"There’s a foul odor coming from the Office of the District Attorney and the Court of Mental Health in the City and County of Tulsa. The kind of odor that says, when it comes to dealing with people with mental illness, it is permissible to give false testimony and manufacture evidence. Let me give you a few examples, with some documentation, from my stay at the local loony bin, a.k.a. the Tulsa Center for Behavioral Health (TCBH).
Among the Court papers I was given, Mental Health Court Judge Theresa Dreiling signed and filed on August 6, 2010 an “Order Setting Hearing and Directing Pre-Hearing Detention; and Order Releasing Confidential Records”. It’s a fill-in-the-blanks form, in which the printed fourth paragraph states, “WHEREAS, is appears further that the information sought is not available elsewhere and can only be obtained from the detaining and/or treating facility or the Department of Mental Health and Substance Services;”. Well now, that’s a falsehood, and evidently one written into usual Court procedure to give TCBH the monopoly on how the defendant’s mental state is represented to the Court. Pretty handy if the Judge intends to rubber-stamp TCBH decisions. It’s a falsehood because I told the TCBH people who interviewed me and the Court that I had been going to psychiatrists at the O.U. Psychiatric Clinic to manage my medications for depression and PTSD for the previous six or seven years. In fact, I still have appointment reminder cards going back to 2006. Who lied? TCBH, the Judge, or both?
As I may have noted before, all the “witnesses” who signed or were identified in sworn statements (in my possession), as to my need for incarceration in a mental facility, came either from the mental facility itself, or the organization that feeds it candidates for commitment, the Community Outreach Psychiatric Emergency Services (COPES). The are: Kevin Bethune, MALPC, of COPES, Aug 3, 2010; Ivan (or Juan) Lopes of TCBH (illegible title letters), Aug 3, 2010; Julie King, MS, LPC, Aug 5, 2010; and Dr. Lori C. Miller, MD, Aug 5, 2010. Perhaps more on their “testimony” another time. None of them appeared at the commitment hearing in my presence. Nor were they required to testify or be cross-examined, even though parts 5-411.5.b and 5-419.7 state that I “shall” have the right to cross-examine witnesses. Further, part 5-411.5.b states, “The petitioner and witnesses identified in the petition shall offer testimony under oath at the hearing on the petition.” And part 5-419.7 states that one “shall” be notified of “the right to call witnesses in such person’s own defense.” Not only did none of those things happen, Judge Dreiling did not even allow me to state my side of the case regarding the original allegations against me.
This occurred in secret session, with the smell of a kangaroo court. The Justices of the Oklahoma Supreme Court supervise the operations of the individual District Courts. Yet if one complains to a Justice about this kind of situation, the Justice does not deign to reply. Apparently the Supreme Court does not dedicate itself to extending the protections of due process to a minority that is often feared and loathed in common media representations and bigotry.
On September 9, 2010, Judge Dreiling held a hearing in Mental Health Court to review my commitment, attended by myself, Teri R. Terrell, Assistant Public Defender, Michelle Keely, Assistant District Attorney, and James Pfeffer, Assistant District Attorney, as well as others I seem to recall from TCBH and/or the Mental Health Court. ADA Keely took the lead in “defending” TCBH in order to keep me imprisoned. As I recall, when I complained about the alleged evidence against me, she claimed that she only needed “a preponderance of the evidence”. Neither Judge Dreiling nor my Public Defender objected to that false statement, and I didn’t know any better at the time.
Later I found that in the Addington v. Texas case of 1979 the U.S. Supreme Court, noting that civil commitment is “a significant deprivation of liberty”, set the standard at “clear and convincing evidence”, intermediate between “a preponderance of the evidence” and “beyond a reasonable doubt”. The Supreme Court did so because it did not think that states could prove anything “beyond a reasonable doubt” with psychiatry. I can believe that. Apparently it did not then nor has since considered the terrible inaccuracies of the psychiatric clinical predictions of violent behavior. The Oklahoma Mental Health Code cites eight times that the standard “clear and convincing evidence” shall be used. That would exclude damning “testimony” given by Mr. Bethune of COPES, which amounted to no more than unsworn hearsay, which was never fully investigated by the Tulsa Police Department, nor subjected to cross-examination in a court of law. Yet, though the Supreme Court standard has been in place for over 30 years, the Tulsa District Attorney’s Office is willing to lower its arguments to the level of a common grifter when dealing in secret with people having mental illness.
The Attorney General of Oklahoma has defended these ethical lapses in Federal District Court in case 11-CV-92-TCK-PJC, demanding that the case should be dismissed on the contention that state employees have absolute immunity from lawsuit for the “good-faith performance of their duties”. Yet, the U.S. Supreme Court held in United States v. Classic (1941) and Monroe v. Pape (1961) that there is no absolute immunity or total exemption for government officials as a class. They only have qualified immunity _within_ the good faith performance of their duties.
In Wood v. Strickland (1975) the Supreme Court states that a school official “must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the basic, unquestioned constitutional rights of his charges. Such a standard imposes neither an unfair burden upon a person assuming a responsible public office requiring a high degree of intelligence and judgment for the proper fulfillment of its duties, nor an unwarranted burden in light of the value which civil rights have in our legal system.” And “we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student.”
A U.S. Court of Appeals states in Rogers v. Okin (1984) that “the substantive rights created by legitimate, objective expectations derived from state law are entitled to the procedural protections of the due process clause of the Fourteenth Amendment.” Regarding due process in Foucha v. Louisiana, 504 U.S. 71 (1992), the Supreme Court stated, “the substantive component of the Due Process Clause bars certain arbitrary wrongful government actions regardless of the fairness of the procedures used to implement them (Zinnerman v. Burch, 494 U.S. 113, 126) … but proof by a preponderance of the evidence fell short of satisfying due process.”
One might think that a Mental Health Court Judge in an Oklahoma District Court would and should know and strictly observe the Oklahoma Mental Health Code, the case law of the Supreme Court of the United States, and the Constitution of the United States. Depriving a defendant of due process protections, even from an arguably bigoted law, on the basis of a psychiatric disability, does not meet these standards. It does not pass the smell test. "