Gov. Brown’s lawyers try to block testimony of prison psychiatrist alleging state wrongdoing

First, state officials wanted to keep secret the whistleblower report compiled by California’s chief prison psychiatrist.

Now, lawyers for Gov. Jerry Brown’s administration are trying to keep Dr. Michael Golding from testifying at a public court hearing Monday about his allegations that corrections officials have provided misleading information to the court and attorneys for 30,000 inmates.

In two court filings Tuesday, the state is seeking to stop Golding from appearing before U.S. District Judge Kimberly J. Mueller, arguing that an investigation first must be conducted into Golding’s allegations that corrections officials have fudged data used to determine how much psychiatric care inmates are receiving in the prisons.

The state argues that such testimony “will irreparably harm Defendants by negating rules of procedure and evidence, slandering state employees in no position to defend themselves, and influence the outcome of any subsequent investigation.”

“In the normal course, allegations of agency wrongdoing brought by an employee may reach the courtroom down the line, once an investigation is complete, if the employee is entitled to compensation or the agency’s response is challenged or inadequate,” state Deputy Attorney General Tobias Snyder argued in papers filed asking Mueller to cancel or postpone Monday’s scheduled testimony.

“Here, the court has ordered live testimony in open court first, before any facts have been gathered or counsel provided time to prepare.”

The Brown administration was responding to Mueller’s order on Friday scheduling Golding as a witness at a hearing in federal court in Sacramento, and the governor’s lawyers simultaneously filed an appeal of Mueller’s order to the 9th U.S. Circuit Court of Appeals.

The case is a growing embarrassment for Brown’s California Department of Corrections and Rehabilitation, with its top prison psychiatrist accusing other corrections officials of wrongdoing.

At issue is a report Golding compiled in recent months that the inmates’ attorneys say illustrates how the state misled them and the court with inaccurate information about what progress is being made in improving access to psychiatric care in the prisons.

Golding leaked the report the night of Oct. 3 to the office of the federal receiver appointed by the courts to oversee medical care inside the prisons, court documents say.

The report was then turned over to the court and attorneys for the inmates, but remains sealed.

Neither Golding nor his attorney have responded to requests for comment.

Lawyers for state corrections officials initially indicated Golding’s report could be released publicly if redacted to provide for privacy concerns, and Mueller had ordered both sides to submit proposed redactions by Monday afternoon.

Instead, lawyers for the state filed documents just before the 5 p.m. deadline Monday saying the report should remain sealed. The state argues that releasing a redacted version of the report “poses a significant risk of irreparable harm” to relations inside the workplace, could compromise an investigation into his allegations and “would be unfair to the individuals mentioned in the report.”

“Dr. Golding’s assertion of wrongdoing have not been tested or proven, and the individuals have had no opportunity to defend against being impugned in this way,” the state argued, adding that the document should remain sealed until an investigation into Golding’s allegations is complete.

Lawyers for the inmates say the state’s stance is a reversal from its earlier position.

“...(T)hey now argue the Golding Report should remain under seal in its entirety, rather than be redacted,” the lawyers for the inmates argued.

The two sides disagree sharply over the significance of the report’s importance, with the inmates’ lawyers referring to it as the “Golding Report” in court filings while lawyers for CDCR call it the “Golding Allegations.”

“The Allegations accuse CDCR employees of engaging in wrongful behavior,” corrections lawyers wrote, adding that the 160-page report and 60 exhibits “consist almost exclusively of unverified statements taken out of context that Dr. Golding uses to support his personal opinions.”

The inmates’ attorneys see it differently, saying the allegations are “very serious” and noting that “public policy favors access and disclosure of information in judicial proceedings.”

Mueller had indicated she wanted the report made public – with some redactions for privacy concerns – and directed corrections officials not to destroy any of the materials used by Golding to compile the report.

The judge ordered officials not to engage in any retaliation against Golding or anyone who helped him write the document, and she said she did not want CDCR investigating how the report was compiled without first coming to her.

The state argues that such an order precludes them from even talking to employees about the controversy.

“Under the Order, Defendants’ counsel is prohibited from speaking with their clients, or even with each other, to the extent those communications are deemed an ‘interview,’ ” the state argues. “For example, Deputy Attorney General Andrew Gibson, lead defense counsel, is prohibited from ‘interviewing’ named Defendant Katherine Tebrock, CDCR’s Deputy Director for Statewide Mental Health, to discuss the allegations.

“In fact, named Defendant Governor Brown and his staff are prohibited from asking Mr. Gibson for information concerning the Dr. Golding’s allegations, as again this would constitute a voluntary ‘interview’ by a Defendant of an employee of the Attorney General’s Office.”

Following the state’s filing, Mueller issued another order scheduling a telephone status conference Wednesday morning to “provide further clarification,” an order that appeared designed to allay concerns raised by the state.

Muller wrote that “the court’s update will outline a plan whereby the parties will not engage in any examination of Dr. Golding directly, thereby limiting if not mooting the parties’ need to prepare for the hearing, which is not and has never been designed to serve as a full evidentiary proceeding reaching the merits of any question raised by the report.”

Golding’s testimony expected Monday would be the first time he speaks publicly about why he wrote the report and subsequently turned it over to outside officials.

But the state’s latest court filings say that testimony should be postponed until an investigation is done, or at least delayed a week to give them more time to prepare.

“Testimony by Dr. Golding — untested, unchallenged,and yet drawing credibility from the Court’s authority — will likely influence the shape, scope and potentially outcome of any subsequent investigation,” Snyder wrote. “The setting is highly likely to give a false impression to observers that Dr. Golding’s allegations have already been vetted and investigated.”

The controversy over psychiatric care in the prisons comes as inmate attorneys were preparing for a hearing on the use of “telepsychiatry” to provide mental health care for inmates, a practice the department conducts using psychiatrists who speak to their patients over computer screens.

The flap over Golding’s allegations also scuttled a deal in which inmates attorneys had been prepared to accept a lower number of psychiatrists in the prisons based on information they were receiving from CDCR. Now, because of Golding’s allegations that the department was misleading them, they have backed away from signing such an agreement.

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