telephone that the defendant refused to speak with him prior to
the hearing. As a result, Mr. Pitcairn explained that "there was
nothing [he] could say for [defendant] except for the fact [he]
attempted to explain to [defendant] the procedures as [he]
understood them." Id. at 123. Mr. Pitcairn further added that
the defendant did not state that he did not want to take
medication until the time of the hearing. Id. at 126-127. Mr.
Pitcairn admitted that he presented no favorable evidence against
forced medication and made no attempt to determine whether such
evidence existed. Id. at 127. The Court finds it most
significant that Mr. Pitcairn has served as a staff
representative approximately once a month during his 22-month
employment at Butner, id., and that his experience with the
defendant marked the first time that an inmate had refused to
speak with him. Id.
As an initial matter, the Court finds that the Bureau of
Prisons failed to comply with this Court's April 22 Order, which
required that Butner provide defense counsel with reasonable
notice of the involuntary medication hearing. Dr. Johnson
testified that she informed defense counsel, during his visit to
Butner on May 10, 1999, that she "would proceed with the
involuntary medication review process within the week." Hr'g Tr.,
at 36 (5/28/99). Contrary to the Court's Order, Butner provided
defense counsel with absolutely no notice of the hearing date.
Thus, defense counsel was unable to contact the Staff
Representative. This failure troubles the Court, especially given
the Bureau of Prisons' failure to notify defense counsel of an
involuntary medication hearing in a recent similar case. See
United States v. Morgan, Criminal No. 4:98-00428 (D.S.C. Feb. 9,
1999 Order, at 2 n. 1) ("The court also notes that BOP failed to
notify Defendant's counsel of the hearing, as was previously
ordered by the court.").
In addition to its concern over the lack of notice to defense
counsel, the Court also finds that the record in this case
reveals that the hearing officer did not have before him "any
evidence favorable to the patient's position." See 59-91(6000)
Duties of Staff Representative, Involuntary Medication Hearing.
Indeed, defendant's staff representative, Mr. Pitcairn, testified
that he said nothing at the hearing other than that the defendant
had refused to talk to him. The record does not indicate that Mr.
Pitcairn reviewed the defendant's files to locate evidence
favorable to the defendant. Furthermore, the Court is uncertain
if Mr. Pitcairn "[spoke] to witnesses who might [have]
furnish[ed] evidence on behalf of the patient." Id. Although
the memo indicates that the Staff Representative is required to
speak to such witnesses only "if the patient indicates there are
such witnesses whom the patient wishes to be called," Mr.
Pitcairn was certainly aware, or should have been aware, that the
defendant was represented by counsel and could have contacted
defendant's attorneys, or vice versa.
At the May 28 hearing, the defendant proffered his position
that "the medication is not justified [and] not needed," Hr'g
Tr., at 4 (5/28/99) and also stated that his expert would have
testified that "to a reasonable degree of medical certainty, [the
defendant] would not be made competent, that his delusions were
too ingrained, and in addition there would have been some
testimony about some of the side effects that Dr. Johnson . . .
minimized." Hr'g Tr., at 129 (5/28/99). Although Dr. Johnson
testified that she believes the defendant has a 70-75% likelihood
of becoming competent through the treatment she has proposed, the
record does not indicate that the hearing examiner considered any
evidence at all regarding the treatment's likelihood of success.
Because the Staff Representative failed to present any evidence
or witnesses in support of the defendant's position and indeed
failed to conduct any search for
witnesses or such evidence, the hearing examiner made his
decision based exclusively on Dr. Johnson's testimony and
evidence. Therefore, the Court will remand this decision to the
agency for further proceedings consistent with this opinion. See
Esch v. Yeutter, 876 F.2d at 993 (holding that remand to agency
was appropriate upon finding of procedural defectiveness).
Accordingly, it is hereby
ORDERED that the decision of the warden is remanded to
FCI-Butner for further proceedings consistent with this opinion;
and it is
FURTHER ORDERED that the stay prohibiting the administration
of antipsychotic medication to the defendant against his will
shall remain until further Order of this Court; and it is
FURTHER ORDERED that should involuntary medication hearings
take place, a transcript of such hearings shall be provided to
the Court; and it is
FURTHER ORDERED that upon completion of proceedings at
FCI-Butner, the Court will schedule further proceedings in this
case as appropriate.
IT IS SO ORDERED.