IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



No. xx-3027

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UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



xxxxxxxxxxxxxxx, JR., Defendant-Appellant.



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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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BRIEF FOR APPELLANT



JURISDICTION



The district court had jurisdiction under 18 U.S.C. 3231. The notice of appeal having been timely filed under Fed. R. App. P. 4(b), this Court has jurisdiction under 28 U.S.C. 1291.

STATEMENT OF THE CASE

A. Nature of the Case, Course of Proceedings, and Disposition

in the Court Below.

Appellant, xxxxxxxxxxx, Jr., is named in a six-count indictment returned on October 9, 1998. He is charged with the murders of two Capitol Police officers, the attempted murder of a third officer, and three gun offenses. App1:1. (1) The events underlying the indictment took place on July 24, 1998, in the Capitol.

At the parties' request, the district court appointed Dr. Sally Johnson, pursuant to 18 U.S.C. 4241(b), to evaluate xxxxxx's competency to stand trial. App1:5. Johnson is a psychiatrist and the Associate Warden for Health Services at the Federal Correctional Institution in Butner, North Carolina ("FCI-Butner"), which is a Federal Bureau of Prisons ("BOP") facility. App3:20;7/24/00AM:74-75. On November 13, 1998, Johnson concluded that xxxxxx was not competent to stand trial. App1:29-31. On April 22, 1999, the district court declared xxxxxx incompetent to stand trial. App1:45-46. Pursuant to 18 U.S.C. 4241(d), xxxxxx was committed to the custody of the Attorney General, and sent to FCI-Butner, for hospitalization and treatment to determine whether "there is a substantial probability in the foreseeable future that [xxxxxx] will attain the capacity to permit the trial to proceed." App1:46. The order provided that the BOP may not force-medicate xxxxxx without a court order. App1:47.

xxxxxx refuses to take antipsychotic medication voluntarily. On May 13, 1999, the BOP held an administrative hearing and determined that xxxxxx should be force-medicated. App1:50. On May 28, 1999, the district court held a hearing at which Johnson testified. On June 18, 1999, the district court remanded the case to the BOP. 55 F.Supp.2d 23 (D.D.C. 1999). The BOP held a second hearing on July 8, 1999, and again decided to force-medicate xxxxxx. App2:26. The district court held another hearing on August 20, 1999, at which Johnson testified.

On September 9, 1999, the district court ruled that the BOP could force-medicate xxxxxx on the ground that he was dangerous to himself and others. 69 F.Supp.2d 99 (D.D.C. 1999). The district court concluded that the question of the potential impact of forced medication on xxxxxx's fair trial rights was unripe, and did not reach the question whether the government may forcibly medicate xxxxxx to make him competent for trial. 69 F.Supp.2d at 119.

xxxxxx appealed the district court's order and this Court reversed and remanded on March 24, 2000. See xxxxxx I, 206 F.3d at 14; App5:1. As to the dangerousness rationale, which this Court termed the "medical/safety justification," 206 F.3d at 12, this Court ruled that the record did not support the district court's determination:

[W]hat evidence there is indicates that in his current circumstances xxxxxx poses no significant danger to himself or to others. . . . If the government advances the medical/safety justification on remand, it will need to present additional evidence showing that either xxxxxx's condition or his confinement situation has changed since the hearing so as to render him dangerous.

206 F.3d at 13 (emphasis added). As to the district court's conclusion concerning ripeness, this Court disagreed, stating:

Involuntary antipsychotic medication has the potential to adversely affect the defendant's ability to obtain a fair trial as guaranteed under the Sixth Amendment. . . . [B]oth the defendant, whose right to present a defense may be infringed by involuntary medication, and the government, whose eventual prosecution of the defendant may be foreclosed because of the infringement, are entitled to pre-medication resolution of the Sixth Amendment issue.

Id. at 14 (emphasis added).

This Court reversed and remanded for the district court to assess both the medical/safety and trial competency rationales and toconsider the potential impact of compelled medication on xxxxxx's Sixth Amendment fair trial right. [FN 3: The court should also consider whether there is any merit to xxxxxx's contention that medical ethics preclude ordering a patient medicated in a potential capital case.] Because the trial competency and Sixth Amendment issues are legal rather than medical or penological issues, on remand the district court should retain jurisdiction to decide them itself.

206 F.3d at 14 (citation omitted). Each judge on the panel filed a separate concurring opinion.

On remand, the government again asserted that xxxxxx should be medicated to achieve trial competency and make him non-dangerous. App4:17-18;9/6/00:17-18. The district court held a hearing on July 24-27, 2000. Fact witnesses included Penny Royall, the chief physical therapist at FCI-Butner; Philip Wise, the BOP's Assistant Director for Health Services; Dr. Edward Landis, a psychologist at FCI-Butner; and Johnson. Op. 3, 6, 30, 38. (2) The government's expert witnesses included Landis, Johnson, Dr. Debra DePrato, and Dr. Howard Zonana. Op. 6. M. Gregg Bloche, M.D., J.D., testified as an expert witness in the field of medical ethics on behalf of xxxxxx. Op. 7. On August 23, 2000, the district court named David Daniel, M.D., as a court-appointed expert. Op. 9. Daniel produced a report dated November 6, 2000, Op. 9, and testified at a further hearing held on November 15, 2000. App4:124.

On March 6, 2001, the district court issued an order again authorizing the BOP to force-medicate xxxxxx. Op. 1. The district court ruled that "antipsychotic medication is essential to prevent xxxxxx from harming others and restore his competency and to bring him to trial." Op. 56. The district court found the evidence did not support a finding that xxxxxx is a danger to himself. Op. 29, n. 17.

xxxxxx appealed and filed an unopposed motion to stay the district court's order. The parties requested expedited briefing and oral argument. On March 16, 2001, the Court granted the stay and the request to expedite. Subsequently, the Court set oral argument for May 16, 2001. (3)

B. Statement Of Facts.

1. The Guardian Ad Litem Issue.

On April 12, 1999, counsel for xxxxxx asked the district court to determine whether xxxxxx was competent to make medical decisions, and if he was not, to appoint a guardian ad litem to represent xxxxxx's interests independent of the defense of the criminal case. App2:297. At the May, 1999 hearing, Johnson testified that xxxxxx was competent to make medical decisions. App1:107,157;5/28/99:43,93, App3:95;7/25/00AM:11-12. Johnson informed xxxxxx in May, 1999 that his mental health condition could deteriorate if he did not take antipsychotic medication, and xxxxxx was aware that his condition could deteriorate without medication. App3:95,105;7/25/00AM:11-12,52. The district court ruled that no guardian was necessary. 69 F.Supp.2d at 112.

At some point, xxxxxx became incompetent to make medical decisions. App3:60;7/24/00PM:58. Counsel asked that a guardian be appointed. App5:87. The government opposed the motion, arguing that xxxxxx's refusal to take antipsychotic medications, made while deemed competent to make such a decision, should be presumed to remain in effect, and that no authority existed to appoint a guardian. App5:88; App3:157-58,7/25/00PM:90-91. The district court declined to appoint a guardian "substantially for the reasons stated by the government." App3:2;7/24/00AM:2-3; Op. 8, n.7.

2. xxxxxx's Condition.

xxxxxx is a paranoid schizophrenic. Antipsychotic medication is likely the only treatment intervention that may address his symptoms and lessen his delusions, App3:22-23;7/24/00AM:85-86, App3:138;7/25/00PM:10-11, although Daniel acknowledged that 25% of patients in a study had diminished symptoms after being treated with a placebo. App4:219;11/15/00:97. xxxxxx's delusions are the root cause of any dangerousness he presents. App3:140;7/25/00PM:17-18, App3:101;7/25/00AM:37. Since October, 1998, when Johnson first saw xxxxxx, he has become more withdrawn and guarded, and his delusional belief system has expanded to incorporate more people, including Johnson and his lawyers. App3:22-23;7/24/00AM:85-86. Daniel stated that "the effects of [xxxxxx's] illness have progressed to the point where the patient appears preoccupied and dominated by his delusional system[.]" App4:134-35;11/15/00:11-12.

Zonana testified that xxxxxx's level of dangerousness has been virtually the same since May, 1999, because xxxxxx was already extremely delusional when he arrived at FCI-Butner. App3:189;7/26/00AM:21. (4) Daniel testified that "I can't say that the degree of his danger now is greater than when . . . the Appeals Court made its opinion." App.4:273;11/15/00:151. The district court recognized xxxxxx's expanded delusions in its earlier opinion. 69 F.Supp.2d at 109.

The government presented no evidence to show that xxxxxx has harmed or threatened to harm anyone since his arrest. xxxxxx has evidenced no behavioral difficulties in the various facilities where he has been held and there is no suggestion that he has made any verbal threats or threatening gestures since his arrest. App3:59;7/24/00PM:55-56, App3:144;7/25/00PM:33-34. For more than nine months before xxxxxx's commitment to FCI-Butner, none of the three institutions where he was held made any effort to medicate him as dangerous. xxxxxx has not presented any situation requiring emergency treatment with antipsychotic drugs. App3:62-63;7/24/00PM:68-69.

The nursing staff at FCI-Butner sees xxxxxx every shift. App3:109;7/25/00AM:69. xxxxxx cooperates in matters of hygiene, eats regularly, and has frequent contact with staff while going outside for recreation. App3:94,109-110;7/25/00AM:9,69-70. In the months before the July, 2000 hearing, xxxxxx was getting a "good bit more exercise[.]" App3:115,7/25/00AM:92, App3:7;7/24/00AM:23.

Royall was assigned to work with xxxxxx in May, 1999. App3:3;7/24/00AM:9. xxxxxx requires physical therapy due to injuries sustained from gunshot wounds that he received at the Capitol. Although xxxxxx was initially engaged in his therapy, he began to withdraw verbally at the end of August, 1999, and beginning in October, 1999, he told Royall that she could no longer touch him, stating words to the effect that he is "commander of all the armies of the world." App3:4,6;7/24/00AM:12-13,19. Psychiatric patients at FCI-Butner frequently make similar comments. App3:6;7/24/00AM:20. Royall testified that xxxxxx sometimes makes eye contact with her that she perceives as hostile. App3:5;7/24/00:15. Royall testified that she was frightened by the way xxxxxx looked at her, not by what he stated, but that her perception of xxxxxx as a threat was in part based upon what she knew about his background. App3:6,10-11;7/24/00AM:20, 37-38. xxxxxx has never verbally threatened Royall or made any hostile gestures toward her. App3:6,10-11;7/24/00AM:20,34. Royall testified that "Mr. xxxxxx is more of a danger to himself, or at least as much a danger to himself, by not cooperating with medical treatment than he is to us[.]" App3:10;7/24/00AM:34-35. While xxxxxx told Royall in October 1999 not to touch him, she did so in March, 2000, when an opportunity arose to assist him with therapy. App3:9,13-14;7/24/00AM:31,47-51. At that time, xxxxxx let her touch him without objection and cooperated fully. App3:13;7/24/00AM:47.

In April, 2000, Landis and xxxxxx had an encounter outside of xxxxxx's seclusion room lasting 20-30 seconds. xxxxxx asserted that Landis was the terror of Oklahoma, murdered his wife, and raped his children. App3:111;7/25/00AM:75. xxxxxx continued to make those statements, oriented his walker in Landis' direction, and progressed toward Landis. App3:111;7/25/00AM:75. xxxxxx claimed to be a military commander, stated that he knew Landis had a criminal background, and demanded that Landis surrender to authorities. App3:111;7/25/00AM:75-76. Landis testified that he was not particularly worried he would be hurt because staff was all around. App3:111;7/25/00AM:76. Landis told xxxxxx that Landis would be available if authorities needed to arrest him, and xxxxxx went into his room. App3:111;7/25/00AM:76. At no point has xxxxxx threatened, touched, or even reached out toward Landis. App3:114-15;7/25/00AM:88-90. (5)

Landis also described an episode that occurred in December 1999, which he did not witness, where xxxxxx recoiled from an art therapist, told her that he had won the Congressional Medal of Honor, and stated that she was not to come within ten feet of him. App3:112-14;7/25/00AM:78,84-88. At no point did xxxxxx touch the art therapist or threaten her verbally or physically. App3:114;7/25/00AM:87-88.

xxxxxx's entire medical and inmate central files were introduced into evidence. App3:58-59;7/24/00PM:52-53. They cover the period from xxxxxx's arrival at FCI-Butner until shortly before the July, 2000 hearing. The medical file includes progress notes, nursing notes, and 24-hour seclusion records. The progress and nursing notes state without exception that xxxxxx is in no apparent or acute distress and that no change in his behavior has been observed. App3:113;7/25/00AM:82-84. The seclusion notes show that xxxxxx has been calm, silent, or sleeping during his entire time at FCI-Butner, and that he has never verbalized or evidenced any suicidal or homicidal ideation. App3:59-60;7/24/00PM:53-57, App3:115;7/25/00AM:91. Johnson testified that for several months preceding the July, 2000 hearing -- which post-dates the incidents described by Landis and Royall -- xxxxxx had "once again increased his cooperation with staff after a period of being pretty regressed." App3:65;7/24/00PM:77.

From July, 2000, until after Daniel testified on November 15, 2000, xxxxxx was housed at the Correctional Treatment Facility ("CTF") in D.C. There is no evidence of any incident or threat during that period. App4:252-54;11/15/00:130-32. Daniel visited xxxxxx three times at CTF. App4:254;11/15/00:132. During those visits, Daniel was alone in a locked room with xxxxxx, xxxxxx made no verbal threats or threatening movements, and Daniel did not feel threatened. App4:254;11/15/00:132. After the November, 2000 hearing, xxxxxx was returned to FCI-Butner. App5:92.

3. xxxxxx's Confinement Situation.

xxxxxx was placed in seclusion upon his arrival at FCI-Butner in May, 1999, and his confinement situation has not changed. App3:60;7/24/00PM:60; App4:44;9/6/00:44. He is in a room alone, with nothing in it that he could potentially use to harm himself or others. App3:138;7/25/00PM:12. Officers are stationed at xxxxxx's door 24 hours a day and note their observations every fifteen minutes. App3:109;7/25/00AM:68. The BOP decided that xxxxxx would "remain in seclusion for administrative reasons" for the entire commitment period. App3:314-15. Johnson testified that "the administrative decision had been made because of him being a high publicity case," and that she "would not remove him from seclusion." App3:161;7/24/00PM:63-64, App3:101;7/25/00AM:37. (6)

Johnson and DePrato testified that xxxxxx's seclusion status prevents him from being dangerous and makes it impossible for him to hurt himself or someone else. App3:101;7/25/00AM:36-37, App3:139-40;7/25/00PM:16-17. xxxxxx would be stopped if he attempted to hurt anyone because he is being watched constantly. App3:139-40;7/25/00PM:16-17. Similarly, Daniel testified that seclusion controls any danger that xxxxxx might otherwise present, and that xxxxxx may be "cared for in a way that will avoid harm to others in seclusion. . . . [xxxxxx] can be protected from physically harming himself or others in seclusion." App4:160,163,272-73;11/15/00:37, 40, 150-55. Daniel also testified that he could not "say that [xxxxxx's] confinement circumstances have changed" since the decision in xxxxxx I. App4:273;11/15/00:151.

4. Administrative Costs of Seclusion.

Before xxxxxx I, the government did not argue that seclusion is inappropriate because of administrative costs. In her concurring opinion in xxxxxx I, Judge Henderson discussed a potential "drain on institutional resources" posed by seclusion. See 206 F.3d at 15 n.*. The government raised this issue for the first time at the July, 2000 hearing. Wise testified that the Bureau of Prisons has 940 "mental health beds" of which 136 are "seclusion beds." App3:17;7/24/00AM:63. Pretrial detainees committed under 18 U.S.C. 4241(d) occupy 120 of the 940 mental health beds. App3:17;7/24/00AM:64. The BOP does not keep track of how many of the 120 detainees occupy seclusion beds. App3:19;7/24/00AM:72. Neither the mental health beds nor the seclusion beds are fully occupied. App3:19;7/24/00AM:72-73. The BOP does not differentiate between pretrial detainees and convicted inmates for purposes of allocating mental health and seclusion beds. App3:19;7/24/00AM:72. The government presented no evidence of the number of pretrial detainees or convicted inmates who have been deemed dangerous, refuse to take medication, and require seclusion. There is also no evidence of the actual costs incurred by the BOP to seclude xxxxxx or any other detainee or inmate.

5. The Efficacy of Forced Medication.

As a general rule, the longer a person suffers from paranoid schizophrenia without medication, the less likely it is that medication will successfully treat his or her delusions. Zonana, App3:195-96;7/26/00AM:45-46; Johnson, App3:48;7/24/00PM:11; Daniel, App4:280;11/15/00:158. Johnson testified that approximately 20-25% of all schizophrenic patients do not respond well to typical antipsychotic medications. App3:72;7/24/00PM:108. An authoritative treatise puts the figure at 20-40%. App3:68,72-73;7/24/00PM:91,108-109. Dr. Raquel Gur, a defense expert and Director of Neuropsychiatry at the University of Pennsylvania, opined "within a reasonable degree of medical certainty" that "antipsychotic medication will not restore Mr. xxxxxx's competency." App.2:24-25. Gur also opined that it is "extremely unlikely that medication will eliminate or substantially attenuate [xxxxxx's] delusions." App2:24-25.

In a key respect, Daniel's testimony conflicted with Johnson's 1999 testimony, which was also partially inconsistent with her own post-remand testimony. Daniel testified that while there may be substantial improvement in xxxxxx's condition as a result of medication, his ultimate endpoint of success may be lower, and xxxxxx's prolonged period of nontreatment diminishes his ultimate level of improvement. App4:259,279;11/15/00:137, 157. Johnson testified that "patients who have had very little treatment over the years often have a higher likelihood of response than people who have been chronically treated and just continue their medicine." App2:149;8/20/99:56. Johnson further testified in 1999 that because xxxxxx has had very little exposure to treatment, there was a good likelihood that he would have a positive response. App2:149;8/20/99:56. Johnson disagreed in 1999 with the proposition that the chances of successful treatment with medication decrease the longer the condition has gone untreated. App1:131;5/28/99:67.

xxxxxx was administered antipsychotic medications at Warm Springs, Montana, in October, 1996. DePrato agreed that xxxxxx's delusions upon release could have been just as present as they were when he was admitted. App3:144;7/25/00PM:35-36. Johnson testified that the "records are not real clear[,]" that the extent of xxxxxx's delusions upon release from Warm Springs is "unclear from the record[,]" and that it was unclear to her whether he was "fully treated, but he certainly demonstrated sufficient improvement[.]" App3:47,51-52;7/24/00PM:5,24, App3:95;7/25/00AM:13, App3:288,299;7/27/00AM:75-76,120-21. Daniel testified that xxxxxx's delusions were still present when he left. App4:182;11/15/00:59.

There is also the possibility that xxxxxx's symptoms would permanently remit if medication is given and then stopped. App2:102-03;8/20/99:9-10. Johnson testified that this is a "very gray area." App2:103;8/20/99:10. Johnson also acknowledged that an authoritative text cites controlled studies showing that a large percentage of persons who are administered antipsychotic medications do not relapse into a psychotic state once the administration of drugs is ceased. App3:72;7/24/00PM:105.

6. Side Effects of Antipsychotic Medication.

Paranoid schizophrenics manifest both positive symptoms (e.g. delusions) and negative symptoms (e.g. blunted affect). App3:46;7/24/00PM:2. There are two general types of antipsychotic medications used to treat schizophrenia. "Typical" antipsychotics, such as Haldol, are an older generation of drugs. App3:28;7/24/00AM:108. "Atypical" antipsychotics, such as Risperdal, are a newer generation of drugs. App3:28;7/24/00AM:108. Currently, atypical antipsychotic medications are not available in injectable form, which is how medication would be forcibly given to xxxxxx, because Johnson would not administer an oral agent without consent. App3:61-62;7/24/00PM:64-66. Johnson would start with Haldol, an injectable typical, with which side effects, and tardive dyskinesia in particular, are closely associated. App3:61-62,68-69;7/24/00PM:64-65, 92-94.

Side effects occur with both typicals and atypicals; risks exist with all antipsychotics; and whatever drugs may be used to address side effects, even with the atypicals, one cannot know whether they will be successful in controlling the side effects. Zonana, App3:197:7/26/00AM:50-51; Johnson, App3:72;7/24/00PM:107 ("There is no way to know what side effects he'll suffer from, but there are ways to minimize the likelihood he'll suffer from them and to minimize the effect of any he does suffer from"); App3:244;7/26/00PM:95-96, App3:47;7/24/00PM:5. Johnson testified that typical antipsychotics are "more focused on positive symptom remission." App3:46,71;7/24/00PM:2, 103.

It is not possible to predict what side effects might occur in xxxxxx's case. App3:47;7/24/00PM:5. Johnson did not rule out the possibility of irreversible side effects. App3:47;7/24/00PM:7. Daniel made it clear that side effects cannot always be treated. App4:247;11/15/00:125. He stated that injectable typicals involve more risks than orally-administered typicals, and that typicals have more risks of side effects than atypicals. App4:281-82;11/15/00:159-60.

Akathesia, which is an inability to sit still, is a side effect associated with all antipsychotic medications. App3:47;7/24/00PM:6-7. While Johnson testified that it is a "generally manageable side effect[,]" she did not state that it does not remain a significant problem in terms of trial prejudice, only that in her experience "it's not something that you can't manage it so that it is so severe to the degree that it really significantly impairs the person's ability to function." App3:47;7/24/00PM:6-7. xxxxxx apparently suffered from akathesia when he received antipsychotic medications in Warm Springs. App3:47;7/24/00PM:5.

Dystonic reactions, a stiffening of the muscles, are another type of side effect. App3:28;7/24/00AM:109. xxxxxx apparently suffered from dystonic reactions in Warm Springs. App3:47;7/24/00PM:5. In rare cases, sudden death results from acute dystonic reactions. App3:70;7/24/00PM:97. Parkinsonian side effects are generally associated with the typical antipsychotics and cause a person to be "slow, shuffly, not a lot of facial expression, maybe some drooling . . . . [A] fine kind of tremor of the hands is often seen." App3:28;7/24/00AM:109. Johnson testified that "there should be no expectation that the person would either be inordinately stiff or present a Parkinsonian appearance, because those side effects can be managed." App3:29;7/24/00AM:110.

Tardive dyskinesia is a movement disorder, originally associated with typical antipsychotics, that involves repetitive tic-like movements, spasms, blinking, and similar uncontrollable movements. App3:26,29;7/24/00AM:101,110-112. It is a serious problem that develops in a relatively high percentage of patients, and even where early intervention is achieved, Johnson stated only that it is "unlikely that the individual is going to go on to have this kind of problem," and she conceded that intervention is not possible in every case before the problem becomes permanent. App3:26-29;7/24/00AM:101-102,110-111. Tardive dyskinesia does not appear to be as significant a problem with atypical antipsychotics but there is a more limited understanding of atypical antipsychotics because their track record is shorter than that of the typicals. App3:46;7/24/00PM:3. Perioral tremor (commonly known as "rabbit syndrome" because of mouth movements associated with it) is another side effect. App3:70;7/24/00PM:100.

Neuroleptic malignant syndrome ("NMS") is another serious side effect, which resembles a severe form of Parkinsonism with catatonia, and it develops as an idiosyncratic response in some patients. App3:29;7/24/00AM:111. There is no certainty that NMS will not develop in a patient receiving antipsychotics. Ten percent of persons who develop NMS die without immediate medical attention. App3:70;7/24/00PM:99. Agranulocytosis is a severe side effect, associated with the atypical drug clozapine, with a "very low" risk of death that Johnson could not rule out. App3:46;7/24/00PM:4.

If xxxxxx is made competent to stand trial by antipsychotic medication, his demeanor would be affected. He would appear in a different state than at the time of the charged conduct. App3:58;7/24/00PM:49-50. Also, his affect would likely become more appropriate. App3:200;7/26/00AM:62-63, App3:93,98;7/25/00AM:4,23-24. Generally, xxxxxx's affect has been relatively blunted and he does not register responses, App3:23-24;7/24/00AM:89-90, as evidenced at the July, 2000 hearing. App3:98;7/25/00AM:23.

Antipsychotic medications may also affect cognitive functions and memory. If xxxxxx were to testify in his current state, he "might stand up and describe his delusional beliefs, but not in response to any particular question or issue." App3:98;7/25/00AM:25. Successful treatment with antipsychotic medication would probably result in a decrease in his delusional thinking and increase his attention and ability to concentrate. App3:98;7/25/00AM:24. xxxxxx's memory might be adversely affected by antipsychotic medication. App3:58;7/24/00PM:50-51, App3:93;7/25/00AM:4-5. Successful treatment with antipsychotics might cause xxxxxx to filter out events that could be too disturbing for him to cope with. App3:46-47;7/25/00AM:4-5. Successful treatment also might result in xxxxxx recounting events of his past as one would recount a dream. App3:46-47;7/25/00AM:4-5.

7. Problems Inherent in the Development of Antipsychotic Medications.

The state of medical knowledge of atypical antipsychotic drugs and their side effects is still developing. App3:46,71;7/24/00PM:3,103-04, App3:244;7/26/00PM:95-96. In 1990, the first atypical, clozapine, was approved for use in the United States, and Johnson first used that drug in 1990. App3:244;7/26/00PM:95. Two authoritative texts, published in 1995 and 1996, contain very limited discussion of atypicals. App3:68;7/24/00PM:91, App3:197;7/26/00AM:51. The statements in these texts show that the proposition that certain agents are specifically effective against negative symptoms in psychotic disorders is controversial and rather speculative. App3:71;7/24/00PM:103.

The medical profession learns about side effects over a long period of time. App3:198;7/26/00AM:56. It took many years for the psychiatric profession to learn of the side effects associated with typical antipsychotic drugs. For example, Haldol was first introduced in 1958, see Goodman & Gilman's The Pharmocological Basis of Therapeutics (9th Ed.) at 400, but the first articles in the medical literature about tardive dyskinesia appeared in 1968. App3:197;7/26/00AM:52-53. Such typical antipsychotics were used for many years, resulting in the development of tardive dyskinesia in many patients, when physicians "didn't know that that would happen with unmonitored high dose use over an extended period of time." App3:29;7/24/00AM:111.

From a broader perspective, antipsychotic drugs are a new kind of medical technology. App3:230;7/26/00PM:37. Historically, emerging medical technologies come onto the market accompanied by promising reports, and they become more commonplace in clinical practice. Typically, it is realized only much later that the technology is not as effective as originally hoped and may have side effects that were not originally appreciated. App3:230;7/26/00PM:37-39. From a clinical perspective, one of the driving forces behind these patterns is that hopeful doctors and patients are inclined to forge ahead with new technologies and drugs without fully appreciating the extent of their side effects. App3:223,230-31;7/26/00PM:12,40-42.

8. The Medical Ethics Issues.

Both the government's medical ethics expert, Zonana, and xxxxxx's medical ethics expert, Bloche, agreed that a treating psychiatrist's ethical duties to a patient who is a pretrial detainee are identical to the ethical duties that a treating psychiatrist has to a patient in the open society. App3:165;7/25/00PM:120, App3:222-24;7/26/00AM:5-13, App3:228,234;7/26/00PM:29-30, 53. Johnson disagreed. She stated that if xxxxxx was being treated by her as a voluntary patient on an outpatient basis, and if he was competent to make medical treatment decisions, she would honor his refusal to take medication. App3:96-97;7/25/00AM:17-18. But she testified that xxxxxx's status as an involuntarily committed person "impact[s] on the doctor-patient relationship[,]" that her duty does not run solely to xxxxxx because he is committed by court order, and that she is not bound to follow a valid refusal of treatment by xxxxxx because the "Court committed him to me for treatment." App3:65-66;7/24/00PM:80-82. Johnson testified that the "principal reason" for medicating xxxxxx is "restoration of competency to stand trial." App2:112;8/20/99:19, App3;65;7/24/00PM:80. The government contradicted Johnson by stating that BOP physicians "are doctors. They don't answer to the BOP. The[y] don't answer to this Court. These doctors answer to the patients." App3:287;7/27/00AM:72.

As a matter of medical ethics, the question whether the administration of antipsychotic medication is medically appropriate is different from the question whether treatment is therapeutically appropriate. App3:235-36;7/26/00PM:60-62. The physician's duty to work only for the patient's well-being involves more than the question of whether treatment is biologically effective. 7/26/00PM:62. As Zonana testified, a pretrial detainee's treating psychiatrist, in determining whether an intervention is medically appropriate, is required to take into account factors separate from whether the intervention is therapeutically appropriate. App3:160,163;7/25/00PM:98-99, 109. The context in which the forced medication issue arises and the state purpose are relevant considerations for the physician to decide whether it is ethical to force-medicate. App3:160;7/25/00PM:98. A physician faced with participating in the forced administration of antipsychotic medication for the purpose of making a detainee competent to stand trial must consider, as a matter of medical ethics, alternatives that the government could pursue, such as foregoing prosecution and seeking civil commitment. App3:160;7/25/00PM:98-100.

Consent, and especially informed consent, is one of the core values of the ethical practice of medicine. Zonana, App3:186-87,200;7/26/00AM:7-11,63-64 (stating with respect to side effects, and the risk/benefit analysis relating to side effects, that "people can weigh those things, and people are . . . willing to live with certain consequences"). Without informed consent, a treating physician wants to have either a valid advance written directive or legally sanctioned substituted judgment. App3:186-87;7/26/00AM:7-11. Daniel testified that "[i]f the patient is considered competent to make [medical treatment decisions], and the patient exerts informed consent and decides not to take a medication, that is a decision to be respected." App4:155-57;11/15/00:32-34.

Ethical norms governing physician participation in the forced medication of pretrial detainees derive from the Hippocratic Oath, which states in part that "Into each house I come I will enter only for the good of my patients." App3:228;7/26/00PM:29-30. Prevailing ethical norms governing the medical care of detainees are set forth in the 1982 United Nations Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. App3:316-17; App3:33;7/26/00PM:33. Those Principles state in part that "[i]t is a contravention of medical ethics for health personnel, particularly physicians, to be involved in any professional relationships with prisoners or detainees the purpose of which is not solely to evaluate, protect, or improve their physical and mental health." App3:316-17. Guidelines promulgated by the American Medical Association and its Council on Ethical and Judicial Affairs neither prohibit nor sanction the participation of physicians in the forced medication of pretrial detainees. App3:318-31; App3:154;7/25/00PM:74-75.

There is no dispute that a physician violates principles of medical ethics by force-medicating an incompetent death row inmate solely for the purpose of making the inmate competent for execution. App3:150,7/25/00PM:60. Bloche opined that where the sole purpose of forcibly medicating a pretrial detainee, regardless of the potential punishment, is to make the detainee competent to stand trial, it is contrary to principles of medical ethics for a physician to participate in the forced medication. App3:227-28,235;7/26/00PM:28-29, 57-59. Zonana declined to give an opinion either way on this issue. App3:158-60;7/25/00PM:92-98. (7) But Zonana also testified that it is unethical for a treating psychiatrist to act solely as an agent of the government. App3:159;7/25/00PM:93.

There is a separate question in a potential capital case concerning whether a treating psychiatrist ethically may force-medicate a pretrial detainee. While Bloche testified that the link between capital punishment and forced treatment, at the pretrial stage, is too attenuated to give rise to a medical ethics problem in this regard, App3:234;7/26/00PM:55-56, Zonana testified that if a physician's participation in the forced medication of a pretrial detainee initiates a chain of circumstances or "ongoing nexus" resulting in the person's continued competence to the point of execution, then such participation in the pretrial context is ethically prohibited. App3:151-52;7/25/00PM:64-65.

Zonana testified that a psychiatrist treating a pretrial detainee is required to assume that the most negative consequence, from the patient's perspective, will occur in light of the uncertain outcomes (including uncertain legal outcomes) that arise after antipsychotic medication has been administered. App3:161,163;7/25/00PM:104,109. A treating physician must assume that antipsychotic medication will make the detainee competent to stand trial, and that the detainee will be required to stay on medication at trial. App3:163;7/25/00PM:110-111. Zonana also testified that if medication is given and then withdrawn, there is no way of knowing in advance whether regression will occur. App3:153,165;7/25/00PM:69,118-20.

9. Johnson's Role as Forensic Evaluator and Treating Psychiatrist.

As an ethical matter, a psychiatrist cannot properly assume the role of forensic evaluator and treating physician for a pretrial detainee absent unusual circumstances. App3:152-53;7/25/00PM:67-68, App3:185;7/26/00AM:4-5, App3:146;7/25/00PM:43-44, App3:228;7/26/00PM:30-31. A forensic psychiatrist is governed by ethical rules that are substantially different, vis-a-vis the patient, from those governing a treating psychiatrist. App3:185,187;7/26/00AM:5,11. A forensic psychiatrist does not have a patient relationship with a defendant, but rather has an obligation to provide an objective opinion to the retaining attorney or the court, regardless of whether that opinion may be harmful to the defendant. App3:187;7/26/00AM:13. The assumption of dual roles by one physician creates a substantial risk that the doctor-patient relationship will be destroyed. App3:150,152;7/25/00PM:58,67-68, App3:185-88;7/26/00AM:5-6,14, App3:238;7/26/00PM:71-72, App3:205;7/26/00AM:83-84, App3:228;7/26/00PM:30-31. One problem is that the defendant may shut down and withdraw from treatment as a result of hearing the treating psychiatrist testify in open court about the forensic evaluation. App3:188;7/26/00AM:14.

Johnson was appointed by the Court to conduct a forensic evaluation of xxxxxx, and she became xxxxxx's treating physician at FCI-Butner because she determined that xxxxxx was already her case. App3:95;7/25/00AM:10-11. Johnson continued to be xxxxxx's forensic evaluator and his treating physician. App3:22; 7/24/00AM:85, App3:95;7/25/00AM:10-11, App3:240;7/26/00PM:79. Although she is his treating physician and has established a doctor-patient relationship with him, she testified that "I haven't started treating him[.]" App3:245;7/26/00PM:97-98.

It is possible that xxxxxx shut down and withdrew after listening to testimony by Johnson about things she did while she was conducting a forensic evaluation of him. App3:188;7/26/00AM:14-15, App3:96;7/25/00AM:14. There is no way to know whether xxxxxx's increasingly withdrawn behavior is a function of Johnson's role conflict or is due independently to his mental illness. App3:189-90;7/26/00AM:20-22. It is also possible that xxxxxx's relationship with his attorneys has deteriorated because of the role conflict. App3:189-90;7/26/00AM:20-22. (8)

10. Evidence Concerning Substitutes for an Unmedicated

Defendant at Trial Asserting an Insanity Defense.



In his concurring opinion in xxxxxx I, Judge Tatel directed the district court to determine whether xxxxxx's testimony is "the only way for him to present an effective insanity defense." 206 F.3d at 21-22. The district court directed the parties to provide all evidence, including lay and expert testimony, that the parties intended to introduce at the hearing on that question. App5:88. Counsel for xxxxxx responded by stating that they did not intend to introduce evidence and that the government bears the burden of proof on the issue. The government ignored the district court's order. For reasons primarily stated to the district court ex parte and under seal, defense counsel again declined at the hearing to present evidence on the issue. App3:246-49;7/26/00PM:102-13, App3:270-75;7/27/00AM:2-22.

At the July, 2000 hearing, the government stated that it would not be presenting any evidence on the issue because "we've never been able to examine the defendant." App3:300;7/27/00AM:123. At the hearing, Johnson testified that she had not formed an opinion on responsibility. App3:22;7/24/00AM:84. She stated that she could have called the defense experts to ask them their views on the insanity defense but that she "hadn't pursued that avenue." App3:104;7/25/00AM:46. She also stated that she had not spoken with fact witnesses concerning events surrounding the shootings or reviewed any of the government's evidence from the day of the events. App3:100;7/25/00AM:32. The government did not ask any of its three experts in forensic psychiatry whether it would be possible to present an effective insanity defense by combining psychiatric testimony with videotapes.

11. The District Court's March 6, 2001 Opinion.

The district court ruled that forced medication of xxxxxx is medically appropriate, and that the BOP may forcibly medicate xxxxxx both to render him non-dangerous to others and to attempt to make him competent to stand trial. Op. 13-23. The district court declined to rule that xxxxxx presents a danger to himself. Op. 29, n.17. Stating that a psychiatrist may treat a defendant solely for the purpose of trial competency, and separately ruling that the link between pretrial forced medication and the death penalty is too attenuated, the district court held that there are no ethical barriers to forced medication. Op. 23-27.

The district court determined "by at least clear and convincing evidence" that both of the government's asserted justifications for forcibly medicating xxxxxx are compelling and override xxxxxx's interests in avoiding forced medication. Op. 9-10, 28, 56. The district court ruled that, for the purpose of ensuring institutional security, seclusion and sedation are not less restrictive alternatives to forced medication . Op. 35-39. As to the trial competency rationale, the district court ruled that involuntary medication would not adversely affect xxxxxx's trial-related rights in some respects, that trial prejudice could be remedied in other respects, and that a post-medication hearing would suffice to address issues that might arise. Op. 53-56.

SUMMARY OF THE ARGUMENT

Because neither of the government's asserted justifications for involuntary medication is supported by clear and convincing evidence, the district court's ruling should be reversed. With respect to the medical/safety justification, because neither xxxxxx's condition nor his confinement situation has changed since the first appeal so as to render him dangerous to others, forced medication is forbidden under xxxxxx I. Even if xxxxxx I were not controlling, the government must show that forced medication of xxxxxx is essential for the safety of himself or others and that no less intrusive alternatives exist. Because clear and convincing evidence does not show that xxxxxx is an imminent danger, forced medication is not essential. Furthermore, seclusion and sedation are less intrusive alternatives that are sufficient to contain whatever danger to others xxxxxx may present without jeopardizing xxxxxx's rights.

With respect to the trial competency justification, the district court erred because the government failed to prove, by clear and convincing evidence, that the forced administration of antipsychotic medication will not unduly burden xxxxxx's trial- and sentencing-related rights, that forced medication is medically appropriate, and that forced medication is narrowly tailored to achieve a compelling government interest. There is insufficient proof to show that forced medication will not have irreversible or even sufficiently manageable side effects and will not result in a permanent change in xxxxxx's condition preventing a fair trial. Forced medication is also not medically appropriate because it would be administered solely for a prosecutorial purpose. It could also initiate a chain of circumstances leading to xxxxxx's execution. The government's interest in bringing xxxxxx to trial is not compelling because a forced medication order would require BOP psychiatrists to participate in conduct that is proscribed by ethical norms. The uncertain efficacy of forced medication and the potential side effects caused by it further diminish the force of the government interest.

ARGUMENT



I. FORCED MEDICATION IS NOT

JUSTIFIED ON THE GROUND THAT

xxxxxx IS DANGEROUS TO OTHERS.


A. Standard Of Review.

Determinations of legal and mixed constitutional questions are reviewed de novo. Lilly v. Virginia, 527 U.S. 116, 134 (1999) (plurality opinion) (independent appellate review required for "fact-intensive, mixed questions of constitutional law") (citing Ornelas v. United States, 517 U.S. 690, 697 (1996)). A district court's findings of fact are reviewed for clear error. Ornelas, 517 U.S. at 699.

B. The District Court's Ruling

Is Inconsistent With xxxxxx I.

The district court ruled that the government may force-medicate xxxxxx on the ground that he is dangerous to others. Op. 29. This ruling is inconsistent with the instruction in xxxxxx I that "[i]f the government advances the medical/safety justification on remand, it will need to present additional evidence showing that either xxxxxx's condition or his confinement situation has changed since the hearing so as to render him dangerous." 206 F.3d at 13.

Nothing in xxxxxx's confinement situation has changed. The district court itself agreed with that. App4:44;9/6/00:44. Because the evidence still "indicates that in his current circumstances xxxxxx poses no significant danger to himself or others[,]" it remains the case that involuntary medication is not "'essential . . . for the safety of others.'" xxxxxx I, 206 F.3d at 13 (quoting xxxxxx, 69 F.Supp.2d at 118).

Nor has xxxxxx's condition changed "so as to render him dangerous." Although xxxxxx's condition has changed, Zonana and Daniel testified that xxxxxx's degree of danger now, whatever it may be, is not any greater than it was before the remand. The district court declined to rule that xxxxxx is dangerous to himself, stating that xxxxxx's "passive deterioration" does not support such a finding. Op. 29, n.17. In that regard, Royall's testimony that xxxxxx is "more of a danger to himself, or at least as much a danger to himself, by not cooperating with medical treatment than he is to us," App3:10;7/24/00AM:34-35, further undermines the conclusion that xxxxxx is dangerous to others. Accordingly, the district court's order concerning the medical/safety justification should be reversed.

C. The District Court's Ruling Is Wrong

Because Forced Medication Is Not

Essential For The Safety Of Others

And Less Intrusive Alternatives Exist.

 

Even if xxxxxx I allowed the district court to work from a clean slate, forced medication on the medical/safety rationale is permitted only if it is medically appropriate, essential for the safety of others, and no less intrusive alternatives exist. Riggins v. Nevada, 504 U.S. 127, 135 (1992). Medication is not essential for the safety of others in this case because xxxxxx does not present an imminent danger to others. Even if he did, or if some lesser showing of dangerousness sufficed, xxxxxx's seclusion status is a less intrusive alternative that meets the government's interest in prison security without jeopardizing xxxxxx's rights as a pretrial detainee.

1. A Strict Scrutiny Standard Applies

To Government Efforts To Forcibly

Medicate A Pretrial Detainee On

Dangerousness Grounds.

The government has a legitimate interest in ensuring the security of a prison environment. See Washington v. Harper, 494 U.S. 210 (1990). In Harper, the Supreme Court held that administrative procedures, which allowed the forced medication of a convicted inmate who presented a likelihood of serious harm as long as treatment was in the inmate's medical interests, comported with due process. Id. at 225. The government interest in prison security extends to pretrial detainees. See Bell v. Wolfish, 441 U.S. 520, 540 (1979) ("the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions").

Pretrial detainees, however, have fundamental rights implicated by governmental efforts to force-medicate that do not exist in the post-conviction context. See Bell v. Wolfish, 441 U.S. at 545 ("[P]retrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that . . . are enjoyed by convicted prisoners"); accord Campbell v. McGruder, 580 F.2d 521, 527, n.9 (D.C. Cir. 1978) ("Pretrial detainees generally retain more rights than convicted prisoners"). In the present case, xxxxxx's Fifth and Sixth Amendment rights to a fair trial are implicated because antipsychotic medication may affect his demeanor and ability to communicate. xxxxxx I, 206 F.3d at 14; United States v. Brandon, 158 F.3d 947, 960-61 (6th Cir. 1998); Riggins, 504 U.S. at 143-44 (Kennedy, J. concurring). (9)

In xxxxxx I, Judge Rogers, joined by Judge Tatel, recognized that pretrial detainees and convicted inmates stand in different shoes concerning the appropriate standard of review. See 206 F.3d at 17. In the ordinary pretrial context, the legitimate goals of prison administrators are subject to rational basis scrutiny because they are incidents of detention and do not implicate rights related to trial and sentencing. See Wolfish, 441 U.S. at 533. In Riggins, however, the Court recognized the distinction between pretrial and post-conviction proceedings in the forced medication context. The petitioner in Riggins, who had been convicted of murder and sentenced to death, challenged his conviction "on the ground that the State of Nevada unconstitutionally forced an antipsychotic drug upon him during trial." 504 U.S. at 129. Stating that "[w]e have no occasion to finally prescribe . . . substantive standards for judging forced administration of [antipsychotic medication] in the trial or pretrial settings," id. at 135-36, the Court reversed the judgment on the ground that "the record contains no finding that might support a conclusion that administration of antipsychotic medication was necessary to accomplish an essential state policy[.]" Id. at 138. In dicta, the Court stated that "Nevada certainly would have satisfied due process if the prosecution had demonstrated, and the District Court had found, that treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins' own safety or the safety of others." Id. at 135 (citing Harper, 494 U.S. at 225-26, and Addington v. Texas, 441 U.S. 418 (1979)).

The language in Riggins shows that a government effort to forcibly medicate a detainee on medical/safety grounds demands strict scrutiny. Requiring the government to show an "essential state policy" is another way of stating that the government must show a "compelling state interest." Similarly, requiring the government to rule out "less intrusive alternatives" is equivalent to a mandate that government action be "narrowly tailored." These factors, which are absent from the Harper rational basis standard, are the hallmarks of strict scrutiny. See, e.g., Brandon, 158 F.3d at 956 (citations omitted); see also Riggins, 504 U.S. at 156 (Thomas, J., dissenting) (stating that the "Court . . . appears to adopt a standard of strict scrutiny").

The strict scrutiny standard in the pretrial context was emphasized by Justice Kennedy -- who wrote Harper -- in his concurring opinion in Riggins:

In my view elementary protections against state intrusion require the State in every case to make a showing that there is no significant risk that the medication will impair or alter in any material way the defendant's capacity or willingness to react to the testimony at trial or assist his counsel. Based on my understanding of the medical literature, I have substantial reservations that the State can make that showing. . . . If the State cannot render the defendant competent without involuntary medication, then it must resort to civil commitment, if appropriate, unless the defendant becomes competent through other means. If the defendant cannot be tried without his behavior and demeanor being affected in this substantial way by involuntary treatment, in my view the Constitution requires that society bear this cost in order to preserve the integrity of the trial process.

Riggins, 504 U.S. at 141, 145 (Kennedy, J., concurring).

The district court correctly concluded that "[t]he government bears the burden of proof on these issues by clear and convincing evidence." Op. 12. Any less strict standard, as Justice Kennedy's concurrence in Riggins shows, improperly shifts the risk of harm and error to the defendant. The Riggins majority recognized as much by citing Addington, 441 U.S. 418, which held that persons may be civilly committed as mentally ill and dangerous only under a clear and convincing evidence standard. Riggins, 504 U.S. at 135; see also Brandon, 158 F.3d at 960-61 (stating with respect to non-dangerous detainee that "[w]e believe the risk of error and possible harm involved . . . are . . . so substantial as to require the government to prove its case by clear and convincing evidence").

The "clear and convincing evidence" standard is strict. Such evidence must "place in the ultimate factfinder an abiding conviction that the truth of its factual contentions are highly probable." See Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (quotation omitted). In Cruzan v. Department of Health, 497 U.S. 261, 285 (1990), the Court quoted the New Jersey Supreme Court's definition of clear and convincing evidence as "evidence which 'produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the truth of the precise facts at issue'" (quoting In re Jobes, 529 A.2d 434, 441 (N.J. 1987)); accord Travelhost , Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995). See also Ford v. Wainwright, 477 U.S. 399, 411 (1986) (plurality opinion) (requiring heightened reliability in fact-finding in a capital case) (citing Spaziano v. Florida, 468 U.S. 447, 456 (1984)).

2. Forced Medication Is Not Essential

To Prevent xxxxxx From Harming Others.

The district court concluded that forced medication is "essential to prevent xxxxxx from harming others[.]" Op. 30, 56. But the district court, as in its earlier opinion, never defined the meaning of the term "dangerous." Similarly, the applicable BOP regulation, 28 C.F.R. 549.43, uses the phrase "dangerous to self or others" without further specificity. Johnson testified that "[t]here isn't a standard[.]" App1:114-15;5/28/99:50-51, App3:94,7/25/00AM:7. (10)

Zonana testified that the correct standard is one of imminent danger, which requires a showing of "current evidence" of dangerousness. App3:162;7/25/00PM:107. "Current evidence" requires a showing of some kind of overt act, that "they hit somebody, that makes it clear that some emergency occurs or that something occurs that makes them -- you don't say because somebody did something 10 years ago, you will still keep them on medication." App3:162-64;7/25/00PM:108,111-13; accord Bee, 744 F.2d at 1395 (requiring an emergency before pretrial detainee may be forcibly medicated); Jurasek v. Utah State Hospital, 158 F.3d 506, 512 (10th Cir. 1998) (dangerousness requires finding of immediacy).

The evidence in the record does not prove that xxxxxx poses an imminent danger. He has not harmed, attempted to harm, or threatened to harm anyone since his arrest. Between his arrest and his arrival at FCI-Butner in May, 1999, he evidenced no behavioral difficulties, and no efforts were made to forcibly medicate him. Nevertheless, the BOP decided to force-medicate him shortly after his arrival, although no behavioral difficulties arose in that brief period either. Johnson's testimony shows that the BOP's decision was made because the BOP determines dangerousness at an undefined, impermissibly high level of generality.

In deciding that xxxxxx is dangerous to others, the district court largely relied on four ostensible "instances of hostility" between October, 1999 and April, 2000, involving Royall, Landis, an art therapist, and a nurse. These incidents reflect nothing substantially different from Johnson's testimony that xxxxxx was "increasingly surly and hostile in his interactions with staff over the past few weeks" before the August, 1999 hearing. 69 F. Supp.2d at 110. xxxxxx did not threaten Royall but told her to stay away from him. Royall later touched xxxxxx without incident. xxxxxx did not threaten Landis but accused him of atrocities and told him to turn himself in. Landis was not particularly worried because staff was all around. xxxxxx returned to his room on his walker. xxxxxx did not threaten the art therapist but pulled away from her and told her not to come within ten feet of him. xxxxxx's single refusal to accept an anti-clotting injection from a nurse involved not a threat but a delusional statement that she would be prosecuted by NATO.

The district court's opinion also ignores Johnson's testimony that xxxxxx had become increasingly cooperative with staff in the months before the July, 2000 hearing, which post-dated the incidents described by the district court. The last of the incidents occurred almost a year ago, with no incidents reported subsequently. Daniel described these isolated incidents as exceptions, which were ambiguous in any event, and which would not themselves justify medication. App4:172;277;11/15/00:49,155. Indeed, Daniel described xxxxxx as not threatening to the people who care for him. App4:277;11/15/00:155. The district court ignored these considerations, as well as the lack of any other incidents since July, 2000, Daniel's testimony concerning xxxxxx's uneventful stay at CTF, and Daniel's uneventful visits with xxxxxx at CTF.

The district court's reliance on testimony by Daniel, Zonana, and DePrato is misplaced. None testified that xxxxxx presents an imminent danger, and they all agreed that xxxxxx's confinement situation prevents him from being a danger to himself or others. Daniel specifically stated that he could not say xxxxxx is more dangerous than when this Court decided xxxxxx I. Zonana was careful not to testify that xxxxxx is an imminent danger to others, which is the applicable standard according to Zonana, but simply stated that xxxxxx is dangerous at an undefined level of generality. Nor did DePrato testify that xxxxxx presents an imminent danger. Given the expert testimony, the fact that xxxxxx's delusional system has expanded is not evidence of increased dangerousness to others. Moreover, Johnson already testified about expanded delusions in 1999, and the district court pointed to those expanded delusions in its earlier opinion as a reason to permit forced medication. 69 F.Supp.2d at 109.

The cases on which the district court relied, Op. 32-33, are inapplicable to detainees like xxxxxx because those cases concern persons seeking conditional discharge into society or prisoners seeking to avoid transfers to medical facilities. In United States v. Husar, 859 F.2d 1494 (D.C. Cir. 1988), an insanity acquittee unsuccessfully appealed an order denying conditional release, which requires the individual to prove by clear and convincing evidence that release would not risk a "substantial danger" to persons or property. United States v. S.A., 129 F.3d 995, 998 (8th Cir. 1997), United States v. Ecker, 30 F.3d 966 (8th Cir. 1994), and United States v. Steil, 916 F.2d 485 (8th Cir. 1990), all involved appeals of rulings that release from confinement would pose a substantial risk of danger to persons or property. In United States v. Horne, 955 F. Supp. 1141, 1150 (D. Minn. 1997), a prisoner sought to avoid a transfer to a medical facility under 18 U.S.C. 4245, and the court specifically stated that it was not considering the propriety of forced medication. In United States v. Muhammed, 165 F.3d 327, 336 (5th Cir. 1999), a prisoner unsuccessfully appealed from an order committing her to a medical facility, where the order was based upon a finding that the prisoner was dangerous to herself, which is the opposite of what the district court held here. (11)

The evidence presented to the district court utterly failed to prove that xxxxxx is dangerous to others. Accordingly, the district court's ruling on this issue should be reversed.

3. Any Danger To Others That

xxxxxx May Present Is

Controlled By His Seclusion.

Even if xxxxxx's condition presented a danger sufficient to justify forced medication, his seclusion status meets the government's interest in preventing harm to others. Daniel, Zonana, and DePrato all agreed that xxxxxx's confinement situation controls any danger that xxxxxx may present. The district court recognized that seclusion "contains dangerousness." Op. 37. That should have been the end of the inquiry. Instead, the district court attempted to define the question as a purely medical one, just as it did in its first opinion, 69 F. Supp. 2d at 117, stating that "[s]ince seclusion has no therapeutic effect, it does not address the government's interest in treating xxxxxx's illness." Op. 38. That analysis conflicts with the remand instruction that the "Sixth Amendment issues are legal rather than medical or penological issues[.]" xxxxxx I, 206 F.3d at 14.

Given the potential adverse impact of forced medication on xxxxxx's trial- and sentencing-related rights, seclusion is a less intrusive alternative. See Bee, 744 F.2d at 1395-96 ("Absent an emergency . . . we do not believe forcible medication with antipsychotic drugs is 'reasonably related' . . . to the concededly legitimate goals of jail safety and security"). Even if seclusion were not by itself sufficient to meet the government's interest in prison security, sedation is a less intrusive alternative. Id. Johnson testified that sedatives would control agitation. App3:94;7/25/00AM:8, App3:27;7/24/00AM:102-03. The district court looked at sedatives only from a therapeutic perspective, Op. 35-36, which again evidences the district court's erroneous characterization of the issue as a purely medical one.

What the district court effectively ruled is that the BOP may change xxxxxx's conditions of confinement to trigger any dangerousness that is currently being controlled. The BOP has not asked for that, however, and Johnson testified that she would not remove xxxxxx from seclusion. App3:10;7/24/00AM:37. The two cases cited by the district court do not support its ruling because they concern convicted inmates. See, e.g., Horne, 955 F. Supp. at 1148-49. Because the pretrial context involves interests that are not at stake in the post-conviction context, the district court's analysis is flawed.

Finally, the district court erroneously ruled that seclusion is not an alternative to forced medication for administrative reasons. The district court stated that seclusion is not an "administratively feasible long-term solution to xxxxxx's present dangerousness[,]" that "seclusion beds are a limited, finite resource" and that "continuing to house xxxxxx in seclusion is straining the BOP's resources." Op. 38. Even if this issue is properly before the Court, which xxxxxx disputes, Wise's testimony does not support these findings. Seclusion beds are not a "limited, finite resource" because Wise testified that they are not filled. The statement that the BOP's resources are being strained is apparently based on language in Harper, not the evidence in this case. Even if there were evidence to show that xxxxxx's seclusion is having an appreciable effect on the BOP's resources, the government's interest in efficiency cannot overcome the fundamental rights of a pretrial detainee like xxxxxx. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 633 (1969) ("[t]he saving of welfare costs cannot justify an otherwise invidious classification").

Because seclusion and sedation are less intrusive alternatives to forced medication, the district court's order on this issue should be reversed.

II. FORCED MEDICATION IS

NOT JUSTIFIED FOR THE

PURPOSE OF MAKING xxxxxx

COMPETENT TO STAND TRIAL.


A. Standard Of Review.

 

As with the dangerousness issue, legal and mixed constitutional questions are reviewed de novo and findings of fact are reviewed for clear error.

B. A Strict Scrutiny Standard Applies

To The Government's Effort To

Medicate xxxxxx For The Purpose

Of Achieving Trial Competency.

Where the government attempts to forcibly medicate a pretrial detainee for the purpose of making him competent to stand trial, a strict scrutiny standard applies. See Brandon, 158 F.3d at 957, 960 ("the government's request to forcibly medicate Brandon must be reviewed under the strict scrutiny standard" (citation omitted)). Under strict scrutiny, state action that burdens a fundamental right must be narrowly tailored to achieve a compelling government interest. Brandon, 158 F.3d at 956-57, 960 (citing Bee, 744 F.2d at 1395, and Woodland v. Angus, 820 F. Supp. 1497, 1509 (D. Utah 1993) (additional citation omitted)). The government bears the burden of proof by clear and convincing evidence. Brandon, 158 F.3d at 960-61 ("we believe that the risk of error and possible harm involved in deciding whether to forcibly medicate an incompetent, non-dangerous pretrial detainee are . . . so substantial as to require the government to prove its case by clear and convincing evidence") (citing Addington, 441 U.S. at 433, Santosky v. Kramer, 455 U.S. 745, 757-58 (1982), and Riggins, 504 U.S. at 1239 (Kennedy, J., concurring)); Op. 12.

In Riggins, where the Court reversed the murder conviction and vacated a death sentence of a defendant who was forcibly medicated at trial, the Court stated that Nevada "might have been able to justify medically appropriate, involuntary treatment [with the antipsychotic drug Mellaril] by establishing that it could not obtain an adjudication of Riggins' guilt or innocence by using less intrusive means." 504 U.S. at 135-36 (citing Illinois v. Allen, 397 U.S. 337, 347 (1970) (Brennan, J., concurring)). Because of the procedural posture in Riggins, the Court had "no occasion to finally prescribe . . . substantive standards" concerning efforts to achieve trial competency through forced medication. See 504 U.S. at 136. The dicta in the majority opinion, however, as well as Justice Kennedy's concurrence, id. at 138, and Justice Thomas' dissent, id. at 156, show that Brandon correctly states the law. (12)


C. The Constitutional Rights

at Stake Are Fundamental.

 

As a pretrial detainee, xxxxxx has a fundamental liberty interest in avoiding unwanted bodily intrusion. See Brandon, 158 F.3d at 957 (citations omitted). xxxxxx's Fifth and Sixth Amendment rights to a fair trial are also at stake because the forced administration of antipsychotic medication may "have a prejudicial effect on [xxxxxx's] physical appearance at trial" and have an adverse effect on his "ability to participate in his own defense[.]" Brandon, 158 F.3d at 960; xxxxxx I, 206 F.3d at 14. Accordingly, forced medication is permitted only if it is narrowly tailored to achieve a compelling government interest.



D. Forced Medication Is Not

Narrowly Tailored Because

The Government Has Not

Shown By Clear And Convincing

Evidence That It Will Not Result

In Undue Prejudice And Is Likely

To Result In Trial Competency.

Whether forced medication is narrowly tailored "will turn on whether it is the least restrictive and least harmful means of satisfying the government's goal -- in this case, of rendering [xxxxxx] competent to stand trial in a proceeding that is fair to both parties." Brandon, 158 F.3d at 960. That requires a legal analysis of the medical and related evidence in the record to determine whether forced medication might impinge xxxxxx's rights to present an effective insanity defense and to "'present his own version of events in his own words[.]'" xxxxxx I, 206 F.3d at 20 (Tatel, J., concurring) (quoting Rock v. Arkansas, 483 U.S. 44, 52 (1987)). As Brandon states, the analysis must also focus on "whether the medication will have a prejudicial effect on [xxxxxx's] physical appearance at trial, as well as whether it will interfere with his ability to aid in the preparation of his own defense." Id. at 960; accord xxxxxx I, 206 F.3d at 14.

The government has not shown by clear and convincing that xxxxxx will not be unduly prejudiced by forced medication. The district court found that Medication might alter the content of xxxxxx's testimony and interfere with his ability to testify. . . . [A]ntipsychotic medication might cause xxxxxx to filter out events that might be too disturbing for him to cope with or to recount events as one would recount a dream. . . . Antipsychotic medication may also adversely affect xxxxxx's memory. . . . Further, a jury listening to a non-delusional xxxxxx explain his delusional beliefs may be more skeptical than a jury listening to a delusional, unmedicated xxxxxx. In such circumstances, the jury might find it hard to believe that a person with an appropriate affect did not understand the nature and wrongfulness of his behavior at the time of the charged conduct.

Op. 44. The district court found that "xxxxxx's experience with antipsychotic medication is inconclusive" and that "[t]here are many uncertainties regarding the effects that medication will have on xxxxxx's demeanor and thought processes because the reaction to medication is unique to each patient." Op. 18, 52. It found that "[s]uccessful treatment with antipsychotic medication will probably decrease xxxxxx's delusional thinking[.]" Op. 43 (emphasis added). The district court also found that "[s]ide effects of the medication may alter xxxxxx's reaction in the courtroom, cause uncontrollable movements, or create other changes in behavior that may prejudice xxxxxx." Op. 47. The district court further found that typical antipsychotics, which Johnson would use to treat xxxxxx, "have many side effects[,]" Op. 22, and found that "there is a limited understanding of the side effects of atypical antipsychotics. . . . [A]typicals are relatively new and there is little data about their long-term effects[.]" Op. 21-22.

The district court's proposed solution to this prejudice has at least six defects. First, the district court ruled that "side effects of medication are manageable." Op. 53. But Johnson and Daniel did not testify that "manageable" side effects are not unduly prejudicial. Nor did they rule out the possibility of irreversible side effects, and they were able to speak only generally about risk. (13) Moreover, while Johnson testified that xxxxxx first would be treated with Haldol, an older, typical antipsychotic, and Daniel testified that he hoped xxxxxx would switch to atypical antipsychotics voluntarily if forced medication was permitted, App4:281-82;11/15/00:159-60, the district court, referring instead to atypicals, stated that "[a]dvances in the primary antipsychotic medications and adjunct therapies make such side effects less likely[,]" Op. 47, which still falls short of clear and convincing evidence that such side effects would not occur.

Second, the district court stated that courts distinguish between "sedatives, that can dull thought processes, and antipsychotics that should restore or improve cognitive function." Op. 45 (citing People v. Hardesty, 362 N.W.2d 787, 797 (Mich. App. 1984), appeal dismissed, 477 U.S. 902 (1986), and State v. Law, 244 S.E.2d 302, 306 (S.C. 1978)). That answer is off the mark because improvement of cognition by antipsychotic medication, if it occurs, addresses positive symptoms of psychosis, such as delusions, but can give rise to prejudicial side effects and does not necessarily address negative symptoms such as a dull or flattened affect.

Third, the district court stated that xxxxxx's right to appear before the jury in an unmedicated state is diminished because "[w]ith or without medication, xxxxxx would not appear at trial in the same condition as at the time of the incidents at the U.S. Capitol." Op. 46, 53. As an initial matter, there is no basis for this conclusion, because there is nothing in the record describing xxxxxx's condition at the time of the incident. Furthermore, the district court's approach ignores the fact that xxxxxx's changed condition at trial, and the concomitant prejudice, would be the result of coercive state action, which is not made less objectionable simply because xxxxxx's current condition may not be identical to his condition in 1998. Moreover, in light of Johnson's testimony that xxxxxx's symptoms could go into permanent remission even after medication was ceased, which she termed a "gray area," the government has not shown by clear and convincing evidence that xxxxxx would not lose the option of going off medication at trial, which is an option that must be preserved if forced medication is permitted. See State v. Hayes, 389 A.2d 1379, 1381 (N.H. 1978) (permitting such a decision after a colloquy); Commonwealth v. Louraine, 453 N.E.2d 437, 441-43 (Mass. 1983) (reversing first degree murder conviction and holding that government is precluded from forcing a defendant to appear at trial in a severely medicated condition). (14)

Fourth, the district court ruled that appropriate instructions to the jury concerning the effects of medication, expert testimony concerning both the effects of medication and what xxxxxx's unmedicated condition was like, and "extant information concerning his past and present delusions" would suffice to protect xxxxxx's rights in conjunction with "reassess[ment]" by the district court. Op. 53-54. That ruling, however, conflicts with language in Riggins where the majority stated that "[e]ven if . . . the Nevada Supreme Court was right that expert testimony allowed jurors to assess Riggins' demeanor fairly, an unacceptable risk of prejudice remained." 504 U.S. 138; accord 504 U.S. at 138-39 (Kennedy, J., concurring). (15) With respect to extant information concerning xxxxxx's delusions, the district court was referring to the portion of Judge Tatel's concurrence in xxxxxx I in which he directed the district court to consider whether substitutes might exist for an unmedicated defendant sufficient to mount an effective insanity defense. Insufficient material was generated to respond to that question, however, because the government decided to submit no evidence on it. The district court offered a "preliminary opinion" that videotapes, when combined with psychiatric and lay testimony, "may allow xxxxxx to mount an effective insanity defense." Op. 50.

Fifth, given xxxxxx's long history of not being treated with medication, the evidence concerning the likely limited efficacy of medication further diminishes the government's case. Daniel and Zonana recognized that the longer one suffers from schizophrenia without treatment, the less likely it is that medication will address delusions. Gur opined it is "extremely unlikely" that medication will substantially diminish xxxxxx's delusions. While Johnson disagreed before remand with the proposition that the chances of success decrease the longer the psychosis goes untreated, App4:131;5/28/99:67, she contradicted herself after remand. App3:48;7/24/00PM:11.

Finally, and not least important, the district court's ruling hinges on the assumption that a further hearing would suffice to address any issues that may arise from forced medication. Op. 54 ("The Court will reassess, upon request, its determination regarding the prejudice to xxxxxx's fair trial rights resulting from medication when testimony about the actual, not hypothetical, impact of the medication is available. The Court is confident that any such review will not come too late to prevent impairment of xxxxxx's rights"). Given the testimony concerning potential irreversible side effects and the possibility of permanent remission, however, the district court's reliance on a post-medication hearing cannot be justified under a clear and convincing evidence standard.

The notion of revisiting the effects of forced medication after it has been administered is apparently derived from language in Judge Tatel's concurring opinion in xxxxxx I. See 206 F.3d at 21. That aspect of the concurrence, however, is inconsistent with the per curiam opinion's statements that "post-medication review may come too late to prevent impairment of [xxxxxx's] Sixth Amendment right" and that both xxxxxx and the government "are entitled to pre-medication resolution of the Sixth Amendment issue." 206 F.3d at 14. The concept of a post-medication hearing is apparently derived from United States v. Morgan, 193 F.3d 252 (4th Cir. 1999). In Morgan, however, the issue was whether defendant could be medicated as dangerous, and the post-medication hearing was discussed as a means of attempting to protect a defendant where the effect of medication on trial competency is "incidental." Id. at 264. In such circumstances, where the government is justified in forcibly medicating a detainee to ensure prison security as its primary purpose, a post-medication hearing to determine the incidental effect on trial rights is all that is possible. Where the government's real purpose is to achieve trial competency, as in the present case, there is unacceptable risk that a post-medication hearing would be too little, too late.

Because the government has not shown by clear and convincing evidence that forcibly medicating xxxxxx will not result in unacceptable prejudice, and because the proposed effort to forcibly medicate is not narrowly tailored, the district court's order should be reversed.

E. The Government's Interest In

Trying xxxxxx Is Not Compelling

And Forced Medication Would Not

Be Medically Appropriate.

In the ordinary case, the strength of the government's interest in trying a defendant accused of first degree murder is undisputed. Op. 40. When the government seeks to forcibly medicate a defendant in order to try him, however, the case is no longer ordinary, because presumptions against forced medication have deep roots in the law. See Washington v. Glucksburg, 521 U.S. 702, 725 (1997) (noting the common-law rule that forced medication was a battery and the long legal tradition protecting decisions to refuse unwanted medical treatment); Bee, 744 F.2d at 1395 ("although the state undoubtedly has an interest in bringing to trial those accused of a crime, we question whether this interest could ever be deemed sufficiently compelling to outweigh a criminal defendant's interest in not being forcibly medicated with antipsychotic drugs").

As discussed above, treatment with antipsychotic drugs apparently is therapeutically appropriate (i.e. medically indicated) for xxxxxx. But that does not answer the question whether forced medication is medically appropriate. Nor does it answer the question whether the government's interest in bringing xxxxxx to trial is so compelling that forced medication is justified. This is because a physician's duty to work only for the well-being of his or her patient involves more than the question whether treatment is biologically effective.

Forced medication is not medically appropriate in this case. Zonana, Bloche, and the government agreed (although Johnson did not) that a doctor owes the same duty to a detained patient as that owed to a patient in the open society. Zonana and Bloche also agreed that in determining whether a course of action is ethical, a doctor must consider factors separate from whether treatment is therapeutically appropriate. These factors include the state purpose and possible alternatives such as civil commitment. Where the state purpose at issue is solely to make a pretrial detainee competent to stand trial, it is unethical for a treating physician to participate in forced medication. Bloche, one of the two qualified medical ethics experts, was unequivocal about this, and his testimony was unimpeached. Zonana, the other qualified medical ethics expert, did not contradict Bloche, but instead declined to offer an opinion on the issue when presented with it squarely. At another point, however, Zonana testified that it is unethical for a treating psychiatrist to act solely as an agent of the government, which is precisely the point of Bloche's testimony.

Forced medication would not be medically appropriate for a different but related reason. xxxxxx was competent to make medical decisions before September 9, 1999. Johnson explained to xxxxxx that his condition could deteriorate without medication, and xxxxxx, at a time when he was deemed competent to make medical decisions, nonetheless refused the medication. Both Zonana and Daniel recognized that a patient's refusal of medication, based upon informed consent, must be respected. According to the government, xxxxxx's last expressed wish while competent to make medical decisions should control, which is another way of stating that xxxxxx gave a valid advance directive to refuse medication if he became incompetent to make medical treatment decisions, as he did. Under the government's own theory, therefore, it would not be medically appropriate to force-medicate xxxxxx independent of the question of the government's purpose.

The district court stated that it was "unaware of any legal authority to support" xxxxxx's medical ethics argument. Op. 23. The question -- which, framed another way, is the question of the scope of xxxxxx's protected constitutional rights -- is one of first impression in the pretrial context. But xxxxxx's argument, which is rooted in the proposition that a treating physician cannot act solely for a prosecutorial purpose, has strong support in the post-conviction context. In Singleton v. State, 437 S.E.2d 53 (S.C. 1993), the South Carolina Supreme Court ruled that a death row inmate's right to privacy under the South Carolina Constitution would be violated if the "State were to sanction forced medication solely to facilitate execution." Id. at 61. As support for this ruling, the court cited the AMA and APA ethical codes forbidding physician participation in legally-authorized executions. Id. at 61 ("the medical ethical position reinforces the mandates of our constitutional law"). As in Singleton, the ethics issue arises here because the intervention is for a prosecutorial purpose. The fact that the context is different does not vitiate the ethical proscription or the constitutional violation.

In State v. Perry, 610 So.2d 746 (La. 1992), the Louisiana Supreme Court held, under the Louisiana Constitution, including its right to privacy, that the government may not medicate an incompetent death row prisoner against his will in order to carry out his death sentence. Perry stated, citing the Hippocratic Oath, that "[m]edical treatment does not consist merely of dispensing drugs[,]" id. at 752, which is precisely what Zonana and Bloche testified. Perry added that "medical treatment cannot occur when the state orders a physician to administer antipsychotic drugs" to an incompetent prisoner for the purpose of making him competent for execution. As in Perry, the only purpose at issue for medicating xxxxxx is a prosecutorial purpose.

Perry is also based in part on role conflict problems that are acute in xxxxxx's case. According to Perry, "the forcible nature and lethal repercussions of the state's involuntary antipsychotic drug regimen preclude a trustful, communicative doctor-patient relationship that is essential to psychiatric therapy[,]" and forced medication violates an incompetent prisoner's "autonomy rights[.]" Id. (citations omitted). That is particularly true in xxxxxx's case, as evidenced by the district court's order that the BOP bifurcate the roles of forensic evaluator and treating psychiatrist, Op. 57, and the testimony showing that the possibility cannot be ruled out that xxxxxx's deterioration is in part a function of Johnson's role conflict. (16) Furthermore, given xxxxxx's initial competence to refuse medication, Johnson's explanation to him that he could deteriorate further without medication, and the government's position that xxxxxx's last expressed wish should be presumed to remain in effect, forced medication would constitute an even greater violation of xxxxxx's autonomy rights than in Perry.

Perry further states that "since the physician cannot serve two masters, there is a substantial concern that the patient's well-being may be subordinated to the duty the doctor owes the state." Id. Here, the problem identified in Perry as a "substantial concern" is a reality. Johnson testified that her duties as xxxxxx's treating physician do not run solely to xxxxxx, that she would honor his refusal to take medication if he were not committed by court order, and that the primary purpose of medicating xxxxxx is to make him competent for trial. Under these facts, forced medication of xxxxxx for the purpose of achieving trial competency cannot be deemed medically appropriate.

Since this is a potential capital case, there is a separate ethical issue recognized by Zonana. He testified that if the administration of antipsychotic medication starts an unbroken chain of circumstances resulting in competency for execution, it is unethical for a physician to participate in the process. Zonana also testified that a treating psychiatrist in the pretrial context must assume all negative outcomes for the patient. Given this testimony, a treating physician in any case potentially involving the death penalty must assume that the ongoing nexus will exist to the point of execution, however unlikely the probabilities may be.

Because the government's effort to forcibly medicate xxxxxx for the purpose of attempting to make him competent for trial would require unethical conduct by physicians, and would intrude on xxxxxx's constitutionally-protected interests, forced medication is not medically appropriate, and the government's interest cannot be deemed compelling. The government's interest is further diminished in light of the evidence concerning the questionable efficacy of treatment, and in light of the uncertainties surrounding the possible effects that xxxxxx might experience if he is forcibly medicated. Accordingly, the district court's order should be reversed.

 

III. THE DISTRICT COURT ERRED IN DECLINING

TO APPOINT A GUARDIAN AD LITEM.

After xxxxxx became incompetent to make medical decisions, his counsel moved for appointment of a guardian. Although the government earlier argued, and the district court agreed, that a court has inherent authority to require that a defendant submit to a competency evaluation by a government psychiatrist, xxxxxx, 36 F.Supp.2d 7, the government took the opposite tack in opposing the motion for a guardian. The district court denied the motion. It is clear, however, that the inherent powers of a district court include those powers "'reasonably useful to achieve justice'" in the absence of contrary legislative direction. In re M.P.W. Stone, 986 F.2d 898, 902 (5th Cir. 1993) (citation omitted). Given the potential conflict between xxxxxx's legal and medical interests, the district court's decision not to appoint a guardian also should be reversed.

CONCLUSION

Mr. xxxxxx respectfully requests that the district court's ruling permitting the Bureau of Prisons to forcibly medicate him be reversed.





Respectfully submitted,







_______________________________

A.J. Kramer

Federal Public Defender





_______________________________

Gregory L. Poe

Assistant Federal Public Defender



Counsel for Defendant-Appellant

625 Indiana Avenue, N.W. #550

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I hereby certify, in accordance with Fed. R. App. P. 32(a)(7), that this brief contains 13,938 words.









CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief of Appellant, along with one set of an accompanying five-volume Appendix, were served by hand delivery on the 3rd day of April, 2001, upon John R. Fisher, Esq., Assistant United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001.



________________________________

Last updated: Apr 9 , 2001 (Mon) at 11:23am

C:\xxxxxxapp.02

1. "App__:__" refers to the five-volume appendix filed with this brief. Volumes 1-2 are identical to the two-volume appendix submitted in United States v. xxxxxx, 206 F.3d 9 (D.C. Cir. 2000) ("xxxxxx I"). Volumes 3-5 comprise materials generated on remand as well as an updated docket. Transcripts are referenced by the date (including "AM" and "PM" designations where necessary) and page number.

2. "Op." refers to the district court's March 6, 2001 opinion. App5:12.

3. In the first appeal of the medication issue, the government agreed that the district court's order was appealable. This Court apparently agreed, reaching the merits without addressing the order's appealability.

4. Zonana testified at one point that xxxxxx is dangerous but he qualified that statement by testifying that "[t]here are different degrees of dangerousness." App3:190-91;7/26/00AM:25-27. Zonana did not testify that xxxxxx's level of dangerousness, whatever it may be, justifies forced medication. App3:190-93;7/26/00AM:25-27, 35.

5. Zonana testified that the April, 2000 encounter between xxxxxx and Landis was "potentially volatile" and that if the circumstances had been different, "something is likely to happen." App3:190-91;7/26/00AM:25-27. However, Zonana incorrectly believed that "the guard wasn't there" at the time. App3:191;7/26/00AM:26.

6. Johnson elsewhere testified on July 24, 2000, that the original reason for placing xxxxxx in seclusion was to put him on suicide watch. App3:61;7/24/00PM:62. Three days later, Johnson testified that xxxxxx, when he arrived at FCI-Butner, "was interviewed, and then he was placed in seclusion. So he underwent a mental status exam and an interview as he came into the institution. And it was my decision to put him in seclusion [because of his] . . . overt psychotic symptom picture, my assessment that he was dangerous to himself and others, and that being the only setting in which those issues could be managed." App3:275;7/27/00AM:23-24.

7. Zonana initially stated that it would not be unethical to force-medicate a pretrial detainee solely for a prosecutorial purpose. App3:153;7/25/00PM:72. He later modified his testimony by declining to offer an opinion on that issue. App3:158-60;7/25/00 PM:92-98.

8. It is also possible that xxxxxx's withdrawal was caused in part by the fact that the August 20, 1999 hearing occurred by videoconference. App3:332-33; Royall, App3:4,6;7/24/00AM:12-13, 19 (verbal withdrawal began in late August 1999, almost immediately after a videoconference hearing).

9. xxxxxx also has fundamental liberty, First Amendment, Fourth Amendment, and privacy interests that are implicated by the government's effort to medicate him against his will. See Riggins, 504 U.S. at 133-34 (liberty interest in being free from bodily intrusion); Brandon, 158 F.3d at 953 (pretrial detainee has a "First Amendment interest in avoiding forced medication, which may interfere with his ability to communicate ideas" (citing Bee v. Greaves, 744 F.2d 1387, 1393 (10th Cir. 1984)); Winston v. Lee, 470 U.S. 753, 759 (1985) (compelled surgical intrusion into defendant's body for evidence may be unreasonable under the Fourth Amendment even if it is likely to produce evidence of a crime); Stanley v. Georgia, 394 U.S. 557, 565-66 (1969) (recognizing fundamental right to be free from unwarranted intrusions into privacy).

10. The BOP regulation, which does not distinguish between convicted inmates and pretrial detainees, violates due process to the extent that it permits forced medication of a pretrial detainee as "dangerous to self or others" without a showing of imminent danger. Cf. United States v. McAllister, 969 F. Supp. 1200, 1207-08 (D. Minn. 1997) ("If the 'gravely disabled' language in the regulations were not read to require a showing of dangerousness within the institution, the regulation would [violate due process]" (citation omitted)); Covington v. Harris, 419 F.2d 617, 627-28 (D.C. Cir. 1969) (Bazelon, C.J.) ("'dangerousness' is a many splendored thing. Unless muzzled by discriminating analysis, it is likely to weigh against nominally competing considerations the way a wolf weighs against a sheep in the same scales: even if the sheep is heavier when weighed separately, somehow the wolf always prevails when the two are weighed together").

11. The other decision cited by the district court, United States v. Watson, 893 F.2d 970, 982 (8th Cir. 1990), was vacated when the Eighth Circuit granted the government's petition for rehearing en banc, and the appeal was subsequently dismissed as moot. See 900 F.3d 1322 (8th Cir. 1990).

12. In its ruling, the district court incorrectly framed the analysis as "balanc[ing]" the "government's interests in treating xxxxxx's dangerousness and restoring his competency" against "xxxxxx's trial rights." Op. 42. As Brandon states, "a balance of rights is struck by deciding the appropriate standard of review in the first place." See 158 F.3d at 959 (citing Harper, 494 U.S. at 223-24).

13. The district court itself stated earlier that "the side effects of [antipsychotic medication] are well-documented and potentially catastrophic[.]" United States v. xxxxxx, 36 F. Supp. 2d 7, 14 (D.D.C.), appeal dismissed as moot, 194 F.3d 145 (D.C. Cir. 1999).

14. Further weakening the government's position is the legal uncertainty of whether the district court would permit xxxxxx to refuse medication at trial. See Riggins, 504 U.S. at 136 ("[t]he question whether a competent criminal defendant may refuse antipsychotic medication if cessation of medication would render him incompetent at trial is not before us"); Hardesty, 362 N.W.2d at 794-97 (affirming decision to maintain medication regime at trial over defendant's objection). xxxxxx's constitutional rights would be unduly burdened by forced medication not only at trial, but also at sentencing if xxxxxx is convicted and the government seeks the death penalty, because the jury may never see him in an unmedicated state. Cf. United States v. Tucker, 404 U.S. 443, 446 (1972) (defendant has a constitutional right to be sentenced on the basis of accurate information).

15. The district court minimized the Riggins language, stating that it must be read "in concert with the statements in Riggins that an essential government interest can sometimes justify trial prejudice." Op. 46-47. The Court in Riggins, however, did not speak to when trial prejudice may be justified, and its statement concerning the inadequacy of expert testimony is not equivocal.

16. Although Johnson is xxxxxx's treating physician, the district court erroneously found that "no treatment relationship has arisen between xxxxxx and any psychiatrist[,]" Op. 7, n.6, apparently because no antipsychotic medication has been administered to xxxxxx. On the same apparent basis, the district court erroneously found that no role conflict has yet developed for Johnson. Op. 7, n.6.