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relying on physician's conclusion that medication fails to work only one time out of twenty when defendant had provided "no reason to doubt" the government witnesses
Summary of this case from State v. BarzeeOpinion
EP-04-CR-0961-DB.
March 10, 2005
MEMORANDUM OPINION AND ORDER
On this day, the Court sua sponte considered the above captioned cause. On January 21, 2005, the Court held an Evidentiary Hearing at which it heard testimony from Dr. James A. Shadduck and Dr. Judith Cherry, the medical doctors who have evaluated and observed Defendant Sherry Leveck-Amirmokri since she arrived at Federal Medical Center, Carswell ("FMC Carswell") on August 27, 2004. In their reports and at the Hearing, the doctors recommend that Defendant be administered anti-psychotic medication in order to render her competent to stand trial. After due consideration, and for the reasons discussed below, the Court is of the opinion that Defendant should be involuntarily medicated in order to restore her competency to stand trial.
FACTS
On April 4, 2004, Defendant sent an electronic mail to the Federal Bureau of Investigation ("FBI") website stating that she was "programmed" to drive to Washington, D.C., and make an attempt on President George W. Bush's life. On May 5, 2004, the Government charged Defendant with knowingly and willingly threatening to kill or inflict bodily harm upon the President. See 18 U.S.C.A. § 871(a). On May 10, 2004, the Court ordered a psychiatric evaluation of Defendant. Dr. David F. Briones conducted psychiatric interviews of Defendant on June 8 and June 15, 2004. The Court held a mental competency hearing on July 14, 2004, at which Dr. Briones's report was admitted into evidence. The report detailed Defendant's psychiatric, medical, and social history, as well as Dr. Briones's two interviews with Defendant. The report concluded that Defendant was suffering from a psychosis, did not possess a fully rational or factual understanding of the proceedings against her, nor did she possess sufficient ability to assist in her own defense, and recommended that Defendant be placed in a psychiatric hospital to clarify her prognosis. Subsequently, on July 14, 2004, the Court found Defendant mentally incompetent and ordered Defendant committed to the custody of the Attorney General for a reasonable period of time, not to exceed four months, to determine whether there was a substantial probability that Defendant would attain the capacity necessary to proceed to trial.
Defendant is on record with the El Paso office of the FBI as having sent one hundred and forty three (143) e-mails to the FBI through their website, as well as sending packages containing Defendant's writings, rifle rounds, and knives.
Defendant arrived at FMC Carswell on August 27, 2004. During her hospitalization, Defendant underwent psychiatric evaluation, medical examination and treatment, and participated in a series of clinical interviews. On December 13, 2004, pursuant to 18 U.S.C. § 4241(d), the Court received a letter from Ginny Van Buren, Warden of FMC Carswell ("Van Buren"). Therein, Van Buren related that Defendant remained incompetent to stand trial because Defendant was unable to properly assist in her defense. Van Buren further indicated that it is the opinion of FMC Carswell's staff that Defendant could regain competency to stand trial if she received appropriate anti-psychotic medications, and that Defendant did not consent to the use of such medication. Finally, it was Van Buren's opinion that Defendant did not pose an imminent risk of danger to the safety or property of others.
Van Buren's letter was accompanied by reports from Dr. James A. Shadduck and Dr. Judith Cherry. Dr. Shadduck is the Forensic Psychologist at FMC Carswell. The report from Dr. Shadduck recounts Defendant's mental health history, noting that she has been involuntarily hospitalized on at least two previous occasions. On both occasions she was found to be suffering from persecutory delusions and was prescribed anti-psychotic medications. Dr. Shadduck describes Defendant's explanation of her recent psychiatric and criminal history as a convoluted series of events, which include her reportedly serving as an informant for the FBI on terrorism cases, persecution by a psychiatrist in Ohio, her current detention for mental health evaluation and the charges she presently faces. Dr. Shadduck states that Defendant has not engaged in any dangerous or violent behavior, nor has she made any threats towards the safety of others. Dr. Shadduck further conveys that during most of their interactions, Defendant behaved in an appropriate manner, save one instance where, during an interview, Defendant screamed and threw herself from the chair she was sitting in onto the floor. Dr. Shadduck concludes that Defendant is suffering from a "chronic psychotic disorder" which manifests itself through persecutory and grandiose delusions, which if left untreated, will likely remain active, and possess a substantial probability of worsening. He recommends that Defendant be treated with appropriate psychiatric medications, and opines that Defendant's mental health is likely to improve to the extent of becoming competent to stand trial.
Dr. Shadduck's report did not state how recently or for how long Defendant was involuntarily hospitalized.
Dr. Cherry is the chief psychiatrist at FMC Carswell. In her report, Dr. Cherry states that she concurs with Dr. Shadduck's diagnosis that Defendant suffers from a major mental illness, with psychosis being the primary symptom. Dr. Cherry relays her opinion that Defendant requires treatment with anti-psychotic medication to render her competent to stand trial. While her initial choice for treatment would be an atypical anti-psychotic medication, which has fewer long-term side effects, Dr. Cherry explains that because Defendant refuses such medication, the staff at FMC Carswell would be forced to use one of two injectable long acting anti-psychotic medications, Haldol Decanote or Prolixin Decanoate (a.k.a. Enanthate). Dr. Cherry elucidated that both of these drugs are relatively safe, have been used in the treatment of millions with major benefit and relatively minor risk of side effects. Further, Dr. Cherry highlighted that she has never encountered a side effect that endangered the fairness of a trial.
Dr. Cherry further noted that serious and potentially fatal side effects are quite rare, but include Agranulocytosis (a fatal reduction in the white blood cell count), Neuroleptic malignant syndrome (a disease caused by excessive dopamine stimulation), tardive dyskinesia (abnormal repetitive, often writhing movements of muscles of the tongue and mouth), as well as elevated lipid and glucose levels. Less severe side effects also include muscle stiffness, agitation, sedation, low blood pressure, dry mouth, lowing of seizure threshold, and elevated prolactin, which may cause enlarged breasts or inappropriate lactation.
On January 21, 2005, an evidentiary hearing was held in this matter. The Government called Dr. Shadduck to testify. In addition to reiterating many of the things contained in his report, Dr. Shadduck testified during his examination that he has evaluated 700 to 800 different people over the length of his career. He further stated that Defendant's condition has been consistent over several years, and that it was his opinion that Defendant does not pose a substantial risk at FMC Caswell. Dr. Shadduck also testified that release into the general population may trigger her condition to worsen. He further testified that he had discussed the possibility of taking anti-psychotic drugs with Defendant on four or five occasions. During testimony, Dr Shadduck opined that there are no effective treatments other than anti-psychotic medications, and declared that he has never seen delusional symptoms successfully treated by any method other than medication. He could not say for sure if Defendant's condition would worsen without medication, but was certain that Defendant's condition would not improve without it. During cross-examination, Defendant's counsel elicited that Defendant has never attempted to assault anyone at FMC Carswell, and that Dr. Shadduck can not be sure that Defendant's condition will not remain the same.
The Government also called Dr. Cherry to testify. During her direct examination, Dr. Cherry stated that in her opinion anti-psychotic medications are the only treatment option for psychosis, because psycho therapy has not been shown to be effective. Further, Dr. Cherry testified that it is highly unlikely that Defendant would regain her competency without medication. Dr. Cherry explained that she had discussed treatment options with Defendant about three times and that each time Defendant became upset, but "remained appropriate." During testimony, Dr. Cherry laid out the treatment options and the attendant possible side effects, highlighting that none of the side effects are fatal or permanently disabling. Dr. Cherry further stated that she has administered Haldol in the treatment of individuals who suffer from delusions like Defendant, and that in her experience only about one (1) in twenty (20) patients do not achieve competency. Dr. Cherry testified that there are no less intrusive methods that succeed in restoring a patient's competency, and that anti-psychotic medication is in the best interest of the Defendant. During cross-examination, Dr. Cherry stated that it is not absolute that Defendant would regain her competency, because there is a small percentage of people for whom the medication is ineffective. Dr. Cherry further reported that she currently administers involuntary medication at FMC Carswell, and that FMC Carswell has procedures in place to monitor each patient's response to medication.
While Defendant opted not to testify at hearing, Defendant was permitted to address the Court. Defendant stated that she understands the nature of the charges she faces. She further clarified that she does not wish to take the medications because seizures are one of the side effects, and that she already suffers from a seizure disorder.
STANDARD
A defendant has a constitutionally protected liberty interest in avoiding the involuntary administration of anti-psychotic drugs. Sell v. United States, 539 U.S. 166, 178, 123 S. Ct. 2174, 2184, 156 L. Ed. 2d 479 (2003). However, the Constitution permits the Government to administer anti-psychotic drugs to a non-consenting mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial in instances where: (1) there are important governmental interests at stake; (2) the involuntary medication will significantly further those concomitant state interests; (3) the involuntary medication is necessary to further those interests; and (4) the administration of the anti-psychotic drugs are medically appropriate. Sell, 539 U.S. at 179-82. Nonetheless, a court can authorize medication for the purpose of rendering a defendant non-dangerous or for reasons related to the individual's own interests where refusal to take drugs put her health at risk, without turning to the trial competence question. Id. at 182.DISCUSSION
As an initial matter, the Court notes that, as advised in Sell, it considered whether involuntary medication of Defendant might be authorized for the purpose of rending her non-dangerous or because it is in her own best interest. See id. However, there is next to no evidence of her dangerousness. Neither Dr. Briones's report, nor the reports or testimony of Drs. Shadduck and Cherry indicate that Defendant currently poses a risk to herself or others. Rather, except for the incident where she threw herself on the floor while meeting with Dr. Shadduck, Defendant has acted appropriately with all of the doctors and staff she has come into contact with. While Dr. Shadduck testified that Defendant might become dangerous if her condition were to worsen and if she were released from FMC Carswell, there is no indication that Defendant is presently dangerous. Similarly, there is no evidence that Defendant's refusal to take the suggested anti-psychotic drugs put her health at risk. To the contrary, all sources indicate that her current condition is stable. Therefore, the Court cannot justify ordering Defendant's involuntary medication based on rendering her non-dangerous or because refusal to take the drugs endangers her health. Thus, the Court must turn to the trial competency question as it considers whether involuntary medicating Defendant is constitutionally permissible. As such, the Court analyzes in turn whether: (1) there are important governmental interests at stake; (2) the involuntary medication will significantly further those concomitant state interests; (3) the involuntary medication is necessary to further those interests; and (4) the administration of the anti-psychotic drugs are medically appropriate. Sell, 539 U.S. at 179-82.
I. Important Governmental Interests
The Government's interest in bringing to trial an individual accused of a "serious crime" is important. Id. at 180. While the Sell Court provided no standard as to what crimes should be considered "serious" for the purpose of forcible administration of medication to restore competency, courts have looked to the Supreme Court's Sixth Amendment right to jury trial jurisprudence for guidance. See, e.g., United States v. Evans, 293 F. Supp. 2d 668, 673 (W.D. Va. 2003); United States v. Kourney, 276 F. Supp. 2d 580, 585 (S.D.W. Va. 2003). The Supreme Court's Sixth Amendment precedents define a serious offense as any offense for which a defendant may be sentenced to more than six months imprisonment. See Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970).
In both Evans and Kourney, the courts' decisions were based on the seriousness of the penalties that could have been imposed if the defendant were convicted. Evans, 293 F. Supp. 2d at 673 (holding that a defendant charged with a misdemeanor, facing imprisonment up to one year and a fine up to $100,000 was charged with a serious offense); Kourney, 276 F. Supp. 2d at 585 (ruling that a defendant charged with violating the terms of his supervised release, a misdemeanor for which defendant would not be tried, was not facing serious criminal charges). Here, Defendant is charged with violating 18 U.S.C. § 871(a) for allegedly threatening the life of President Bush. If convicted, Defendant faces imprisonment of up to five years or a fine up to $250,000, or both. See 18 U.S.C.A. § 871(a); 18 U.S.C.A. § 3571(b)(3). In light of the penalty Defendant faces if convicted, the Court finds that Defendant is charged with a serious crime. Additionally, because Defendant is accused of committing a serious crime, the Court finds that the Government has an important interest in bringing Defendant to trial.
II. In Furtherance of Government Interests
In addition to finding that important Government interests are at stake, the Court must conclude that involuntary medication will significantly further those interests. Sell, 539 U.S. at 181. It must finds that administration of the drugs is substantially likely to render Defendant competent to stand trail and that the drugs are highly unlikely to have side effects that will interfere significantly with Defendant's ability to assist counsel. Id. Currently, because Defendant suffers from delusions, she is unable to assist counsel in her defense, precluding her prosecution. Dr. Cherry highlighted in her report that she has never encountered a side effect that endangers the fairness of a trial. While neither Dr. Shadduck nor Dr. Cherry guaranteed that Defendant will regain her competency if medicated, both testified that anti-psychotic medications would improve Defendant's condition, and are substantially likely to render Defendant competent to stand trial. More specifically, Dr. Cherry estimated the percentage of people from whom anti-psychotic medications do not work at one (1) in twenty (20). Defendant has provided the Court no reason to doubt Dr. Shadduck's and Dr. Cherry's respective conclusions. Therefore, the Court finds that anti-psychotic medications are unlikely to cause side effects that will affect the fairness of Defendant's trial, that anti-psychotic medications are substantially likely to render Defendant competent to stand trial, and thus, that involuntary medication will further the important Government interest at stake by rendering Defendant competent to stand trial.
III. Necessity of Medication
The Court must also conclude that involuntary medication is necessary to further the Government's interests. Sell, 539 U.S. at 181. The Court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same result. Id. At the hearing, Dr. Shadduck declared that he has never seen delusional symptoms successfully treated by any method other than medication. Similarly, Dr. Cherry testified that anti-psychotic medications are the only effective treatment for Defendant's delusions. While both Drs. Shadduck and Cherry acknowledged psychotherapy as an alternative treatment, neither opined that psychotherapy was capable of accomplishing the same results of the anti-psychotic medications. Dr. Cherry specifically stated that psycho therapy has not been shown to be an effective method of treatment for patients suffering from delusion, like Defendant. Thus, while an alternative, less intrusive treatment exists — psycho therapy — the Court finds that it is unlikely to achieve substantially the same result as the anti-psychotic medications, and that the involuntary medication is necessary to further the Government's interests.
IV. Medical Appropriateness
Finally, the Court must find that administration of the drugs "is medically appropriate, i.e., in the patient's best medical interest in light of [her] medical condition." Sell, 539 U.S. at 181. Dr. Cherry indicated in her report and testified at the hearing that because Defendant does not consent to taking anti-psychotic medication, the staff at FMC Carswell would use either Haldol Decanote or Prolixin Decanoate to treat Defendant. Dr. Cherry testified that both of these drugs are relatively safe, have been used in the treatment of millions with major benefit and relatively minor risk of side effects. While there are some serious and potentially fatal side effects, they are quite rare. Dr. Cherry additionally indicated that either Haldol Decanote or Prolixin Decanote are medically appropriate for Defendant given her condition. Additionally, Dr. Cherry testified that FMC Carswell has protocols in place to monitor the side effects of the medication, and that appropriate steps, such as reducing the dose or terminating medication all together, are taken when patients begin to experience side effects. Though Defendant has made it plainly clear that she does not wish to take the medication, and expressed some concern with the side effects of anti-psychotic medication, the Court concludes that anti-psychotic medications are medically appropriate given Defendant's psychosis.
CONCLUSION
After considering all of the evidence before it, the Court concludes that the Government has shown there are important governmental interests at stake, which will be furthered by involuntarily medicating Defendant, that administering anti-psychotic medication to Defendant is medically appropriate, and necessary to restore Defendant's competency to stand trial in the instant cause.
Accordingly, IT IS HEREBY ORDERED that pursuant to title 18 U.S.C. § 4241(d), Defendant Sherry Lynn Leveck-Amirmokri shall be returned to FMC-Carswell, for an additional reasonable period of time, not to exceed four (4) months from entry of this Order, until her mental condition improves such that the trial in this cause may proceed.
IT IS FURTHER ORDERED, that Defendant Sherry Lynn Leveck-Amirmokri shall be given anti-psychotic medication by the medical staff at FMC-Carswell, using appropriate medical techniques.
IT IS FURTHER ORDERED that the treating physicians at FMC-Carswell administer medical monitoring, assessment, and diagnostic tests as necessary and warranted according to the treatment regimen implemented.
IT IS FURTHER ORDERED that the treating physician shall provide reports to this Court every sixty (60) days regarding Defendant Sherry Lynn Leveck-Amirmokri's progress and treatment.
IT IS FURTHER ORDERED that if, at the end of this additional period of evaluation, the treating physician determines Defendant Sherry Lynn Leveck-Amirmokri will not attain competency within the foreseeable future, this Court will schedule a hearing for indefinite commitment pursuant to title 18 U.S.C. § 4248.
IT IS FINALLY ORDERED that the District Clerk shall deliver a certified copy of this Order to the United States Marshal and that the copy serve as the commitment of Defendant Sherry Lynn Leveck-Amirmokri.