When attorney Michael Perlin begins interviewing individuals who were not competent to stand trial, he makes a startling discovery.

Michael Perlin is a Professor of Law Emeritus at New York Law School (NYLS), founding director of NYLS’s Online Mental Disability Law Program, and founding director of NYLS’s International Mental Disability Law Reform Project in its Justice Action Center. He is also the co-founder of Mental Disability Law and Policy Associates. His hobbies include fishing, birding, playing the clarinet, opera, and the music of Bob Dylan.

This story originally aired on March 31, 2017.

Story Transcript

Before I became a professor, I was a real lawyer for thirteen years; three years as the head public defender in Trenton New Jersey, and then eight years as the state mental health advocate, and this story really deals with both of those.

We take you back to 1971 when I was a rookie public defender. I used to say I was twelve years old but nobody laughs anymore.

Because I was a rookie, they did rookie hazing and they gave the newest youngest person in the office the cases that couldn’t be won. These were the cases at the [maliciously 00:14:12] named room building.

It was named after some form of Governor or Attorney General and it was ‘the maximum security hospital for the criminally insane’ and it was exactly what you would expect from a ‘70s movies as to what that looked like. The movie was no exaggeration and the cases were charades.

First of all, the only way they would be scheduled is if one of the patients had the wherewithal and the eight cents for a postcard to send me a note saying, “Please represent me.”

Those postcards were treated as ‘writs of habeas corpus’ because there were no regularly scheduled hearings then. I went and I represented them and I never won a single one because the Attorney General had two questions to ask the state doctor, “Doctor, is Mr. Jones mentally ill?”

The answer was always yes and, “Could he benefit from treatment?” and the answer is yes. Brackets, such treatment wasn’t available there but that was never within the scope of the court, so I lost every case.

The next year, the United States Supreme Court decided a case called Jackson v Indiana, which is the grandfather of modern mental disability law.

Theon Jackson was a person who was deaf, who was mute, and who was severely intellectually disabled. He was charged with taking three purses from porches in his small town in Indiana.

After he went to jail, he was transferred to the state hospital for the criminally insane, to which he was committed until he was no longer insane. Well, hello, he wasn’t insane, he was clearly not competent to stand trial and he stays there.

Somehow, he got a wonderful lawyer who took his appeal to the United States Supreme Court and in 1972, the Supreme Court ruled in Jackson v Indiana for the first time ever that the due process clause applied to people in psychiatric institutions.

It said, “We’re not going to set a bright line but Mr. Jackson has been locked up in this maximum security facility for three and a half years. There’s no chance he’s ever going to become competent to start trial again. Three and a half years is too much. If he is dangerous, he can be transferred to a psychiatric hospital, but if he’s not, he needs to be released.”

So I said, “My goodness, this is a great decision. What am I going to do in New Jersey?”

Because I knew I was representing-- I had been doing this for about a year or so I guess; about 25 or 30 people kept rotating. And there were a couple of women in the hospital but I never represented them.

The guys who were the most verbal, who had the eight cents to send me the postcard, but I knew from walking through the hospital that there were many, many, many more, so what do I do?

I used to work with an expert witness named Bob Sadoff, a forensic psychiatrist; best expert witness I’ve ever had the honor to work with. Bob says to me one day, “Michael, you’re a lawyer. File a class action.”

I have to tell you, I was a terrible civil procedures student, which I taught for twenty five years.

Later, that’s another story, and I said, “Great idea.” [inaudible 00:17:20] crimes, filing a class action was not in the jurisdiction of the public defender’s office in New Jersey so I filed this illegally. I’ve never been caught. I think the statute of limitations has passed; don’t tell anybody.

I file a class action called Dixon v Cahill and after skirmishing on discovery matters for many, many months, I wind up-- the judge grants all my motions, case settled for about 98% of what I wanted and the judge said, “Yes, Jackson v Indiana needs to be implemented in New Jersey,” and I was really proud.

On the way out of the court he says, “Oh, Mr. Perlin, by the way, since you’ve done such a good job for the class, I’m now appointing you to represent each one of these people individually at the hearings. Good work is its own reward.”

It turned out there were two hundred and twenty five people in the hospital, and I will just cut to the chase. I’m not saying this because I was such a great lawyer, I wasn’t.

I just did my job. One hundred and eight five of them were there illegally. And so I quote one, one loss percentages, which is such a silly thing for any kind of a public defender to talk about.

I was successful; I can’t do the math, in 185 of 225. But I wound up seeing them all individually and one of those cases is my story.

There was no rhyme or reason of how to do it so I did alphabetically. I’d gotten up to the Ss’ and the next person on my list was named Jacob Shucofsky. I went to the guard because the guards all knew me very well, because I used to see them all the time.

I learned that Jacob had come from Russia in the 1940s and he had been in the room building since 1947. This is 1973.

I said, “Okay, I’d like to see him,”

And they said, “Uh, don’t waste your time Michael. He’s a vegetable and he can’t talk.”

Well, with the chutzpah of a 27-year old assistant public defender, this is not going to stop me. I go to him and he’s in a cell by himself. It’s a fairly big cell but it’s a cell. I said, “Hi Jacob. My name is Michael Perlin and I’m the public defender assigned to represent you,”

I shake his hand, and he doesn’t say a word.

Two weeks later, I go back, exactly the same thing. Two weeks later, I go back. The moral of the story is I don’t give up easy.

He hands me a piece of paper. I look at the paper and it looks mostly to me kind of gibberish and scrawlings, but I see on the paper the letters CCCP.

I was a stamp-collecting nerd as a kid and I had stamps from Russia. USSR is CCCP in Cyrillic so he said something and I know he’s Russian. I say to the guard, “Look at this,”

He says, “Yes, yes he’s done that before. We brought the priest in to talk to him and the priest said he’s a vegetable.”

I’m walking out of the room building with my investigator, who is a wonderful person, who is a high school graduate, and who had more common sense than any of the lawyers I ever worked with.

I said, “Ronnie, there’s something here. What’s going on?”

Ronnie says to me, and this is the most important moment of my legal career, “Maybe they brought in the wrong priest.”

I said, “Oh, my God.” I mean, what do I know? I’m a Jewish kid from a Jewish area. I don’t know anything about Russian Orthodox priests; I don’t know anything about Cyrillic language. I said, “Maybe they did.”

This was before Al Gore invented the internet so I go to the Yellow Pages of the Mercer County, which is where Trenton was and Bucks County, which is right across the river in Pennsylvania, to both phonebooks and I start calling every Russian Orthodox priest within 50 miles.

Most of the priests had no idea what I was talking about but two or three said to me, “Oh, you know what, how about if you call Father Tom?” I’m not sure if his name was Tom.

I said, “Why should I call Father Tom?”

He said, “Well, Father Tom comes from…,” and I don’t remember where but it was one of the Stans. Who knew the Stans in 1973?

Whether it was Uzbekistan, Kazakhstan, I don’t know, he was from a Stan.

He said, “They took Cyrillic different there.”

If any of you are from one of those Stans and have anything to say, I would love to hear from you.

So I call Father Tom and I say, “Hi, I’m Michael Perlin, blah, blah, blah,”

I said, “I can’t pay you anything,”

He said, “Oh, no, this is God’s work, I’m happy to come.”

I come up to the room building, walk in to see Jacob with Father Tom, and Father Tom goes, “Blah, blah, blah, blah, blah,” in Cyrillic to Jacob.

Jacob sits up and goes, “Blah, blah, blah, blah,” back to him. They talk for 20 minutes. This is a person who had not said a word since 1947 and this is 1973.

Father Tom says to me afterwards, “Michael, look, I’m not a psychiatrist but he’s not mentally ill. We talked for 20 minutes and it was a very, very reasonable rational conversation. He’s mad as hell that he’s here, which is as rational of a reason as you can have but he surely is not mentally ill. He simply spoke a different dialogue of Cyrillic.”

What do I do know? Well, now I start reviewing the case file. There was no reason to review the case file until now because he wasn’t going anywhere; nothing was going to happen. He comes from-- any New Jersey people here at all? That’s my son, right, thank you Alex. I appreciate that. That was good.

There’s all sorts of New Jerseys that you know. There’s the Sopranos New Jersey, there’s the Jersey Shore New Jersey, there’s the New York suburbs and the Philly suburbs. This is a New Jersey that nobody knows.

The counties that are adjacent to Delaware Bay, east of Philadelphia, west of Cape May Atlantic City, they’re really below the Mason-Dixon Line and no one ever thinks of them.

He was from one of those counties, I don’t remember which. It might have been Salem, might have been Gloucester, or Cumberland.

He’s charged with murder in the first degree and the victim is Vladimir Shucofsky, his brother. Fratricides are very, very rare and fratricides make you think, “What’s going on here?”

I said, “Okay, I need to find out what’s going on,”

So I call the prosecutor. I figure this case happened in 1947, so they’re not going to have any witnesses. I’m going to get the case dismissed but the prosecutor says, “Oh, we lost that file many years ago when we moved courthouses, so that file doesn’t exist.”

I’m now representing somebody who’s been locked up in maximum security for 27 or whatever years to be charged-- been held for trial for a crime he could never be tried on because there was no file.

I go home and my dad - may he rest in peace - was a newspaperman for many, many years and I told him about this case.

He said, “Michael, this is what you do. You go to the morgue--,”

And the morgue is not the morgue from Law and Order type shows, the morgue is where newspapers were kept before there was an internet. Because he was a newspaperman from New Jersey, he knew the editors for every newspaper in New Jersey.

He said, “Oh, yes, so and so is the editor of the paper,”

And he said, “I know he kept good records. Go down to his office and read about the case.

But then he says to me, “And don’t wear--” because I used to wear a suit to court. He said, “Don’t go from court. Go home, put on your old jeans and an old ratty sweatshirt because you are going to be touching newspapers that no one’s touched in 27 years. You’re going to get filthy,”

And he was right about that. I go down, drive down to South Jersey, read the file and if the phrase OMG existed back then I would have said, “OMG,” it did not. Here’s the story.

Jacob and his brother Vladimir, and many other people had been displaced persons. They had come over from Russia after World War II was over. They lived on these migrant worker farms.

This was a Friday night, they were around a bonfire and many, many, many bottles of vodka were consumed. This is from the newspaper story because that’s the only facts we have.

Newspapers back then, if there’s anyone near my age may remember, would never talk about sex. The word rape did not appear in a newspaper until the 1970s; it was always unwanted sexual congress. Every possible euphemism was used to describe anything sexual.

Well, what happens is this. They’re sitting around the bonfire and Vladimir, the brother and we know this is the eyewitness testimony, Vladimir the brother is taunting Jacob.

Vladimir told him that he was having sex with, I don’t remember if it was Jacob’s wife or girlfriend, it doesn’t really matter and that the wife or girlfriend told Vladimir in very, very graphic terms obviously, what a better lover he was than Jacob was.

Jacob is apoplectic but Vladimir gets up- this is the vic - Vladimir gets up, pulls a knife out of his pocket and goes to stab Jacob, my client. Jacob takes the knife out of Vladimir’s hand because they were both very drunk, and didn’t have a lot of motor control and stabs Vladimir, killing him.

The cops come, Jacob is the guy with the knife in his hand, there was a dead body, and Jacob gets arrested. Brackets, on that, any first year criminal law student will get an acquittal within 15 minutes as they well should.

They take Jacob to the local jail. Here’s what I haven’t told you. Jacob had been in a Stalinist prison for a year or two for counter revolutionary activities before he came over.

I can only imagine how-- I read a lot of Martin Cruz Smith novels but I can only imagine what that is like in real life. He is brought into the prison in this small town in South Jersey and he sees the gates go down and he freaks out.

But he doesn’t freak out as you and I would freak out and start screaming in English; he starts doing it in Cyrillic, in his dialect of Cyrillic.

Word up, these small towns didn’t have a lot of jail guards who spoke any dialects of Cyrillic, so they say, “Boy, this guy is really crazy.” They send him to the room building the day he was arrested, and he was there from 1947 until I picked up his case in 1973.

I have notes because there were so many details on this one that I wanted to make sure I didn’t lose anything, and I didn’t. I go back to court and the judge said, “Mr. Perlin, you are absolutely right. Mr. Shucofsky is a free man. I’m dismissing the indictment because the state couldn’t move on it,”

And he said, “Mr. Shucofsky is a free man sort of, so what do we do?” The migrant worker camp where he was, was now a shopping mall and part of it was a state highway. He had no family here, so what do we do?

What we did at this point was, by now I had transitioned from the public defender office in to the public advocate’s office where I was director of the mental health advocacy division.

We had a work-in with lawyers where we called field representatives, that was New Jersey civil service talk for psychologists and social workers, and psychiatric nurses and, advocates working with us on the cases.

I was working on the case with a colleague of mine and after about eight months, we found-- I mean, there’s not really a happy ending to this story, spoiler alert, but after about eight months we found a nursing home and Jacob was still young.

Jacob was still in his 50s but this is a person who had not been out of doors in over a quarter of a century. He had not communicated with anybody and we found an assisted living facility up in Bergen County where apparently, which is the other end of New Jersey, it’s up by the George Washington Bridge.

Apparently, there was in that community many people from the same Stan and there were staff who spoke his dialect.

He went up there and he was able to go out and he puttered in the garden a little bit - he certainly could not get a job. But he was free and he said to my investigator, “It is so nice seeing the sunshine,” and then he died. And that’s my story, thank you.