‘Perilous. Very Perilous.’
by Bruce McEwen, July 9, 2013
Fifth District Supervisor Dan Hamburg was in court last week, and a good thing, too. He was about to lose $35,000, and after paying $9,500 in election fines imposed by the California Fair Political Practices Commission earlier this year, and maybe spending another $10,000-plus in lawyer fees for burying his wife at home without a legal sign-off his fellow Supes have refused to reimburse, wealthy as Hamburg is, he surely didn't want to get socked another $35,000.
The Supervisor arrived in court with an impressive retinue of supporters who included several tax-paid retainers. County Counsel Tom Parker, togged out in a pinstripe suit and Mr. Parker’s assistant, a pretty young woman in a fawn-colored skirt suit and high heels named Brina Latkin, formerly associated with Hamburg's Ukiah attorney, Barry Vogel. And there were the usual miscellaneous Hamburgians whose cult-like devotion to the supervisor has been discussed before. It was quite a show.
The defendant was the disoriented-looking young guy out in the hall in bedroom slippers and baggy sweats that looked like he'd slept in them.
We would learn that young Matthew Hamburg had, completely outside all laws and procedures, been released from the County Jail and spirited away to a lock-up mental facility far from Mendocino County, the whole show paid for by local taxpayers.
The DA and the judge wanted to know how all this had happened.
The defendant, a pawn in this unprecendented maneuvering, didn't seem to know where he was. Ordinarily, the bailiff would have enforced the dress code for Superior Court. But the bailiff even had to allow a psych tech in who, called in at the last minute, was wearing shorts. She was Anderson Valley resident and Mendocino Mental Health senior crisis worker Beverly Bennett. Ms. Bennett said she had no idea she was coming to court or she would have dressed appropriately, and the bailiff made an exception by allowing her to stay.
A little background is in order here. Matt Hamburg’s latest legal problems stem from an episode back on May 5th when he got into some sort of beef at or near the Frank Zeek School in South Ukiah. He was reportedly using foul language at peak volume and blistering the sensitive ears of the young scholars on the playgrounds. The police were called, a dangerous high-speed chase ensued as Matthew lead cops down South State Street and out the Boonville Road to Shepherds Lane, site of the Hamburg property, where Matthew was finally run to ground and arrested after a scuffle with deputies. He was charged with recklessly driving to evade an officer, a felony.
Young Hamburg’s attorney is Carly Dolan of the Public Defender’s office. She is calmly capable in an office characterized by calm incapacity. She was immediately rushed — swarmed, really — by the Hamburgians when she appeared in the hallway.
“Oh, Ms. Dolan. Matt’s all better now, aren’t you, Matt? And Ms. Elliott, here, will be taking over. You know Ms. Elliott, of course, don’t you? Thank you, Ms. Dolan.”
Ms. Dolan’s comment the week before suggested that the Hamburg clan might be putting their political interests ahead of her client’s, and the judge had characterized visiting Judge Kossow's work on the Hamburg case as “incompetent.”
Out in the hall someone had nudged Matthew forward, and he had made some perhaps rehearsed comments to Ms. Dolan when Katherine ‘Kit’ Elliott pointed up like an Irish setter to smile about how the Hamburgs had just retained her services and she would be substituting in. “Thank you, Ms. Dolan,” but here's your hat and what's your hurry. Ms. Elliot will be taking over for you.
When Ms. Dolan finally got to the courtroom she was still attorney of record. She seemed a little overwhelmed. But that’s her natural expression. If you had any idea what she endures daily, you’d understand. She’s one of the few public defenders with a sense of humor, and enough sense of propriety to conceal it. They call her Olive Oil at the jail, but in any sane county she’d be running the Public Defender’s Office instead of taking orders from Linda Thompson who does such a bad job that her in-custody clients charged with serious crimes routinely ask to have her removed from their case or ask for new trials based on ineffective assistance of counsel.
Judge Moorman called the Hamburg case and mentioned the bench warrant for Matt Hamburg's arrest she'd issued the previous week, explaining that she had no choice in the matter after 14 days of holding the warrant from the first time Mr. Hamburg had failed to appear. By law, she had to issue it. Young Hamburg, having been magically released from the County Jail and hustled off to Yuba City by County Counsel, the Mendocino County Mental Health Department and, apparently, the Public Defender's office, acting at the behest of Supervisor Hamburg but unaware of what was happening to him, had blown dad's $35,000 bail. Judge Moorman’s bench warrant meant that cops would have to re-arrest him for bail jumping.
“I had no information as to his whereabouts, and I still don’t know where he was,” Judge Moorman said.
“He was at North Valley Behavioral,” Dolan said.
North Valley Behavioral is a mental health crisis facility in Yuba City. They have 16 beds for adults deemed in crisis. Mendocino County has an agreement with North Valley which requires the County to pay $825 per day for patients the County sends to Yuba City. Stays in this place are normally limited to three-to-five days. According to their website, North Valley Behavioral does not accept private placements or walk-ins, only county assignments. Private placements or walk-ins are unlikely to have the $825 per day.
“What was the nature of his residence at North Valley Behavioral?”
Dolan turned and gestured to the clutch of suits standing in the doorway and said, “Mr. Pinizzotto would like to address the court on that point, your honor.”
County Counsel Tom Parker, his female assistant Ms. Latkin, and a short gray-haired man, who turned out to be County Mental Health Director Tom Pinizzotto, scurried forward to the defense table, but the judge had more to say about the warrant, and she seemed to be speaking to Dan Hamburg and his daughter Laura who had taken seats in the gallery.
“When you post bail, that is a monetary promise to appear, and when the defendant failed to appear, the court had no choice but to forfeit the bond because it was unclear as to his whereabouts.”
At this point it became clear that the supervisor was unaware of the complicated logistics done on his son's behalf by County employees. It's doubtful he would have sacrificed 35 grand simply to get his son out of the County Jail.
“If I may, your honor, give the court a brief timeline,” Pinizzotto interrupted. “On 5/5/13 he (Matthew Hamburg) was arrested and his competency was in doubt by the public defender; then on 5/30/13 he was 5150, and on 5/31/13 he was bailed out—”
“Wait a minute,” Judge Moorman broke in. “He was 5150 while he was in custody? How can that happen?”
How indeed. That adjudication has to be adjudicated. In court. An inmate can't be declared 5150 and sprung from custody outside the judicial process.
The judge's question caused much confusion on the part of the delegates from the County offices. The entourage huddled hastily with Mr. Parker. DA David Eyster seemed unaware that his jaw had dropped to the floor. He looked at the Judge like a man who felt he was owed an explanation. A junior prosecutor, Deputy DA Damon Gardner was handling the case for The People. It seemed that something spectacularly unusual, if not downright unlawful, had taken place and DA Eyster was present throughout, marveling with wide-eyed wonder as the scope of the shenanigans became evident.
“Under what circumstances?” Judge Moorman demanded of Ms. Latkin. The judge wanted to know how young Hamburg had been declared a 5150.
“For three days,” Ms. Latkin said. “He wouldn’t come out of his room at North Valley and Judge Mayfield granted the conservatorship.”
Judge Moorman clapped her hand to her head. Something had just occurred to her, it was plain to see, and in a few minutes we were to learn what it was. But first, she wanted to know, “Who placed him (Matthew Hamburg) at risk, Mr. Parker?”
Matt Hamburg, in custody at the County Jail, had been declared incompetent, removed from the Jail and taken off to Yuba City. Everyday 5150s who are not in custody, and there are lots of them in Mendocino County, must have the agreement of a judge and the DA on how they will be processed in the criminal justice system and on into whatever mental health programs may be available to them. It hadn't happened that way in the Hamburg case.
Parker stammered inarticulately. There was still much confused scrambling about in the courtroom. Supervisor Hamburg hung his head and shielded his eyes with his hand. Parker fell silent.
“But you understand my concern, don’t you, Mr. Parker? There was no notice given to the court, no letter to the Public Defender’s office or to the DA!”
Judge Moorman waited but County Counsel Parker had nothing to say. What could he say? Parker had done somersaults to bypass usual legal commitment procedures. The judge resumed: “The client-lawyer relationship is one I take quite seriously, I warn you, and if I find that there’s been any interference in that relationship, that would be perilous, very perilous. Now, it sounds to me like some County resources were used to do the 5150 without the court’s permission. But what I want is this not to ever happen again, so I’m going to recall the bench warrant, and I sincerely hope this has been a lesson to everyone involved.”
Supervisor Hamburg had just been granted a $35,000 reprieve. The Hamburgians in the gallery breathed a collective sigh of relief.
“However,” Moorman resumed, “I refuse to sign the placement order. A 1368 trumps a 5150 — and a conservatorship. Does anyone in the room know—?”
(A 1368 is legal shorthand for a hearing to determine if a defendant is competent to stand trial and participate in his own defense, per Penal Code Section 1368. You have the 1368, then you deal with the 5150 designation if the subject really is crazy.)
Ms. Elliott, self-declared attorney for the Hamburgs, rose and made her way forward, repeating that she’d been contacted by the family to substitute for the Public Defender.
“Not now,” Moorman said irritably, lashing Elliott back to her seat.
“Does anyone know how Matthew is right now?” Moorman asked.
Ms. Dolan resumed her skillful defense of Matthew Hamburg, as if his influential family were beside the point. Although she did falter a trifle. She said she’d just spoken with her client in the hall outside and was ready to withdraw her earlier assertion that he was unable to participate in his own defense.
“I had serious doubts before, but he seems much better today,” Ms. Dolan beamed with a fey glance over her shoulder at the Supervisor seated behind her.
Katherine Elliott again stood up.
“I’m ready to substitute, your honor. I’ve handled numerous 1368s and I’m ready to take the case forward.”
Judge Moorman said, “Please sit down, Ms. Elliott. The defendant has perfectly capable counsel at present.”
“Yes, your honor, but I’ve been asked to—”
The Hamburg purse, it seemed, recently having escaped a $35,000 withdrawal, was being opened to a private lawyer, so the Hamburg family voice would have a direct say in the proceedings via said private attorney.
As a county-paid lawyer Ms. Dolan, in a sense, works for Dan Hamburg — he is a County Supervisor, her superior, her her boss, but here she was hanging on to the case.
“He’s made a turnaround rather quickly,” Dolan said with a little jet of enthusiasm.
If a mentally ill person makes a dramatic behavior change it probably means his meds have been changed from the wrong meds to the right ones. In any case, someone has to make sure the mentally ill take their meds, and right there is where “the system” often breaks down.
Addressing the gallery, Judge Moorman said, “Keep in mind that a lot of taxpayer money is going into this proceeding and what I want to know is where is he now? Is he still at North Valley?”
“He has not yet been discharged,” Ms. Latkin, Assistant County Counsel, said, and Judge Moorman was suddenly reminded of her earlier consternation.
Moorman fixed her sights on Ms. Latkin and fired.
“When you went to Judge Mayfield for the conservatorship, did you tell her that criminal proceedings against Mr. Hamburg had been suspended because of a 1368?”
Ms. Fawn stammered, “Well, I, umm, don’t really, um, recall, exactly, everything that was said… I’d have to look at the file and see. I don’t really remember, um, all of our conversation. I can’t say.”
“Okay,” Moorman said impatiently. “Where is this North Valley Behavioral?”
“It’s in Yuba City, California,” Pinizzotto said.
“What?! You physically removed him [Matthew Hamburg] out of the county when he was deemed mentally incompetent on a felony?!”
DA Eyster seemed to be enjoying the ongoing spectacle. He’d recovered his mandible and was popeyed with delight at this latest gaffe.
Moorman said, “Okay, that’s it. I’m going to take a recess and call in Dr. Kelly.”
A knot formed as the crowd moved towards the door. Supervisor Hamburg sidled up to County Counsel Parker and spoke his first words in the courtroom.
“Geez, I guess it’s turned into a real mess, huh?”
Parker noticed me sitting in the area reserved for the press with a pen poised over my notebook and deftly ushered our Supervisor out of earshot. When they’d mostly all adjourned to the hall, Moorman sent Dolan for her client, young Mr. Hamburg.
“I’m going to re-appoint Dr. Kelly now,” she told Matthew Hamburg. “I want to find out if you’ve been restored. We’re all concerned about your mental health, so I want you to go to Dr. Kelly’s office and talk with him again. Come back at 4:00 or 4:30, however long it takes, and we’ll decide what to do.”
Ms. Elliott made another attempt to substitute for Ms. Dolan, but Judge Moorman wasn’t having it.
“I’m not inclined to agree to the substitution without him signing the form, and he must first be deemed competent to sign. If he’s found competent by Dr. Kelly we’ll take up these other issues at that time.”
I had to go to the dentist at 3:30 and didn’t make it back by 5:00.
But neither did Matthew Hamburg and the matter was put over for another week. ¥¥
Detachment & Style
It is an occupational hazard of the journalist to get caught up in the story, the deeper you dig the more you realize how desperate a give situation is and the more you realize something must be done; so you report the facts, the sobering facts, and still the world whirls on, the populace concedes, yes, it is a dismal situation, but they go on about their lives, saying in essence “it’s too much, the powers are too great, and we are simple folk with modest expectations." Perhaps they need to be shown how it’s done. So you lock yourself to a piece of heavy equipment to stop the destruction until after eleven days they come and cut you loose and take you off to jail. This is what happened to Will Parrish, who was arraigned last Wednesday on three counts of trespassing, an infraction. The DA asked for 12 months of probation and charges of $250 for each day Parish was on the work site of the Caltrans Willits bypass, plus approximately $250 in fines and fees totaling about $3,000. Judge Richard Henderson gave Parrish a couple of weeks to think it over and released him on his own recognizance on the condition that he stay away from the bypass work site.
Carl Sandburg was a socialist and activist until he realized it was hurting his credibility as both a journalist and a poet. It was only after his friend Amy Lowell mentioned to him that his poetry was beginning to read like propaganda, that he finally left the Socialist Party; and then, not entirely coincidentally, the resulting detachment enabled his career as a journalist to develop. “The Sandburgs never again affiliated with a political party, although they supported liberal causes all their lives. But as Sandburg’s identity and visibility as a journalist grew nationally, his detachment from party politics was essential to his credibility.” (— ‘Carl Sandburg, A Biography’ by Penelope Niven.)