U.S. v. Weston, Criminal Action No. 98-357(EGS).

• Decision Date: 18 June 1999
• Docket Number: Criminal Action No. 98-357(EGS).
• Citation: 55 F.Supp.2d 23
• Parties: UNITED STATES of America v. Russell Eugene WESTON, Jr., Defendant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 F.Supp.2d 23

UNITED STATES of America v. Russell Eugene WESTON, Jr., Defendant.

Criminal Action No. 98-357(EGS).

United States District Court, District of Columbia.

June 18, 1999.

Ronald Walutes, Erik Christian, David Goodhand, Assistant United States Attorneys, Washington, DC, for plaintiff.

A.J. Kramer, Federal Public Defender, L. Barrett Boss, Assistant Federal Public Defender, Washington, DC, for defendant.

MEMORANDUM OPINION & ORDER

SULLIVAN, District Judge.

INTRODUCTION

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.

BACKGROUND

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.¹ Pursuant to 28 C.F.R. § 549.43,² 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.³ 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.

Following the receipt of Dr. Johnson's May 20, 1999 letter, the Court held a conference with the attorneys on May 24, 1999, and then decided to hold a hearing to supplement the sparse administrative record.⁴ See Esch v. Yeutter, 876 F.2d 976, 991-93 (D.C.Cir.1989) (discussing circumstances that justify going outside the administrative record). At the hearing on May 28, 1999, Mr. Pitcairn testified by telephone that the defendant refused to speak with him prior to the hearing. As a result, Mr. Pitcairn explained that "there was nothing [he] could say for [defendant] except for the fact [he] attempted to explain to [defendant] the procedures as [he] understood them." Id. at 123. Mr. Pitcairn further added that the defendant did not state that he did not want to take medication until the time of the hearing. Id. at 126-127. Mr. Pitcairn admitted that he presented no favorable evidence against forced medication and made no attempt to determine whether such evidence existed. Id. at 127. The Court finds it most significant that Mr. Pitcairn has served as a staff representative approximately once a month during his 22-month employment at Butner, id., and that his experience with the defendant marked the first time that an inmate had refused to speak with him. Id.

DISCUSSION

As an initial matter, the Court finds that the Bureau of Prisons failed to comply with this Court's April 22 Order, which required that Butner provide defense counsel with reasonable notice of the involuntary medication hearing. Dr. Johnson testified that she informed defense counsel, during his visit to Butner on May 10, 1999, that she "would proceed with the involuntary medication review process within the week." Hr'g Tr., at 36 (5/28/99). Contrary to the Court's Order, Butner provided defense counsel with absolutely no notice of the hearing date. Thus, defense counsel was unable to contact the Staff Representative. This failure troubles the Court, especially given the Bureau of Prisons' failure to notify defense counsel of an involuntary medication hearing in a recent similar case. See United States v. Morgan, Criminal No. 4:98-00428 (D.S.C. Feb. 9, 1999 Order, at 2 n. 1)("The court also notes that BOP failed to notify Defendant's counsel of the hearing, as was previously ordered by the court.").

In addition to its concern over the lack of notice to defense counsel, the Court also finds that the record in this case reveals that the hearing officer did not have before him "any evidence favorable to the patient's position." See 59-91(6000) Duties of Staff Representative, Involuntary Medication Hearing. Indeed, defendant's staff representative, Mr. Pitcairn, testified that he said nothing at the hearing other than that the defendant had refused to talk to him. The record does not indicate that Mr. Pitcairn reviewed the defendant's files to locate evidence favorable to the defendant. Furthermore, the Court is uncertain if Mr. Pitcairn "[spoke] to witnesses who might [have] furnish[ed] evidence on behalf of the patient." Id. Although the memo indicates that the Staff Representative is required to speak to such witnesses only "if the patient indicates there are such witnesses whom the patient wishes to be called," Mr. Pitcairn was certainly aware, or should have been aware, that the defendant was represented by counsel and could have contacted defendant's attorneys, or vice versa.

At the May 28 hearing, the defendant proffered his position that "the medication is not justified [and] not needed," Hr'g Tr., at 4 (5/28/99) and also stated that his expert would have testified that "to a reasonable degree of medical certainty, [the defendant] would not be made competent, that his delusions were too ingrained, and in addition there would have been some testimony about some of the side effects that Dr. Johnson... minimized." Hr'g Tr., at 129 (5/28/99). Although Dr. Johnson testified that she believes the defendant has a 70-75% likelihood of becoming competent through the treatment she has proposed, the record does not indicate that the hearing examiner considered any evidence at all regarding the treatment's likelihood of success.

Because the Staff Representative failed to present any evidence or witnesses in support of the defendant...