CHAPTER 1

A Race for Justice

On Tuesday, June 24, 1997, I took the bench as the lawyers and clinical team waited anxiously for me to call the first case. I said a silent prayer and nodded to my deputy to indicate that this new, specialized division—the session held during the lunch break of my regular criminal division court—was ready to begin. We were embarking on a new journey in therapeutic justice. Howard Finkelstein, the catalyst for the creation of the Broward County Mental Health Court, had envisioned “a refuge” for people arrested because of actions they had taken while suffering from mental illness and cognitive disorders. In order to create that “refuge,” I needed my opening remarks to be welcoming, thoughtful, and compassionate. As I called the first case, I never imagined that in fact a new system of justice was beginning. In truth, no one could predict what a mental health court would mean or what it could do. The first defendant, Roger, was in his early twenties and homeless. As the deputies led Roger into the courtroom, I realized that he was not coherent. He had been arrested for causing a disturbance in front of a convenience store. His hair hung in long, unwashed tangles, obscuring his face from view.

As the deputies led him to a high-back leather chair in the jury box where they seated defendants who were in custody, he released the kind of scream that indicates deep emotional pain. The deputy handcuffed him to the chair, which was attached to the floor. He began to shake, and his unintelligible sounds became louder. As seconds turned to minutes, his noises turned to screams. I tried to speak to him, but it was clear he had surpassed his ability to listen.

All I could do was watch him.

His screams continued, hollow and desperate, as though this was the only form of expression he had left. As he became more agitated, he pulled on the chair, trying to free himself from the handcuffs and the chair. I had no idea if a person could exert enough force to dislodge a chair that was attached to the courtroom floor.

It was clear that there was nothing I could do from the bench for Roger, and in the interest of calming the situation, I stopped the hearing. I ordered the court staff to clear the courtroom, and since the courtroom had one door, we left the same way that Roger had entered, through the front door. Most courtrooms have two entrances, one for the judge and another for in-custody defendants, so this circumstance was unique to this courtroom. Yet the one door served as a reminder of the humanistic impulse that had led to the court’s founding and my responsibility to ensure that human dignity, as well as justice, was served here today and every day the court would convene.

In the hallway, the court team huddled in a circle: Assistant State Attorneys Lee Cohen and Melissa Steinberg; Assistant Public Defender Doug Brawley; the mental health court monitor, Bertha Smith; and the mental health court clinician, Greg Forster. They waited in silence for me to do or say something. Keeping in mind the function of the court, I signed the first mental health court order for diversion in the hallway outside the courtroom. The diversion order mandated that Roger would be transferred out of jail, where he had been kept for several weeks; the emergency transportation order directed the Broward County Sheriff’s Office to take Roger from the jail to the nearest psychiatric receiving facility or hospital. The order required performing an independent psychiatric screening and assessment and provision of treatment under Florida’s involuntary civil commitment law (the Baker Act) if Roger met the legal criteria.¹

Diversion orders are common to problem-solving courts. At the time that Broward began its mental health court, problem-solving courts were a relatively new development in the US criminal justice system. Miami-Dade County had established the nation’s first drug treatment court in 1989 which offered substance abuse treatment as an alternative to prosecution, incarceration, or other typical criminal justice sanctions.² According to Bruce Winick, a professor of law and the cofounder of the science of therapeutic jurisprudence (TJ), “These courts were created to address vexing social problems which were often driven by policy vacuums in our society.”³ TJ offers the promise that a court, acting as a “therapeutic agent,” can respond to psychosocial problems as well as “minister to the law.”⁴ Judges who write diversion orders understand that there are vacuums in society that must be filled with new laws and options. According to Winick, these vacuums may include a shortage of mental health services and a lack of sense of community, results of society’s ineffectiveness to address a wide range of social problems, which then “get dumped on the doorsteps of the courthouse.”⁵

In problem-solving courts, which are voluntary, people can acknowledge that they do have a problem and can participate in a non-adversarial court process allowing a judge, lawyers, and social service and treatment providers to collaborate to help them with their real human problems. Whether it is an alcohol problem or untreated mental illness, problem-solving courts provide a new way for judges to help people with their psychosocial problems and other human needs.

According to the Bureau of Justice Statistics, in 2012 there were 3,052 problem-solving courts in the United States.⁶ The most common types of problem-solving courts were drug courts (44 percent of these courts) and mental health courts (11 percent). There are various types of problem-solving diversionary courts in the juvenile level as well and hybrid courts, which address both mental health and substance abuse disorders. There are also driving while under the influence (DWI) courts, which, like domestic violence courts, are not diversionary but focus on accountability and public safety. The diversionary goals of the court are intended to intercept people arrested on low-level criminal offenses, offer a therapeutic approach to the criminal case, and promote access to community-based mental health care, housing, and other support services. For people who appear in need of psychiatric hospitalization, the court’s diversionary order is also designed to break arrest cycles and prevent defendants from being discharged back into the criminal justice system.

In the Broward County Mental Health Court’s first hearing, I directed that my office would be notified at least twenty-four hours in advance of Roger’s release from the hospital. This part of the process was important because it allowed my office to coordinate with the Broward County Sheriff’s Office to bring Roger back to the court for a follow-up hearing. I did not want Roger going back into the jail system. Upon his return, I wanted the opportunity for the in-court clinician to assess Roger’s stability and introduce him to the mental health court’s process. It would be up to him to choose whether he wanted to participate in the court, which (like all diversion courts) is voluntary. As we stood together in the hallway trying to process what we had just witnessed, Assistant Public Defender Doug Brawley, the designated mental health supervisor for county court, was eager to see the next defendant on the docket.

“You see, Judge,” he said, “I knew it was important that the court begin as soon as reasonably possible.”

Clearly, Doug was right.

“You have no idea what I have witnessed in other court divisions,” he said. “People with serious mental illness who were experiencing psychosis or due to intellectual challenges could not manage their behavior in front of judges.”

Assistant State Attorney Lee Cohen chimed in: “Doug is right, Your Honor. Judges mean well, but they are not trained in mental health. When something like this occurs, some judges perceive that the defendants are behaving inappropriately on purpose. Doug and I have spent years running from courtroom to courtroom, as judges call for supervisors to assist them.”

“Some judges threaten my clients with contempt sanctions under the mistaken belief that their behavior will improve,” Doug said. “I’ve tried to explain that what they are witnessing is the manifestation of a mental illness; these people aren’t intentionally misbehaving or disrespecting the court. Nonetheless, there have been times when my clients have been placed in restraint chairs and received disciplinary reports in the jail for their behavior. I do not want what happened to Aaron to happen to anyone else.”

At the mention of Aaron’s name, we all fell silent, humbled by the sacrifice it took to bring the Broward County Mental Health Court into existence.

It had been a high-profile case. From the expressions on the faces around me, I knew that the Aaron Wynn situation was on everyone’s mind. I thought about what Broward County’s public defender, Howard Finkelstein, had said. As we finalized Roger’s paperwork, I wondered, Had we created a court of refuge?

We walked back into the courtroom, shaken and silent. After all, what had happened to Aaron could happen to any one of us.

In 1985, when Aaron Wynn was eighteen years old—just about Roger’s age—he was struck by a car and knocked off his motorcycle. At the time, Aaron was preparing to leave home and head for college. However, his injuries from the accident were serious enough to erase Aaron’s dream of attending college: his extensive injuries included head trauma. He endured a series of complex surgeries meant to make a normal life possible for him once again. Yet, just as his parents were starting to think that there may be some chance for a complete recovery, they realized that the brain injuries were more severe than anyone had realized.

The young man who had loved the ocean, sports, and playing chess had become angry and despondent. Aaron’s personality had taken a one-eighty turn; the happy-go-lucky young man was now quiet and constantly withdrawn. It was as though the spark inside him had been extinguished, and all that was left was a shell.

Jane and Alexander Wynn were desperate to obtain mental health care for their son. They called every public official and mental health agency they could, but the response was always the same: “Aaron does not qualify for services.” One factor that seemed to complicate the Wynns’ attempts to find care for their son was the complex nature of his condition: there were at least seven diagnoses, ranging from schizophrenia to organic brain syndrome.

As Aaron’s memory and cognitive functions continued to decline, so did his parents’ hopes and dreams for their son. Over time, Aaron could not control his anger or regulate his emotions. The Wynns even tried to get Aaron admitted to South Florida State Hospital, but were told there was a two-year wait list.

In 1988—three years after his accident—Aaron was arrested for allegedly assaulting a police officer when he was not able to control his anger during an encounter. Citing Florida Statute 916, the judge found Aaron mentally incompetent to stand trial and committed him to a forensic hospital for mentally ill persons in the custody of the Department of Corrections. The Florida Department of Children and Families placed Aaron in two different hospitals: South Florida Evaluation and Treatment Center in Miami-Dade and North Florida Evaluation and Treatment Center in Chattahoochee.⁷ Instead of receiving rehabilitation services there, Aaron was put in solitary confinement for two and a half years and was strapped to a gurney in four- and five-point restraints.

In 1991, for reasons unknown, Aaron was released from the forensic hospital with no discharge plan or linkage to residential placement. The Wynn family was reunited, but they found themselves in the same nightmare as before, except that Aaron’s condition had significantly worsened. Aaron could not remember his parents’ names. He was often delusional. Doctors now diagnosed Aaron with schizophrenia and post-traumatic stress disorder due to the maltreatment he endured at the hospital. The Wynns tried to house Aaron in local boarding homes, but Aaron’s aggressive behavior always led to his eviction.

The family was trapped in a nightmare.

Two years later, in 1993, as Aaron waited in the line for the cash register of a South Florida grocery store, he suffered yet another psychiatric episode. It wasn’t unusual; he suffered many psychotic episodes, for he still had an untreated mental illness. This episode, however, would once again change Aaron’s life and tear the Wynn family apart.

In a panic, Aaron darted out of the grocery store and collided with Pauline Johnson, an eighty-five-year-old woman. Pauline fell to the ground, hitting her head on the concrete curb with considerable force. She died of head injuries the following day.⁸

Aaron was arrested for first-degree murder.

When Howard Finkelstein, Broward County’s chief assistant public defender, was assigned to represent Aaron, he said that it “changed my life in ways that I couldn’t have imagined.”

Howard, known as a charismatic and highly skilled defense attorney, thought he knew how the introductory meeting with Aaron’s family would go. He wasn’t prepared for what would transpire at the Wynns’ home in Plantation. He knew how concerned the family would be, given the seriousness of the charge. Howard planned to introduce himself and spend ample time getting acquainted with Aaron’s mother and father. Then, Howard would tell them about the breadth and depth of his criminal defense experience to give them confidence and shift into an explanation of his trial strategy. It was always important to Howard that a defendant’s family understand and feel comfortable with him and his plan. He knew that he would need their cooperation and support to prepare an effective defense for Aaron. He would need their help securing medical records for expert witnesses and to be fully engaged in the court process.

Recalling that meeting, Howard said, “I can’t believe what I was thinking. I walked into the Wynns’ living room believing that I was going to tell them what I was going to do for their son. I could not have been more wrong.”

After Jane Wynn opened the front door to their home, she looked Howard in the eyes and politely asked him to sit down. “I need to tell you something,” Jane said. Her eyes were filled with deep sadness as she told Aaron’s story.

After meeting with Aaron’s family, Howard was consumed with indignation and anger. He felt that he had to do something on a systemic level to prevent further tragedy due to the failings of Broward County’s mental health system. With the aid of assistant public defender Fred Goldstein, a mental health expert, Howard wrote to the Broward County Grand Jury to request a formal investigation of the county’s mental health system.

In a ten-page letter, Howard detailed the tragic story of Aaron Wynn, Pauline Johnson, and the relationship of these tragedies and his client’s arrest for murder (the charge had been reduced to manslaughter) to his inability to secure mental health care and rehabilitative services. To Howard’s surprise, the grand jury approved his request.

In November 1994, after an extensive eight-month review of Broward’s mental health system, the grand jury released a scathing 153-page report.⁹ Among its findings, the grand jury described Broward’s mental health system as “deplorable and chronically underfunded.”¹⁰ The scope of the grand jury’s work was broad based and included the criminal justice system. The report also identified the overrepresentation of people with mental illness cycling between jail, emergency rooms, and homeless shelters, and it called for accountability, collaboration, and the need for expanded resources to provide those who suffered from mental illnesses with continuous care.¹¹

Buoyed by the findings of the grand jury, a small group of criminal justice and mental health stakeholders, headed by Broward Circuit Court Judge Mark A. Speiser, assembled an ad hoc task force to seek solutions to streamline the processing of people arrested with serious mental illness. After several years of meetings and with no consensus in sight, Judge Speiser asked Howard, “What do you want?”

“I want my own [bleeping] court,” Howard said. “A court of refuge.”

In that moment, and unbeknownst to me—I was campaigning for judicial office—the task force had met, and the concept for a specialized mental health court had emerged. It would ensure due process and the promotion of individual constitutional rights while balancing public safety considerations. There was no doubt that most judges were not trained to respond to the unique needs and challenges endured by people affected by mental health conditions. Yet, there was no road map, no funding or grants—simply “the will of a community” to improve the criminal justice system’s response to the criminalization of people with mental illness in Broward County.

When the court began operations, in 1997, in the Broward County courthouse on Southeast Sixth Street in Fort Lauderdale, national data on inmates with serious mental illness were essentially nonexistent. However, a report released by the Bureau of Justice Statistics in 2001 stated that (in 1997) “nearly a third of State inmates and a quarter of Federal inmates reported having some physical impairment or mental condition.”¹² Within the year, however, the New York Times published a groundbreaking special report, “Asylum Behind Bars.” Written by Fox Butterfield, the report confirmed what many individuals and families affected by mental illness already knew: US jails and prisons had become, “by default,” our nation’s largest state psychiatric hospitals.¹³ According to Butterfield, more than one in ten of the two hundred thousand people behind bars in the United States suffered from serious mental illness, which included major depression, bipolar disorder, and schizophrenia.¹⁴

The deinstitutionalization trend that began in the 1960s with the availability of new psychotropic medications, a wave of federal civil rights orders on behalf of patients’ rights, and a congressional study performed by the Joint Commission on Mental Illness and Health was intended to combat the negative effects of mental illness.¹⁵ The advancements in mental health treatment and rehabilitation led to optimism and the realization by President John F. Kennedy that people with mental illness and intellectual disorders can live humanely in the community. President Kennedy pointed to the positive research of the joint commission’s final report and outlined, through a series of legislative actions commonly referred to as the Community Mental Health Act of 1963, a new vision for mental health care in America. The act was intended to shift resources away from large state psychiatric institutions toward a community-based approach that would emphasize access to care and rehabilitative services. It pointed to a visionary plan to transform mental health in America, reflecting the belief that persons with mental disabilities deserve “to live in the open warmth of the community.”¹⁶

Tragically, the nation’s loss of President Kennedy a month after he signed the Community Mental Health Act into law created a vacuum in executive branch leadership. The goals of the act—to emphasize access to community-based mental health care, prevention, and rehabilitation—fell victim to the turmoil of the 1960s. Competing priorities to finance the Vietnam War, resistance to neighborhood mental health centers, health insurance restrictions, new civil rights laws regarding civil commitment, and a lack of funding to pay for local resources all undermined the goals of the Community Mental Health Care Act of 1963.¹⁷

As Fox Butterfield noted in his report for the New York Times, “States seized the chance to slash hospital budgets and reduce hospital beds.” For example, the number of beds in state hospitals went from a high of 559,000 in 1955 to 69,000 in 1995.¹⁸ “On any given day,” Butterfield wrote, “almost 200,000 people [are] behind bars. More than 1 in 10 of the total are known to suffer from schizophrenia, manic depression or major depression [ . . . ] the three most severe mental illnesses.”¹⁹

In South Florida, for example, as Aaron Wynn’s parents pleaded with state mental health program directors to get Aaron into the South Florida State Hospital in Pembroke Pines, local mental health activists were waging a separate battle for increased spending for state mental health hospital beds. According to the Sun-Sentinel, dozens of people on a waiting list for a court-ordered state hospital bed were being warehoused in a small county crisis unit, which offered no rehabilitation.²⁰ In 1991, Broward County mental health advocates fought again when the number of hospital beds was reduced from 1,200 to 400. According to Sandra Jacobs, who covered the medical beat for the Broward and Palm Beach Sun-Sentinel, “South Florida State, designated for the most severely ill people from Key West to Vero Beach, has fewer than 11 beds for every 100,000 residents.”²¹

I wondered, What if the judge who presided over Aaron Wynn’s criminal case had understood the contextual nuances of the trend known as the criminalization of mental illness? Would Aaron have been offered treatment instead of incarceration?

Sitting at the bench in the mental health court after issuing Roger’s diversion order, I called the next case. The next defendant, Mary Stevens, was an elderly woman who appeared to be in her late sixties or early seventies. She had been arrested for trespassing at a gas station and had been in jail for approximately forty-five days. I speculated that she was homeless. I glanced through the court file, which included an order by the originally assigned judge that declared her “mentally incompetent to stand trial.” There were no future court dates or other pleadings and no defense motions for her release. Mary Stevens and her case had fallen between the cracks in the system.

“Ms. Stevens,” I said, “how are you doing? My name is Judge Lerner-Wren.”

There was no response.

I wondered whether she had a hearing impairment. I tried again, using the court microphone. “Ms. Stevens,” I said firmly, “hello . . . can you hear me?”

I asked Greg Forster, the acting in-court clinician and a highly skilled community case manager, to check on her. Greg, known for his mild manner and boundless compassion, leaned over the jury box to speak with her. We watched to see if she responded to him. As Greg tried to speak to her, I noticed that Mary’s eyes were not moving.

I yelled for my deputy to call 911. Something was wrong. Already shaken by what had occurred at the prior hearing, we looked at each other in disbelief. How many people did Doug say were on the mental health unit? The individuals whom the court had already seen were in urgent need of mental health treatment or emergency medical care. Clearly, there was an urgency to see as many people as we could in the court, as quickly as possible. According to Human Rights Watch, US prisons and jails are not equipped to address the complex needs of this population.²² What we had witnessed in just two cases clearly supported this assertion.

Minutes seemed like hours as we waited for the emergency medical team to arrive. Finally, the paramedics rushed into the courtroom carrying a gurney. Two medics unpacked the medical equipment while the others began to triage Ms. Stevens.

“How long has she been like this?” one of the medics asked.

“I have no idea,” I responded. “This is how she was when she was brought to the courtroom.”

I watched as the paramedics lifted her frail, unresponsive frame onto the gurney. There was really no way of knowing how long Ms. Stevens had sat unresponsive in a jail cell, nor how long the traumatic experiences and harsh conditions of living in the street had been draining away the person she had been. How can we know how long someone has suffered when they no longer have the capacity to tell us? How can I say that Aaron Wynn’s suffering was limited to the two years he spent in the hospital, restrained and alone? His suffering, I believe, stretched back to the day of his motorcycle accident, and it continues to this day.

The first mental health court docket was over. It certainly was not what I had expected; and yet, there was a sense of relief and pride knowing that individuals who needed psychiatric and medical treatment were going to receive care in a therapeutic and more appropriate healthcare setting. As we went our separate ways, I couldn’t help thinking that everyone involved in the new Broward County Mental Health Court had embarked on an unknown journey.