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Vol. 2 transcripts pgs 139-168

By ORDERING him under an unlawful "psychological examination" somehow... to testify "off the record"..

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DEPARTMENT OF HOMELAND SECURITY. ARE WE SAFER NOW?

keel hauled...

BOLO - man.........

FEDERAL OFFICER - TRANSCRIPTS - VOLUME II - begin

UNITED STATES OF AMERICA/ DEPARTMENT OF HOMELAND SECURITY/ DEPARTMENT OF TRANSPORTATION/ US COAST GUARD

v. ERIC N. SHINE

1

2

3 UNITED STATES OF AMERICA

4 DEPARTMENT OF HOMELAND SECURITY

5 U.S. DEPARTMENT OF TRANSPORTATION

6 UNITED STATES COAST GUARD

7

8 HON. PARLEN L. McKENNA, JUDGE

9

10

11 UNITED STATES COAST GUARD, )
)
12 Complainant, )
vs. ) No. CG S&R 03-0166
13 ) USCG Case No. MISLE
ERIC NORMAN SHINE, ) 1671475
14 )
Defendants. )
15 )

16

17 VOLUME II

18 REPORTER'S TRANSCRIPT RE PROCEEDINGS

19 Wednesday, August 27, 2003

20

21

22

23 REPORTED BY: Judy M. Skidmore, CSR No. 8479

24

25

139

1 UNITED STATES OF AMERICA

2 DEPARTMENT OF HOMELAND SECURITY

3 U.S. DEPARTMENT OF TRANSPORTATION

4 UNITED STATES COAST GUARD

5

6 HON. PARLEN L. McKENNA, JUDGE

7

8 UNITED STATES COAST GUARD, )
)
9 Complainant, )
vs. ) No. CG S&R 03-0166
10 ) USCG Case No. MISLE
ERIC NORMAN SHINE, ) 1671475
11 )
Defendants. )
12 )

13

14 APPEARANCES OF COUNSEL:

15

16 For Complainant UNITED STATES COAST GUARD:

17 LT. BRIAN HILL

18
For Respondent ERIC NORMAN SHINE:
19
FORGIE, JACOBS & LEONARD
20 BY: PETER S. FORGIE
Attorney at Law
21 4165 East Thousand Oaks Boulevard
Suite 355
22 Westlake Village, California 91362

23 Also Present:

24 NICOLE LICHTENSTEIN
ERIC NORMAN SHINE
25

140

1 WEDNESDAY, AUGUST 27, 2003, SAN DIEGO, CALIFORNIA

2 VOLUME II

3 9:25 A.M.

4 * * *

5

6 HON. PARLEN L. McKENNA: Back on the record.

7 Good morning, everyone.

8 MR. FORGIE: Good morning.

9 ERIC SHINE: Good morning, your Honor.

10 LT. HILL: Good morning.

11 HON. PARLEN L. McKENNA: A couple of

12 housekeeping matters before we proceed.

13 I would like to just make it crystal clear for

14 the record that my previous orders on the medical

15 examination are extant and were not rescinded. The

16 purpose of this settlement conference and prehearing

17 was to try and work out a framework that would be

18 acceptable to all parties, as to first establishing the

19 extent of the evidence, both nonmedical and medical,

20 for the good cause, if you will, to require the holding

21 of an independent psychological exam.

22 It's my position that Section 1313 only

23 requires, that upon a finding that would be medical

24 psychological condition, if I find that that is an

25 issue, then I may order an independent psychological

141

1 exam. Pursuant to 1313, I so find.

2 Now, in Mr. Forgie's defense, he was

3 attempting to work out a compromise that would be least

4 objectionable to his client. He knew instantaneously

5 that his client would have a problem with a Navy

6 doctor, and he expressed that during the conference

7 call between the parties.

8 In order to ameliorate that concern, the Coast

9 Guard was agreeable to using another medical provider,

10 and Mr. Forgie gave Lt. Hill some latitude to go look

11 around and explained what he had found. And

12 Mr. Forgie, I guess, felt that that was better than the

13 Navy doctor. And so I left with the clear impression

14 that it was agreed to by the parties. And I put that

15 in my order.

16 Now, under 5 -- USC 554, Mr. Forgie is a

17 party. He represents -- as the lawyer of Mr. Shine, he

18 stands in his step. He represents him. Now, I am

19 going to request that Mr. Shine reconsider his position

20 in this matter regarding the independent medical exam.

21 While I'm not going to rescind my previous orders, I

22 will allow Mr. Shine the last opportunity to agree that

23 if I spend my time and go out and go to the

24 universities and try and pick a psychiatrist to examine

25 him, I will do the due diligence and ask the questions

142

1 as to conflicts. And Mr. Forgie can give me a list, if

2 he wants to, to make sure, then I would have to have an

3 agreement, albeit maintaining the initial objection to

4 having to do it in the first place; but since I've

5 ordered it, then Mr. Shine would have to inform me that

6 he would agree to it.

7 If he would do that, then I would go out and

8 find an independent, nonbiased, nonconflicted

9 psychiatrist to do the evaluation. And there's one

10 proviso, that the government will put together a

11 package of what they want the psychiatrist to review.

12 Mr. Forgie will put together his package of items that

13 he believes counters what the government has put in.

14 And this would include medicals and statements that

15 they intend to put into evidence. Some items we can

16 discuss as to whether they -- their probative value is

17 outweighed by the prejudicial value of the document.

18 And then Mr. Shine would have the opportunity to, in

19 discussing with the psychiatrist, his disagreement with

20 anything that might be contained therein.

21 So I'm holding that open to you until we go

22 off the record today. And at that time, my offer will

23 lapse.

24 ERIC SHINE: Your Honor --

25 HON. PARLEN L. McKENNA: Yes, sir.

143

1 ERIC SHINE: -- may I address that?

2 HON. PARLEN L. McKENNA: Yes, you may. You

3 might want to wait a little while and think about it.

4 ERIC SHINE: I heard you, but I would like to

5 address some of my concerns in that regard, as far

6 as -- and this would have been some of the issues for

7 settlement conference or anything else, whether it's on

8 the record or off or ADR.

9 The issue of -- first and foremost, any

10 records would be prejudicial to who I am today, because

11 even as to the regs, it's as to any precedence or

12 whatever, that any type of mental or medical

13 incapability or incompetence has to be exhibited in the

14 proceedings, that even if it's a doctor's report, it

15 has to be timely, not from two years ago, and that it

16 has to show within the hearing that there's an issue,

17 that this is not -- this was not like a one-time

18 because the guy's father died or other events that we

19 all go through, heaped on top of labor racketeering and

20 other incidences or other -- I've seen nothing to that

21 effect.

22 Everything that the Coast Guard has presented

23 is years old at best. Some of it they're trying to

24 bring in is from 1984, my drug and alcohol rehab

25 records that they're trying to get a hold of, for

144

1 whatever reason, even though I went to a Federal

2 academy, had NIS investigate my background and

3 everything else, now the Coast Guard wants to reopen

4 all that and do a better job of reinvestigating that, I

5 guess. To see a doctor without any records whatsoever

6 and to see who I am and what's going on and my state of

7 mind now is most appropriate, and --

8 HON. PARLEN L. McKENNA: Well, there has to be

9 a frame of reference, and you'll be able to discuss --

10 you'll have copies of everything that was tendered to

11 the psychiatrist, and you'll have an opportunity to

12 discuss those issues, and I would think that two or

13 three two-hour --

14 ERIC SHINE: Wouldn't that be more up to the

15 doctor himself or herself --

16 HON. PARLEN L. McKENNA: I would think so.

17 ERIC SHINE: -- to determine --

18 HON. PARLEN L. McKENNA: I would think so, but

19 we need a floor.

20 ERIC SHINE: But again, it would be the

21 professional floor from the doctor and not anything

22 imposed upon by the court. I'm not imposing it upon,

23 though. The Coast Guard shouldn't -- it should be up

24 to the professional that you're going to bring in on

25 this who's going to say, "This is huge. I can't digest

145

1 all this, prepare myself and meet with the client and

2 do this in 24 hours," or you know, whatever. It's

3 obviously going to take several weeks.

4 HON. PARLEN L. McKENNA: No. I'm talking

5 about sessions now.

6 ERIC SHINE: Well, that's what I'm saying.

7 But it may take, you know, four or five, six sessions.

8 I don't know.

9 HON. PARLEN L. McKENNA: I don't, either.

10 ERIC SHINE: Right. But it should be up to

11 the doctor and not the court to say, "You have two

12 three-hour sessions to do your best job possible,

13 because this guys's life is hanging in the balance."

14 HON. PARLEN L. McKENNA: Well, since the

15 government would not be paying for it, I would not be

16 placing a ceiling as to the amount of time that you

17 would have to spend with the psychiatrist. I would be

18 placing a floor. Although I'm not a medical

19 professional, there has to be some --

20 ERIC SHINE: But that could be --

21 HON. PARLEN L. McKENNA: -- minimum that I

22 would want to see so that the psychiatrist would be

23 able to get a full idea of what's going on here.

24 ERIC SHINE: Granted.

25 But again, even to the matter of timeliness or

146

1 judicial expediency, I've already agreed, and I have

2 not withdrawn my stipulation that I would not use my

3 license until these matters are concluded. So in --

4 towards the end of justice, which I believe is what

5 anyone -- even in these administrative proceedings,

6 whether it's the Coast Guard or your Honor, should be

7 looking toward, the doctor, whomever it is, should be

8 afforded whatever time is necessary to do an -- I'm not

9 saying -- I'm not trying to stretch anything out. It's

10 up to the doctor.

11 HON. PARLEN L. McKENNA: Mr. Shine, are

12 you -- you're a mariner, I take it, right?

13 ERIC SHINE: Yes, your Honor, obviously.

14 HON. PARLEN L. McKENNA: Have you heard the

15 term "two ships passing in the night"?

16 ERIC SHINE: And your --

17 HON. PARLEN L. McKENNA: My point is, why are

18 we having that discussion? Why aren't you just saying

19 that you would like to have a full medical exam by

20 whatever doctor would evaluate you?

21 ERIC SHINE: Even as to timeliness --

22 HON. PARLEN L. McKENNA: I'm not getting into

23 timeliness. I'm --

24 ERIC SHINE: You brought it up yourself.

25 HON. PARLEN L. McKENNA: I'm saying there has

147

1 to be a minimum.

2 ERIC SHINE: A minimum what, though?

3 HON. PARLEN L. McKENNA: A minimum of -- I

4 would want to see the doctor at least have four to six

5 hours of sessions with you.

6 ERIC SHINE: Oh. You're saying as bare

7 minimum? I thought you were talking about like --

8 HON. PARLEN L. McKENNA: That's what a floor

9 is.

10 ERIC SHINE: No. I thought you were talking

11 about -- this goes to communication.

12 Even throughout this whole process, is, at

13 some point, I'm hearing you're talking about, boom,

14 getting it back and getting the report here, that

15 there's a bare minimum; no, he only has so many hours

16 for this, and these are the parameters you have to get

17 it back.

18 HON. PARLEN L. McKENNA: Maybe you're not

19 listening to me.

20 ERIC SHINE: I haven't pressed the issues of

21 expediency. I'm trying to defend myself.

22 HON. PARLEN L. McKENNA: I'm not talking about

23 expediency.

24 ERIC SHINE: But you have all up until this

25 point.

148

1 HON. PARLEN L. McKENNA: I never used that

2 word.

3 ERIC SHINE: I think, in some of the

4 initial -- anyways, I don't want to get into an

5 argument about what has come before to muddy what is

6 going on right now.

7 As to the issues of a medical doctor, I, of

8 course, object strongly that it is a violation of

9 rights and privileges, both privacy act and the

10 therapist/patient privilege. There's been nothing --

11 there's been no case shown as an act of incompetence to

12 say, "He needs to go to the doctor because he has done

13 this."

14 They've brought in excerpts, not full letters

15 or anything, that have been taken out of context. We

16 haven't had a chance to rebut or refute with evidence

17 anything that's been proffered by the Coast Guard,

18 which, in all the case precedence I've seen, is the

19 case, that they're allowed to refute, rebut any

20 evidence presented by the Coast Guard.

21 I think one of the cases -- I don't know if it

22 was Matson where the guy -- they had a doctor's report

23 where he had schizophrenia. They brought the doctor's

24 report in. It was never argued as to how it came in,

25 where it came from. There's a lot of other parole

149

1 evidence that the individual did not --

2 HON. PARLEN L. McKENNA: Let's get back on

3 track.

4 ERIC SHINE: Well, I'm trying to bring up

5 issues, and you're not allowing me to bring up very --

6 my own concerns about -- like even Dr. Erlich. And

7 I've said, because there's miscommunication by my

8 counsel and the court, no matter what happened, whether

9 the court called him, set up an informal or ex parte

10 motion or movement by the court, I don't know. I have

11 no idea how that all came about. I'm trying to

12 address --

13 HON. PARLEN L. McKENNA: It's not ex parte

14 when both parties are there.

15 ERIC SHINE: No; because it's supposed to be

16 judicially noticed and calendared, and I'm supposed to

17 have the opportunity to be there.

18 HON. PARLEN L. McKENNA: That's your position.

19 ERIC SHINE: Right. You called him out of the

20 blue, your Honor.

21 HON. PARLEN L. McKENNA: I disagree. He is a

22 grown individual who's representing you. And he has

23 the right to say, "I've been instructed by my client

24 not to talk to you without him present." He did not do

25 that.

150

1 ERIC SHINE: And I am telling the court --

2 HON. PARLEN L. McKENNA: And he never -- and

3 he never objected to having a discussion on certain

4 issues and found it to be very helpful. So --

5 ERIC SHINE: If he stipulated to something,

6 your Honor --

7 HON. PARLEN L. McKENNA: Now he understands

8 that you don't want that to be done. I understand that

9 you don't want that to be done. And I will give you a

10 certain amount of latitude in that regard.

11 ERIC SHINE: And so I'm trying to correct the

12 issue of Dr. Erlich, who I had no -- as far as his

13 stipulation --

14 HON. PARLEN L. McKENNA: That's -- let's move

15 beyond Erlich. I am trying to suggest to you that I am

16 willing to de novo the whole process if you will give

17 me an affirmation on the record that you will go to the

18 doctor that I pick.

19 ERIC SHINE: Could you explain what -- I

20 know -- what de novo is, because I'm --

21 HON. PARLEN L. McKENNA: Start over.

22 ERIC SHINE: The trial or whatever?

23 HON. PARLEN L. McKENNA: No. I'm going to

24 start the process of picking a psychiatrist. I'm going

25 to make sure that that psychiatrist is not

151

1 conflicted --

2 ERIC SHINE: Right.

3 HON. PARLEN L. McKENNA: -- in any way.

4 And then you are going to agree that you will

5 go to that medical provider for at least six hours of

6 sessions; and if you want to go more, that's fine, and

7 that there would be the government's background

8 information and your background information. And then

9 you'd have the opportunity to talk with the

10 psychiatrist about it and refute whatever the Coast

11 Guard put in there.

12 ERIC SHINE: Granted.

13 And that's, I think, self-evident, to some

14 level or degree, your Honor. What I'm trying to raise

15 are other issues tangential to that, like, okay, well,

16 if the judge finds that -- say he says I'm depressed or

17 I'm angry or I'm upset because the U.S. Coast Guard is

18 retaliating against me, in the middle of me blowing the

19 whistle and these lawsuits or whatever, does that make

20 me mentally incompetent or medically incompetent?

21 I want to define here, so that whatever comes

22 back from the doctor in advance, they can't use, like

23 they've attempted to use, all these -- oh, he said

24 something about Timothy McVeigh in this letter, which

25 is taken well out of context. They haven't introduced

152

1 the letter. I have a huge problem not knowing in

2 advance what the rules are, which, to some level and

3 degree, the Federal Register Act applies; so that it's

4 out there so that I know --

5 HON. PARLEN L. McKENNA: All right. Let me

6 try and explain as best I can where that -- if you look

7 at 46 CFR 5.13, incompetency is the inability on the

8 part of a person to perform required duties, whether

9 due to professional deficiencies, physical disability,

10 mental incapacity or any combination thereof.

11 ERIC SHINE: So what have I been shown --

12 HON. PARLEN L. McKENNA: Excuse me. Just

13 excuse me. I'm answering your question.

14 So if there would be a question being posed to

15 the doctor, and that -- by me, and that question would

16 be, "Please evaluate the respondent. Here is the

17 background material concerning the respondent. The

18 government-provided materials are highly disputed by

19 the respondent, and then there is the respondent's

20 materials, which are included for your review. The

21 guidelines would be that you would be required to

22 evaluate the respondent by spending at least six hours

23 of sessions with the respondent. However, additional

24 sessions may be held if you need them in order to make

25 a well-reasoned conclusion on the task that you've been

153

1 assigned to."

2 ERIC SHINE: If I need them or the doctor

3 needs them? I'm not clear.

4 HON. PARLEN L. McKENNA: The doctor needs

5 them.

6 ERIC SHINE: Sorry. Well, you said "you,"

7 and -- I got you.

8 HON. PARLEN L. McKENNA: All right.

9 ERIC SHINE: It's your definition.

10 HON. PARLEN L. McKENNA: Now, this would have

11 to be concluded within 30 days from the date that we

12 pick that doctor.

13 ERIC SHINE: And why is that? I'm asking.

14 I'm -- out of ignorance.

15 HON. PARLEN L. McKENNA: 30 days should be

16 sufficient. If the doctor's schedule is not sufficient

17 to permit that, then there'll be additional --

18 ERIC SHINE: That's why I asked. We even had

19 difficulties trying to get --

20 HON. PARLEN L. McKENNA: I operate -- although

21 you might not agree, I operate by a rule of reason.

22 ERIC SHINE: I'm asking --

23 HON. PARLEN L. McKENNA: I'm trying to be

24 reasonable.

25 Yes, your Honor.

154

1 HON. PARLEN L. McKENNA: "Yes," you heard; or

2 "yes," you agree that I'm reasonable?

3 ERIC SHINE: Yes, your Honor, I heard the

4 words, my point being I just wanted -- you said it

5 follows logic or reason or you're a rational

6 individual.

7 HON. PARLEN L. McKENNA: I never said I was

8 rational.

9 ERIC SHINE: Okay. I'm paraphrasing. I grant

10 you that, that you're not.

11 HON. PARLEN L. McKENNA: I never said I was

12 irrational, either.

13 ERIC SHINE: My point being I was just asking

14 how you derive the 30 days. Is this from law, rule or

15 regulation, or is this something that has been

16 derived --

17 HON. PARLEN L. McKENNA: It's under the

18 Administrative Procedure Act, where I have the

19 authority to reasonably control my courtroom.

20 ERIC SHINE: Okay. So this is setting a rule

21 right now of the 30 days?

22 HON. PARLEN L. McKENNA: It is my initial

23 impression that that could be concluded within 30 days

24 after the -- after the first appointment. Let's --

25 ERIC SHINE: Granted.

155

1 That's all -- I'm trying to get more clarity,

2 because what is included in those 30 days, is it your

3 time frame, did you do due diligence, our time frame,

4 did you do due diligence, me to get in there and

5 conclude and have a report.

6 HON. PARLEN L. McKENNA: You're not doing the

7 due diligence. I'm doing the due diligence, and

8 Mr. Forgie, and with your assistance, will be providing

9 me with a list of questions to ensure that the doctor

10 is not conflicted.

11 ERIC SHINE: Okay. Well, that's one issue.

12 The other is, that as far as Mr. Forgie's

13 stipulation, he had no authority to make that. I'm

14 making it clear to the court these proceedings --

15 HON. PARLEN L. McKENNA: Stipulation as to

16 what?

17 MR. FORGIE: Let me just give my -- clarify

18 the record from my perspective.

19 And I think I touched on yesterday the

20 conversation that we had concerning the psychological

21 exam involving the Navy doctor.

22 My recollection of the conversation was, as I

23 touched on yesterday, and that is that I said, that

24 under no circumstances, did I -- I didn't believe that

25 under any circumstances Eric would go to a Navy doctor.

156

1 And I wanted to make it more palatable and create this

2 as a possibility perhaps with other conditions.

3 So I said, "Let's --" we all thought it would

4 be a good idea to come up with a nongovernmental

5 psychiatrist.

6 HON. PARLEN L. McKENNA: And the problem there

7 was if the government used the Navy Doctor, it wouldn't

8 cost them anything; and so therefore, is the

9 concession. You agreed that you would pay for the exam

10 if it was by a private psychiatrist.

11 MR. FORGIE: That's true.

12 HON. PARLEN L. McKENNA: Is that correct?

13 MR. FORGIE: That was the proposal,

14 absolutely.

15 HON. PARLEN L. McKENNA: All right.

16 MR. FORGIE: And so -- and I said I'd

17 recommend it to Mr. Shine.

18 And so the order came out phrased as though it

19 were a stipulation to Dr. Erlich. And I didn't agree

20 with that. Perhaps I didn't take the right steps to

21 set that aside.

22 What I did, in fact, was talk to Eric about

23 it, and he had a lot of concerns about the

24 psychological exam generally. I -- he's correct. I

25 was not under any authority to stipulate to or -- and

157

1 on his behalf, to go to whoever that person might be.

2 I never received any authority to enter into that

3 stipulation on his behalf.

4 And so what I did in response to that was,

5 when I saw that, I objected to the exam for other

6 reasons that have been maintained till today. And I

7 think there's actually been a second objection for a

8 variety of reasons. The Freedom of Information Act

9 issue came up. The medical records came up. And this

10 all got kind of mixed together. And then -- and I told

11 Eric -- and I do recall you saying in a conversation,

12 that you were going to rescind those orders. And

13 whether they were rescinded or held in abeyance or

14 whatever, I was under the distinct impression that he

15 did not need to comply with those, as you say, extant

16 orders, because -- and I told him those are not

17 effective to control your actions right now, because

18 we've got a hearing set up on yesterday -- beginning

19 yesterday to talk about the good cause that would lead

20 to the order for the exam.

21 And that may have been my mistake. I concede

22 that. But as far as he is concerned, that's what I

23 told him. And from his personal perspective, I told

24 him he didn't need to comply with that, because --

25 HON. PARLEN L. McKENNA: I understand that,

158

1 but there's no harm and no foul.

2 MR. FORGIE: Okay. I just want to make it

3 clear.

4 Hang on.

5 HON. PARLEN L. McKENNA: But I want to make

6 something perfectly clear to both Mr. Forgie, Mr. Shine

7 and the Coast Guard.

8 And that is, that in looking at the law on the

9 subject, it is my opinion that just because I allowed

10 you to come down and have the government make a

11 nonmedical, if you will, presentation and then a

12 medical presentation as to a good cause for requiring

13 the exam, that I am not conceding that that is the

14 legal standard that must be employed.

15 MR. FORGIE: I don't have any problem with --

16 HON. PARLEN L. McKENNA: And indeed, that I

17 still maintain that 33 CFR 20.1313 controls here, along

18 with 46 CFR 5.67.

19 And is there any doubt in your mind,

20 Mr. Forgie, that the -- that included within the charge

21 of incompetence is the issue of Mr. Shine's mental

22 state?

23 ERIC SHINE: May I please respond?

24 MR. FORGIE: No. Let's confer.

25 ERIC SHINE: I'm not supposed to be stifled.

159

1 I'm trying to represent myself to the court.

2 HON. PARLEN L. McKENNA: Excuse me. You will

3 conduct yourself in accordance with how --

4 ERIC SHINE: I was speaking to my --

5 HON PARLEN L. McKENNA: -- I mandate.

6 ERIC SHINE: Your Honor, I was speaking to my

7 attorney. You asked me to do that, and that's what I

8 was doing.

9 HON. PARLEN L. McKENNA: You were speaking to

10 me.

11 ERIC SHINE: I was speaking like this -- your

12 Honor, like this (indicating). Would it be better that

13 we step outside so it's more clear that I'm speaking to

14 my attorney and not the court?

15 HON. PARLEN L. McKENNA: Yes, you may.

16 ERIC SHINE: Thank you.

17 (A two-minute recess was taken.)

18 HON. PARLEN L. McKENNA: Back on the record.

19 ERIC SHINE: I just -- I was speaking, and

20 counsel took over. I had -- you know, I was addressing

21 the court. Then all of a sudden, he started addressing

22 the court. You allowed him. And now my counsel is

23 speaking for me when I was address the court, and then

24 you cut me off, stifled me. Under LMRDA, that's not

25 supposed to occur in any court or tribunal.

160

1 HON. PARLEN L. McKENNA: That's a continuing

2 objection on your part, and that's fine.

3 ERIC SHINE: Now you're saying I cannot speak

4 again; and now, you direct back to counsel when I've

5 been raising issues trying to get them addressed and

6 resolved. And as we start moving on, you direct it all

7 back to counsel to stifle me so that it creates more

8 confusion so that I --

9 HON. PARLEN L. McKENNA: Maybe it creates

10 confusion in your mind, sir.

11 ERIC SHINE: No. And I object to anything the

12 court has as to the condition of my mind, because there

13 has been no proof or evidence, and I find it

14 prejudicial of the court to even make that comment,

15 that at some point before you get to the issue of

16 medical or mental incompetence, the Coast Guard is

17 supposed to show and prove -- they have the obligation

18 for an expedient trial to do a prima facie showing to

19 seize and hold my license, if it's a matter of safety;

20 then to have it passed over for litigation.

21 MR. FORGIE: And that -- the shortened version

22 of that and the answer to your question is that we do

23 not concede that his mental state is raised by the

24 charges alone, that indeed, the step is that they have

25 to prove the act of incompetence and -- first and

161

1 foremost. And then and only then, when and if they can

2 show that there's an act of incompetence --

3 HON. PARLEN L. McKENNA: It's mental

4 incompetence.

5 MR. FORGIE: That relates to his mental state.

6 ERIC SHINE: Either --

7 MR. FORGIE: They have to show that first

8 before that issue is raised sufficiently to then order

9 an exam. That's --

10 HON. PARLEN L. McKENNA: By what case law are

11 you citing for that proposition?

12 ERIC SHINE: There's tons of it. I mean, we

13 could give you -- I think it's even in some of the

14 motions. Matson is one. The commandant goes into and

15 even stepped in --

16 MR. FORGIE: The case law has been cited in

17 our various motions, I think, about three or four

18 times.

19 HON. PARLEN L. McKENNA: That's fine.

20 ERIC SHINE: There's very strong cases out

21 there to that effect. I don't --

22 HON. PARLEN L. McKENNA: All right.

23 MR. FORGIE: We don't have any other cases

24 outside that at the moment.

25 HON. PARLEN L. McKENNA: Okay. So we'll sum

162

1 this up.

2 I have put out -- I mean, it's clear in your

3 mind where I'm coming from as to my extant orders.

4 MR. FORGIE: Okay.

5 HON. PARLEN L. McKENNA: And that those

6 orders, I am agreeing that I would modify them if

7 Mr. Shine would agree to go to a provider that I chose.

8 But I am not going to rescind them for the sole purpose

9 of chasing my tail and having Mr. Shine ultimately say,

10 "Well, I'm not going to go."

11 So if I have a commitment from your client --

12 MR. FORGIE: To comply with the court order.

13 HON. PARLEN L. McKENNA: To comply with that

14 situation that I explained on the record, then I would

15 be agreeable to modifying my prior orders regarding the

16 psychological examination.

17 ERIC SHINE: Your Honor?

18 HON. PARLEN L. McKENNA: All right. So now,

19 you two may step outside. You may.

20 ERIC SHINE: Do I need to fire counsel so I

21 can address the court? I find it highly inappropriate

22 that you will not allow me to address these issues so I

23 can speak --

24 HON. PARLEN L. McKENNA: I told you,

25 ultimately, I will allow you ten minutes to state what

163

1 you want to state.

2 ERIC SHINE: Your Honor, I asked, and you

3 heard me. And I was speaking -- I got cut off. My

4 counsel injected himself on one topic specifically.

5 I'm asking to continue to address the issues that I

6 started to raise rather than cutting me off, because

7 there's other concerns that I have.

8 And I'm asking to be able to express them

9 myself clearly and succinctly as best as possible to

10 the court and not through a conduit when I'm here. I'm

11 here in court, and I am asking to be heard. Whether

12 it's, you know, my First Amendment or free speech or

13 whatever, 14th Amendment, due process, I don't know, I

14 mean, LMRDA, whatever you want to say, I'm -- and

15 you're telling me I can't be --

16 HON. PARLEN L. McKENNA: I'm telling you you

17 need to use your attorney, and then I will give you an

18 opportunity at the end of this session today to make

19 whatever comments you want to make.

20 ERIC SHINE: But it's a waste of the court's

21 time to not hear and address the issues and my

22 concerns, that first and foremost, the order should

23 never have been issued; because ultimately, the --

24 HON. PARLEN L. McKENNA: I ruled.

25 ERIC SHINE: Again, even to your ruling, your

164

1 Honor, there's outstanding motions that have --

2 HON. PARLEN L. McKENNA: They're going to be

3 addressed.

4 ERIC SHINE: Right. But an order should be --

5 HON. PARLEN L. McKENNA: When I am on leave

6 and you file numerous motions and then we have the

7 hearing start up, I have not had an opportunity to

8 review your motions fully and to rule on them in

9 writing, and I will do so shortly.

10 ERIC SHINE: Today?

11 HON. PARLEN L. McKENNA: No.

12 ERIC SHINE: Right. No; but I'm trying -- I'm

13 asking for clarity, your Honor. Why is it a problem

14 for me to ask a simple question and try to get answers,

15 as far as the issues of outstanding -- you're saying

16 these orders are outstanding, that I'm not complying.

17 We have objected to them. I'm not -- I'm here in

18 court. It's not like I'm blowing you off. It's not

19 like I'm not going to the doctor. We have legitimate

20 concerns, whether it is miscommunication between

21 counsel and the court or whatever, whatever the problem

22 was, who cares. I'm trying to straighten it out now on

23 the record, make it very clear what my position is so

24 that there is not further miscommunication.

25 HON. PARLEN L. McKENNA: All right. State

165

1 what your position is. Will you do what I ask you to

2 do within the parameters of what I stated?

3 ERIC SHINE: I'm asking the court to correct

4 the order, first and foremost, that Dr. Erlich is

5 conflicted. I should not be forced to stipulate to

6 your order saying that I will comply until a proper

7 order is issued. The issue with Dr. -- with the Navy

8 doctor -- I'm saying it's my position --

9 HON. PARLEN L. McKENNA: All right. It's your

10 position --

11 ERIC SHINE: And we have objected to it.

12 HON. PARLEN L. McKENNA: I've heard you on the

13 record --

14 ERIC SHINE: That Dr. Erlich is conflicted.

15 And you're saying that she's not.

16 HON. PARLEN L. McKENNA: You don't know if

17 she's conflicted or not.

18 ERIC SHINE: I'm telling you, from evidence

19 that came up yesterday, from the way that she was

20 found. It didn't come from you. She's not an

21 impartial doctor. She came from the Coast Guard. She

22 came from the Coast Guard, the opposition.

23 HON. PARLEN L. McKENNA: Your counsel did a

24 due diligence on her with --

25 ERIC SHINE: And I'm --

166

1 HON. PARLEN L. McKENNA: -- Lt. Hill and found

2 no problem with her.

3 ERIC SHINE: And I am saying as myself, the

4 respondent in these matters, that I have an issue with

5 it. I object to it. And I find that Dr. Erlich --

6 HON. PARLEN L. McKENNA: What is your specific

7 objection to Dr. Erlich that you feel that

8 there's conflict of interest with Dr. --

9 ERIC SHINE: Because you are supposed to

10 find -- it is supposed to be an impartial doctor. You

11 are supposed to find the individual, not the Coast

12 Guard, not the Coast Guard. That has been my objection

13 all along.

14 Even yesterday, he brought up -- he wasn't

15 even sure how this whole process occurred. It's

16 supposed to come from the court to ensure that it's

17 impartial. And it's my position, that until that order

18 is corrected, I shouldn't have to stipulate to the

19 order that I will comply, because that will be -- then

20 if I don't, then that, in and of itself, will be a

21 violation of law, rule or regulation or court order.

22 HON. PARLEN L. McKENNA: And it says any

23 examination ordered by the judge is conducted by a

24 physician designated by the ALJ.

25 ERIC SHINE: Exactly.

167

1 HON. PARLEN L. McKENNA: Both of the parties,

2 both of the parties --

3 ERIC SHINE: No, I did not --

4 HON. PARLEN L. McKENNA: -- found her to be

5 acceptable.

6 ERIC SHINE: I am telling you --

7 HON. PARLEN L. McKENNA: Now you're saying in

8 court, "I do not find her acceptable."

9 And I'm saying to you, sir, I'm giving you the

10 opportunity to transplant Dr. Erlich's name for another

11 name --

12 ERIC SHINE: That's not my job.

13 HON. PARLEN L. McKENNA: -- but I want an

14 agreement by you that you will go --

15 ERIC SHINE: You're forcing me --

16 HON. PARLEN L. McKENNA: -- and you will not

17 do that.

18 ERIC SHINE: No. That is not what I'm saying,

19 your Honor. You will not listen.

20 HON. PARLEN L. McKENNA: You're making me

21 chase my tail, and I won't do it.

22 ERIC SHINE: You will not listen to my

23 objections.

24 HON. PARLEN L. McKENNA: This discussion is

25 over.

168

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