Government’s interest in prosecuting still trumps defendant’s desire to not be forcibly medicated

United States v. Gutierrez, No. 12-50028 (5th Cir. Jan. 11, 2013) (Jolly, Jones, Graves)

Fifth Circuit reviewed the district court’s analysis of Sell factors and affirmed an order directing BOP to involuntarily administer psychiatric medicine to the defendant for the purpose of restoring his competency to stand trial. The defendant had threatened to kill former President George W. Bush, Texas Governor Rick Perry, and their wives. The panel found BOP satisfactorily complied with the applicable regulations, finding that involuntarily medicating the defendant would be in his best medical interests, would likely restore his competency, and was the only treatment that had any chance of success.

The panel also found the Government still had an interest in prosecution despite defense arguments that the defendant would likely continue to be institutionalized (civil commitment), has already spent 31 months in custody (arguably less than the sentence he would receive), arguably would not receive a fair trial (because he’d appear to be more sane than he was at the time of the incident), and would likely be found not guilty by reason of insanity. The panel said that civil commitment was not clear (and that even if it was, it would not diminish the Government’s interest in prosecution), that it was premature to analyze his possible sentencing range, that a defendant does not have the right to appear insane at his trial, and that it’s impossible to determine whether the defendant would even proceed with the insanity defense once restored to competency.  In short, this case did not rise to the "special circumstances" contemplated by Sell that may lessen the Government's interest in prosecution.

Carr Factors: "Close Assistance of Counsel" Not the Same Thing as "Ineffective Assistance of Counsel"

United States v. McKnight, No. 08-30229 (5th Cir. June 5, 2009) (O'Connor, Wiener, Stewart)

This case involves the appeal of a district court's denial of a motion to withdraw a guilty plea. Given the fact-intensive nature of the issue, a case like this ordinarily wouldn't be worth discussing here. But two aspects of the case merit mention: 1) the eyebrow-raising circumstances of the offense, and 2) the court's clarification of one of the factors relevant to the analysis.

What's eyebrow-raising about the case? DEA agents used a confidential informant to set up a man undergoing treatment for severe mental illness:

Before the arrest that led to the proceedings below, McKnight was diagnosed with and treated for paranoid schizophrenia, delusions, and major depression at the East Jefferson Mental Health Center (“Center”) in New Orleans, Louisiana. On June 1, 2005, while McKnight was undergoing treatment at the Center, agents with the Drug Enforcement Administration (“DEA”) arranged a purchase of two and one-fourth ounces of cocaine base from McKnight through cooperation with a confidential source (“CS”). On June 2, 2005, McKnight met the CS and an undercover agent in a parking lot located at a Walgreens. McKnight handed the undercover agent a package containing 61.6 grams of cocaine base and the agent handed McKnight $1,500.

McKnight was charged with, and pleaded guilty to, possessing more than 50 grams of crack with the intent to distribute it. "In exchange for McKnight’s guilty plea, the Government promised not to file a 21 U.S.C. § 851 recidivist bill and McKnight waived certain rights to appeal." The day after his rearraignment, "McKnight sent a letter to the district court where he expressed doubts regarding his decision to plead guilty." To make the rest of a long and troubling story short,

• McKnight was found incompetent by two doctors.
• The district court appointed new counsel for McKnight.
• McKnight was sent to Butner for restoration of competency, where doctors concluded he was malingering.
• McKnight "moved to withdraw his guilty plea based on lack of competency at the time he pled guilty and ineffective assistance of counsel."
• McKnight was sent back to Butner, where doctors again concluded he was malingering, and that he was competent at the time of his plea.
• The district court held a hearing on the ineffective assistance claim, denied McKnight's motion to withdraw his guilty plea, and sentenced him to 292 months' imprisonment.

McKnight appealed the district court's denial of his motion to withdraw his guilty plea. In determining whether the district court abused its discretion in doing so, the court of appeals considers the seven "Carr factors." And therein lies the second reason for discussing this case. One of the Carr factors is whether the defendant received "close assistance of counsel." Both in the district court and on appeal, "McKnight framed his argument that he lacked close assistance of counsel as a 'claim' of 'ineffective assistance of counsel.'" Incorrect, said the court:

Close assistance of counsel under Federal Rule of Criminal Procedure (“Rule”) 11(d)(2)(B) and constitutionally ineffective assistance of counsel under the Sixth Amendment are distinct issues. The former is to be considered by a district court in the exercise of its discretion to allow or to disallow a defendant to withdraw his guilty plea. The latter presents a basis for invalidating a conviction (or sentence) secured in violation of a defendant’s fundamental right to counsel. McKnight moved to withdraw his guilty plea under Rule 11(d)(2)(B). He has not sought to invalidate his conviction under the Sixth Amendment or any other provision of law. Thus, McKnight erred in framing his close assistance of counsel claim before the district court and this Court as a Sixth Amendment inquiry.

The court went on to consider the facts under correct standard at length, and concluded that McKnight received close assistance of counsel. On another Carr factor—whether the guilty plea was knowing and voluntary—the court held in conclusory fashion that the district court did not clearly err in relying on the Butner doctors' reports declaring McKnight a malingerer. Most of the rest of the Carr factors weighed against an abuse of discretion, so the court of appeals ultimately affirmed McKnight's conviction.

Ninth Circuit Addresses Sell; Takes Somewhat Different View Than Fifth Circuit

Let's jump in the way-back machine for a short trip to last week, when the Fifth Circuit addressed the standard of review for Sell orders (that a defendant be involuntarily medicated to restore his competency to stand trial) in United States v. Palmer. It turns out that the Ninth Circuit issued an opinion that same day adressing the very same issue: United States v. Hernandez-Vasquez, No. 06-50198 (9th Cir. Oct. 31, 2007) (Fisher, Clifton, Fogel, D.J.).

As you might imagine, Hernandez-Vasquez's analysis differs in some important respects from that found in Palmer. For example, it held that when evaluating the seriousness prong of the 4-part test, a court should start by looking at the likely guideline range that the defendant will face if he's convicted, rather than the statutory maximum for the offense. Palmer, on the other hand, said the statutory maximum is more relevant than the guideline range.

See the Ninth Circuit Blog's summaries of Hernandez-Vasquez (here and here) for a more detailed discussion of the case, and keep it in mind if you find yourself dealing with the issue.

Court Adopts Standard of Review for Appeal from Order That Defendant Be Involuntarily Medicated to Restore Competency to Stand Trial

United States v. Palmer, No. 06-31018 (5th Cir. Oct. 31, 2007) (Garwood, Jolly, Stewart)

Palmer appealed an order that he be forcibly medicated with Haldol to restore his competency so he could stand trial on a charge of possession of a firearm by a person adjudicated mentally defective. (Haldol is a powerful anti-psychotic drug with some very unpleasant side effects.)

As the court explains,

In Sell v. United States, the Court explained that the involuntary medication of a defendant solely to render him competent to stand trial for a serious, but nonviolent, crime is permissible in rare circumstances, “but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.” 539 U.S. 166, 179 (2003). The Court declared that lower courts, when making such a determination must consider four factors: (1) whether important governmental interests are at stake; (2) whether involuntary medication will significantly further those interests; (3) whether involuntary medication is necessary to further those interests; and (4) whether the administration of the drugs is medically appropriate. Id.

The first order of business in Palmer was to determine the standard of review for Sell cases. The court followed the lead of the Second Circuit, which has held that factor one is reviewed de novo, while the other three factors are reviewed for clear error.

The court went on to affirm the order for involuntary medication. On the first factor, it held that the government's interest was important, based on the particular allegations in Palmer's case, as well as the maximum punishment for the offense. It observed that other courts have held that when evaluating the seriousness of the charged offense, which is relevant to this factor, a court should look at the statutory maximum for the offense, rather than the applicable guideline range, and that anything over six months is "serious."

On the second factor, the court acknowledged that Haldol produces strong side effects, and that newer medications don't have as many or as severe side effects. It nevertheless held that "while [Palmer] has demonstrated that the side effects will be unpleasant, he has not shown how his ability to assist in his defense will be substantially undermined by the medication." (I'm not a doctor, nor have I ever played one on TV. But the court seems to be downplaying the severity of Haldol's side effects, and their effect on a person's ability to assist in a defense. For example, one of the side effects is akathisia, which the opinion describes as "restlessness." According to the Wikipedia article, "High functioning patients have described the feeling as a sense of inner tension and torment or chemical torture from the inside out." Then again, the court probably doesn't want to get involved in second-guessing both the district court and medical professionals when it comes down to the choice of one drug over another.)

The third factor wasn't in dispute here.

Finally, on the fourth factor, the court observed that, "It is undisputed that other treatment options, such as psychotherapy or education would be ineffective in restoring Palmer’s competency." Palmer urged that he should be re-evaluated for civil commitment, and that he would likely be found not guilty by reason of insanity if he were made competent and brought to trial. The court acknowledged that "there is some force to Palmer's contentions," but nevertheless found no clear error in the district court's finding on this factor. It noted that he was already found to be an unsuitable candidate for civil commitment in 2004 (when he was evaluated for competency in connection with an earlier charge that was later dismissed). It also pointed out that even if Palmer never serves a day of prison time, Sell said that the government's interest is in bringing him to trial, not in seeing him convicted.