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A panel of First District justices appeared to shy away from making a strong statement against the state prison’s poor health care system. Defense attorney Garry Preneta made a final push in oral arguments Thursday to keep convicted jewel thief George Turner from being transferred from the county jail to the state prison. Turner, who suffers from Crohn’s disease, was allowed to stay in the county jail after San Francisco Superior Court Judge Charles Haines issued an order in November postponing his transfer until the Department of Corrections could ensure he would receive adequate medical care in the state prison. The sheriff turned to the First District Court of Appeal in December to vacate the order. “There may be a broken system � I don’t know,” said Justice James Marchiano. “That’s not before us.” Marchiano stressed that the state is already mandated to provide medical care to inmates, and echoed many of the arguments the attorneys representing Sheriff Michael Hennessey and the attorney general made in their briefs. Allowing Turner to stay in jail would lead other convicts facing prison sentences to make the same argument, he said. Marchiano added it could even open the door to people asking the state prison system to assure them they wouldn’t be harmed by prison gangs. But Preneta said the issue before the court on Thursday was not whether Turner should go to prison, but whether Haines was allowed to make his order, particularly in light of U.S. District Judge Thelton Henderson’s 2005 class action ruling against the state that authorized a court-appointed receiver to take over the state Department of Corrections’ medical system. Henderson cited a report that documented the shoddy health care conditions in state prisons, including San Quentin, Turner’s potential future home. “The California Department of Corrections is messed up,” Preneta said. “And we all know that.” Preneta compared Haines’ order to U.S. District Judge Jeremy Fogel’s December ruling that placed a moratorium on California’s death penalty statute because it violated the Eight Amendment. But to Hennessey’s attorney, James Harrigan, the matter was simple: If the court grants the sheriff’s petition, it will simply be following state law, which mandates that the sheriff deliver a defendant to state prison once a sentence has been issued. A doctor’s testimony suggesting what could happen to Turner and what kind of medical care he could be deprived of in state prison are speculative, Harrigan said. “A judge can’t say, ‘That might happen,’” said Deputy Attorney General Gerald Engler. Associate Justice Douglas Swager, who also appeared skeptical of Preneta’s constitutional argument, asked whether Haines had ordered the California Department of Corrections to attend court hearings. Haines did not. Associate Justice Sandra Margulies did not question attorneys. Haines declined to comment Thursday. Court records, however, show Haines is sticking to his original position that Turner should stay in the county jail until the state can promise adequate medical care. “I hope the record is clear that we made exhaustive efforts to try to do this informally, and all with the best of intentions, which is not to pull the plug on this man’s medical care,” Haines said in a March 6 hearing, according to transcripts. “I believe that I have adequate factual ground to make the finding I did,” he continued. But even the state isn’t presenting a united front. In December, Engler submitted a letter on behalf of the state to the appellate court supporting the sheriff’s position objecting to Haines’ order. Then in March, Supervising Deputy Attorney General Anya Binsacca, representing the California Department of Corrections and Rehabilitation, submitted a letter to the appellate court saying the department did not take a position on the matter. When asked why the attorney general’s office had differing positions in a phone interview before arguments, Engler responded, “You’re asking the wrong person … We wear a lot of hats in this office.” The First District panel is expected to make a decision within 90 days.

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