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June 18, 1999


The opinion of the court was delivered by: Sullivan, District Judge.



This matter is before the Court for review of the decision by the Bureau of Prisons ("BOP") to forcibly administer antipsychotic drugs to the defendant, a pretrial detainee presently committed to a federal facility to restore his competency to stand trial.


On April 22, 1999, the Court committed the defendant to the custody of the United States Attorney General pursuant to 18 U.S.C. § 4241(d), and the defendant was admitted to the Health Services Division of the Federal Correctional Institution in Butner, North Carolina on May 5, 1999. As part of the Court's April 22 Order, and at the defendant's request, the Court stayed any action by the BOP to medicate the defendant without his consent and ordered that defense counsel receive reasonable notice prior to the commencement of an administrative hearing:

  [S]hould qualified medical personnel within the
  Bureau of Prisons, in the course of defendant's
  treatment, decide that the administration of
  psychotropic medications is appropriate, and should
  it appear that defendant will not provide voluntary
  written informed consent to the administration of
  such medication, then the Bureau of Prisons may
  follow the administrative procedures under
  28 C.F.R. § 543, provided that counsel for Mr. Weston receive
  reasonable notice before a hearing commences under §
  543. The Court and counsel for the parties shall be
  immediately notified of all determinations made
  within the administrative process and shall be
  provided copies of the written report required under
  § 543(a)(5), and also shall be provided copies of any
  decision by the institution's mental health division
  administrator should an administrative appeal be
  taken. No administration of psychotropic medications
  to defendant against his will shall occur without the
  prior approval of this Court in a written Order.

April 22, 1999 Order, at 6 (emphasis added).

In compliance with the Court's Order, Dr. Sally Johnson, Associate Warden Health Services, FCI-Butner, informed the Court on May 20, 1999, that the defendant refused to take antipsychotic medication voluntarily and requested that the Court issue a written order to treat the defendant.*fn1 Pursuant to 28 C.F.R. § 549.43,*fn2 the Butner facility held an involuntary medication hearing on May 14, 1999. On May 13, the day before the hearing, the defendant declined to select a staff representative, so Dr. Herbel, the Staff Psychiatrist appointed to be hearing examiner, appointed Mr. Ray Pitcairn, the Day Watch Nursing Supervisor, to be the defendant's Staff Representative.*fn3 Dr. Herbel indicated in his report of the hearing that the defendant refused to present any evidence or to respond to Dr. Johnson's testimony and that he refused to speak other than stating that "Upon the advice of my attorney, I cannot make any comments or statement or sign any documents." Hr'g Tr., at 40 (5/28/99).

The report further indicates that the defendant refused to speak with Mr. Pitcairn "due to the advice of his attorney." Based on the evidence presented to him at the hearing, which consisted solely of Dr. Johnson's reasons for wanting to medicate him, Dr. Herbel concluded that the defendant suffers from a mental disorder and that he needs to be medicated. See Dr. Johnson Ltr. (5/20/99), Involuntary Medication Report attachment, at 8. The defendant appealed the hearing examiner's decision, and the warden denied the appeal on May 18, 1999.


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 ...

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