelstein, had said. As we finalized Roger’s paperwork, I wondered, Had we created a court of refuge?

  We walked back into the courtroom, shaken and silent. After all, what had happened to Aaron could happen to any one of us.

  In 1985, when Aaron Wynn was eighteen years old—just about Roger’s age—he was struck by a car and knocked off his motorcycle. At the time, Aaron was preparing to leave home and head for college. However, his injuries from the accident were serious enough to erase Aaron’s dream of attending college: his extensive injuries included head trauma. He endured a series of complex surgeries meant to make a normal life possible for him once again. Yet, just as his parents were starting to think that there may be some chance for a complete recovery, they realized that the brain injuries were more severe than anyone had realized.

  The young man who had loved the ocean, sports, and playing chess had become angry and despondent. Aaron’s personality had taken a one-eighty turn; the happy-go-lucky young man was now quiet and constantly withdrawn. It was as though the spark inside him had been extinguished, and all that was left was a shell.

  Jane and Alexander Wynn were desperate to obtain mental health care for their son. They called every public official and mental health agency they could, but the response was always the same: “Aaron does not qualify for services.” One factor that seemed to complicate the Wynns’ attempts to find care for their son was the complex nature of his condition: there were at least seven diagnoses, ranging from schizophrenia to organic brain syndro
me.

  As Aaron’s memory and cognitive functions continued to decline, so did his parents’ hopes and dreams for their son. Over time, Aaron could not control his anger or regulate his emotions. The Wynns even tried to get Aaron admitted to South Florida State Hospital, but were told there was a two-year wait list.

  In 1988—three years after his accident—Aaron was arrested for allegedly assaulting a police officer when he was not able to control his anger during an encounter. Citing Florida Statute 916, the judge found Aaron mentally incompetent to stand trial and committed him to a forensic hospital for mentally ill persons in the custody of the Department of Corrections. The Florida Department of Children and Families placed Aaron in two different hospitals: South Florida Evaluation and Treatment Center in Miami-Dade and North Florida Evaluation and Treatment Center in Chattahoochee.7 Instead of receiving rehabilitation services there, Aaron was put in solitary confinement for two and a half years and was strapped to a gurney in four- and five-point restraints.

  In 1991, for reasons unknown, Aaron was released from the forensic hospital with no discharge plan or linkage to residential placement. The Wynn family was reunited, but they found themselves in the same nightmare as before, except that Aaron’s condition had significantly worsened. Aaron could not remember his parents’ names. He was often delusional. Doctors now diagnosed Aaron with schizophrenia and post-traumatic stress disorder due to the maltreatment he endured at the hospital. The Wynns tried to house Aaron in local boarding homes, but Aaron’s aggressive behavior always led to his eviction.

  The family was trapped in a nightmare.

  Two years later, in 1993, as Aaron waited in the line for the cash register of a South Florida grocery store, he suffered yet another psychiatric episode. It wasn’t unusual; he suffered many psychotic episodes, for he still had an untreated mental illness. This episode, however, would once again change Aaron’s life and tear the Wynn family apart.