Judge Dread: Michael Kwan | Cover Story | Salt Lake City | Salt Lake City Weekly

March 24, 2010 News » Cover Story

Judge Dread: Michael Kwan 

If you're getting high while enrolled in Taylorsville drug court, Michael Kwan may make your life hell. Or not.

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Taylorsville Justice Court Judge Michael Kwan wants to know where the drug-court defendant got his meth. The man says that he got it at a 7-Eleven. Kwan looks mildly perplexed. “So, while you were at 7-Eleven you picked up a Slurpee and some meth?”

The man stumbles through an explanation for his relapse that involves a friend at the 7-Eleven who gave him the drugs. “You have really nice friends,” Kwan says. “Didn’t that put up any red flags? ‘Danger, Will Robinson, danger?’”

It’s an early Tuesday morning in February in Taylorsville Drug Court. Most drug-court defendants have opted into the program after making a plea in abeyance for a class B misdemeanor, which means that if they complete the court’s typically two-year supervised program, the misdemeanor will be removed from their record. Before Kwan’s bench are 20 drug-court defendants who have had what the court calls “perfect weeks,” meaning clean drug tests and attending substanceabuse treatment. They are taking part in peer review, where, at 7 a.m. every Tuesday, they recommend sanctions against those whose tests have caught drug use. The peer review is a key component of Kwan’s court, even though it is not included among the National Drug Court Institute’s best practices (pdf).

The 7-Eleven patron’s peers recommend delaying his graduation from drug court by demoting him to a more demanding level of drug testing and treatment supervision by privately owned company Judicial Supervision Services [JSS], which is both the treatment and probation arm of Kwan’s drug court. After Kwan, JSS owner and probation head Karena Jackson is the most authoritative figure in the courtroom. She tells the defendants that she will either “walk you through it or drag you,” but it is their decision.

In this case, the man isn’t demoted. “I’m not moving you down,” Kwan says. “I have faith.”

It was also faith that Kwan requested from the Taylorsville City Council on Feb. 10 when he asked for control of the 11-year-old justice court, which primarily deals with traffic violations and all class B misdemeanors and below, along with its drug court and an award-winning domestic-violence court. “Take a leap of faith in me, in my ability to run the court,” Kwan said.

According to city estimates, Taylorsville Justice Court is facing a $400,000 deficit, compared to almost $600,000 in the red the year before, with more than $3.5 million in fines yet to be collected. It’s clear the court, Taylorsville Mayor Russ Wall says, “doesn’t have any concerns about budget, but it’s [the city leaders’] chief responsibility to manage funds.”

At the next council meeting two weeks later, Kwan promised to focus on collections, generating revenue and reducing expenses. He said cutting drug court would save only $29,000, while expenses for public counsel and jury trials would increase.

The council voted 3-2 to give Kwan’s plan a try (pdf).

“We have no choice,” Wall says. Taylorsville either allows Kwan to “try to fix it, or closes it down.”

There’s a lot riding on Kwan’s bid to return Taylorsville’s justice court to profitability, including, Wall told the council, Kwan’s “reputation as a judge.” At least in the early years that reputation, according to one attorney, was “a hanging judge with a sympathetic heart.”

Drug court is, by nature, theatrical. The judge, through banter and discipline, seeks to support defendants in their quest for a better life. But in Taylorsville, the theater, Kwan’s critics argue, has become the court itself. Whether it’s Kwan throwing former Taylorsville prosecutor Lorenzo Miller into a holding cell over a witness scheduling issue, being reprimanded by the Utah Judicial Conduct Commission in 2006 for an off-color remark relating to Monica Lewinski or the justice court turning into a money pit, controversy has never been far away. Now, though, it is the drug court itself that faces scrutiny from retired Judge Dennis Fuchs, who on April 1 will begin a two-year state-supervised certification process for Utah’s drug courts. Fuchs started Utah’s first felony drug court in the 1990s, which inspired Kwan to start his own.

Kwan takes it all in stride. Some “people think I’m Attila the Hun, others Gandhi. The truth is neither. I’m a guy trying to do his job to make a difference in his community.”

Kwan’s sympathy is often apparent in court, as he cajoles relapsed defendants along. Focus on the day to day, he urges, not the big picture, “and you’ll do fine.”

He disputes the hanging-judge sobriquet, saying he’s typically near the bottom of jail statistics for incarcerations. It’s apparent, however, watching him in court that the occasional leniency he displays aside, the drug court’s “clients” have surrendered their destiny to the court and JSS for two years and potentially thousands of dollars in treatment costs to JSS.

“People think I’m Attila the Hun, others Gandhi. The truth is neither. I’m a guy trying to do his job to make a difference in his community.” –Judge Michael Kwan

Kwan says drug court works. Out of 900 people who graduated from his drug court by summer 2007, only 17 had re-offended. Whether drug court works for minors, however, is a matter of debate.

In 2002, Taylorsville prosecutor Lorenzo Miller, who lost the city’s prosecutorial contract in 2009 after another firm submitted a lower bid, introduced a minor in possession of alcohol plea-in-abeyance program to Taylorsville “because I felt very strongly occasional [drug] users and recreational drinkers need to be gotten in and out of the system as fast as possible” and should not be in drug court.

Minors would pay a discounted fine, do a few classes and be released. Kwan, however, grew to feel some minors weren’t taking their cases seriously enough, so “he unilaterally put them in the drug-court program,” something Miller adamantly disagreed with. To have minors in drug court, associating with addicts and hard-core drinkers, Miller fears, spells disaster. “We are turning 18- to 21-year-olds into criminals.”

Kwan disputes Miller’s account, saying the decision to return minors on “a fast track” back to drug court in 2005 was a group decision involving the prosecutor, legal defender and treatment provider.

Most minors were taken out of drug court in 2008, too late for former Taylorsville Justice Court defendant 21-year-old Jessica Deuel who, while she didn’t emerge from drug court a criminal, says she barely made it out alive. Her odyssey through the voluntary court for a minor in possession of alcohol charge and a tobacco ticket in January 2008 led her to classmates in treatment who introduced the self-described “mild stoner” to harder drugs. Despite intermittent work in supermarkets, Deuel struggled to keep afloat. Unable to pay for her own drug testing, Kwan suggested she sell her plasma. Those sales, she says, resulted in a seizure, while the court’s control over her life ultimately led her to a suicide attempt.

After nearly two years, Deuel opted out in November 2009, only for Kwan to sentence her to further JSS supervision and the loss of her drivers license for three years. She says the financially onerous system mandated by Kwan and JSS grinds people down rather than helps them change, leading many defendants to feel they are set-up to fail. While the 42 people who graduated from Taylorsville and Holladay drug court in January may well not agree with her, Deuel says drug court and JSS “are so unforgiving, they punish you and punish you and you end up in a bigger hole.”

Watch video interviews with Jessica Deuel on the following pages

Carrot & Stick
Taylorsville Drug Court’s origins lie in a tragedy: the suffering of a black child in a Salt Lake City burn unit in the mid-1980s, when Kwan was a burn tech. The young girl repeatedly came in with burns inflicted by her grandmother. “I could either keep treating her wounds or get off my butt and try to do something,” he says, referring to a legal system that allowed the continued abuse and, eventually, the girl’s death after her grandmother put her head through a wall and crushed her skull.

Kwan got a law degree at Whittier College School of Law in Los Angeles. In 1996, he started as a Salt Lake City district court prosecutor.

In 1998, Kwan was chosen by newly incorporated Taylorsville to be its first justice court judge. However, former Taylorsville Mayor Janice Auger says what started off as a court responsive to code enforcement and traffic issues that “generat[ed] enough revenue to cover the expenses of administering law enforcement,” then shifted to include Kwan’s pet projects—a drug and domestic-violence court.

Mayor and judge clashed, at times. Auger was frustrated by what she saw as Kwan’s refusal to be a team player, while Kwan says that Auger “wanted less of a judge and more one of her department heads.”

Miller was Taylorsville’s prosecutor for 11 years, joined in the first years by his wife Lohra, now the Salt Lake County District Attorney. The Millers were skeptical of Kwan’s plan to open a specialty court offering DUI offenders the opportunity to keep their license and have the conviction removed from their record if they completed court-supervised treatment. But after six months, the Millers were won over by the positive impact it had on defendants’ lives. Ice Princess
Auger’s problems with drug court, which she saw as a social program funded in part by taxpayers, extended to Kwan “unilaterally” using treatment provider and probation agency Judicial Supervision Services. “For some reason, the court says we will work with an agency, and nobody gets to know the hows and whys,” she says now.

JSS is a growing, muscular presence in courtrooms throughout the Salt Lake Valley, with 1,300 clients last year. JSS assesses defendants’ treatment needs, provides for those needs and reports back to the court on compliance. Despite its reputation in the treatment community for making money, owner Jackson says that, in the past, she’s gone a year without paying herself a salary. “I’m working my ass off for little so [defendants] can succeed,” she says.

Jackson jokingly describes Kwan as the defendants’ patriarch in court, while she’s their matriarch in the outside world. “Mom is the one who doles out discipline,” she says. She’s been called “bitch” and “ice princess” by bitter clients, but doesn’t blink. “I will not allow minimizing or manipulation.”

Jackson says when a defendant agrees to a plea deal, he or she has effectively “dug a deep hole.” The judge gives them a sentence, a rope, and she, as probation officer, tells them to hold that rope tight. “The defendant can pull themselves out of that hole … or they can put that rope around their neck.”

Growing Up Fast
One person who Jackson says “hung from that rope by her arms” was Deuel. Deuel grew up in the world of addiction, learning tricks of the meth trade as early as age 7, when she was taught to strip the strikers off match heads, a key ingredient in the meth-making process. According to Deuel, her grandfather hooked most of his children and grandchildren on meth.

Deuel, however, steered clear of meth and disdained alcohol, although she enjoys pot, which, she says, her sister first gave her when she was 8. Deuel did six days in a detention center when she was 16 after being busted for smoking pot. “It helps me cope, numbs the pain,” she says. “But I’m fine with quitting it.”

Blood Debts
As part of her plea-in-abeyance at Taylorsville Drug Court on Jan. 22, 2008, Deuel learned she would undergo addiction counseling, attend a 12-step program twice a week and submit to two drug tests a week, one of them random. “This isn’t that hard,” she thought. “I’m not a drug addict or an alcoholic.”

The JSS-supervised tests and classes quickly added up. In a month, the 19-year-old could end up owing $100 for classes and paying a similar amount for drug and alcohol tests. In March, she sold her Ford Escort for $200 to pay for drug tests. She was frustrated by the group addiction classes, which included watching movies like the drug-addiction epic Requiem for a Dream and The Simpsons, and afterwards discussing their relevance to not doing drugs. “It was very pointless,” Deuel says.

During counseling, several men revealed they had been involved in domestic violence. Deuel told the counselor about her boyfriend’s assault but was not moved to another group. Jackson says that “there’s no perfect, ideal bubble to put these clients in.” Classmates also introduced her to hallucinogens, including LSD and ecstasy, which they said were untraceable. Deuel tried them both.

Jackson says Deuel “was minimally compliant.” Nevertheless, she went to peer review, did her tests and counseling. But one night in July 2008, she says three men in a car abducted and raped her. She did not report the rape to the police because she had been walking to her boyfriend’s house. Since it was his assault that landed her in Taylorsville Drug Court in the first place, she anticipated little sympathy.

Deuel says she also didn’t report the gang rape to Jackson “because any kind of complaint or show of weakness is seen as a sign of relapse.” For several months, she didn’t go to peer review. Then, on Nov. 11, one year and a day after her boyfriend beat her, Deuel came up dirty on a random drug test after smoking pot the previous night. In tears, she stood before Kwan, unwilling to mention the rape before the peerpacked court. Kwan sentenced Deuel to two days’ jail time suspended, 10 hours of community service, and returned her to an intensive level of substance testing he had recently promoted her from. She had no money to pay for the JSS tests, she told him.

“Have you tried selling your plasma?” Kwan asked. Deuel thought angrily that she might as well be a prostitute. “He was asking me to sell part of my body to pay for court.” Nevertheless, for five months, she earned $60 a week from twice-weekly visits to a plasma bank to pay for JSS tests. She only stopped when one afternoon, after watching plasma leak out of her arm into a container, she had a seizure that resulted in her hospitalization.

Sentencing people is about being a teacher, Kwan says. “Education changes behavior. Incarceration doesn’t.” He wants his defendants to take their bills seriously, to think before “they buy that second pack of cigarettes or an Xbox 360.” Along with selling plasma, Kwan has also, he says, made “the illuminating point” to traffic violators that they might sign organ donor cards so society can benefit if they were to die from a speeding-related incident.

Lohra Miller says Kwan’s approach “stems from his belief defendants need to be held accountable and responsible for their actions. He’s legitimately trying to get them to change their lives.”

That approach also includes “Kwan dollars,” a derogative term used by police officers and jail officials for astronomical bench warrants Kwan has issued to get misdemeanor defendants locked up who have failed to appear on multiple occasions before him.

Kwan acknowledges putting out warrants for $250,000 on someone who has failed to appear 10 times on a misdemeanor. Kwan says the defendant is not expected to pay the bond on such a large warrant. “I just want them to come to court,” he says.

Miller recalls that officers not familiar with high warrants on minor offenses “originally took great action to ensure those people were booked in jail, but [after a while] they didn’t see those warrants as being so important.”

Cusp of Greatness
Deuel’s decision to opt-out of drug court began one September 2009 night at 3 a.m., when sick with the flu, she took cough syrup, even though she knew it would probably show up on a test.

At peer review, her fellow defendants recommended $30 weekly alcohol tests and 10 hours of community service, to which Kwan agreed. Deuel didn’t have money for the tests, so she asked JSS if she could wait until she got paid the following Monday to do it. “If I didn’t get it done, they told me I would be noncompliant and taken to jail,” she says.

On Oct. 20, 2009, she told Kwan she was opting out of drug court. He took away her drivers license for three years, put her on treatment and probation for a year and gave her two days of JSS-supervised house arrest. He also ordered her to pay $600 in court fines and $600 in JSS fees, which she says she didn’t have. A month later, she appealed his sentence to West Jordan 3rd District Court. Kwan cannot comment on Deuel’s case because of the ongoing appeal.

Jackson, however, vents her frustration. Deuel, she says, who did not pay for her classes, was so close to graduating. “I don’t like to see people on the cusp of greatness just giving up.” She expresses surprise at Deuel’s complaints. “She never once approached me over any concerns over things occurring in her life.”

Poverty, Deuel says, is at the root of why she didn’t complete drug court. “The only reason I haven’t graduated is because I’m too poor for everything they’ve asked me to pay.” She found Jackson a distant, unapproachable figure with a dark temper. JSS “doesn’t see you as a person. You’re a kid and they own you. They don’t care who you are. You have no rights. They don’t treat you like people, they treat you like money, a number.” Jumping Through Hoops
While Deuel’s story is similar to complaints from a number of Taylorsville Drug Court defendants City Weekly interviewed, others report positive experiences of drug court.

Michael G., 32 years old, is a passionate believer in its merits. “I went from a train wreck who was destroying my life to the opposite.” He requested anonymity because, while he’s proud of who he is now, he’s not proud of who he was before he ended up in Taylorsville Drug Court.

Ten years ago, Independence, Miss., born Michael was drunk on vodka and high on drugs when he hit a stationary car on Interstate 15. He was charged with four misdemeanors, including a DUI, and took a plea in abeyance in exchange for getting the DUI off his record, a drug-court incentive the Utah Legislature prohibited in 2007.

To “jump through [drug court’s] hoops,” he attended two Alcoholics Anonymous meetings a week, went to weekly group counseling and took two weekly drug tests. He quit marijuana but continued drinking, hiding it for almost a year. “I thought I could beat the system,” he says, but in 2002 went to JSS drunk, testing three times over the limit.

Kwan and Michael’s peers were not impressed, and he restarted the program. “It opened my eyes that something needed to change.” He stopped drinking for good, he says, and five years after he opted-in to drug court, he graduated. He went on to earn two associate degrees and now works as a facilities maintenance technician in a cookie factory.

Without drug court, he says, “I’d either be dead or in prison.” Fighting for a Future
On March 12, 2010, Kwan declared his candidacy as a judge in Taylorsville. In November, Taylorsville voters will decide whether to return him to the bench.

Lorenzo Miller expresses concern over how Kwan’s court has become “more lenient and more tolerant of the offenders’ failure to comply, and the court holds them less accountable.” Lack of consistency in sanctions in drug court can undermine its effectiveness, says assistant state court administrator Rick Schwermer, of the Utah Administrative Office of the Courts.

Lorenzo Miller finds that, recently, something is missing. Kwan, he says, “lacks the zeal that he once brought to his position and the bench.”

Kwan says his passion for drug court is “if anything, stronger.” He wants to run a drug court as long as he is convinced it’s effective. “I believe in what I am doing. I will fight for the people in this program trying to make changes in their lives.”

One person trying to change her life is Deuel, who recently started work at a Subway near her mother’s trailer park. On March 15, she appeared before Judge Robert Adkins in West Jordan 3rd District Court to appeal Kwan’s sentence. “I just hope I can get this done and over with,” she said in the courtroom. Now, she faces both the two charges she pleaded guilty to and two domestic-violence charges that were dismissed as part of the plea in abeyance. Her public defender requested a continuance, and the next hearing is on April 12.

A few months after Deuel’s 21st birthday and after opting out of drug court, her parents took her to a bar for her first legal drink. She looked across the crowded bar and marveling, thought, “Welcome to the adult world.”

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