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The Honolulu Advertiser

Posted on: Thursday, October 18, 2001

Violations of mental patients' rights alleged

By David Waite
Advertiser Courts Writer

A federal judge is being asked to find state health and prison officials in contempt for failing to implement a fail-safe policy to deal with people who are acquitted of crimes on the basis of mental incompetency and then turned over to the Department of Health for treatment.

The lawyer representing such people says their civil rights were violated by being held in Hawai'i jails or prisons even though they were never convicted of any crime.

The state maintains that it is in compliance except for rare, isolated incidents.

It's been nearly a year since Federal Judge David Ezra issued his temporary injunction. Last November he prohibited state officials from holding people for more than 48 hours behind bars if they were accused of violating provisions of conditional release programs.

Such patients have been acquitted of a crime and then committed to the Department of Health's Hawai'i State Hospital in Kane'ohe for treatment. They are referred to as "acquit and commit" patients.

Attorney Bruce Sherman, who represents a group of acquit-and-commit clients who claim their civil rights were violated by being held in state prison facilities for conditional release violations, said he knows of at least two cases over the past 11 months in which people were held in prison facilities longer than allowed under Ezra's ruling.

One of the things Ezra will consider during a hearing on Monday is a request by Sherman that the state be made to explain why it should not be held in contempt for what Sherman claims were to clear-cut violations of the 48-hour rule imposed by Ezra last fall.

One of the alleged violations occurred Aug. 29 when Jerry Lopes, who had been acquitted of terroristic threatening charges on the basis of mental incompetency and committed to the state Department of Health, was discovered "handcuffed" to a chain-link fence at the Hawai'i State Hospital after he violated provisions of his conditional release program.

Sherman contends that Lopes was kept at O'ahu Community Correctional Center for two days after the Aug. 22 hearing at which his conditional release was revoked, had to attend another court hearing on Aug. 24, and was kept in custody at OCCC until Aug. 29 "when he was transported to the Hawai'i State Hospital and handcuffed to a fence in the hot midday sun."

Assistant Attorney General David Webber said he will ask at the Monday hearing that Ezra not find either of the state agencies or any state officials in contempt for violating the 48-hour rule in Lopes' case.

Webber said that his office "does not dispute" that what happened to Lopes should never have taken place, but believes that it was an isolated incident.

Webber could not immediately say how many people having acquit-and-commit status were processed through the court system during the past 11 months for conditional release revocations, but estimated the number to be "several dozen."

"The fact that Mr. Lopes was attached to the fence (at the State Hospital) with plastic handcuffs is a unique and bizarre aspect of this whole thing that we won't try to defend in any way," Webber said. "But beyond Mr. Lopes, neither Mr. Sherman or anyone else has been able to identify anyone who has been held longer than what Judge Ezra prescribed — 48 hours in the case of conditional release revocations."

But Sherman said that he believes at least one other person, Robert Riddell, was held at O'ahu Community Correctional Center far longer than Ezra's ruling allowed and right about the same time Ezra was ruling on the issue.

Sherman claims Riddell was kept at OCCC from Oct. 28 to Nov. 28, 2000, even though criminal charges against him had been dismissed, before he was turned over to the State Hospital for treatment.

Webber, however, maintains that Riddell was not subject to the 48-hour rule because he was not acquitted of a crime on the basis of mental incompetency, and therefore, is not a member of the class of clients Sherman represents.