Mark Grangetto case evidence that AB1539 is still not being recognized

September 5, 2009  7:42 PM
Sacramento Prison Reform Examiner
B. Cayenne Bird


Yesterday, Sept. 4, 2009, people who worked for more than a decade to get AB1539 passed into law showed up in Sacramento outside the courtroom of Judge Patrick Marlette. They were there to attend a hearing in support of a Writ of Mandate filed by Nora Weber on behalf of her son Mark Grangetto, who was born brain-damaged.

Mark Grangetto with mother Nora Weber

Attorney Ken Karan had traveled up from Carlsbad and Nora Weber, a retired insurance agent made the five hour trip from Bakersfield. Humanitarians, clergy and advocates for the mentally ill who have been active within the UNION communications network came from all over the state. They were hoping to see that  the compassionate release of terminally ill and permanently medically incapacitated prisoners such as Mark Grangetto would be recognized and finally implemented after a decade of witnessing and dealing with horrifying human suffering.

But instead of a hearing, Judge Marlette sent out his clerk with a tentative ruling that he had pre-determined the day before. That procedure is one of the "local rules" and within the law, but it was still abrupt and harsh.  Judge Patrick Marlette's order simply parroted everything that two of  the CDCr doctors who feed off our  human bondage industry had reported.  In my opinion, it was a cowardly way to handle the case, but not many people could look an elderly mother in the eye and tell her that her disabled and dying son would not be released to her, even though she can well afford his care. 

Everyone present went numb as if a bomb had exploded.

Attorney Ken Karan asked the clerk if he could address Judge Marlette for just a few minutes but the request was denied.  The law passed in 2007 - AB1539 - was once again NOT recognized.  .

The CDCr doctors and all bought into a system that punishes mentally and medically ill people don't want to lose their high salaries by recommending the release of ill people and in so doing have sold their souls.  The comments made in the case  by Dr. Jeffrey Wang and Dr. Bruce Phillip Barnett sickened me and are a smudge upon physicians everywhere. Obviously,  the HIppocratic oath and following ethical, moral and statutory laws are no where in their reasoning.   They are actually criticizing Grangetto for being brain damaged and mentally ill in their statements when they refer to his "non-compliance."

See the ruling here, issued without a hearing, taking CDCr testimony as if it were actually credible, a disgusting turn of events. 

It is very apparent to me that they have no idea how a prisoner's mental state and ability to care for himself should be very strong arguments in favor of getting him to a more healing and appropriate atmosphere.  These two "physicians" contradicted other CDCr doctors who had recommended Grangetto's release.  When I ask why and how such a travesty as this could take place, I immediately think of how much money those doctors are making to continue tormenting people in overcrowded prisons.  There is certainly no other sane and reasonable basis for such cruel observations as they submitted. Wang and Barnett should be ashamed of themselves and so should Judge Marlette for giving such poor excuses for human beings five minutes of serious consideration, let alone basing a life and death decision on anything those two had to say.

This is the report by Attorney Ken Karan of what technically  took place. I am too disgusted with the entire punisher network and the people who allow them to stay in power to write anything more right now.

The taxpayers should care about more than a billion of their human service and education dollars being further wasted to punish sick people like Grangetto who are well beyond being any sort of threat to society. I have posted the link to the order so that you can see the lies told by the Attorney General and CDCr doctors and judge for yourself. About 400 people die each year in California's  terrible prison conditions and it is clear that the death toll will continue until the citizens have had enough of this era of death and cruelty and decide to make changes.

The system is corrupt arrest through parole and I don't like my tax dollars being used to pay for the punishment of sick people.  We should have compassion for the mentally ill, but not put them into political office or hire them as physicians and administrators in prisons or allow them to sit on the judiciary making terrible decisions over our lives, which is what this ruling clearly illustrates is happening now.

I would like to make it very clear that my frank observations about the injustice and callousness in this case are strictly my own observations and not those of Attorney Karan or anyone else. I have watched this case for a number of years and see that politics are more important to the punishers than saving someone's life and I grieve for how the mothers and wives are suffering under this terrible oppression.

B. Cayenne Bird 


Begin report of Attorney Ken Karan on the disposition of the Mark Grangetto case

"Mark Grangetto is one of our fellow citizens. He has strengths and weaknesses like all of us. Mr. Grangetto’s failings led to his imprisonment. Due to his medical condition, he recently filed a petition for a recall of his sentence. The petition was denied.

In our society, we allow each other the freedom to overcome our weaknesses in order to use our abilities to accomplish good. When we stumble, we are giving the opportunity to try again and again until we succeed.

 Some of our weaknesses are harder to overcome than others. Addiction, abuse, and physical and mental disabilities are some of the barriers we face on our path to be responsible citizens. Sometimes our stumbles harm others and we remove them from society. We put them in prisons. But, the principles of opportunity to succeed do not change. We still want our fellow citizens to succeed lest they become unfulfilled, unproductive, and a burden on our scarce resources. If this was not true, every crime would be a death sentence. Although, some would have it so.

Sometimes, prison no longer functions to serve the purpose for which it was created. In some cases, people become so physically worn out, infirm, and decrepit that prison for the sake of punishment no longer makes sense. In such cases, prison has satisfied those who wish for the worst for a person, a kind of death from which little joy will ever be experienced.

 Spending money to feed, clothe, house, care for, and guard a person who has been punished beyond what the law intended challenges even the least rationale mind. Even the most vindictive among us suffer from irrational incarceration policies when they face lost funding for their children’s education, their parent’s health care, and their own safety when legitimate law enforcement resources are cut. Prison is, therefore, not the answer to every problem that we choose to call a crime.

Recognizing this, in 2007 the California legislature passed into law a provision that permits a rational reassessment of the purpose of incarceration with authority to recall a sentence in individual cases where a person is “permanently, medically incapacitated” and “requires 24-hour total care” and the release plan does not create “a threat to public safety.” Mark Grangetto is such a person.

Mr. Grangetto was sentenced 18 years ago for second degree murder in a drunk driving case in which his passenger riding on the back of a motorcycle was killed in a crash. Since then, Mr. Grangetto has lost all use of his left arm, has little strength in his right arm, is totally blind in one eye and legally blind in the other, is wheelchair bound, has end-stage Hepatitis C, and has insulin-dependent diabetes. His diabetes causes chronic pain, called neuropathy, from which he receives no pain medication. Needless to say, Mr. Grangetto will never ride a motorcycle again.

Pursuant to the new law as codified at Penal Code section 1170, subdivision (e), a person or his family may initiate a process for recall by petitioning the department of corrections (CDC). Earlier this year, Nora Weber, Mark’s mother, initiated the process. In spite of the mandatory language of the statute that requires CDC to “make a recommendation to the Board of Parole Hearings with respect to the inmates who have applied under this section,” CDC doctors simply reported by email that they did not believe Mr. Grangetto met the criteria. They did not explain why they believed that, they did not describe Mr. Grangetto’s medical condition, and they did not describe his physical disabilities.

The statute requires the Board to consider the information required by the statute, which would include the petition and the findings by CDC, and “make an independent judgment” and “make findings related thereto before rejecting the request” and to take these actions “at the next lawfully noticed board meeting,” which are public. Instead, the Board wrote to Ms. Weber stating only that CDC believed that Mr. Grangetto did not meet the criteria for recall and, therefore, “the BPH is closing our interest in this case.” Such a response is not an independent judgment, is not a finding, and was not taken at a public meeting.

Mr. Grangetto brought a lawsuit requesting that the Board be found to have failed to perform mandatory duties and to have abused its discretion in refusing to recommend a recall given his medical condition. In response, for the first time, CDC doctors provided the basis for its determinations. They stated that Mr. Grangetto, who is assigned full time to the Acute Care Hospital, does not need 24-hour total care because he can eat, bathe, and dress. They did not explain how narrowly they applied these claims to Mr. Grangetto. CDC minimized his condition to carry out an agenda to defeat a statute that they disagree with.

The facts are that Mr. Grangetto can raise food to his mouth and chew, but he cannot obtain food, cook it, and serve it himself. He can bathe by splashing water on himself from a sink, but few of us would consider that “bathing.” He can, given enough time and energy, wiggle into loose-fitting pants provided to him while lying on a bed, but he cannot put on shoes or a shirt. They also claimed he can take his own medication. He can swallow, but he cannot know what he is swallowing, what the dose is, or when he should take it next. None of these limited abilities leads to the conclusion that Mr. Grangetto does not need 24-hour total care. Mr. Grangetto presented to the court 44 pages of expert witness testimony from two physicians, one a psychiatrist, as evidence that Mr. Grangetto met all the criteria for recall, including the criteria that the recall pose no threat to public safety.

The language used in the statute is intentionally broad recognizing the infinite number of possibilities in which a person’s condition would satisfy the intent of the legislature. CDC’s reading of the statute is so narrow that, if a patient could breathe, it could be said that the patient does not need 24-hour total care.

On Friday, the court denied the petition. The court did not evaluate whether Mr. Grangetto met the criteria of the statute refusing to substitute its judgment for that of CDC. The court relied entirely on the testimony from CDC’s doctors claiming no authority to weigh the evidence. The court concluded that neither agency had a mandatory duty to make any findings explaining the basis of their decisions thereby subjecting themselves to public accountability, which is what the legislature intended.

The primary goal of authority is to preserve and expand its power. It does not care about prisoners, citizens in our society. To do so, of course, is to humanize those over which we want to dominate with our authority. It is easier to dominate objects than people. In the end, bureaucratic inertia has defeated what was intended to be a bill that would force our correctional institutions to do what is best for the agencies themselves, the inmates, and the public. Instead, we continue with our struggle to create a society that can punish cruelty without practicing it. "

Ken Karan
Attorney at Law
Carlsbad, CA