Forcible administration of antipsychotic medication; due process; Sell doctrine

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Winkel v. Hammond, 2017 WL 3225632 (10th Cir. July 31, 2017)

Tenth Circuit rules that defendant hospitalized for restoration to competency to stand trial has filed a plausible claim of a due process violation by hospital staff when he alleges that he was forcibly medicated without any finding that he posed a danger to self or others or that he met the Sell standards for forcible medication to restore him to competency.

Found in DMHL Volume 36, Issue 3

Involuntary medication to restore competency to stand trial; due process

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Washington v. Lyons, 2017 WL 2438687 (Wash. Ct. App. June 6, 2017)

Washington State Court of Appeals holds that a defendant has a due process right to obtain and present expert testimony on whether the findings required under Sell for involuntary medication to restore competency to stand trial have been proven by the state.

Found in DMHL Volume 36, Issue 2

Competence to Stand Trial, Prosecutor

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Jackson v. Superior Court, 406 P.3d 782 (Cal. 2017)

The Supreme Court of California found that the prosecution was permitted to dismiss prior charges and refile identical charges where the defendant had been committed for the duration of the statutory period while being evaluated for competence to stand trial; provided, however, that if found still incompetent to stand trial, the defendant could not be re-committed for another statutory period.

Found in DMHL Volume 37, Issue 1

Ruling that Defendant Found Incompetent to Stand Trial Must Initially Be Hospitalized, Even if Unlikely to Be Restored to Competence, Not Disturbed

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United States v. Ferro, 321 F.3d 756 (8th Cir. 2003), cert. denied, Ferro v. United States, 124 S. Ct. 296 (2003)

The Supreme Court declined to review a ruling of the Eighth Circuit that joined the First, Seventh, and Eleventh Circuits in holding that an initial period of hospitalization is mandatory for a criminal defendant in the federal system who has been found incompetent to stand trial, even when the evidence shows he is unlikely to be restored to competence.  The Eighth Circuit ruled the trial court did not have the discretion, prior to a reasonable period of hospitalization, to determine whether the defendant will likely attain the capacity to stand trial.  The court determined hospitalization permitted a more careful and accurate diagnosis; the limited length of the hospitalization, a maximum of four months, minimized the potential harm to the defendant; and the "miracles of science suggest that few conditions are truly without the possibility of improvement."...

Found in DMHL Volume 23 Issue 1

A Pair of Judicial Rulings Order Forcible Treatment of Non-Dangerous Criminal Defendants to Restore Competence to Stand Trial

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United States v. Evans, No. 102CR00136, 104M00014, 2004 WL 533473 (W.D. Va. Mar. 18, 2004)

In December of 2003, a federal district court in Virginia denied a request to forcibly medicate a criminal defendant to restore him to competence to stand trial.  United States v. Evans, 293 F. Supp. 668 (W.D. Va. 2003). The court concluded that the government's interest in having the defendant treated over his objection was not sufficiently strong to outweigh the defendant's right to refuse such treatment.  This case was noteworthy in that it was one of the first applications of the U.S. Supreme Court's decision in Se// v. United States, 539 U.S. 166 (2003), which permits, under certain circumstances, the medication over objection of criminal defendants even when the defendant is not a danger to self or others...

Found in DMHL Volume 24 Issue 1

Fourth Circuit Adopts Narrow Test for Determining Incompetence to Be Executed

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Walton v. Johnson, 440 F.3d 160 (4th Cir. 2006)

Sitting en bane, the Fourth Circuit in a seven­ to-six ruling held that the test for determining whether a criminal defendant is competent to be executed is limited to whether the condemned inmate is able to comprehend that he or she is sentenced to death and the reason why...

Found in DMHL Volume 25 Issue 2

Requirements for Forcibly Medicating a Defendant Found Incompetent to Stand Trial Delineated by Fourth Circuit

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United States v. Evans, 404 F.3d 227 (4th Cir. 2005)

The U.S. Supreme Court in Se// v. United States, 539 U.S. 166 (2003), held that the government may involuntarily medicate a criminal defendant to render the defendant competent to stand trial even though the defendant does not pose a danger to self or others.  The Supreme Court authorized such treatment under limited circumstances, but left it to the lower courts to flesh out the details of the requisite test. While reviewing a ruling by a federal judge in the Western District of Virginia, the Fourth Circuit provides many of these details...

Found in DMHL Volume 25 Issue 1

Competence to Stand Trial Determination Should Be Closely Reviewed; Stale Evaluations Insufficient Basis for Findings of Competence; Ruling Not Disturbed

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Maxwell v. Roe, 113 Fed. Appx. 213 (9th Cir. 2004), cert. denied, 125 S. Ct. 2513 (2005)

The Ninth Circuit ordered a rehearing on a California trial judge's  ruling that a defendant was competent to stand trial (CST).  Although considerable deference is typically given to a trial judge's factual determinations, the Ninth Circuit held that CST determinations should be reviewed more closely because a defendant who is incompetent to stand trial is also incompetent to develop an adequate factual record on this issue or to assist his or her attorney in doing so.  The Ninth Circuit added that a trial judge has a continuing, affirmative responsibility to ensure that a defendant is not tried while incompetent and the judge should not conclude that a defendant is CST merely because the attorney representing the defendant did not pursue the matter...

Found in DMHL Volume 25 Issue 1

Ex Parte Communications of Judge to Determine Whether Defendant Is Competent to Stand Trial or Malingering Requires New Trial

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State of Vermont v. Gokey, 2010 Vt. 89, 2010 LEXIS 90 (October 8, 2010)

The Vermont Supreme Court ordered a new trial for a defendant charged with lewd or lascivious conduct with a child and a habitual offender after the presiding judge talked ex parte with a pharmacist and two deputies who transported the defendant to court to determine whether he was malingering.

On the second day of trial, the defendant appeared in court but complained of being ill and did not look well. At the defense attorney’s request, the case was continued for the day and he was transported to the emergency room where he was administered anti-seizure medications for an existing seizure disorder. The following day the defendant appeared in court but was still groggy and sleeping at counsel table. His attorney asked for a continuance on the grounds that the defendant was unable to assist her with his defense and was incompetent to proceed. The court granted a 30 minute continuance while the defense attorney attempted to obtain medical information from defendant’s physicians and the emergency room treatment providers. The judge in the meantime called a pharmacist at Walgreens to determine what the side-effects of the medication might be and then, without informing the defendant’s counsel or the prosecutor, questioned the transporting deputies in her chambers to determine defendant’s behavior in their presence. Determining on that basis that the defendant was malingering, the judge proceeded with the trial with the jury returning a guilty verdict that afternoon. The Supreme Court ordered a new trial stating that the judge had stepped out of her role as an independent arbiter and become a witness in the case which severely prejudiced the case and impaired any appearance of neutrality.

Found in DMHL Volume 30 Issue 4

Defendant Detained in Mental Health Facility for Restoration to Competency is Prisoner under Prison Litigation Reform Act

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Gibson v. City Municipality of New York, 692 F.3d 198 (2012)

The Second Circuit Court of Appeals has upheld the district court’s dismissal of a petitioner’s motion to proceed in forma pauperis, resulting in dismissal of his complaint against a number of city, corrections and mental health officials alleging they violated his civil rights. The petitioner had filed three previous petitions as a prisoner that had been dismissed as frivolous, malicious, or failed to state a claim upon which relief may be granted. The Court held that although the petitioner was being detained in a mental health facility, he was still a “prisoner” for purposes of the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(g), and thus subject to the Act’s limitation on proceeding in forma pauperis in federal court.

The petitioner, Bennie Gibson, had been charged with third degree criminal mischief under New York law and was being detained at Kirby Psychiatric Center in the custody of the Commissioner of Mental Health on a temporary order of observation for restoration of his capacity to stand trial. While federal law generally permits a district court to waive filing fees for individuals who cannot pay and to proceed in forma pauperis, Congress enacted the Prison Reform Litigation Act in 1995 to limit abuse of the legal system by prisoners who file repetitive frivolous complaints. “Prisoner” is defined under the Act as “any person…detained in any facility who is accused of…violations of criminal law.” 28 U.S.C. § 1915(h). Under New York law, criminal charges are not dismissed against a defendant held in the temporary custody of the Commissioner of Mental Health, but are merely suspended pending his treatment and restoration to capacity. Gibson therefore met the definition of a prisoner as a person detained as a result of an accusation, conviction, or sentence for a criminal offense. Had Gibson been held under a final order of observation as a civil unrestorable patient, been found not guilty by reason of insanity, or been civilly committed as a sexually violent predator, the result may not have been the same.

Found in DMHL Volume 32 Issue 1

Ninth Circuit Finds Federal Juvenile Delinquency Act, Not Adult Act, Controls When Juvenile Committed to Determine Competency to Stand Trial

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United States v. LKAV, Juvenile Male, 2013 U.S. App. LEXIS 6573 (9th Cir. April 2, 2013)

The Ninth Circuit Court of Appeals has held that a juvenile charged with murder under the Federal Juvenile Delinquency Act whose competency to stand trial is in doubt must be committed under the juvenile provisions of 18 U.S.C. § 5037(e) and not the provisions related generally to all commitments under 18 U.S.C. § 4241(d).

Tribal authorities with the Tohono O’odham nation charged 17-year old LKAV with murder in May 2009. He was found incompetent and remained in tribal custody but without being sent to a treatment facility for restoration to competency. In November 2011, the United States filed its own charge against LKAV as an alleged juvenile delinquent under the Federal Juvenile Delinquency Act. The United States then obtained a writ of habeas corpus to remove him from tribal custody and moved to commit him for a psychiatric evaluation pursuant to the provision pertaining in general to all federal criminal cases under 18 U.S.C. § 4241(d). The presiding magistrate judge granted LKAV’s request for a local evaluation in Phoenix, Arizona.

After an extensive evaluation, the examining psychologist determined LKAV was incompetent to stand trial. LKAV then moved to proceed with commitment under the juvenile act. The United States maintained that LKAV should be committed to an adult facility under § 4241(d). The magistrate judge granted the United States’ motion and committed LKAV to the custody of the Attorney General for hospitalization for a period not to exceed four months to determine whether he could be restored to competency. LKAC filed a timely appeal, but in the interim was transported to the Federal Medical Center in Butner, North Carolina. FMC-Butner completed its competency evaluation in January 2013 and advised the court that with an additional period of hospitalization and treatment, LKAV could be restored to competency. It requested an additional 120-day extension of the commitment order, which the district court granted. LKAV appealed.

The Ninth Circuit heard LKAV’s appeal under the collateral order doctrine finding that the commitment order conclusively determines LKAV’s rights as to his pre-adjudication commitment; his commitment is a completely separate issue from the ultimate issue of his delinquency; and delay until a final decision of his delinquency on the merits would render the commitment order effectively unreviewable.

The Ninth Circuit then reviewed the language of the respective statutes and determined that the plain language of § 5037(e) is clear that it applies to the commitment and evaluation of alleged juvenile delinquents:

If the court desires more detailed information concerning an alleged or adjudicated delinquent, it may commit him…to the custody of the Attorney General for observation and study by an appropriate agency. Such observation and study shall be conducted on an outpatient basis, unless the court determines that inpatient observation and study are necessary to obtain the desired information. In the case of an alleged juvenile delinquent, inpatient study may be ordered only with the consent of the juvenile and his attorney. The agency shall make a complete study of the alleged or adjudicated delinquent to ascertain his personal traits, his capabilities, his background, any previous delinquency or criminal experience, any mental or physical defect, and any other relevant factors. The Attorney General shall submit to the court and the attorneys for the juvenile and the Government the results of the study within thirty days after the commitment of the juvenile, unless the court grants additional time. (Emphasis added.)

By contrast, the commitment scheme generally applicable to all defendants contained in § 4241(d) requires mandatory commitment for determination of the defendant’s potential for restoration to competency. The United States had argued that § 5037(e) does not mention competency and therefore the mandatory competency evaluation and commitment procedures in § 4241(d), which are more explicit and comprehensive and apply to all federal criminal proceedings applies.

The Court found that because § 5037(e) expressly provides for commitment, study, and observation of alleged juvenile delinquents, and specifically references a study of any mental or physical defect, it controls over conflicting provisions in § 4241(d) that apply to federal criminal defendants generally. The Court pointed out, however, that the United States could have sought to have LKAV transferred for trial as an adult and therefore all of the provisions in § 4241(d) would have applied, but for some reason chose not to do so. The Court recognized that because LKAV has now turned 21 and is no longer a juvenile, his further treatment and custody may cause the United States some incidental inconvenience because he cannot be housed with other juveniles or adults. Nonetheless the Court held that the purpose of Federal Juvenile Delinquency Act is to provide for the preferential and protective care and treatment of juvenile delinquents who are significantly different from adult offenders, and its provisions must therefore control.

Found in DMHL Volume 32 Issue 2

Fourth Circuit Holds Competency to Stand Trial Standard Sufficient to Permit Borderline Competent Defendant to Represent Self

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United States v. Bernard, 708 F.3d 583 (4th Cir. 2013)

The Fourth Circuit Court of Appeals has determined that once a borderline competent defendant meets the standard for competence to stand trial, the court need not inquire further as to whether the defendant is competent to represent himself. United States v. Bernard, 708 F.3d 583 (4th Cir. 2013). The Fourth Circuit held that the Supreme Court in Indiana v. Edwards, 554 U.S. 164 (2008) only permits a court to force counsel on a criminal defendant who is borderline competent, but does not require it to do so. Instead the Fourth Circuit found that this case more closely resembles Godinez v. Moran, 509 U.S. 389 (1993), that held that “ the competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.” Id. at 399.

In this case, Michael Defante Bernard was charged in North Carolina with possessing and conspiracy to possess marijuana with intent to distribute and possession of a firearm in furtherance of a drug trafficking offense. Bernard had a long history of mental illness, suffering from severe depression, chronic schizophrenia and paranoia. He had been physically and emotionally abused as a child, attempted suicide at least three times and had been involuntarily committed on at least four separate occasions. He also had a history of failure to take his medications. Bernard also abused cocaine and marijuana to cope with his mental illness.

Concerns were raised about Bernard’s competency to stand trial and the district court ordered an evaluation. A government psychologist recommended that he be found incompetent to stand trial due to his schizophrenia, paranoid delusions, and disorganized thought processes. The court thereupon found Bernard incompetent to stand trial and ordered him treated for restoration to competency. Less than six months later, another government psychologist recommended that Bernard be found competent to stand trial because the antipsychotic, antidepressant, and anti-anxiety medications rendered him able to understand the proceedings against him and to assist his counsel.

At his second competency hearing, the trial court found Bernard competent to stand trial. His counsel then moved to withdraw as counsel based upon Bernard’s request to represent himself, and to appoint him as stand-by counsel. Defense counsel represented to the court that it must find the defendant competent to waive counsel, if it also found him competent to stand trial, ostensibly but incorrectly referencing Godinez v. Moran. The trial court expressed strong misgivings about allowing the defendant to represent himself, but after engaging in colloquy with Bernard, determined he could go forward. The court further elaborated that it would monitor his competence as the trial progressed. During trial, Bernard made opening and closing statements, testified on his own behalf and re-opened his case to question a law enforcement officer whom he had declined to cross-examine during the government’s case-in-chief. He did not, however, make any objections during the government’s case, question any of the government’s witnesses, or call any witnesses on his own behalf. The jury deliberated 12 minutes and found him guilty on all charges. At the scheduled sentencing hearing, Bernard’s mental condition had seriously deteriorated and he was again fully represented by his stand-by attorney. At the final sentencing hearing held several months later after his further restoration to competency, the court sentenced him to 15 years in prison.

On appeal, Bernard argued that the trial court erred when it allowed him to exercise his right to self-representation at trial saying it abused its discretion in failing to apply the more rigorous standard following Edwards that required him to be represented by counsel. Bernard further contended that his trial counsel was ineffective by representing to the court that his competence to waive counsel was governed by the same standard as his competence to stand trial.

The Fourth Circuit applied the “plain error” standard in reviewing the appeal, not an abuse of discretion standard. The plain error standard requires that when a defendant fails to make a contemporaneous objection to an assignment of error at trial, the error must be plain on its face, affect his substantial rights and adversely affect the outcome of the proceedings. The Fourth Circuit reiterated that a defendant has a Sixth Amendment right to self-representation under Faretta v. California, 422 U.S. 806, 819, 821 (1975). It stated that in Godinez, the Supreme Court held that the competence of a defendant to stand trial is the same as the competence to waive the right to counsel. The Court went on to write that Edwards did not change that right. In Godinez, the trial court found the defendant competent to stand trial and permitted him to waive counsel and represent himself. By contrast, the trial court in Edwards found him competent to stand trial but refused to allow him to represent himself. The Fourth Circuit determined that the Supreme Court’s had held in Edwards that the Constitution permits the government to limit a defendant’s right of self-representation on the ground that the defendant lacks the mental capacity to conduct his trial defense unless represented. A different standard than the competency to stand trial standard may, but is not required, to be used when the defendant asserts his right of self-representation. Because the trial court in this case was permitted, but not required, to apply a higher standard to assess Bernard’s competency to represent himself and did not, there was no plain error.

The dissent agreed with the distinction the majority drew between Godinez and Edwards, but found that the record reflected that the trial court did not believe it had any discretion to consider a higher standard than competency to stand trial and therefore did not do so. Its belief that it had no discretion, and therefore did not exercise any, was itself an abuse of discretion warranting a remand.

Found in DMHL Volume 32 Issue 2

Competency to Stand Trial/Restoration of Competency

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Sell criteria for involuntary treatment to restore competency apply to sentencing phase

United States v. Cruz, 757 F.3d 372 (3d Cir. 2014) cert. denied, No. 14-7512, 2015 WL 133477 (U.S. Jan. 12, 2015)

Cruz was arrested and convicted on two counts of threatening a federal law enforcement officer. After the court received the pre-sentence investigation report, the prosecution successfully moved for a determination of competency. A Federal Bureau of Prisons forensic psychologist concluded that Cruz was mentally incompetent and suffered from schizophrenic disorder, bipolar type. After a hearing, the court concluded that Cruz was incompetent and found that he could not proceed with sentencing.

A second report concurred with the diagnosis, noted Cruz’s ongoing refusal to take antipsychotic medication recommended by BOP personnel, concluded that without medication Cruz would remain incompetent, and stated that “there is a substantial probability that [his] competency can be restored with a period of forced medication.” The prosecution obtained an order authorizing the BOP to medicate Cruz against his will.

On appeal, the issue was whether “the Government, pursuant to the Supreme Court's decision in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), can have a sufficiently important interest in forcibly medicating a defendant to restore his mental competency and render him fit to proceed with sentencing.” In affirming the decision of the federal district court, the Third Circuit held that the government could have a sufficiently important interest in sentencing a defendant for serious crimes to justify involuntary medication. Relying on the stated concern in Sell that “memories may fade or evidence may be lost,” the Third Circuit held the same concern applies with equal force in the sentencing context (the guilt phase was at issue in Sell) because it means that it may be “difficult or impossible to sentence a defendant who regains competence after years of commitment.” Additionally, while it may be cognizable that some crimes are not “serious” enough to justify forcible medication at the sentencing stage, Cruz’s offense was certainly “serious” enough.

The United States Supreme Court denied certiorari in January 2015.

Found in DMHL Volume 34 Issue 1

Competency to Stand Trial

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No error in trial court’s determination of defendant’s “present” ability to understand the proceedings and assist counsel, including denial of motion for a second hearing based on “new evidence”

Dang v. Com., 287 Va. 132, 752 S.E.2d 885 cert. denied sub nom. Dang v. Virginia, 135 S. Ct. 130, 190 L. Ed. 2d 99 (2014)

On appeal from his conviction for murder and violation of a protective order, petitioner Lam Dang argued that the circuit court erred in failing to order a second competency evaluation after his counsel uncovered new evidence concerning head trauma he suffered as a child. In his first competency evaluation, Dang was found competent to stand trial and seemed particularly focused on providing “his side of the story” and repeatedly had to be constantly redirected to the question posed. Dang’s evaluator noted that he exhibited a high degree of situational anxiety, but that it was not indicative of a mental illness relevant to competency but was “consistent with most defendants who face legal charges.”

Four days prior to his trial, Dang’s counsel moved for a second competency evaluation based on evidence he had recently uncovered that, beginning at age six and continuing until sixth or seventh grade, Dang had been subject to repeated physical assaults that included being pelted in the head with rocks. The circuit court denied the motion, finding no probable cause that Dang “lack[ed] substantial capacity to understand the proceedings against him or to assist his attorney in his own defense.”

The Supreme Court of Virginia upheld the Court of Appeals’ denial of Dang’s petition. The Supreme Court found that the circuit court had given adequate weight to the new information acquired by defense counsel and had focused on the proper issue at hand— Dang’s “present ability to understand the proceedings and assist his counsel.” Given the first evaluator’s opinion that Dang’s shifting focus was representative of “situational anxiety” and the “wide latitude” offered to circuit courts in light of their “first-hand interactions with, and observations of, the defendant and the attorneys at bar” the Supreme Court of Virginia found that the circuit court did not abuse its discretion in denying the request for a second evaluation.

Found in DMHL Volume 34 Issue 1

Competence to stand trial

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State courts violated clear due process standards in failing to address defendant’s competency to stand trial

McManus v. Neal, 779 F.3d 634 (7th Cir. 2015)

Paul McManus was convicted in Indiana state court of murdering his estranged wife and two daughters and was sentenced to death. On state post-conviction review, a trial judge found McManus to be intellectually disabled and ineligible for the death penalty under Atkins v. Virginia, 526 U.S. (2002) and Ind. Code § 35-36-9-6, but the Indiana Supreme Court re-imposed the death sentence. McManus then sought federal habeas review, challenging the Indiana Supreme Court’s rejection of his Atkins claim. The Seventh Circuit expanded the appeal to include the question of whether the state court “unreasonably applied federal due-process standards in finding McManus competent to stand trial.”

The Seventh Circuit held that the trial court and state supreme court failed to follow the due process competence to stand trial standard set out in Pate v. Robinson, 383 U.S. 375 (1966) and Dusky v. United States, 362 U.S. 402 (1960). During the trial, McManus suffered several panic attacks and had to be transported to the emergency room where he was treated with several psychotropic drugs, including both opioid painkillers and ones that affected memory. The Seventh Circuit held that the “powerful effect of the medications alone created substantial doubt about McManus’ mental fitness for trial” and faulted the state judge for not ordering a competency evaluation and instead focusing on “getting McManus ‘fixed-up’ enough to complete the trial.” This course of action violated not only the due process standard set out in Dusky but also the Indiana Code, which requires a trial court to appoint a team of medical experts with expertise in determining competency and to hold a hearing any time there are bona fide doubts about a defendant’s competency. See Ind. Code § 35-36-3-1. The Seventh Circuit reversed and remanded the case to the district court with instructions to grant the writ of habeas corpus unless Indiana gave notice of its intent to retry McManus within a reasonable time.

Found in DMHL Volume 34 Issue 2

Forced medications to restore competency to stand trial

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After prior reversal and remand, the Fourth Circuit rules that the district court made the specific inquiries and findings in the record as required by Sell to support the determination that less restrictive alternatives to forced medication to restore competency were not available

U.S. v. Chatmon, 596 Fed.App’x 216 (4th Cir. 2015)

This case, though unpublished, provides useful guidance from the Fourth Circuit on the evidentiary foundations required to support a court order to restore a defendant to competency to stand trial through the forcible administration of medications.

Chatmon was indicted for conspiracy to distribute crack cocaine and heroin, an offense with a minimum sentence of 10 years and maximum of life imprisonment. Following submissions by his attorney that Chatmon’s condition during incarceration had deteriorated to the point that he could no longer assist counsel in his own defense, Chatmon was transferred for competence evaluation to the Butner Federal Medical Center, where he was diagnosed with paranoid schizophrenia.

The district court found Chatmon incompetent to stand trial. Chatmon was returned to Butner for evaluation of whether he could be restored to competence, where he was placed in solitary confinement. The evaluation report confirmed the diagnosis, noted that Chatmon denied having any mental illness and refused treatment, and stated there was a “substantial probability” that competency could be restored through treatment with haloperidol decanoate. The government requested Court authorization to restore Chatmon to competency through forced medication.

The district court found that the government had met the test set out in Sell v. United States, 539 U.S. 166, 181 (2003)8 , and authorized the forced medication. Chatmon appealed. In United States v. Chatmon, 718 F.3d 369 (4th Cir. 2013), the Fourth Circuit Court of Appeals reversed the district court and remanded the matter. The Court noted that the district court had made sufficient findings for the first, second, and fourth prongs of Sell, but had failed to consider less intrusive means for restoring competence. Chatmon had submitted evidence of improved behavior upon being transferred to the open population at Butner and an option of group therapy to improve competence. The Court also noted that a “court order to the defendant backed by the contempt power” is acceptable as a less intrusive means for administering drugs.

On remand from the Fourth Circuit, the district court ordered the defendant to take his medication or be held in civil contempt. The penalty was set as thirty days' imprisonment, during which medication was offered each day, but Chatmon declined it. The district court then reviewed deposition testimony addressing whether housing in Butner’s open population and group therapy could result in restoration. The doctors opined that improvements in behavior were not the same as improved competency or mental health, and that treatments other than medication could be beneficial but not by themselves effective treatment for psychosis. They stated that haloperidol was the “only” effective means to restore Chatmon’s competency. The defense offered no rebuttal to the testimony, and the district court ordered forced medication.

Chatmon appealed the district court’s new order, but the Fourth Circuit found that the record created by the district court “made careful findings” and “examined less intrusive means,” thus satisfying all Sell factors, before ordering that Chatmon be forcibly medicated.

Found in DMHL Volume 34 Issue 2

Forced administration of medication to restore defendant to competency to stand trial under the Sell standard

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Oregon State Hosp. v. Butts, 359 P.3d 1187 (Or. 2015)

Mandamus action cannot be used by hospital where defendant is being treated to challenge decision of trial court that Sell standard has been met

Background: Daniel Butts was charged with 21 felony counts, including nine counts of aggravated murder. When the Circuit Court found him unable to assist in his own defense, Butts was committed to a state hospital. The Circuit Court then entered a Sell order, directing the hospital to involuntarily medicate Butts in order to restore his competency to stand trial. The hospital, having determined that the treatment was not medically necessary, petitioned the Supreme Court for a writ of mandamus directing the trial court to vacate the order, and the Supreme Court of Oregon issued an alternative writ of mandamus while it heard the parties’ arguments.

Holdings: The Supreme Court of Oregon ultimately dismissed the alternative writ of mandamus. It held that (1) mandamus relief was not available to the hospital based solely on its disagreement with the trial court’s findings of fact, and (2) the trial court had implied authority under the applicable statute (determination of fitness statute) to issue a Sell order. The Supreme Court began its discussion of the mandamus issue by stating that “it has become hornbook law in this state that the writ of mandamus cannot be used as a means of controlling judicial discretion.” A writ of mandamus can only be used if the trial court’s decision represents “fundamental legal error” or is “outside the permissible range of discretionary choices.” Thus, the primary issue on review was whether the trial court had the power to order the hospital to involuntarily medicate Butts when the hospital did not agree that the medication was medically necessary.

The Supreme Court of Oregon noted that it had already concluded that courts have implicit authority to issue Sell orders. It noted that the trial court “made extensive findings of fact based on medical evidence” and did so “after resolving disputed factual issues based on medical testimony in the proper exercise of its role as factfinder.” Ultimately, the Supreme Court of Oregon rejected the hospital’s argument that it should be granted “veto power” where a hospital disagrees with a court’s issuance of a Sell order.

Found in Found in DMHL Volume 34, Issue 4

Forced administration of medication to restore defendant to competency to stand trial under the Sell standard

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Warren v. State, 778 S.E.2d 749 (Ga. 2015)

Trial court's order “was insufficient in numerous respects” to support defendant’s forced medication for the sole purpose of restoring his competency for trial

Background: After Jesse James Warren was indicted on four counts of murder in connection with a mass shooting, he was found incompetent to stand trial and placed in the custody of the Department of Behavioral Health and Development Disabilities. The state of Georgia filed a petition under Sell to medicate Warren involuntarily in an attempt to restore his competency. The Superior Court for Cobb County granted the state’s motion and the defendant appealed.

Holdings: The Georgia Supreme Court held that, although the state had important governmental interests in restoring Warren’s competency for a timely prosecution and no special circumstances significantly undermined those interests, the factual findings were insufficient to support Warren’s involuntary medication. Important to the Georgia Supreme Court was the “absence of a specific treatment plan” that identified the drugs the State proposed to administer, in what doses and by what methods. The Court noted that “courts must consider less intrusive means for administering the drugs” (emphasis added by Georgia Supreme Court). Finally, the Court pointed to an absence of evidence in the record suggesting that the State sought to involuntarily medicate Warren for “the alternative purpose of preventing him from being a danger to himself or others.”

Found in Found in DMHL Volume 34, Issue 4

Competency to Stand Trial and the Right to Self-Representation

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State v. Hawkins, 363 P.3d 348 (Idaho 2015)

It is not a violation of due process to make a retroactive determination, on remand, of a defendant’s competency at the time of the original trial where there is a sufficient record to support that finding. When raising an Edwards challenge for the first time on appeal, the burden is on the defendant to show fundamental error.

Background: Faron Hawkins was convicted of two counts of robbery. At trial, he admitted to robbing the banks, but contended that he did so under duress from previous involvement with agencies (including the Central Intelligence Agency and Defense Intelligence Agency). The Court of Appeals vacated Hawkins’ conviction, holding that the district court had erred by not ordering a psychiatric evaluation and holding a competency hearing. At the competency hearing on remand, two experts determined that Hawkins was competent during the course of his legal proceedings. The state filed an interlocutory appeal based on the Court of Appeals previous language that suggested a retrospective competence hearing was disallowed. The Court of Appeals clarified that a retrospective competence hearings are permissible. On remand for the second time, the district court set another competence hearing to allow Hawkins to cross-examine witnesses and present his own expert. Before that hearing, Hawkins moved to proceed pro se, which the district court granted. After several months of delays due to Hawkins’ actions, the court proceeded to find Hawkins competent and sentence him despite his never presenting evidence regarding competency. Hawkins appealed. 

Holdings: The Supreme Court of Idaho affirmed the judgment of the district court, finding no reversible error in the actions of the court below. Specifically, the Supreme Court of Idaho found that the district court’s retroactive determination of Hawkins’ competency to stand trial did not violate his due process rights. Further, the Court held that, although a standard was not yet established for reviewing, in response to an Indiana v. Edwards challenge, a lower court’s granting of a pro se motion, the standard of review was in fact controlled by the fact that Hawkins raised the issue for the first time on appeal. Therefore, the lower court’s actions were to be reviewed under the fundamental error standard, and the Court found that Hawkins did not establish a clear violation of a constitutional right. The Court agreed with other courts that “Edwards allows, but does not require, states to insist upon representation by counsel for certain “gray-area” defendants. It does not give such a defendant a constitutional right to have his request for self-representation denied.”

Found in Found in DMHL Volume 35, Issue 1