The opinion of the court was delivered by: Joel A. Pisano United States District Judge
Subsequent to a competency hearing held on July 26, 2005, this Court found Defendant, Kevin McCray, to be suffering from a mental disease or defect rendering him incompetent to stand trial on the criminal charges against him. The Court ordered that Defendant be hospitalized in order to determine whether there existed a substantial probability that Defendant would be restored to competency in the foreseeable future. After several months of evaluation, doctors concluded that there was a substantial likelihood that Defendant could be restored to competency through treatment with antipsychotic medication. However, Defendant has refused all medical treatment. The United States now seeks an order that would permit the Bureau of Prisons to forcibly administer antipsychotic medication to Defendant in order to restore his competency and allow him to stand trial. For the reasons set forth below, the government's motion is denied.
Defendant presently stands charged in a five-count indictment returned August 12, 2004, with one count of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. 1951(a), three acts of Hobbs Act robbery in violation of 18 U.S.C. 1951(a), and one count of using a firearm during the commission of a crime of violence in violation of 18 U.S.C. 924(c)(1). The charges stem from the robberies of three check cashing stores in Englewood, Parsippany and South River, New Jersey that occurred between September 1, 2001 and November 9, 2001. Defendant's alleged role in the robberies, during which firearms were brandished and the stores' employees were threatened and physically assaulted, was "organizer, planner [and] provider of equipment" (including weapons). Hearing Transcript, October 23, 2006 ("Oct. 23 Tr.") at 88. Defendant also is alleged to have acted as a look-out outside of the premises during the robberies. Id. Approximately $240,000 was stolen in these incidents. All of Defendant's alleged co-conspirators have entered guilty pleas to various charges arising from these incidents and are serving their sentences.
After the New Jersey robberies took place, but before the indictment was returned in this case, Defendant pled guilty in the Delaware Superior Court to charges arising from three robberies committed in that state in 2002. On December 5, 2003, defendant was sentenced in Delaware to 36 years incarceration (that is suspended after 26 years incarceration), followed by probation.
Defendant's trial on the instant charges was scheduled to begin on December 2, 2004. On December 1, 2004, a jury was selected. However, the next morning, before the jury had been sworn in, Defendant's counsel, David Glazer, an experienced defense attorney, advised the Court of his concern that his client was not competent to stand trial. Counsel's concern stemmed in part from Defendant's behavior during jury selection the previous day, when Defendant interrupted the proceedings several times to make irrelevant statements or inquire into irrelevant legal issues.*fn1 Mr. Glazer also advised the Court that he observed what appeared to be a deterioration of his client's mental state over the previous two months, and as a result counsel was getting little, if any, assistance from Defendant in preparing a defense. Additionally, Mr. Glazer stated that he had recently learned, based on documents turned over by the government on the previous day, as well as his discussions with both Defendant and his mother, that Defendant had been admitted to a mental institution at some point in his life. Based on counsel's representations as well as the Court's own observation of Defendant's behavior, the Court ordered a continuance to permit Defendant to undergo a psychiatric evaluation.*fn2
Defendant was initially evaluated by psychiatrist Richard G. Dudley, Jr., M.D., who issued a report dated January 7, 2005 ("Jan. 7 Report"). Dr. Dudley found Defendant to have "significant cognitive difficulties," possibly present since birth and/or as a result of a severe car accident Defendant was involved in when he was fifteen years old. Jan. 7 Report at 13. As a result of these cognitive difficulties, Dr. Dudley stated that Defendant is unable to adequately understand what is going on at "important points" in the case and therefore becomes easily overwhelmed and paranoid. According to Dr. Dudley, Defendant also suffered Posttraumatic Stress Disorder ("PTSD") after the car accident, and as such he is even more likely to become paranoid under stress. The report concludes that "as a result of [Defendant's] neuropsychiatric difficulties, he is currently unfit to proceed with this matter." Jan. 7 Report at 14. Dr. Dudley recommended that defendant be placed in a forensic psychiatric facility for further evaluation.
On January 18, 2005, the Court ordered further psychiatric evaluation of the Defendant to be conducted at a federal correctional facility. The Defendant was subsequently assessed at the Metropolitan Correctional Center in New York by psychologist William J. Ryan, Ph.D., who issued a report dated June 2, 2005 ("June 2 Report"). Dr. Ryan reported that Defendant suffered from PTSD and psychotic disorder, as well as mild mental retardation. Dr. Ryan concluded that Defendant was not competent to stand trial due to "significant limitations in competency from both mental illness (i.e., paranoid delusions) and mental defect (i.e., mental retardation)." See June 2 Report at 8.
On July 26, 2005, the Court held a hearing at which Dr. Ryan testified and determined that Defendant suffered from a mental disease or defect that rendered him incompetent to stand trial. The Court ordered that Defendant be transferred to a hospital facility for treatment and further evaluation. See August 1, 2005 Order. On August 24, 2005, Defendant was admitted to the Federal Medical Center located in Butner, North Carolina ("FMC Butner"). In a report dated January, 31, 2006, ("Jan. 31 Report") psychologist Edward E. Landis, Ph.D. and psychiatrist Ralph Newman, M.D., advised that after a four-month evaluation period, the staff at the medical center was unable form a definitive opinion as to Defendant's competency to stand trial. It was noted that Defendant refused to cooperate with the evaluation process and at times refused to speak to evaluators at all. He refused to complete psychological testing. It was further noted that the evaluation of Defendant was also complicated by "a dearth of detailed, objective history." Jan. 31 Report at 6. The report recommended an additional 120-day evaluation period.
The Court ordered the additional period of evaluation at FMC Butner. In a report dated July 17, 2006 (the "July 17 Report"), Dr. Landis and Dr. Newman concluded that Defendant was incompetent to stand trial. According to Dr. Landis, the evaluation of Defendant during his two admissions at FMC Butner consisted of (1) attempts to interview Defendant, to which Defendant was "pretty uncooperative;" (2) observations of Defendant's demeanor and his mental status, from which Dr. Landis states he "didn't derive a whole lot of information;" (3) observations of Defendant's behavior while in the hospital; (4) reviewing the reports from Drs. Dudley and Ryan; (5) reviewing, to the extent available, school and court records; (6) monitoring some of Defendant's phone calls; and (7) a physical exam. Oct. 23 Tr. at 15, 19. Drs. Landis and Newman diagnosed Defendant as paranoid and delusional, but opined that there was a substantial probability that treatment with antipsychotic medication would restore Defendant's competency to stand trial. July 17 Report at 9. Although the staff at FMC Butner attempted to discuss with Defendant of the benefits of treatment with antipsychotic medications, Defendant expressly refused to take any medication, apparently fearing he would be poisoned.
Subsequently, the government sought the Court's authorization to allow the staff at the Butner facility to involuntarily medicate Defendant in accordance with Sell v. United States, 539 U.S. 166, (2003) for the sole purpose of rendering Defendant competent to stand trial. The Court conducted a hearing in this regard on October 23, 2006, and heard testimony in support of the government's application from Dr. Landis and Special Agent Carrie Brzezinski of the Federal Bureau of Investigation. Dr. Landis testified with regard to Defendant's psychiatric condition and potential treatments. Agent Brzezinski testified regarding the circumstances of the robberies underlying the indictment against Defendant.
According to Dr. Landis, Defendant is not competent to stand trial due to his "delusional disorder, antisocial character pathology [and] substance abuse," although Dr. Landis noted that Defendant may be "malingering in some ways, principally having to do with potential cognitive and intellectual limitations."*fn3 Oct. 23 Tr. at 22. Defendant's diagnoses are part of a family of psychiatric illnesses referred to as "psychotic disorders," that "involve a loss of touch with reality." Id. Dr. Landis explained that Defendant's delusional disorder causes Defendant to express "fixed, false irrational belief[s] that [Defendant] can't give up and isn't subject to being persuaded out of by the reasonable evidence that most people might accept to prove to them that they're wrong about something." Id. at 43. Defendant also suffers with paranoia, that is, a feeling of personal fear. Additionally, based on limited school records that are available, it appears that Defendant may have significant cognitive limitations. When formally tested at age 12, Defendant had an I.Q. of 70, which, according to Dr. Landis, is traditionally recognized as the boundary between borderline intelligence and mild retardation. June 2 Report at 3; Oct. 23 Tr. at 50. Additional information shows that at age 12, Defendant was in residential treatment at a school for mentally retarded children. June 2 Report at 3.
Dr. Landis testified that treatment for Defendant's psychotic disorder would include the administration of antipsychotic medication. In the case of a compliant patient, this medication would be administered orally. In situations where a patient is uncooperative, however, the preferred medication is one that is available in a long-acting injectable form, so as to minimize the number of times the medication would need to be administered. In the present case, given Defendant's recalcitrance, Dr. Landis explained that the first-line medication to be used would be long-acting Haldol deconate ("Haldol"), which would be injected (forcibly if necessary) once every two weeks for the first two months, then every four weeks thereafter. Dr. Landis opined that it was substantially likely that treatment with this medication would restore Defendant's competency, but noted that the medication would not make a difference in Defendant's intellectual capacity.
Dr. Landis also testified regarding the potential side effects of drug treatment, which are also detailed in the July 17, 2006 report from FMC Butner. Dr. Landis agreed that "[w]hile the therapeutic benefits of antipsychotic drugs are well-documented, it is also true that the drugs can have serious, even fatal, side effects." See Riggins v. Nevada, 504 U.S. 127, 134, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992); Oct 23 Tr. at 56. Indeed, based on the evidence presented, the side effects of Haldol can be severe, and include Parkinsonian effects (e.g., rigidity, tremors, muscle stiffness, shuffling gate, stooped posture), akathisia (described by Dr. Landis as a kind of restlessness), dystonic reactions (slow, sustained muscular contraction or spasm that can result in an involuntary movment involving the neck, jaw, tongue, or entire body), tardive dyskinesia (repetitive tics or movements that typically involve the face, mouth or upper extremities) and in some cases neuroleptic malignant syndrome, a relatively rare condition that can lead to death from cardiac dysfunction. July 17 Report at 7; Oct. 23 Tr. at 57-59. The likelihood that Defendant will experience these side effects are as follows: Parkinsonian effects occur in about 15% of patients, acute dystonia occurs in about 10% of patients, tardive dskinesia in 4% per year with a lifetime prevalence of approximately 30%,*fn4 and cardiac dysfunction ...