Judge, lawyers exploit accusation of mental illness to hide wrongdoing

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Corruption in the American Legal System

 

A sampling from the courthouse of Milwaukee, Wisconsin

Defense lawyer/judge/prosecutor exploit the stigma of mental illness to conceal legal wrongdoing at a trial. Before the term became notorious, Lawyer Robert Elliott was spreading “fake news.”

 

A trial that careened away from theoretical law into gross malfeasance took place in the Milwaukee County Courthouse. For lack of statistics, it is difficult to know just how unusual the trial was. The level of audacity on display, however, implied extraordinary confidence that few, if any, would question the misconduct.
Defense witnesses were intimidated and deliberately barred from testifying. All defense evidence was suppressed. Jury selection excluded black Milwaukeeans. The prosecutor intentionally lied to the jury regarding police conduct, concealing critical exculpatory court records. The prosecution presented its case last, an unprecedented deviation from the norm and proper form, but expedient to ensure a well-indoctrinated jury. The defense lawyer aided the prosecutor, betraying his own client during the proceedings, aiming a direct attack at him in his closing remarks. Perhaps most diabolical, however, was the insidious use of accusations of mental illness as a cover-up for the courtroom wrongdoing.

There had been no hint that the defendant suffered any form of psychological abnormality in the fourteen-month run-up to the trial. There was no history of adverse mental health. Indeed, in an official court record there stood a psychological evaluation not far in the past, stating that he had been declared free of mental health issues by a court-appointed psychologist in a divorce.

The judge, prosecutor and defense lawyer had good cause to undermine a defendant who had stubbornly refused to plea bargain; he had insisted on presenting exculpatory but embarrassing evidence at a trial. Earlier conduct by legal system players and law enforcement had not been exemplary, and the defendant had taken note. The trial, the defendant expected, would allow favorable defense evidence to emerge. The judge, prosecutor and defense lawyer saw things otherwise.
Had the defendant undergone psychological evaluation in this case before trial, an official report devoid of negative psychological implications would have aided his defense and rendered his perceptions credible. Under those circumstances, preprogramming the trial for a loss– a guilty verdict to protect colleagues– would have entailed high risk, as it would have eliminated the opportunity to undermine the credibility of the defendant in relation to his perception of reality after the trial.

No mention was therefore made of mental illness in advance of the trial. The perceived circumstances changed in an instant, however, immediately following a guilty verdict.

The guilty verdict represented the watershed event. The “loser effect,” whereby a defendant who is found guilty looses faith, face and friends, propelled the “mental illness” excuse forward with no resistance. Extensive misconduct at the trial was obfuscated by the judge in his pronouncements to the court in the form of his epiphany after the verdict; he expounded on what he now saw was “obvious mental frailty” on the part of the defendant: “Maybe he doesn’t see it, but I do.” At the same time the prosecutor had worked the courtroom and, at sentencing, lectured the jury and others on the “obvious” nature of defendant’s psychiatric problems, but, tellingly, also how “no other jurisdiction must be allowed to review this case.”

What should have been “obvious” was the recent report of clean mental health that existed in the court record, and that any “obvious” indications of mental health issues should have been addressed before the trial, not used as an excuse to explain bizarre procedural deviations after the trial. But a calculation was at work here: A man who has been denied justice in such a crude form and betrayed by his own defense lawyer is, indeed, likely to suffer considerable emotional pain. Such pain might well be diagnosed by a therapist. Based on experience with defendants found guilty of crime, there was good reason to assume that a report of “clinical depression” or a “recommendation for medication” or some other psychological aberration would emerge in a following psychological report. It was thus important for the judge to order a post-trial psychological evaluation for a man now a criminal for the first time in his life, a man who had suffered the shock of an un-American trial, including betrayal by his own lawyer.

Judge Hansher’s subsequent instructions to the probation officer read, “This man belongs in a mental institution,” an instruction that the probation office observed was the most unusual instruction that he had ever received from a judge in his career.

The abrupt pivoting to the newly found awareness by judge and prosecutor betrayed an agenda intent on protecting the status quo. The lawyer for the appeal, Steve Glynn, wanted no parts of examining the mental health issue, but he did promise to reveal the misconduct at trial, and to file for ineffective assistance of counsel. At the last minute– after being paid– he opted for grounds of legal technicalities, while the issues that would have implicated colleagues in misconduct– but protected his client– remained unexplored.

The story continues…

The return of the court-ordered mental health evaluation, by Dr. Kenneth Diamond, yielded bad news …
Milwaukee lawyer Robert Elliott represented plaintiff/lawyer Martin Kohler in a libel case that followed the trial. Kohler was accused of ethical and legal violations in a series of booklets published locally by his former client. The law, had it been applied in straightforward fashion, would not have upheld lawyer Kohler here. Lawyer Elliott therefore bypassed theoretical Legal System 1; he opted instead to use practical Legal System 2 to protect lawyer Kohler.

Lawyer Joseph Owens represented Kohler’s former client, the author of the booklets. One day he received a phone call: “You know, Joe,” lawyer Elliott implored with a dose of intimidation, “you should stop representing your client; he has– you know– certain … mental problems.”

Lawyer Elliott was referring to the mental health report submitted to the Milwaukee court by psychologist Dr. Kenneth Diamond. In brief, the report stated that Diamond had evaluated the author, concluding that his perception of reality was not accurate, i.e. psychosis. Furthermore, a second, earlier court- ordered evaluation by Dr. Itzhak Matusiak included a complaint by him that the booklet author had refused to take his medication.

Judge Hansher and prosecutor Matestic had both played amateur psychologists, and they had both won. The reports substantiated that lawyer Owens’ client was, indeed, not credible, which was the turning point in the libel case and reason to deny allegations of wrongful conduct at the earlier trial.

It remains unclear how lawyer Elliott availed himself of confidential mental health reports. What is clear is that his use of Legal System 2– as he bypassed the law on behalf of lawyer Kohler– was very effective. From that time forward the author’s claims against lawyer Kohler fell on deaf ears– everywhere. Accusations merely turned into evidence of continued mental illness, as lawyers Elliott and Kohler gladly pointed out.

The damaging mental health reports followed the booklet author surreptitiously for years, impacting his life. They skewed critical decisions in a negative direction in a way that one would expect: mental illness in the form of psychosis renders an individual invisible and unheard.

The booklet author himself remained unaware of the damaging psychological reports making the rounds. Of course, he knew that both Drs. Diamond and Matusiak had written favorable psychological evaluations, even a glowing report from Dr. Diamond following the trial, implying that there might have been a problem with the legal system in which lawyer Kohler operated. Diamond’s report had cast doubt on the truthfulness of lawyer Kohler, but it had also done far more.

Dr. Diamond’s psychological evaluation was couched such that it conformed precisely to the requirements of Wisconsin law that would have guaranteed an acquittal for Kohler’ s client, the defendant– law that allows a father to protect a child who is in immanent danger. This fact was the focus of the earlier legal case. Had Diamond’s report been issued before the trial, it would have changed the outcome of guilty to a charge of interfering with child custody by 180 degrees, allowing a father to see his son.

The judge, prosecutor and defense lawyer were well aware of how such a positive evaluation would have undermined their ability to conceal earlier legal
system wrongdoing. Hansher, the judge, therefore waited to spring a trap that he and the prosecutor had good reason to believe could not have been sprung earlier. A guilty verdict after a bizarre, pre-programmed trial fit together well with a defendant who was mentally ill. After taking that bold step and making that pronouncement, however, it became essential to maintain the fiction by any means.

There can be little doubt that lawyer Elliott examined Diamond’s original, favorable report and recognized the inherent danger, as he was the reporter at large and loud mouthpiece for the fictitious evaluation. Mental illness was the attribute that kept criticism at bay and made some sense, and that kept Elliott’s cronies from accountability. So he pushed it hard.

One day, years after the discrediting phone call to lawyer Owens by lawyer Elliot, the booklet author was required to undergo another psychological evaluation, a third time by a third psychologist, on orders by a probation officer. The grounds for the evaluation were nebulous, but the insistence on doing so was adamant. The original booklet author, it emerged, was intent on continuing to write and to tell his story of injustice in Milwaukee.
“Why were you sent here?” the third psychologist asked when she met the author.

“I really don’t know. I was instructed to do so,” he replied.

“Your past evaluations show no problems… no issues at all,” the therapist observed.

“Yes, I explained that to the probation officer,” the author said.

“But I did notice something odd,” the therapist continued. “Your two previous evaluations in Milwaukee do not match the reports that were submitted to the court there. They state the opposite. Is that why the probation officer sent you here?”

It was during this evaluation that the booklet author discovered for the first time that his two earlier evaluations had been altered to state the opposite of the original reports, then submitted to the court as official.

The author was stunned. The third psychologist specifically pointed out the damaging discrepancies, highlighting the falsified texts in yellow marker. She stated that no further evaluation was necessary. That first consultation became her last. She sent her report directly to the probation officer, with an exact copy to the author.

The two earlier, original psychological evaluations intended for the Milwaukee court had been intercepted on their way to a federal judge, then “summarized” for him by Beth Faar, the federal probation officer. She had signed off on the fraudulent wording, e.g. as from “… perceives reality accurately” to “does not perceive reality accurately.” And e.g. from no mention of “medication” in Matusiak’s report to “does not take his medication” attributed to Dr. Matusiak.

Sunlight turned into darkest night with just a few words.

A lawyer who saw both sets of psychological evaluations commented, “Isn’t it clever… the way they did this to you.”

Yes, clever indeed.

The booklet author contacted Dr. Matusiak, informing him that his report to the court had been altered to state the opposite of his original report. He contemplated this information for a few moments, then observed that anyone could see that the report submitted to the court was not his report, regardless of the attribution.

“How so?” Dr. Matusiak was asked.

“Because, “ he replied. “I have no power to prescribe medication or to require that a patient take medication. That’s public record. I’m a psychologist, not a medical doctor. It’s obvious that the report submitted to the court is a fraud.”

Dr. Diamond was also contacted. He admitted that his report had been falsified; he even allowed that it wasn’t the first time such a thing had happened. When asked to come forward with his information on altered reports, however, he demurred, “I work for the county; I’m close to retirement; I’m sorry.”
But he did return a copy of his original report, with his signature.

The author then contacted a psychologist on the ethics committee for the Wisconsin Psychological Association, Dr. Anthony Kuchan. Kuchan listened intently and promised that he would investigate. Some time later he contacted the author and informed him that, “I asked around; it turns out that what you’re telling me is impossible. A lawyer would have to be the greatest scoundrel to attempt such a thing. It can’t be done.”

The author responded by offering to provide the official court reports alongside the actual reports from the psychologists.

“It can’t happen; it just can’t happen,” Dr. Kuchan insisted. I’m sorry. There is no more that I can do.”
Dr. Kuchan refused to present the evidence to the ethics committee.

The probation officer who had demanded the third evaluation, Mr. Cordell Wilson of St. George, Utah, had been informed that earlier reports submitted to the court were frauds; he remained silent.

The judge in the case, Rudolf Randa, was informed of the falsified psychological reports. He sent the author a letter, stating that the issue “is no longer in my jurisdiction.” No attempt was made to correct the reports. They remain official to this day.

When informed, fear on the parts of Drs. Diamond and Kuchan had been palpable. The lawyers involved in the fraud had influence and mean reputations. Careers or worse would have been at stake. It was fear that kept exposure and criticism at bay.

Had Dr. Kuchan been capable of removing himself from the threat associated with the adverse circumstances, he would have recognized his reaction to be that of classic denial– just like they teach in psychology textbooks. Had the reporters who might have investigated the wrongful conduct examined their own behavior, they would have recognized the concept of “access journalism” and the power of status quo bias staring them in the face.
The evidence sits there for anyone to review, patient confidentiality not withstanding in this case. For the public records alone clash. Likely, based on Dr. Diamond’s s pronouncement, there are other cases, too… possibly unknown to the victims.

The problem isn’t finding the evidence; the problem is looking at the evidence and speaking up.
It speaks volumes that lawyer Elliott had the confidence to exert influence on others using falsified mental health reports, reports that he theoretically had
no right to access, let alone alter. But theoretical law played no role in this case. Legal System 2 was what mattered.

This is also one of many, routine cases where local media turn aside for the sake of future “access journalism,” to ensure favor later, in more prominent cases. The legal authorities, meanwhile, have little incentive or stomach for “pulling on the thread,” implicating colleagues in misconduct in a tight legal community.

Nota bene: As recently as the summer of 2016, lawyer Elliott was still making use of his reference to the false information that he had promoted so effectively, years ago. This author has an audio recording.

Mark Inglin
Zermatt, Switzerland

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