Crime law could bury our courts

Sacramento's latest foray into reshaping our criminal justice system is an utter disaster that violates the state Constitution and will create numerous hearings and appellate issues that could bring our courts could come to a standstill. Judges in every county will find themselves with thousands of additional hearings every year.

This frightening scenario is brought by Assembly Bill 1810, signed by Gov. Jerry Brown on June 27 and effective immediately. It expunges the record of virtually any defendant after a maximum two-year diversion program, providing he or she showed mental illness "substantially" contributed to committing their crime.

It has no guidelines on how this will be initiated or how the increased workload will be funded. Many small counties such as Calaveras, Amador and Sutter likely have no system set up for mental health diversions. This creates equal protection issues as someone in Alpine County gets locked up for a crime where a Los Angeles County defendant received diversion.

But the worst part of this is the violation of Marsy's Law -- a victim's rights initiative that passed in 2008. I co-wrote the initiative and was its statewide campaign manager. This law was created to put an end to the abuse crime victims endure within the legal system, including: lengthy trial delays, harassment, a lack of restitution, and a lack of notice for parole hearings.

When cases languish for years, witnesses and victims can have lapses in memory, become ill, or in the worst case scenario -- die before a trial date arrives.

The Victims' Bill of Rights is contained in Article I, section 28 of the California Constitution and requires the following, which have now been undone by AB 1810:

• Victims may address the court at every stage

• Restitution is awarded for monetary loss

• Victim has a right to a speedy trial

Countless people have worked to make sure our courts truly offer "equal justice for all." Gov. Jerry Brown has undone this with a stroke of his pen.

A Dilemma for Courts

Orange County was one of the first courts in the state to use the Collaborative Courts model, where select defendants who have a high propensity for success are awarded diversion. It began with a drug court in 1995 and has since expanded to other types of courts as well, including mental health, elder abuse, veterans and domestic violence.

These involve a teamwork process with law enforcement and it works. A report by former California Supreme Court Chief Justice Ron George states that taxpayers were saving $90 million a year in court and incarceration costs. This program is not broken and does not need fixing.

Most judges try to do the right thing by faithfully following state law and appellate decisions. The prosecution is a tier of our checks and balances. But now we have the most radical reworking of our judicial system in recent history that places the court in an advocacy role due to the absence of a prosecutor and a victim in criminal proceedings.

AB 1810 created a scant framework where a defendant who wants to claim a mental disorder obtains a report from "a mental health expert." If that expert -- who isn't required to be a doctor -- can show that mental illness played a "substantial" role in the crime, the court is authorized to allow diversion.

Defendants who have diagnoses such as alcoholism, cannabis abuse syndromes, PTSD or any of approximately 75 recognized mental conditions are allowed to participate. The only restrictions are possessing an antisocial personality disorder, borderline personality disorder, or pedophilia. In reality, someone can claim "I shot my neighbor because I have dementia" and this would be a reason to divert to a two-year "treatment plan" under AB 1810.

No restrictions are placed on the type of crime or criminal history to qualify for this, so this could include defendants who committed rape, mass murder and child molestation. It could include someone on the terror watch list. Potentially, every defendant in our justice system can suddenly claim an illness on this list and bring all the cases to a halt until judges hold these hearings.

Here's where the law is gray: There is no stated mechanism for how the defense asks for diversion or a method to inform the prosecution and victims of the process. The court is allowed to receive input from the prosecution but it is not required. It isn't clear if any of this is done in open court, in chambers or by oral or written motion.

Once the defendant is granted diversion, the law doesn't state what happens next -- does this include electronic monitoring, a lock-down facility or out-patient counseling? Do the defendants post bail or have search and seizure restrictions? Only if the defendant fails diversion is the court required to involve the prosecution, which involves holding a hearing to determine whether charges should be reinstated. Suddenly we are back in the trial mode where police, prosecutors and victims grapple with losing two years of investigation and progress toward justice.

This violates the California Constitution. Justice delayed is justice denied.

Those who successfully complete diversion may be a triumph for the defense, but this scheme places the rest of the public at risk. The file is sealed and no one will ever know the defendant committed a crime, no matter how egregious. In fact, the law goes overboard in assuring the public that "A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant's application for or participation in diversion, shall not, without the defendant's consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate."

I can think of numerous instances where this is problematic: Sex offenders can work at day care centers; killers can obtain gun licenses; DUI defendants who have killed pedestrians or other motorists can renew their driver's licenses; and terrorists who appear on a federal watch list will have no paper trail to assist federal authorities with their capture.

If all this isn't bad enough, the thought of having a judicial system that has broken under its own weight is unthinkable.

Although the statute gives judges great latitude for participating in this procedure, those judges who do not accept an AB 1810 defense may find themselves the focus of an appeal for "abuse of discretion."

Defense attorneys aren't immune either. Those who do not seek this avenue for their clients can be removed from the case due to ineffectiveness of counsel. If the case makes it to trial, a Marsden motion can be filed or the matter can be part of the post-verdict appellate process. This law is set up to initiate appeals every step of the way, all with costs borne by the taxpayer.

Lastly, AB 1810 doesn't say if it's retroactive. Someone who is doing 15 years for a second-degree murder will be thinking, "I shouldn't be in here, I should be in mental health treatment!" He will file a motion and the court will have to respond.

Courts will have to decide whether a case is retroactive and if so, a defendant will have to file a habeas motion. The general rule is, changes in the law that favor criminal defendants have retroactive application.

This ill-conceived statute is the greatest threat to public safety on the books. It should be repealed before it cripples the judicial system and wreaks havoc on public safety.