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

 

 

 

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

 

 

 

 

                                                                  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.[1] 

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.[2]

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.[3]  See Exhibit F, Clinical and Medical Records at Bates 003.  Mr. XXXX was receiving 100 mg of the drug seroquel.[4] 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.[5]  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.