Transcript People V. KENNEBREW - California Association of Public

PEOPLE V. KENNEBREW
CONNIE D. DRAXLER, DEPUTY DIRECTOR LA PUBLIC GUARDIAN
LEAH DAVIS, ASSISTANT COUNTY COUNSEL, LA COUNTY COUNSEL
DEMOGRAPHICS
• Nattie Kennebrew
Age 86 at time of referral to Public Guardian
Widowed with no local family
History of being a veteran – received medical care from VA
History of owning a locksmith company
Charges include murder, attempted murder and assault
with a deadly weapon
• At time of referral Mr. Kennebrew is legally blind due to
glaucoma, diagnosed with dementia and suffering from
Diabetes and Hypertension. No history of mental illness
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CHRONOLOGY OF EVENTS
• 1/28/2009 – Nattie Kennebrew age 83 and suffering
from dementia and delusions allegedly shot and
killed the apartment maintenance man who
entered his apt to fix a faulty garbage disposal. He
also attempted to shoot and kill the apartment
manager
• 7/1/2009 – Arraigned; Doubt raised RE: competency
• 11/23/2009 – Declared Incompetent to Stand Trial
and committed to Patton State Hospital
CHRONOLOGY CONTINUED
• 2/7/2012 – Patton concludes Mr. Kennebrew was unlikely
to regain competency. Patton referred case to PG
requesting a LPS conservatorship
• PG determines Mr. Kennebrew does not meet statutory criteria
for LPS
• 8/23/2012 – Criminal Court refers matter to PG for
possible conservatorship
• PG notifies court that LPS conservatorship will not be pursued
due to diagnosis and limits on mental health funding and
placement
• 10/25/2012 – Patton refers case again to PG, requesting
LPS conservatorship
• NOTE – Maximum Commitment Date = November 22,
2012 (Thanksgiving Day)
CHRONOLOGY CONTINUED
• October and November 2012 – Director of Mental
Health, PG and CoCo receive inquiries from Board
of Supervisors based on requests from DA’s office for
intervention and assistance
• 11/7/2012 - Independent Forensic and
Neuropsychological evaluation performed at
request of PG
• 11/16/2012 – Detailed report to court declining to
file LPS conservatorship based on diagnosis, lack of
any mental health history, recommendation for
placement in SNF and client willing to accept
assistance for needs to be met
CHRONOLOGY CONTINUED
• 11/15/2012 – PG served with Notice of Hearing of
Conservatorship and Request for Appointment of
Probate Conservator
• Petition filed by Deputy DA
• Petition names Office of the Public Guardian as
Conservator
• Hearing set in probate court for December 31, 2012
• Mr. Kennebrew not released on 11/22/2012 because of
pending probate conservatorship hearing
CHRONOLOGY CONTINUED
• 12/31/2012 – PG and County Counsel appear in
Probate Court. Deputy DA and criminal case Public
Defender present.
• PG objects to filing of petition and naming Public Guardian
as conservator
• Probate Court orders PG to conduct an investigation into
need for Probate Conservatorship
• Probate Volunteer Panel attorney appointed for Mr.
Kennebrew to represent his interests in Probate
conservatorship petition
CHRONOLOGY CONTINUED
• Investigation - PG finds son and numerous family
members. Family had lost contact following crime
• Son, Andrew Kennebrew states he will take father and care
for him in Michigan upon release from Patton
• PG reports there is a suitable alternative to filing
Probate conservatorship. DA objects
• Probate Court orders son, Andrew, to file Probate
Conservatorship in California
CHRONOLOGY CONTINUED
• 4/5/2012 – Probate Court appoints Andrew Kennebrew
Conservator of the Person of Nattie Kennebrew
• Court authorizes Andrew to take Nattie out of state to
Michigan
• Andrew is ordered to show proof of filing of conservatorship in
Michigan
• California court inclined to terminate CA conservatorship upon
Michigan order granting conservatorship
• Andrew ordered to obtain a doctors evaluation of Ctees
medication and file report in CA
• Status hearing set for 10/25/2013 regarding medication,
placement and status of conservatorship in Michigan
• DA’s petition to appoint PG is denied with prejudice and PG is
excused from case
CHRONOLOGY CONTINUED
• Probate Court Letters of Conservatorship
• Full Medical Powers
• Dementia Medications Granted
• NO Dementia Placement powers granted
• No evidence Nattie needs a locked placement
• DA objects strongly – wants Nattie in a locked placement
• Court Response
• Thoughtful, extensive oral response regarding role of Probate
conservatorship and the appropriate use of the conservatorship
• Tells DA – not appropriate to use probate conservatorship just
because her hands are statutorily tied in the criminal court matter
CHRONOLOGY CONTINUED
• Criminal Court case is continued throughout the
pending Probate case.
• Criminal Court Public Defender requests for criminal
case to be dismissed is denied repeatedly.
• 4/10/2012 –Criminal court appearances - Notify that
Probate conservatorship established. DA issues
objections regarding public safety and lack of
locked placement
• Court orders PG to explain why we are refusing to establish
a conservatorship in order to place him in a setting that will
serve his needs and protects the public safety. PG ordered
to provide court other options to place Nattie in an
environment where he will not pose a danger to public.
CHRONOLOGY CONTINUED
• 5/9/2013 – PG Response to Court’s Inquiry of
4/10/2013
• Defined and Reported on the following:
PG
Conservatorships (LPS, Murphy and Probate)
PG Investigations
Filing a Petition for LPS
Dementia Issue
Placement of LPS Conservatees
History of Kennebrew case and conclusion on which
conservatorship is appropriate
• Issue of public safety under Probate conservatorship
• Response will be the basis of an appeal
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CHRONOLOGY CONTINUED
• 5/9/2013 – DA files “Proposed Findings” and Court
orders DA to prepare those findings for the minute
order. Case continued to 5/15/2013
• 5/15/2013 – PG/CoCo file its own Findings and
Order
• DA files amended Findings and Order – this orders PG to file
a LPS and Murphy conservatorship (A and B)
• Court acts on DA’s Amended Findings and Orders. Court
specifically states PG abused our discretion. PG ordered to
file conservatorship within 45 days.
• Court notified that PG will file appeal
APPEAL PROCESS
• 6/20/2013 – File Petition for Writ of Mandate with 2nd
Appellate District
• Chronology of Events
• Request for review
• Failure by Trial Court to follow Karriker - Court abused its
discretion
• Introduction of Conservatorships
• PG properly exercised its discretion
• Request for immediate stay pending decision
APPEAL PROCESS CONTINUED
• 7/12/2013 - District Attorney files Opposition to
Petition for Writ of Mandate
• 7/25/2013 – Appellate Court issues Palma Notice
• 8/23/2013 – County Counsel Reply to DA Opposition
• 8/23/2013 – DA objects to the filing of the Palma
Notice
• 10/1/2013 – Appellate Court issues OSC to Judge
Shapiro (criminal court judge)
• 10/31/2013 – County Counsel Reply to Return to
Petition for Writ of Mandate
APPEALS PROCESS CONTINUED
• 11/20/2013 – Oral Arguments
• 12/19/2013 – Writ of Mandate is Denied
• 1/3/2014 – County Counsel files Petition for
Rehearing
• 1/17/2014 – Appellate Court issues order making
technical changes. Petition for rehearing is denied.
• 1/28/2014 – County Counsel Files Petition for Review
with the State Supreme Court
• 4/9/2014– Petition for Review Denied.
KENNEBREW DECISION
• Findings
• Dementia is a qualifying diagnosis for a LPS and Murphy
conservatorship
• PG has lost discretion RE: Murphy Conservatorship.
• A court can order the Public Guardian to file a Murphy
conservatorship
• Court must find the defendant currently dangerous
• PG role is purely ministerial – you are just carrying out the act
ordered by the court to petition and to serve as conservator
• We believe we retain discretion RE: LPS Conservatorship
• Karriker case
POTENTIAL IMPACTS FOR LA COUNTY
• Flood gates open – influx of cases?
• Need for more State Hospital beds
• Criminal court cases handled differently from designated
facilities?
• Could potential differences lead to more legal challenges?
• Will Karriker prevail on LPS conservatorship cases if we are
challenged by the court?
• Will the DA convince judges to declare someone
dangerous just to get the Murphy?
• Modification of Designated Facilities procedures? Can
designated facilities send LPS referrals for clients with only a
dementia diagnosis because LPS system faster than
Probate?
KENNEBREW CASE
• 4/22/2014 Filed Murphy petition WIC 5008 (h)(1)(B)
• “Protest” Petition
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Similar to a regular Murphy petition
More facts
Discussion on why we don’t agree with order to file Murphy
Petition states we filed because we were ordered
• Case keeps getting continued for Jury Trial
• Probate case continued pending the decision on
the Murphy petition
• Next court date – 9/30/2014
POST KENNEBREW
• No flood gates BUT steady number of criminal court
orders to investigate
• Note LA County has a designated mental health courtroom for
1370, 2970 and 1026 cases but cases can originate from any
criminal court
• Most Dept 95 orders state – “Investigate suitability for
LPS/Murphy conservatorship.”
• Some discretion but court can overrule our decision or order us
to further explain decisions
• Outlying courts either quote Kennebrew or use “initiate
conservatorship proceedings” (Karriker)
• Cases refused pre-Kennebrew are coming back through
new court ordered investigations
POST KENNEBREW CONTINUED
• Adapting to Kennebrew
• Procedures
• Protest Petitions
• Dementia only cases – If ordered to investigate suitability of
LPS/Murphy we are conducting more joint Probate and LPS
investigations (2 deputies) to determine what is the most
appropriate conservatorship, including if Probate is more
appropriate
• Challenges
• No consistency within DA’s office or courts
• Problems with documentation from State Hospital regarding GD or
dangerousness
• Placement remains a ?
• Desire for PG to solve the problems faced by the criminal justice
system
POST KENNEBREW CONTINUED
• Statistics
• 0ver 30 cases referred with older adults committing violent
crimes with diagnosis of dementia/TBI/Neurocognitive
Disorder
• Conducted over
• 3 Murphy petitions filed – 2 are protest petitions
• 2 Probate conservatorships filed in lieu of LPS/Murphy
• 1 Probate petition filed – order by criminal court handling
misdemeanor charge
PEOPLE V KENNEBREW