BARRY J. PORTMAN
Federal Public Defender
STEVEN G. KALAR
Assistant Federal Public
Defender
450 Golden Gate Avenue
San Francisco, CA 94102
Telephone: (415) 436-7700
Counsel for Defendant XXXX
IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN
DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
Plaintiff,
v.
XXXX XXXX,
Defendant.
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No. CR 00-0000 XXX
DEFENDANT=S OPPOSITION TO
GOVERNMENT=S MOTION FOR INVOLUNTARY
MEDICATION
Hearing Date: December 15, 2004 at 2:00 pm
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Introduction
In its
motion to order the involuntary injection of antipsychotic drugs, the
government has failed to meet its burden of showing that this is one of the Arare@ instances where involuntary
medication is appropriate. See Sell
v. United States, 539 U.S. 166, 180 (2003).
Discussion
While the
government correctly identifies the Sell analysis as the appropriate
legal standard, it has failed in its motion to meet the Sell factors
warranting forced medication. As the
Ninth Circuit has explained, AIt is well‑established
that involuntary medical treatment raises questions of clear constitutional
importance.@ United States v. Rivera-Guerrero, 377 F.3d 1064, 1070 (9th
Cir. 2004). Forced medication of Mr.
XXXX based on the government=s current (insufficient)
showing would violate the defendant=s constitutional rights, and should not be ordered.
I. The
Government Has Not Shown that Important Federal Interests Are at Stake
The first Sell
factor is whether Aimportant governmental
interests are at stake.@ Sell, 539 U.S. at 180.
The government=s imprecise discussion of
the facts underlying this factor undermine its showing.
For example,
the government repeatedly asserts that the defendant was Afound with@ a loaded revolver and a
box of ammunition. Gov=t Mot. at 2:7-10,
6:11-14. The implication is that XXXX
was in actual possession of a loaded weapon when arrested.
This is not
the case. According to the incident
report, the weapon was found inside of a gun carrying case, inside of a
backpack, inside of a trunk of a car. See
Exhibit A, SFPD Incident Report 031125879 pg. 7/16. The officers had never seen Mr. XXXX open or access the
trunk. Id. There is no forensic evidence B such as fingerprint or
trace DNA analysis B to suggest that Mr. XXXX
ever handled this weapon.
As the
Supreme Court cautioned, ACourts . . . must consider
the facts of the individual case in evaluating the Government=s interest in prosecution.@ Id. In the case
now before the Court, there was no allegation that Mr. XXXX was engaged in any
unlawful or dangerous activity before he was arrested. To the contrary (as is noted in the defense
suppression motion) Mr. XXXX was allegedly stopped late at night because he
parked briefly in a bus loading zone. See
Exhibit A, SFPD Incident Report 031125879 pg. 7/16. It would be hard to imagine behavior less likely to support a
forced medication order than parking in a bus zone.
Moreover,
the government gives short shrift to the Aspecial circumstances@ that may Alessen the importance of that interest.@ Sell, 539 U.S. at 180.
As explained by the Supreme Court:
The
defendant=s failure to take drugs
voluntarily, for example, may mean lengthy confinement in an institution for
the mentally ill B and that would diminish
the risks that ordinarily attach to freeing without punishment one who as
committed a serious crime.
Id.
In its
discussion of the Aspecial circumstances,@ the government in its
Motion relies heavily on the Second Circuit=s opinion in Gomes, but fails to report that
decision=s finding that lengthy
civil commitment in an institution for the mentally ill would prove no bar to
subsequent prosecution under the indictment.
United States v. Gomes, __ F.3d __, 2004 WL 2377601, *3 (2d Cir.
Oct. 15, 2003) (AWe then consider whether
the potential for civil commitment abates the Government's interest in
prosecuting Gomes. After oral argument, we requested supplemental briefing from
the parties on whether the Government would lose the ability to pursue the
present indictment if Gomes were civilly committed or if at some point, by some
means, he achieves sufficient competence to assist in his defense. The parties
agree that in either case, the Government could still proceed against Gomes on
the present indictment.@)
If the
government is convinced that Mr. XXXX will not recuperate without forced
medication, he will certainly be subjected to a lengthy involuntary civil
commitment in a mental health institution.
Mr. XXXX accordingly fits precisely into that Aspecial circumstance@ contemplated in Sell
that cuts against forced medication. See Sell, 539 U.S. at
180.
The
government=s that Athere is some question as
to whether the defendant would be committed civilly should this motion be
denied@ is unpersuasive. Gov=t Opp. at 8:9-10.
It is the government=s burden to establish that
this is the Arare@ Sell case that
merits forced medication. The
government has not shown that this mentally-ill, hallucinating inmate would not
be civilly committed B and, again, it is the
government=s burden to rebut this
special circumstance.
Section 4246
of Title 18 specifically anticipates the civil commitment of an inmate who is Apresently suffering from a
mental disease or defect as a result of which his release would create a
substantial risk of injury to another person or serious damage to property of
another.@ 18 USC ' 4246(a). That evaluation can be undertaken sua
sponte by the director of the facility in which the person is hospitalized.
Id. To accomplish this
commitment, the court need only find the above-described disease or defect by Aclear and convincing
evidence.@ Id. at ' 4246(d). The government has not explained why the
Bureau of Prisons did not undertake this evaluation as part of the Sell
analysis, or why the government has failed to meet its burden of showing that
the Aspecial circumstance@ of civil commitment is not
likely. The defense would specifically
request that the likelihood of Mr. XXXX=s civil commitment (should he not be forcibly
medicated) be taken up at an evidentiary hearing.
Finally, the
government=s concern that Amemories may fade and
evidence may be lost@ is not well taken. See Gov=t Opp. at 8:17.
Mr. XXXX=s original arrest took
place on September 24, 2003. See Exhibit
A, Incident Report, pg. 2. The only percipient witnesses to the alleged offense
were law enforcement officers, who are trained witnesses and who have committed
their observations to paper in incident reports. See id. This is
not the case where elusive citizen witnesses will have disappeared or forgotten
events by the time the case proceeds to trial; the SFPD police officers will be
perfectly able to refresh their recollections with their incident reports when
it is time for them to testify.
The
government has not shown that the specific facts of this case rise to the level
of an important governmental interest, particularly when the likelihood of
lengthy civil commitment is considered.
Forced medication is therefore inappropriate.
II. The Government Has Not Shown that
Involuntary Medication is Substantially Likely to Render Mr. XXXX Competent to
Stand Trial, and That Administration of the Drugs is Substantially Unlikely to
Have Side Effects that Will Interfere Significantly with the Defendant=s Ability to Assist Counsel
in Conducting a Trial Defense
The government has failed
to make its required showing that involuntary medication is Asubstantially likely Mr.
XXXX competent to stand trial,@ and to make the
simultaneous showing that Aadministration of the drugs
is substantially unlikely to have side effects that will interfere
significantly with the defendant=s ability to assist counsel in conducting a trial
defense.@ Sell, 539 U.S. at 181.
The
government=s reliance on a profoundly
inadequate report from the Bureau of Prisons undermines its showing on this,
the second Sell prong. The
Bureau of Prisons (and, accordingly, the government) fail to specify which
drug it intends to forcibly administer.
This shortcoming makes an evaluation of the likelihood of return to
competency, and the dangers of side effects that would impact trial
performance, impossible.
Notably, the
Supreme Court in Sell repeatedly emphasized that the district court=s analysis must focus upon
the particular drug to be administered:
Has the
Government, in light of the efficacy, the side effects, the possible
alternatives, and the medical appropriateness of a particular course of
antipsychotic drug treatment, shown a need for that treatment sufficiently
important to overcome the individual=s protected interest in refusing it?
539 U.S. at 183 (emphasis
added); see also id. at 185 (AWhether a particular drug will tend to
sedate a defendant, interfere with communication with counsel, prevent rapid
reaction to trial developments, or diminish the ability to express emotions are
matters important in determining the permissibility of medication to restore
competence.@) (emphasis added).
The BOP
report B and the government=s motion B are silent as to the
particular course of treatment anticipated for Mr. XXXX. See, e.g., Gov=t Opp. at 9. Instead, the government attempts to reassure
the Court in platitudes that do not rise to the rigorous showing required in Sell. See id. at 9:21-22 (AThe risks and benefits of
the particular medication are considered prior to initiating treatment, and if
serious side effects emerge they are managed in a clinically appropriate
manner.@)
There are
very good reasons to be concerned about the specific drug contemplated, and the
specific dosage anticipated. To provide
insights into the potential dangers of antipsychotic drugs, the defense has
retained expert Dr. Pablo Stewart. See
Exhibit B, Curriculum Vitae of Dr. Pablo Stewart. Dr. Stewart has reviewed the BOP report regarding Mr. XXXX. See Exhibit C, Declaration of Dr.
Pablo Stewart. Dr. Stewart, a licensed
psychiatrist, has experience with BOP antipsychotic treatment procedures, and
has in fact qualified as a Sell expert in another federal case. See id.
In his experience with BOP
treatment protocols, he has seen the Bureau prescribe dosage regimes that far
exceed the FDA recommended dosages. Id.
Notably B and consistent with the
suggestions in Sell B in Dr. Stewart=s experience, an inmate
would not be forcibly medicated in the California state courts unless the
antipsychotic drug was specified and the dosage regime was described. Id.
In Dr.
Stewart=s opinion, it is medically
inappropriate to predict the likelihood that a drug treatment would be likely
to restore an inmate to competency to face trial without i) specifying the drug
and dosages involved, and ii) first reviewing the medical and clinical history
of the inmate. Id. As described above, the BOP report and the
government=s motion is entirely silent
as to the specific drug and dosage contemplated. Moreover, the BOP did not consider Mr. XXXX=s medical and mental health
history B even though this history
was provided to the Bureau before the evaluation was distributed.
BOP Warden
Beeler wrote to this Court on October 12 with the XXXX report. See Exhibit D,
Letter of Warden Beeler to Hon. Fern M. Smith and Forensic Report, Oct. 12,
2004. In this report, the evaluators
state A[w]e do not have past
medical records . . . .@ See Exhibit D, Forensic Report pg 7 of 11. The evaluators conclude, ATherefore, there is no
available established historical pattern of treatment response upon which to
base the probability of his current response to medication.@ Id. at pg. 8 of 11.
Undersigned
counsel, however, had sent XXXX=s medical and mental health
records to the BOP before this report was prepared. In fact, these records were received by the Bureau of Prisons on
October 1, 2004 B nearly two weeks before
Warden Beeler wrote to the Court. See
Exhibit E, Letter of Kalar and FedEx delivery receipt.
As Dr.
Stewart explains in his declaration, a patient=s past experience and reactions to treatments with
antipsychotic medication is one of the best indicators as to the likelihood for
success for future treatment. See
Exhibit C, Decl. Pablo Stewart.
Therefore, it is a generally accepted medical practice to first review a
patient=s clinical and medical
history, and to incorporate those histories into a patient=s evaluation, before prescribing
an antipsychotic drug treatment regimen.
Id.
The Bureau=s failure to secure,
review, and analyze XXXX=s clinical and medical records
before seeking forced involuntary medication undermines the reliability of its
diagnoses and recommendations.
A. The
Government Has Not Shown a Substantial Likelihood that XXXX Will Be Restored to
Trial Competency Through Forced Medication
A review of
Mr. XXXX=s clinical and medical
history reveals that he may not in fact respond to forced medication of
antipsychotic drugs. For example, in
2003 B while incarcerated B the defendant was
hospitalized in at the ValleyCare Medical Center in Pleasanton, California.
See Exhibit F, Clinical and Medical Records at Bates 003. Mr. XXXX was receiving 100 mg of the drug
seroquel.
Exhibit F, Bates 019. The
defendant received medication for eight days, with increasing doses. Id.; see also Bates 018
(reflecting 200 mg dosage beginning 12/5/03).
Although treating physician Dr. Ruiz said that XXXX was Acalmer@ Awith violent outbursts,@ id. at Bates 026,
later documents reported that the defendant was not responsive to
medication. Specifically, on December 17, 2003, the treating physician
noted that the defendant was still hostile at times B despite the medication. Id. at Bates 034.
After
reviewing these records, defense expert Dr. Stewart has explained that the drug
seroquel works fairly quickly; if the medication was indeed going to work, one
could anticipate seeing results beginning in eight days. See Exhibit C, Declaration Pablo
Stewart. Dr. Stewart has opined that
the 2003 ValleyCare Medical treatment history suggests that Mr. XXXX may not
respond as typically expected to medication with antipsychotic drugs. Id.
Dr. Stewart
is also concerned with the conclusions the BOP draws from the observation that
Mr. XXXX=s psychotic symptoms are Achronic and persistent.@ See id; see also Exhibit D, Forensic Report pg. 9 of
11. From that observation, the BOP
concludes, AIt is our opinion that Mr.
XXXX is unlikely to improve in the foreseeable future without treatment with
antipsychotic medication . . . .@ Exhibit D,
Forensic Report pg. 9 of 11. In Dr.
Stewart=s opinion, however, Achronic and persistent@ psychotic symptoms may
also indicate intractability B of a mental illness so
severe that it is nonresponsive to medication.
See Exhibit C, Declaration Pablo Stewart. The Achronic and persistent@ nature of Mr. XXXX=s symptoms do not increase
the likelihood that he will respond well to forced medication, or become
competent to face trial if forcibly medicated.
Id.
B. Antipsychotic Drugs Can Have Dramatic Side
Effects That Can Impair a Defendant=s Ability to Assist at Trial
In its motion, the government glosses over the
serious side-effects that can arise from antipsychotic medications. The BOP report itself concedes, AA few of the side effects
of the antipsychotic medications are serious . . . .@ Exhibit D, Forensic Report at pg. 9 of 11. That is a rather profound
understatement. Drugs used to treat
psychotic illnesses can have profound side-effects that will dramatically
impair Mr. XXXX=s ability to evaluate the
case and any settlement offers, assist counsel to prepare for the trial, and to
convey appropriate emotions during his testimony. By failing to identify the anticipated drug treatment and dosage
regimen, and by failing to reveal these various side-effects, the government
has not met its burden justifying forced involuntary medication.
A review of
the current status and dangers of antipsychotic drugs reveal the importance of
specificity regarding the type of drug, and the dosage. Drugs used to treat psychotic illnesses in
general C and schizophrenia in
particular B are classified into two
categories, Atypical@ antipsychotics and Aatypical@ antipsychotics. The typical antipsychotics are the older
drugs, the first of which was approved for use by the FDA in the early 1950's.
Two of the
more serious side effects associated with the typical antipsychotics are
tardive dyskinesia and neuroleptic malignant syndrom (NMS). Tardive dyskinesia is a potentially
irreversible syndrome consisting of involuntary, dyskinetic movements which may
develop in patients treated with antipsychotic drugs. See Exhibit G, Typical Antipsychotics, Warning Label
Inserts, Haldol, Navane, and Thorazine.
As described by the National Institute of Neurological Disorders and
Stroke, tardive dyskinesia is a physically conspicuous syndrome:
Tardive
dyskinesia is a neurological syndrome caused by the long‑term use of
neuroleptic drugs. Neuroleptic drugs are generally prescribed for psychiatric
disorders, as well as for some gastrointestinal and neurological disorders.
Tardive dyskinesia is characterized by repetitive, involuntary, purposeless
movements. Features of the disorder may include grimacing, tongue protrusion,
lip smacking, puckering and pursing, and rapid eye blinking. Rapid movements of
the arms, legs, and trunk may also occur. Involuntary movements of the fingers
may appear as though the patient is playing an invisible guitar or piano.
See
http://www.ninds.nih.gov/health_and_medical/disorders/tardive_doc.htm (as
visited Nov. 13, 2004).
Needless to
say, grimacing, tongue protusion, lip smacking, puckering and pursing, rapid
eye blinking, and rapid arm, leg, and trunk movement will have a dramatic (and
perhaps irreversible) impact on Mr. XXXX=s ability to present an effective defense and
assist counsel at trial.
The side
effect of neuroleptic malignant syndrome is equally troubling:
Neuroleptic
malignant syndrome is a life‑threatening, neurological disorder most
often caused by an adverse reaction to neuroleptic or antipsychotic drugs.
Symptoms include high fever, sweating, unstable blood pressure, stupor, muscular
rigidity, and autonomic dysfunction. In most cases, the disorder develops
within the first 2 weeks of treatment with the drug; however, the disorder may
develop any time during the therapy period. The syndrome can also occur in
people taking anti‑Parkinsonism drugs known as dopaminergics if those
drugs are discontinued abruptly.
See
http://www.ninds.nih.gov/health_and_medical/disorders/neuroleptic_syndrome.htm
(as visited Nov. 13, 2004).
The newer
atypical medications are now considered the first line of treatment for
schizophrenia and bipolar disorders. Even these newer drugs, however, have
serious side effects that would impair Mr. XXXX=s ability to assist in his defense. For example, olanzapine (brand name AZyprexa@) has a commonly reported
adverse event of somnolence, occurring in over 25% of all patients taking the
drug. See
http://pi.lilly.com/us/zyprexa‑pi.pdf (Eli Lilly Drug Warnings) (as
visited Nov. 13, 2004) (Aolanzapine has the
potential to impair judgment, thinking, or motor skills.@); see also Exhibit
H (Atypical Warning Label Inserts, Zyprexa, Seroquel, Risperdal).
To weigh the
likelihood and severity of side effects of any psychotropic medication this
Court must know i) the specific medication at issue, ii) the anticipated dosage
levels, and iii) the defendant=s previous history with
this or similar medications. The
government has provided none of this information, and has accordingly failed to
meet its burden to show this is the Arare@ case meriting involuntary medication.
III. Involuntary
Medication is Not Necessary to Further the Government=s Interests
To authorize
involuntary medication, this Court Amust conclude that involuntary medication is necessary
to further [important governmental interests.] The court must find that any
alternative, less intrusive treatments are unlikely to achieve substantially
the same results . . . And the court must consider less intrusive means for
administering the drugs, e.g., a court order to the defendant backed by
the contempt power, before considering more intrusive methods.@ Sell, 539 U.S. at 181.
The government has failed to meet its burden to show that involuntary
injections of psychotropic drugs are necessary, and that other less intrusive
means of administering the drugs are not feasible.
As an
initial matter, it is unclear whether the Bureau of Prisons has actually
attempted voluntary medication of antipsychotic drugs. On the one hand, the Bureau states, AIt is our opinion that Mr.
XXXX is unlikely to improve in the foreseeable future without treatment with
antipsychotic medication, which he is now refusing on a voluntary basis.@ See id. at pg. 9 of 11. The report also states, AMr. XXXX was not treated with psychotropic
medication; he refused to be treated.@ Id.
at 8 of 11.
The report
also states, however, that AIt is likely that
the antipsychotic medication would have to be administered involuntarily as Mr.
XXXX is currently actively psychotic, does not communicate with the staff in
[a] realistic and meaningful manner, does not appear to have the capacity to
give voluntary consent, and refuses treatment with medication.@ See Exhibit D, Forensic Report at pg. 8 of 11. This
suggests that Mr. XXXX has not yet been presented with the option of voluntary
medication with antipsychotic drugs. Similarly,
Chief Psychiatrist Jean Zula apparently told AUSA Crudo that Aprior to forcibly
medicating the defendant, the Butner would request that he voluntarily take the
medications; in their experience, informing a patient that a court has ordered
the medication is sometimes sufficient to cause him or her to comply.@ See Gov=t Mot., Decl. Tim Crudo at
2:11-14.
Before this
Court can order involuntary medication, it must have before it a declaration or
affidavit describing when, and how many times, voluntary medication with
antipsychotic drugs have been attempted, which drugs were offered, and the
defendant=s reaction to these
attempts.
This prong
of the Sell analysis deserves special attention by this Court, because
Mr. XXXX has a history of voluntarily complying with psychotropic drug
regimens. For example, during his hospitalization in the ValleyCare Medical
Center in 2003 it appears that he was voluntarily taking the antipsychotic drug
seroquel. See Exhibit F,
Clinical and Medical Records at Bates 007 (A[Patient] says he will take meds if offered even
though he=s not feeling paranoid at
this time.@) Moreover, when the defendant was returned to the Alameda County
jail (Santa Rita) after hospitalization, he asked that he be kept on the same
medication Bdemonstrating voluntary
compliance. Id. at Bates 036.
Similarly,
Mr. XXXX was on Thioridazine (brand name AMellaril@) while committed in Atascedero in 1994. See Exhibit F, Clinical and Medical
Records at Bates 02. During that
commitment, he was prescribed 600 mg of the drug. Id. Because
Mellaril can only be taken orally, this was likely voluntary medication as
well. See Exhibit C, Declaration
of Dr. Pablo Stewart.
The
government=s motion is also notably
silent on other Aless intrusive means for
administering the drugs, e.g., a court order to the defendant backed by
the contempt power . . . .@ Sell, 539 U.S. at 181.
According to the Chief Psychiatrist at the Federal Medical Center, Dr.
Jean Zula, Ainforming a patient that a
court has ordered the medication is sometimes sufficient to cause him or her to
comply.@ See Gov=t Opp., Decl. AUSA
Crudo. Before ordering the
extraordinarily intrusive measure of involuntary medication, this Court must
first consider an order that Mr. XXXX simply take the drugs orally and
voluntarily B an order that BOP
psychiatrist Dr. Zula herself speculates may be effective. The Court can only revisit the need for
forced, involuntary medication after such an order has been tried, and failed.
Finally, the
defense respectfully declines the government=s invitation to litigate the defendant=s suppression motion before
deciding the issue of involuntary medication.
See Gov=t Opp. at 11:8-10. Mr. XXXX is currently incompetent and is
3,000 miles from this Court. The
defense does not consent to proceeding on substantive matters in the defendant=s mental and physical
absence.
IV. The
Involuntary Injection of Antipsychotic Drugs is Not Medically Appropriate, i.e.,
in Mr. XXXX=s Best Medical Interest in
Light of His Medical Condition
Certainly
the most troubling of the Sell prongs in relation to Mr. XXXX is the
fourth; whether Aadministration of the drugs
is medically appropriate, i.e., in the patient=s best medical interest in
light of his medical condition.@ Sell, 539 U.S. at 181 (emphasis in original). The involuntary injection of psychotropic
drugs in Mr. XXXX=s case are decidedly not
in his best medical interest, in light of his medical condition.
The Bureau
of Prisons Forensic report reveals that Mr. XXXX suffers from a number of
medical conditions that are given short shrift in the recommended treatment
regimen. The report states, AMedical history was
positive for sarcoidosis,
diabetes mellitus,
asthma, and anemia.@ Exhibit D, Forensic Report at pg. 4 of 11. Mr. XXXX himself complained of having
diabetes to Bureau physicians. Id.
at pg. 3 of 11. Although the report
states that Aserial check of blood sugar
by Accu Check were within the normal range,@ id. at 5, the report does not provide the
defendant=s blood sugar readings.
The report
also concedes that the Ablood chemistries were
within normal limits with the exception of several indices which showed [] mild
abnormalities and were not considered clinically significant.@ Id.
These vague
medical results are troubling, because Mr. XXXX was recently hospitalized at
the ValleyCare Medical Center in Pleasanton and was much more specifically
diagnosed with several diseases. See
Exhibit F, Clinical and Medical Records at Bates 024. Specifically, Mr. XXXX was diagnosed with chronic viral hepititus
B,
and with adult onset diabetes (type II). Id.
Defense
expert Dr. Pablo Stewart opines that, before prescribing any antipsychotic
drug, he would insist on more complete data from blood sugar and blood
chemistry tests than that reflected in the BOP forensic report. See Exhibit C, Declaration of Dr.
Pablo Stewart. This would be
particularly true when the patient presented with recent diagnoses for liver
disease and diabetes. Id. Dr. Stewart=s concern is based on the fact that antipsychotic
drugs can have side-effects that can pose a serious health risk to diabetics,
and to those who suffer from liver disease.
Id.
For example,
in its report the Bureau of Prisons refers to a Anewer antipsychotic medication@ that is now available Ain an injectable form and
can be administered on an involuntary basis.@ See
Exhibit D, Forensic Report at pg 10 of 11.
Dr. Stewart suspects that the BOP is here referring to risperidone
(brand name ARisperdal.@) See Exhibit C, Declaration of Pablo
Stewart.
As reported
in the FDABrequired warning labels for
this drug, the medication presents very real risks for diabetics B risks that have not yet
been quantified:
Hyperglycemia,
in some cases extreme and associated with ketoacidosis or hyperosmolar coma or
death, has been reported in patients treated with atypical antipsychotics
including RISPERDAL7. Assessment of the
relationship between atypical antipsychotic use and glucose abnormalities is
complicated by the possibility of an increased background risk of diabetes
mellitus in patients with schizophrenia and the increasing incidence of
diabetes mellitus in the general population. Given these confounders, the
relationship between atypical antipsychotic use and hyperglycemia‑related
adverse events is not completely understood. However, epidemiological studies
suggest an increased risk of treatment‑emergent hyperglycemia‑related
adverse events in patients treated with the atypical antipsychotics. Precise
risk estimates for hyperglycemia‑related adverse events in patients
treated with atypical antipsychotics are not available.
http://www.risperdal.com/active/janus/en_US/assets/ris/risperdal.pdf
(as visited Nov. 13, 2004); see also Exhibit H (Atypical Antipsychotic
Drugs, Warning Label Inserts, Zyprexa, Seroquel, Risperdal).
Similarly,
another medication frequently prescribed (off-label) as a mood stabilizer can
have a serious side-effects for those who suffer from liver disease. Valproic acid (brand name, ADepakene@) is extremely harsh on the
liver. The Physician=s Desk Reference warns
flatly, AYou should not take this
drug if you have liver disease or your liver is not functioning properly . . .@ See http://www.pdrhealth.com/
drug_info/rxdrugprofiles/drugs/dep1124.shtml (as visited Nov. 13, 2004). The FDA warning label states:
Liver
disease impairs the capacity to eliminate valproate. In one study, the
clearance of free valproate was decreased by 50% in 7 patients with cirrhosis
and by 16% in 4 patients with acute hepatitis, compared with 6
healthy subjects. In that study, the half‑life of valproate was increased
from 12 to 18 hours. Liver disease is also associated with decreased albumin
concentrations and larger unbound fractions (2 to 2.6 fold increase) of
valproate. Accordingly, monitoring of total concentrations may be misleading
since free concentrations may be substantially elevated in patients with
hepatic disease whereas total concentrations may appear to be normal.
http://www.fda.gov/medwatch/SAFETY/2002/Depakote_PI.pdf
(as visited Nov. 13, 2004) (emphasis added).
The
government=s treatment Aplan,@ such as it is, does not
acknowledge Mr. XXXX=s medical limitations;
specifically, his adult-onset diabetes and his liver disease. This is of particular concern because many
psychotropic drugs are specifically contraindicated for these diseases. Because of the defendant=s previously-diagnosed
medical conditions, and because the government failed to address the
interactions of these conditions and forced medication, the government has not
met its burden under this last Sell factor. Involuntary injection of psychotropic medication cannot,
therefore, be ordered.
V. This Court Should Either Deny the
Government=s Motion, or Schedule the
Matter for an Evidentiary Hearing Before Ordering Involuntary Injection of
Psychotropic Drugs
The government has moved this Court to order the
forced injection of antipsychotic drugs that can cause permanent, irreversible
damage to Mr. XXXX=s health. It has not made a showing commiserate with
such a weighty request. The prudent
course for this issue of constitutional dimensions would be to deny the
government=s motion.
In the
alternative, this Court should order an evidentiary hearing with testimony from
the Bureau of Prison evaluators, and from defense expert Dr. Pablo
Stewart. At this hearing, the
government should be prepared to describe the precise type and dosage of the
drug regimen anticipated.
Conclusion
For the foregoing reasons,
the defense asks that the Court deny the government=s motion or, in the
alternative, schedule this matter for an evidentiary hearing.
Dated: XXX, 2004
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
STEVEN G.
KALAR
Assistant
Federal Public Defender
Table
of Contents
Introduction................................................................................................................................... 1
Discussion....................................................................................................................................... 1
I. The
Government Has Not Shown that Important Federal Interests Are at Stake.... 1
II. The
Government Has Not Shown that Involuntary Medication is Substantially Likely to
Render Mr. XXXX Competent to Stand Trial, and That Administration of the Drugs
is Substantially Unlikely to Have Side Effects that Will Interfere
Significantly with the Defendant=s Ability to Assist Counsel in Conducting a Trial
Defense............................................................................................. 4
A. The Government Has Not Shown a Substantial Likelihood that
XXXX Will Be Restored to Trial Competency Through Forced Medication................................................. 6
B. Antipsychotic Drugs Can Have Dramatic Side Effects That Can
Impair a Defendant=s Ability to Assist at
Trial..................................................................................................... 8
III. Involuntary
Medication is Not Necessary to Further the
Government=s Interests............................................................................................................................ 10
IV. The
Involuntary Injection of Antipsychotic Drugs is Not Medically Appropriate, i.e.,
in Mr. XXXX=s Best Medical Interest in
Light of His Medical Condition............................................ 12
V. This
Court Should Either Deny the Government=s Motion, or Schedule the Matter for an Evidentiary
Hearing Before Ordering Involuntary Injection of Psychotropic Drugs..................... 15
Conclusion.................................................................................................................................... 16
Table
of Authorities
Federal
Cases
Sell v. United
States,
539 U.S. 166 (2003).......................................................... passim
United States v.
Gomes,
__ F.3d __, 2004 WL. 2377601
(2d Cir. Oct. 15, 2003)................................................................................................. 2
United States v.
Rivera-Guerrero, 377 F.3d 1064 (9th Cir. 2004).......................... 1
Federal Statutes
18 U.S.C. ' 4246(a).......................................................................................................... 3
It bears emphasis that in this case, as in Sell, the
government has explicitly disclaimed reliance on a Adangerousness@ theory in its motion for
involuntary medication. See Gov=t Opp. at 5 & n.3. In light of this concession, the defense
does not address that basis for involuntary medication.
In relying on a speech by former Attorney General Ashcroft, the
government appears to view the Agovernment interest@ prong of Sell as
categorical analysis. Sell,
however, suggests that this is in fact a case-specific inquiry based on the
particular facts of the offense. Sell,
539 U.S. at 180 (ACourts, however, must
consider the facts of the individual case in evaluating the Government=s interest in prosecution.@) It remains for this Court
to determine B apparently for the first
time in this Circuit B which approach is correct.
This hospitalization occurred while Mr. XXXX was in federal
custody, at Santa Rita jail. The
government offers no explanation why the BOP did not retrieve these custodial
records before completing its evaluation.
In any event, as explained
above, these records were provided to the BOP by undersigned counsel nearly two
weeks before the report was completed.
Seroquel is a psychotropic medication shown to be effective in
the treatment of symptoms of schizophrenia, as well as mania associated with
bipolar disorder. See
http://www.seroquel.com/ (as visited Nov. 13, 2004).
The BOP report and the government=s motion are silent as to whether the forced
medication will involve typical, or atypical, antipsychotic medication.
ASarcoidosis is a disease
that causes inflammation of the body=s tissues. Inflammation is a basic response of the
body to injury and usually causes reddened skin, warmth, swelling, and pain.
Inflammation from sarcoidosis is different. In sarcoidosis, the inflammation
produces small lumps (also called nodules or granulomas) in the tissues.
The
inflammation of sarcoidosis can occur in almost any organ and always affects
more
than one. Most often, the inflammation starts in
either the lungs or the lymph nodes (small bean‑shaped organs of the
immune system). Once in a while, the inflammation occurs suddenly and symptoms
appear quickly, but usually it develops gradually and only later produces
symptoms.@ See
http://www.nhlbi.nih.gov/health/public/lung/other/sarcoidosis/sarcoid.pdf (as
visited Nov. 13, 2004) (web page of the Department of Health and Human
Services, National Heart, Lung, and Blood Institute).
ADiabetes mellitus is a
group of metabolic disorders with one common manifestation: hyperglycemia.
Chronic hyperglycemia causes damage to the eyes, kidneys, nerves, heart and
blood vessels. The etiology and pathophysiology leading to the hyperglycemia,
however, are markedly different among patients with diabetes mellitus,
dictating different prevention strategies, diagnostic screening methods and
treatments.@ See http://www.aafp.org/afp/981015ap/mayfield.html (as
visited Nov. 13, 2004) (American Academy of Family Physicians web page).
AHepatitis B is a serious
disease caused by a virus that attacks the liver. The virus, which is called
hepatitis B virus (HBV), can cause lifelong infection, cirrhosis (scarring) of
the liver, liver cancer, liver failure, and death.@ See http://www.cdc.gov/
ncidod/diseases/hepatitis/b/ (as visited Nov. 13,
2004) (CDC web page).
ARISPERDAL7 (risperidone) is a
prescription medication that has been approved by the Food and Drug
Administration (FDA) for treatment of bipolar I disorder or to treat acute to
manic or mixed episodes associated with bipolar I disorder. It is approved for
use as therapy alone or in combination with drugs called mood stabilizers, such
as lithium or valproate.@ See http://www.risperdal.com/html/ris/consumer/
pd_risperidone.xml;jsessionid=HP0DXYO5JMKOICQPCCFTC0YKB2IIQNSC?article=index_risperidone.jspf
(as visited Nov. 13, 2004).