2.13 More Delays

2.12 Worn Down

Book Two / 13

Myers had finally discovered the error on the court’s order for a psychiatric evaluation at the state’s mental hospital.  He had written to the court about his discovery on Thursday, July 31st.  I received that letter the following Monday upon my arrival at work.

The judge had been back from his summer leave for one week.  On Monday morning, upon arriving at work and receiving Myers’ letter about the court’s mistaken order, I also received news that our clerk’s brother had just died.  She would be on leave again that week as well.

Facing another busy week, I glanced quickly at the court’s datebook for a reminder of scheduled hearings.  I saw that the judge had a motocross race that weekend.  I then turned my attention to the stack of mail from the weekend.  The various piles of bound papers were mostly motions to the court from attorneys involved in the civil cases assigned to our court.

In addition to civil motions, however, we also received letters from inmates in prison, serving their terms of incarceration imposed at sentencing in our court.  Court staff referred to these letters as “jail mail.”  They were the only envelopes arriving in the mailroom with handwritten addresses. The letters contained mostly motions for relief from court-imposed financial obligations, or for a judicial calculation of earned early release credits.

Frequently the court had no post-sentencing authority to grant the relief requested.  In those situations I would either draft an order denying the requested relief, or write a brief letter to the inmate, indicating the court’s inaction.  Occasionally, however, an inmate would write to the court with either an overt complaint of an unlawful restraint, or a vague description of circumstances implying unlawful restraint.  In either situation, after discussing the issue with the judge, I would designate the inmate’s materials a personal restraint petition and forward them to the state court of appeals for review.

Among the items of mail I received that Monday morning was Myers’ correspondence from the previous week.  I recognized his handwriting immediately.  I opened the envelope, read through the letter, and pulled his file for review.  I realized right away that he was correct about the error in the court’s order, although he was mistaken about the reasons.

More importantly, however, I recognized how the court’s inadvertent inaction over the months had multiplied the effects of the error upon Myers’ mental stability.  His struggle to understand why the examination did not occur had contributed to his mistrust of the court, to his hostility toward the prosecutor and judge, and, ultimately, to his refusal to appear for hearings.  What might have been an inevitable but brief delay in proceedings had it occurred to a defendant with counsel, now threatened to become an insurmountable obstacle to our court’s resolution of the case.

After reviewing the letter and the file with the judge, I sent an email to the prosecutor, and also forwarded to him a copy of Myers’ letter.  The prosecutor reviewed the letter and investigated from his office.  He then confirmed for the court that the State had prepared the wrong order, and that Myers had not been transferred to the hospital as a result.  “For whatever reason,” he wrote in response to my email, “no one at the jail alerts us when a wrong form is used.  They just ignore it.”

We had all been waiting nearly three months for an evaluation that we assumed the court had properly authorized.  Throughout those months Myers had been sitting in his cell, psychologically deteriorating, and incapable of communicating with anyone who might properly intervene for assistance on his behalf.  Meanwhile, at each step where someone might have spotted the mistake and corrected it, oversight, inattention, and heavy workloads had intervened instead.

“Anyway,” the prosecutor added at the end of his email, “I have the right form now and need to set a hearing to get that signed and entered.  When can we do that?” he asked.  “I can make myself available tomorrow at 4pm maybe?  Once it’s in, our paralegal will work with the hospital to try and push him to the head of the line.”

The moment I finished reading the prosecutor’s email I wrote two short lines, not taking any more time to consider the circumstances.  “Please bring the order ex parte ASAP.”  I told him.  “The judge will enter it immediately.”


Summers had a reputation for being a bit slower in the courts, but many of us had noticed over the past few years that its reputation had tarnished.  Not too many years ago the courthouse had regularly closed each August, retaining only a small staff to handle arraignments and a few other necessary criminal procedures.  Now, not only did the courts remain in regular operation throughout August, but in many ways it seemed that these last few weeks of summer had become the most chaotic.  This was due in part to the vacation of some staff, and the consequent need for those remaining to fill the gap.

It was also due to a continuing demand upon the courts for all the services they regularly provide.  Civil motions and case filings might slow a bit in August, but criminal arraignments seemed to pick up pace in the long, warm days.  It simply wasn’t an option anymore to close.  It wasn’t even a possibility to relax.  August was just another busy month, and no desire of court staff for relief from the pressure would lessen the flow.

In our own court that August we had criminal motion hearings each morning at 8:30.  We then resumed trial at 9:00 on whatever criminal case was currently assigned to us.  We were typically in trial on a case for one to two weeks.  At the conclusion of one trial we would be assigned another.  At times we’d have to begin the second while the jury was still deliberating on the first.

In addition to our regular schedule that summer we were also handling the more difficult prosecutions that had been assigned to our court for pretrial management.  One of these was the case of two co-defendants charged with the murder of six family members on Christmas Eve.  We had convened regularly through the months to address the concerns of counsel leading up to the prosecutor’s decision on the death penalty in those cases.  I had set a hearing at the end of August for an update on that decision.  Now, with the breakdown of pretrial matters in Terence Myers’ case, we were also attempting to expedite the psychological evaluation to further his possible insanity defense.

With the judge on leave for a couple of weeks at the end of July I had chosen to wait until fall to take time off that year.  Many of the matters assigned to our court seemed to be at critical junctures.  I didn’t feel confident that in the total absence of court staff no urgent developments would arise.  This had been especially true when our clerk had needed to leave for a few days upon her brother’s entry into hospice.  Now, in the second week of August, the judge was back but our clerk’s brother had died so she remained on leave.

Earlier that week we had entered the amended order for Myers’ psychological evaluation.  On Thursday I’d learned that our clerk would be returning the next week.  The judge had made plans to be gone on Friday to prepare for his weekend motorcycle race, so before he left on Thursday afternoon I made arrangements with him and our court reporter to purchase some flowers for the clerk.  I’d select the flowers that weekend, we decided, and on Monday morning we’d all take some time before our first hearing to catch up with one another.  We hadn’t all been together since mid-July, before the judge had left for his vacation.

Over the weekend I selected a large potted plant, flowering for summer, and placed it in a box for the bus ride to work.  I arrived at the courtroom at 7:30 on Monday morning, carrying the plant cradled in my left arm, and balancing my shoulderbag on the opposite side.  In my right hand I held  a cup of coffee with a napkin tucked around the rim.

My arms full, I pushed the chambers door open with my hip and immediately heard the phone ringing.  The judge’s number displayed on the monitor.  Still holding the heavy plant in one arm I set my coffee down and picked up the handset before the call could roll over into voicemail.

“Hey judge,” I said to him, bending awkwardly to set the heavy plant on the desktop.

“Hey pal,” came the response, “how ya doin’?”

“I’m fine.”  I told him.  “What’s up?”  I asked.  It was unusual for him to call.

A brief silence met my inquiry.  I placed my bag on the desk next to the plant and reached over to turn on my computer.

“I had an accident on my motorcycle over the weekend,” the judge said.  “I don’t think I’ll be in today.”


The judge had broken at least six ribs from his accident at the races that weekend.  He also had a collapsed lung, internal bleeding, and a good story to share with his colleagues when he returned.  For now, however, he would remain hospitalized for treatment and supervision for several days.  Upon his release he’d be instructed to stay home for two weeks to allow his injuries to heal.

With the judge gone I tracked developments in Myers’ case and continued the court’s efforts to get the evaluation he needed for his defense.  Early in August, when the judge had signed the court’s second, emergency order for Myers’ transport to the hospital, we’d set a hearing for the 28th.  We thought that Myers might be back by then, that the evaluation would be done, and we could all convene for a status update.  It was now August 21st.  On account of the judge’s injuries, he wouldn’t return until September.

I sent an email to the prosecutor to let him know that the judge would be away for a couple of weeks and that I’d have to reschedule the hearing.  I assumed Myers had already been transported to the hospital, but I inquired about the status of his evaluation.  “Please let me know if you’ve heard anything,” I asked him.

A few days passed without any response.  I was growing frustrated from the lack of information, and worried about what it might imply.  On the 26th I sent the prosecutor a follow-up.  The next day he wrote back.  He explained that the paralegal in their office who handles the transport of defendants to the state hospital for evaluations had been “doing her best” to expedite the transfer before she left for vacation.  “She’s gone until September 9,” he wrote.  “I’ll see if anyone else has info.”

My heart sank when I read his words.  These sorts of delays were increasingly common — caseloads rarely shrank, whereas staffing levels were always on the decline.  Every office and department that had anything to do with the work of the courts — from the jail, to the prosecutor’s office and public defenders, to court administration and the courts themselves — these days they all were cutting staff at every opportunity.  Routinely we saw three positions become two, then two become one, with no corresponding reduction in the workload.  The results were predictable:  a greater number of mistakes and delays.

The explanation, however, was not an excuse.  Even if it were, Myers would never understand or accept it.  And as if evidence of that assertion, on September 2nd I received another of his handwritten motions.  This one renewed his request that the judge dismiss the case or, alternatively, that he reassign it to another court.  Before filing the paperwork I sent a copy to the prosecutor.


Myers was transported to the state hospital during the weeks of the judge’s recovery at home from his motorcycle accident.  He was admitted for his evaluation on September 3rd, and on October 1st we received a copy of the psychologist’s case status report.  The report indicated that Myers had participated in an initial intake review, but then began making demands on the process, and the demands had turned into roadblocks.

As I read the report, I heard echoes of Myers’ constant attempts to control the process in our court.  The parallels were clear.  At the hospital, Myers had first demanded that either a stenographer be present for the interview or that the interview be audio-recorded.  When informed that a stenographer wasn’t possible but the interview could be audio-recorded, he’d agreed to the recording.  Then, when approached for the interview with the audio-recorder, Myers had refused to answer any questions.  He now protested that an audio recording wasn’t sufficient, and he wanted an actual stenographer present.  The psychologist again informed Myers that a stenographer’s service was unavailable.  He warned Myers that he’d be unable to complete any report if Myers refused to be interviewed.

Myers continued to refuse.  After all the months of waiting to be taken to the hospital for his evaluation, he was returned to the jail facility on October 2 with nothing more accomplished.  After months of everyone’s concerted efforts to get him to the state hospital, and after all the mistakes and delays we’d encountered, Myers was back where he started, nowhere closer to having the evaluation required by law to support his plea of not guilty by reason of insanity.

On October 5th Myers wrote a letter to the court, his own status update.  “The Defendant’s brief stay at [the hospital] did not resolve the issue of a mental health examination,” he informed the court, “simply because the interview was terminated due to provisions the hospital did not meet when requested by the Defendant.”  He concluded with his summary of the reasons for his refusal to engage:  “It is imperative that all legal proceedings be monitored so that no hidden or scripted issues be utilized to defeat the defendant’s position in court.”  He didn’t mention the availability of an audio recording.

We were all extremely frustrated by now, including Myers, but also the judge.  It was clear that Myers’ method was to impede and obstruct the progress of any proceeding involved with the prosecutor’s case against him.  We could see that his personality disorder and the combatant paranoia it caused were the reasons for his persistent push-back.  He likely had an entire personal history of relationships patterned by frustrations similar to those he experienced with us.  We understood the dynamics at play, and wanted to overcome them as much as possible.  But in trying to accommodate his requests, we’d only encouraged him to demand even more, and to believe that he was entitled to it all.

To make matters worse, the administrative delays in the process, and the clerical mistakes and oversights, had all strengthened Myers’ perception that we intended to deceive him.  He’d arrived with strong delusions of persecution, and unwittingly we had played right into them.  By trying to accommodate his mental illness, we had caused it to worsen.  By honoring his legal right to proceed on his own, we’d deprived him of structure and resources.  By respecting his personal dignity, we’d permitted its self-destruction.  In short, we had allowed Myers to write the script of his appearances in court, and then we played the roles he assigned us.


And yet, in some respects Myers’ complaints were legitimate.  He’d been running hard up against the walls erected against indigent and mentally ill defendants in court.  In fact, they were the same walls Judge Bazelon had been trying to chip a hole in for so many years on his D.C. Circuit Court, including the wall in Brawner against which he’d made his stand for indigent defendants.

As Judge Bazelon had known, an affluent defendant in our trial court pursuing an insanity defense would have hired his own psychologist — if not an entire team of them.  No defendant with financial resources would ever allow the state’s psychiatrist to have the expert word on his mental status.  And the required evaluation would have occurred under conditions managed by the defendant’s private attorney — including any method of recording the interviews for the evaluation that would best support the defense, rather than best accommodate the state’s budget.

Indigent defendants, however, including Terence Myers, had to rely on a psychologist employed by the state:  the same party trying to prove his guilt.  In addition to the conflict of interest inherent in that relationship, and the disadvantage it entails for the defense, an indigent defendant transported to a state mental hospital for evaluation is placed at the bottom of a congested, poorly-funded public mental hospital caseload.  He is wholly at the mercy of that institution’s conditions, constraints, and conflicts of interest.

Myers’ antisocial personality disorder didn’t help, of course.  Nor did his insistence on representing himself, however related that insistence was or wasn’t to his disorder.  He’d have been at a disadvantage on account of his poverty even without the mental illness, but the combination was proving insurmountable.

2.14 Edwards v. Indiana