A Portland defense lawyer wants to hold the acting commissioner of the Maine Department of Health and Human Services in contempt of court because her client spent nearly one month in jail waiting for mental health treatment.

Attorney Sarah Branch said the man’s experience is the result of a systemic problem, and that mentally ill defendants often wait multiple weeks to move from jail cells to treatment beds despite court orders. She asked a judge last week to send a strong message to state officials who oversee mental health services and facilities.

“I think the stakes are too high to let them walk out the door without the court telling them that this is unacceptable,” Branch said during a hearing Thursday at the Cumberland County Courthouse.

The state has tried to dismiss the case by arguing that the man Branch represents is now receiving treatment at Riverview Psychiatric Center in Augusta.

“What does the defendant want, and can that be achieved by continuing this matter?” said Assistant Attorney General Molly Moynihan, who represented the department during the hearing. “There’s no further relief available.”

District Court Judge Jed French will now decide whether the contempt hearing can go forward. It was not clear last week when he will issue a decision.

Branch was appointed to represent Joseph Lluvera, 44, of Brunswick. He is facing a host of charges, ranging from criminal trespassing to aggravated assault. Some stem from an alleged incident in a hospital wing where he had also been awaiting involuntary commitment for mental illness.

On Nov. 9, a Cumberland County judge found Lluvera incompetent to stand trial and ordered him to be committed to a Department of Health and Human Services facility for mental health treatment. The goal is for him to regain competency so he can eventually address the pending charges, the order says.

But as the end of November approached, Lluvera remained in the Cumberland County Jail. In court documents, Branch would later describe visiting his individual cell and trying fruitlessly to explain to him through the food hole in the door why he was still at the jail.

She took the unusual step of filing the emergency motion for contempt on Nov. 28, saying that his incarceration was cruel and unusual punishment. She also requested a host of documents, including those that reflect the number of people who are waiting for a jail transfer to a mental health facility.

“I did it, frankly, out of desperation,” Branch said in an interview Friday. “It’s not that I think the individuals at Health and Human Services aren’t working hard. It’s just that I don’t understand why we are tolerating, for example, a three-week waitlist where these individuals are languishing in jail.”

Court documents show that placement options for people who are incompetent to stand trial include the state’s two psychiatric hospitals – Riverview and Dorothea Dix Psychiatric Center in Bangor – as well as some programs for people with autism or intellectual disabilities. People with a higher risk or history of violence are always placed at Riverview, where there are 92 total beds. The state’s filings say that 44 beds are dedicated to forensic patients, or patients who are in the custody of law enforcement. One unit of 24 beds is for people who have been deemed not criminally responsible by reason of insanity, and one unit of 20 beds is for other forensic patients, including those with incompetency orders.

Bethany Hamm has been the acting commissioner of the state Department of Health and Human Services since September. Two days after Branch filed her motion, the court issued a subpoena for Hamm. Moynihan, from the attorney general’s office, submitted a motion to dismiss and a motion to quash the subpoena on Dec. 10.

The state’s central argument is that the issue is moot because Lluvera was admitted to Riverview on Dec. 4. Moynihan wrote that department staff began working immediately to find a placement for Lluvera. However, she said, the delay occurred when Lluvera required a placement at Riverview because he had a history of violence, and construction at that facility had limited its capacity during that time. At the hearing, she worked to confine the discussion to Lluvera’s case only and did not address the broader allegations of a systemic problem.

“This is not a matter of great public interest,” Moynihan said Thursday. “This is a private interest. Having the court issue an opinion on this case wouldn’t necessarily provide any guidance to the Bar or the public.”

“Not to say that the issues that Ms. Branch raised weren’t important,” she added. “This is the wrong mechanism.”

Branch, however, argued that turning a blind eye to the three weeks Lluvera spent in jail would allow the problem to continue.

In her filing, she wrote that the commissioner appeared to be blaming Lluvera for his own illness as a justification for the delay in treatment. She cited examples from four other cases where people waited between 12 and 40 days for transportation from a jail to a mental health treatment facility. Because those defendants are still involved in open criminal cases and have not yet been convicted of crimes, she said the delays in treatment are impacting their rights to a speedy trial.

As a remedy, Branch requested the judge order that the commissioner must seek an extension at court when extra time is needed to find a placement. Moynihan argued that would be a blanket order that should not come out of a narrow case.

“This is messy and important, and I am asking the court to get down in the mud with me,” Branch said. “We need to fix the problem.”

Cumberland County Assistant District Attorney Amanda Doherty spoke briefly at the hearing to say prosecutors are concerned about rehabilitation for defendants like Lluvera and others.

“The state’s concern first and foremost is that the defendants aren’t languishing at the jail so we can in fact get them the help they need in Augusta,” Doherty said.

A spokeswoman for the Department of Health and Human Services did not respond to a request for comment on the case Friday. A spokeswoman for the Maine Attorney General’s Office declined to comment further on pending litigation.

 

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