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U.S. v. WESTON

United States District Court, District of Columbia


September 9, 1999

UNITED STATES OF AMERICA
v.
RUSSELL EUGENE WESTON, JR., DEFENDANT.

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

  MEMORANDUM OPINION & ORDER

INTRODUCTION

This matter is before the Court for its consideration of the Bureau of Prisons ("BOP") decision to administer antipsychotic medication to the defendant, Russell Eugene Weston, Jr., over his objection. The defendant is a pretrial detainee committed by this Court to the custody of the BOP for competency restoration pursuant to 18 U.S.C. § 4241 (d). Following two administrative involuntary medication hearings ("administrative hearing"), the BOP has determined that antipsychotic medication may be administered to the defendant without his consent because: (1) he suffers from a mental disorder, (2) he is dangerous to himself and others, (3) he is gravely disabled, (4) he is unable to function in the open mental health population, (5) he needs to be rendered competent for trial, (6) he is mentally ill and medication is necessary to treat the mental illness.

Upon consideration of the BOP decision to medicate the defendant over his objection, the opposition thereto, relevant statutory and case law, the record of proceedings, evidence and arguments of counsel at two judicial oversight/evidentiary hearings ("judicial hearing"), the Court authorizes the BOP to administer antipsychotic medication to the defendant, Russell Eugene Weston, Jr., over his objection.

BACKGROUND

The defendant has been charged in a six-count indictment with the premeditated murders of United States Capitol Police Officers Jacob J. Chestnut and John M. Gibson, the attempted murder of United States Capitol Police Officer Douglas B. McMillan, and three counts of carrying and use of a firearm during a crime of violence. The government contends that all of these events occurred on the grounds of the United States Capitol on July 24, 1998, while the victims were engaged in their official duties as federal law enforcement officers.

On October 15, 1998, after a joint request by the government and the defendant, this Court appointed Sally C. Johnson, M.D., Associate Warden Health Services, Mental Health Division, Federal Correctional Institution-Butner ("FCI-Butner"), pursuant to 18 U.S.C. § 4241 (b), to conduct an outpatient psychiatric examination of the defendant to assist the Court in determining whether the defendant is competent to stand trial. At that time, the defendant's poor physical condition precluded moving him from the District of Columbia to Butner for an inpatient evaluation. Dr. Johnson then examined the defendant for approximately twenty hours, and in her November 12, 1998 report, she concluded that the defendant is incompetent to stand trial. Following a number of continuances requested by both sides, the Court scheduled a competency hearing for February 22, 1999.

After receiving Dr. Johnson's report, the government then moved to compel a second psychiatric examination of the defendant by its expert. The defendant opposed the additional examination, contending that the government had suggested the initial appointment of Dr. Johnson. On January 28, 1999, the Court granted the government's motion and, sua sponte, ordered an inpatient psychiatric examination of the defendant at the United States Medical Center for Federal Prisoners at Springfield, Missouri.*fn1 See United States v. Weston, 36 F. Supp.2d 7 (D.D.C. 1999). The defendant appealed the Court's decision to the United States Court of Appeals for the District of Columbia Circuit and moved for a stay pending the appeal. The Court of Appeals denied both the defendant's motion for a stay and the government's motion for summary affirmance. See United States v. Weston, No. 99-3016, February 5, 1999 Order (D.C.Cir.) (per curiam). Thereafter, this Court rescheduled the competency hearing for April 19, 1999.

In late February 1999, the government and defense counsel informed the Court that the defendant refused to be examined by either the Court-appointed psychiatrist at Springfield or the government's expert. Since neither expert was able to examine the defendant, the Court ordered that the defendant be returned to the District of Columbia for the competency hearing. On March 16, 1999, the Court provided the parties with a pre-hearing order requiring the parties to provide information regarding the witnesses and exhibits that each side expected to present at the competency hearing. The Court also ordered the parties to brief the issue of the possible forced medication of the defendant.

On April 9, 1999, because of the inability of its expert to examine the defendant, the government withdrew its objection to a finding of incompetency, and on April 22, 1999, the Court found the defendant to be incompetent to proceed to trial pursuant to 18 U.S.C. § 4241 (d). The Court then committed the defendant to the custody of the Attorney General for hospitalization and treatment to determine whether a substantial probability existed that he would attain the capacity to permit the trial to proceed in the foreseeable future. See United States v. Weston, Criminal Action No. 98-357 (EGS), April 22, 1999 Order (D.D.C.). As part of the Court's Order and at the defendant's request, the Court stayed any action by the BOP to medicate the defendant without his consent and ordered the BOP to provide defense counsel with notice of any administrative hearing. See id.

The defendant was admitted to FCI-Butner on May 5, 1999, with Dr. Johnson as his treating physician. On May 20, Dr. Johnson requested a Court order to treat the defendant with antipsychotic medication. See Dr. Johnson Ltr., at 1-2 (5/20/99). According to Dr. Johnson, the defendant refused to consent to the proposed treatment, which resulted in the convening of an administrative hearing. See 28 C.F.R. § 549.43 et seq. Pursuant to administrative procedures, Mr. Ray Pitcairn, the Day Watch Nursing Supervisor, was appointed by the hearing Officer, Dr. Bryon Herbel, to serve as the defendant's Staff Representative. See Dr. Johnson Ltr., Notice of Medication Hearing Rights and Advisement of Rights (5/20/99).

The hearing officer determined that the defendant could be medicated against his will because: (1) he suffers from a mental disorder, (2) he is dangerous to self or others, (3) he is gravely disabled, (4) he is unable to function in the open mental health population, (5) he needs to be rendered competent for trial, (6) he is mentally ill, and medication is necessary to treat the mental illness. See Dr. Johnson Ltr., Involuntary Medication Report, at 7 (5/20/99). The defendant then appealed the hearing officer's decision, which was subsequently affirmed by the Warden. Dr. Johnson stated that during her interview with the defendant on May 20, the defendant "indicate[d] that he would cooperate with medication if his attorneys advised him to do so and if it was so ordered by the Court." See Dr. Johnson Ltr., at 2.

After the first administrative hearing, the Court exercised its judicial oversight responsibility and conducted a judicial hearing on May 28, 1999, to afford the parties an opportunity to address the BOP decision and its rationale and to afford the defendant an opportunity to cross-examine Dr. Johnson and the defendant's staff representative regarding their testimony and participation at the administrative hearing. Dr. Johnson described the process by which the decision to medicate the defendant was made as well as the substantive bases for that decision. The defendant cross-examined Dr. Johnson on all aspects of her testimony, especially focusing on the bases for her determination that the defendant is dangerous to himself and others, the potential side effects of the medication, the alternatives to medication, and the probability that the defendant will be made competent as a result of the treatment. The defendant also cross-examined the staff representative, Mr. Pitcairn, on his role during the administrative hearing.

The Court questioned the witnesses in an effort to understand the bases for Dr. Johnson's opinion to medicate the defendant and to understand the administrative hearing process that was followed. In addition, the Court questioned defense counsel regarding Dr. Johnson's statement in her May 20 letter that the defendant would cooperate with the medication if ordered by the Court. According to defense counsel, the defendant's position is that if the Court orders that he be medicated, "he is not going to force them to hold him down and inject him with medication." Hr'g Tr., at 3 (5/28/99).

After the judicial hearing, the Court remanded the decision to the BOP for further proceedings as appropriate because of the Court's concerns that the BOP had not precisely followed the Court's April 22, 1999 Order or the procedures for the administrative hearing. See United States v. Weston, 55 F. Supp.2d 23 (D.D.C. 1999). In particular, the Court found that defense counsel had not been notified of the date of the initial administrative hearing and that the defendant's staff representative had failed to present any evidence or witnesses in support of the defendant's position.*fn2

Pursuant to the remand, Dr. Johnson provided defense counsel with notice of the date and time for the second administrative hearing. Thus, Mr. Pitcairn, who was again appointed by the Hearing Officer to serve as the defendant's Staff Representative, was able to present evidence in support of the defendant's position — a report from the defendant's expert witness, Raquel E. Gur, MD., Ph.D., Professor and Director of Neuropsychiatry, Department of Psychology, University of Pennsylvania — and to utilize talking points provided by defense counsel.*fn3

After the second hearing, Dr. Herbel, the hearing officer, again determined that the defendant could be medicated against his will because: (1)he suffers from a mental disorder, (2) he is dangerous to self or others, (3) he is gravely disabled, (4) he is unable to function in the open mental health population, (5) he needs to be rendered competent for trial, (6) he is mentally ill and dangerous, and medication is necessary to treat the mental illness. See Dr. Johnson Ltr., Involuntary Medication Report, at 7 (7/20/99). The defendant again appealed the hearing officer's decision, which was affirmed by the Warden.

On August 20, 1999, the Court again exercised its judicial oversight responsibility and held a second judicial hearing to afford the defendant an opportunity to cross examine Dr. Johnson regarding her testimony at the second administrative hearing. Due to scheduling problems, the defendant stated that Dr. Gur could not be present. The defendant then proffered that Dr. Gur's testimony would be consistent with the report admitted at the second administrative hearing. All parties agreed that her submission should become part of the record in this case. Accordingly, the Court accepted the defendant's proffer and concluded that if Dr. Gur testified in Court, her testimony would be consistent with her written report.

DISCUSSION

The defendant argues that the BOP's decision to medicate him against his will implicates his Fifth Amendment liberty interest in being free from unwanted medication, his Sixth Amendment rights to a fair trial and to counsel, and his First Amendment right to free expression. Moreover, the defendant contends that because these constitutionally-protected interests are implicated by the BOP's decision, the decision should not be made by BOP doctors but by a judge at a de novo judicial hearing. The government responds that the BOP's decision may be reviewed by this Court pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 706 (2)(A), (D).

I. Whether Involuntary Medication of Weston Violates Due Process

The defendant asserts, and the government does not dispute, that the defendant "possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs." Washington v. Harper 494 U.S. 210, 221, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (citing cases). Indeed, the defendant's liberty interest is a fundamental right protected by the substantive component of the Due Process Clause of the Fifth Amendment. See id. at 221-22, 110 S.Ct. 1028. In the typical case, where a person's liberty interest rises to the level of a constitutionally-protected fundamental right, the Due Process Clause requires the Court to determine initially whether the government has a compelling interest in depriving the defendant of that liberty interest and whether the deprivation is narrowly tailored to the government's interest. If these conditions are met, then the procedural component of due process requires the Court to determine the constitutionally minimum procedural safeguards required to accomplish the government's deprivation of the individual's liberty interest. Where the liberty interest involved is in avoiding the unwanted administration of antipsychotic drugs held by one within the criminal justice system, however, the Supreme Court's due process analysis has been more nuanced.

A. Case Precedent

In Harper, the Supreme Court confronted the issue of forced medication after a Washington state prisoner refused to continue taking antipsychotic medication. See Harper, 494 U.S. at 214, 110 S.Ct. 1028. Approximately six years earlier, the prisoner had been convicted of robbery and was eventually incarcerated at a correctional institute for treating felons with serious mental disorders. See id. His treating physician then sought to medicate him over his objection, see id., and after following the state administrative procedures, the facility determined that the defendant should be medicated against his will. See id. at 217, 110 S.Ct. 1028. The prisoner was medicated against his will for approximately two-and-a-half years, and he then filed an action under 42 U.S.C. § 1983, claiming that the prison's failure to provide him with a judicial hearing before medicating him against his will violated, inter alia, due process. See id. The Washington State Supreme Court agreed, holding that the prisoner was entitled to "a judicial hearing at which the inmate [would have] the full panoply of adversarial procedural protections" and that the State was required to prove by "`clear, cogent and convincing'" evidence that the "medication was both necessary and effective for furthering a compelling state interest." Id. at 218, 110 S.Ct. 1028 (citation omitted).

Holding that the state administrative procedures met the requirements of due process, the United States Supreme Court reversed. See id. at 236, 110 S.Ct. 1028. With regard to the substantive standard used to determine whether a dangerous prisoner could be forcibly medicated, the Harper Court held:

  [G]iven the requirements of the prison environment, the Due
  Process Clause permits the State to treat a prison inmate who
  has a serious mental illness with antipsychotic drugs against
  his will, if the inmate is dangerous to himself or others and
  the treatment is in the inmate's medical interest.

Id. at 227, 110 S.Ct. 1028. As to whether the prisoner was entitled to a judicial hearing prior to being medicated, the Court concluded:

  Notwithstanding the risks that are involved, we conclude that
  an inmate's interests are adequately protected, and perhaps
  better served, by allowing the decision to medicate to be made
  by medical professionals rather than a judge. The Due Process
  Clause "has never been thought to require that the neutral
  and detached trier of fact be law trained or a judicial or
  administrative officer." Though it cannot be doubted that the
  decision to medicate has societal and legal implications, the
  Constitution does not prohibit the State from permitting
  medical personnel to make the decision under fair procedural
  mechanisms.

Id. at 231, 110 S.Ct. 1028 (internal citations omitted). As to judicial review of the state's decision, the Court noted that:

  [U]nder state law an inmate may obtain judicial review of the
  hearing committee's decision by way of a personal restraint
  petition or petition for an extraordinary writ, and that the
  trial court found that the record compiled under the Policy was
  adequate to allow such review.

Id. at 235, 110 S.Ct. 1028.

Later, in Riggins v. Nevada, 504 U.S. 127, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992), the Supreme Court heard the appeal of a defendant who had requested the state trial court to suspend the administration of antipsychotic medication during his trial so that he could show jurors "his `true mental state'" in support of his insanity defense. Id. at 130, 112 S.Ct. 1810 (citation omitted). The trial court "denied [the defendant's] motion to terminate medication with a one-page order that gave no indication of the court's rationale." Id. at 131, 112 S.Ct. 1810. The Supreme Court reversed his state court convictions for murder and robbery stating:

  Although we have not had occasion to develop substantive
  standards for judging forced administration of such drugs in
  the trial or pretrial settings, 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. Similarly, the State might have
  been able to justify medically appropriate, involuntary
  treatment with the drug by establishing that it could not obtain
  an adjudication of Riggins' guilt or innocence by using less
  intrusive means.

Id. at 135, 112 S.Ct. 1810 (internal citation omitted). The Court articulated neither the method by which the trial court should make this determination nor the burden of proof on the government to make its showing.

Following the Supreme Court's decision in Riggins, the Sixth Circuit grappled with the issue of forced medication in United States v. Brandon, 158 F.3d 947 (6th Cir. 1998). There, the defendant had been found incompetent to stand trial on the criminal charge of sending a threatening letter through the mail. Id. at 949. The precise issue facing that court was "whether the Due Process Clause of the Fifth Amendment requires a judicial hearing to determine whether a non-dangerous pretrial detainee can be forcibly medicated in order to render him competent to stand trial." Id. at 950 (emphasis added). It was uncontroverted that the sole reason the defendant was being medicated against his will was to render him competent to stand trial, see id. at 949-50, and the Court "conclude[d] that the decision to medicate a non-dangerous pretrial detainee must survive strict scrutiny." Id. at 960.

Because the Brandon Court found that "the key decisions to be made in the present case involve non-medical issues, such as the effect the medication will have on Brandon's right to a fair trial and his right to counsel," it found great risk in having the decision to medicate the defendant against his will be made by persons with no legal training. Id. at 956. As to the government's burden of proof, the court stated that "[w]e believe that the risk of error and possible harm involved in deciding whether to forcibly medicate an incompetent, non-dangerous pretrial detainee are likewise so substantial as to require the government to prove its case by clear and convincing evidence [at a judicial hearing]." Id. at 955, 961.

B. Analysis

Harper, Riggins, and Brandon articulate three different substantive standards that could be applied depending on the defendant's status and the asserted government interest. See Harper, 494 U.S. at 222, 110 S.Ct. 1028; Riggins, 504 U.S. at 135, 112 S.Ct. 1810; Brandon, 158 F.3d at 960. Where, as in Harper, the defendant has been convicted and is incarcerated, his liberty has been diminished. Accordingly, the government need not meet the stringent requirements of strict scrutiny to medicate an inmate without his consent to render him non-dangerous. Rather, the government may deprive an inmate of his fundamental liberty interest in avoiding involuntary medication so long as the deprivation is "`reasonably related to legitimate penological interests.'" Harper, 494 U.S. at 223, 110 S.Ct. 1028 (citation omitted).

As to pretrial detainees, the standard varies. The Supreme Court has acknowledged that a pretrial detainee's liberty interests are at least equal to that of a convicted prisoner. See Riggins, 504 U.S. at 135, 112 S.Ct. 1810; Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Consequently, where, as here, the government seeks to medicate a pretrial detainee forcibly on dangerousness grounds, the government again may avoid the requirements of strict scrutiny and need only show that "treatment with antipsychotic medication [is] medically appropriate and, considering less intrusive alternatives, essential for the sake of [the defendant's] own safety or the safety of others." Riggins, 504 U.S. at 135, 112 S.Ct. 1810.

Where the government seeks to involuntarily medicate a pretrial detainee so as to render him competent to stand trial, however, the Supreme Court has recognized that the government may "[be] able to justify medically appropriate, involuntary treatment with the drug by establishing that it [cannot] obtain an adjudication of [the defendant's] guilt or innocence by using less intrusive means." Riggins, 504 U.S. at 135, 112 S.Ct. 1810. Finding that question not squarely presented, however, the Court in Riggins was unwilling to adopt strict scrutiny as the applicable standard, see Riggins, 504 U.S. at 136, 112 S.Ct. 1810, but the Court rested its holding in part on the absence of any finding by the trial court that "safety considerations or other compelling concerns outweighed Riggins' interest in freedom from unwanted psychotic drugs." Id. The Sixth Circuit, by contrast, has squarely held that strict scrutiny is the applicable standard where the government's only asserted interest in involuntary medication is to render the defendant competent to stand trial. See Brandon, 158 F.3d at 960.

The parties have not cited to, and this Court is unaware of, any cases that address a scenario in which the government seeks forced medication of a defendant both to quell the defendant's dangerousness and to render him competent to stand trial. This Court holds that at this stage of the proceedings, where the defendant has not yet been arraigned and where there is no record evidence to suggest that the government's medical reasons are pretextual, the Due Process Clause requires the government to satisfy only the Riggins "medically appropriate" standard. In the event that medication successfully renders the defendant competent to stand trial, the Court could then reach the defendant's argument that the Due Process Clause or the Sixth Amendment will require a heightened showing before the defendant may be forcibly medicated during the trial. This case is not in that posture, however, and the Court will not attempt to resolve those issues unless and until they are ripe, assuming the defendant seasonably renews his objection in advance of trial.

Accordingly, at this stage of the judicial proceedings, the substantive component of the Due Process Clause entitles the defendant to remain free from unwanted medication unless the government can show, to a reasonable degree of medical certainty, that treatment with antipsychotic medication is medically appropriate and, considering less intrusive alternatives, essential for the sake of the defendant's own safety or the safety of others. See Riggins, 504 U.S. at 135-36, 112 S.Ct. 1810. The government has clearly met its burden here.

1. Whether the Proposed Treatment is Medically Appropriate

The defendant argues that the proposed treatment is not medically appropriate. The defendant's expert, Dr. Gur, agreed with Dr. Johnson that the defendant "meets diagnostic criteria for Paranoid Schizophrenia and is not competent to stand trial." Dr. Gur Ltr., at ¶ 3 (7/7/99). Dr. Gur, however, disagreed with Dr. Johnson's opinion that the defendant should be treated with antipsychotic medication. Rather, Dr. Gur's "opinion within a reasonable degree of medical certainty is that antipsychotic medication will not restore Mr. Weston's competency." Id. at ¶ 4. Dr. Gur explained the basis for her opinion as follows:

  In light of the length of time (about two decades) that he has
  experienced delusions, the pervasiveness of his delusional

  system, lack of treatment, and the unfortunate fact that he has
  acted on his delusions, make it extremely unlikely that
  medication will eliminate or substantially attenuate his
  delusions. There is a growing body of evidence that suggest[s]
  that when the psychotic process remains untreated it causes
  further deterioration in brain function resembling an
  irreversible toxic effect.

Id. When Dr. Gur's opinion was discussed during the second administrative hearing, Dr. Johnson persuasively articulated her disagreement with Dr. Gur's assessment that the defendant has experienced delusions in their current form for twenty years. Dr. Johnson responded that:

  If you look back historically, as he was evaluated early on, he
  presented with a mixed symptom picture, and actually carried a
  severe personality disorder diagnosis with paranoid features,
  rather than a full-blown diagnosis of schizophrenia. And it's
  only been in the later years, particularly from 1996 to
  present, that we have seen this full-blown delusional system.

Hr'g Tr., Involuntary Medication Hearing of Russell Weston, at 58-59 (7/8/99).

Further, at the August 20, 1999 judicial hearing, Dr. Johnson testified that she disagreed with Dr. Gur's assessment on the following grounds:

  I think the standard of care in someone suffering from this type
  of symptom picture would be to treat them with medication,
  because you are unable to predict in the individual case whether
  that individual will actually respond. What we do know is
  somewhere upwards of 80 percent of people suffering from
  schizophrenia have significant response to medication
  intervention with their symptom picture. And so given that high
  degree of response, I would certainly want to attempt to treat
  the individual. I have found 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. There seems to be a phenomena that
  people who are treated and then discontinue medicine, and
  treated and discontinue medication, may actually be less
  responsive to treatment in the long run. In Mr. Weston's case,
  he has had very little exposure to treatment, and I think . . .
  that is one of the reasons that I think there is a good
  likelihood that he'll have a positive response, positive in the
  sense that his symptoms will diminish in response to treatment.

  But I think Dr. Gur's statement of not treating an identified
  severely ill schizophrenic patient with medication is certainly
  not the status in the field. There would be few psychiatrists
  who would step forward and say, "I would simply say this patient
  is not going to respond", rather than offer them a trial of
  treatment. That's a very unusual position to take.

Hr'g Tr., at 56-57 (8/20/99).

At the first judicial hearing, Dr. Johnson was cross-examined at length by defense counsel regarding the possible side effects of antipsychotic medication and the various methods by which the side effects can be controlled, either by prescribing side effect medication, changing the medication, changing the dosage, or changing the time of day the medication is given. Hr'g Tr., at 70-111 (5/28/99). At the second judicial hearing, Dr. Johnson testified that the potential benefits to treating the defendant far outweigh the risks because those risks can be controlled. Hr'g Tr., at 73 (8/20/99).

The defendant presented no expert testimony to contradict Dr. Johnson's testimony regarding side effects. In fact, despite Dr. Gur's opinion that the defendant should not be medicated, she stated that if medication were to be used, the defendant should be given atypical antipsychotic agents because they "have better side effect profiles, are better tolerated and are effective on a broader range of symptoms." Dr. Gur Ltr., at ¶ 5 (7/7/99).


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