The opinion of the court was delivered by: Hon. Jerome B. Simandle
The main issue before the Court is whether the Government may present the testimony of its principal medical witness by live two-way video-conference at a hearing to determine whether the Bureau of Prisons may involuntarily administer antipsychotic medication to attempt to restore the defendant's mental competence to stand trial, or whether such a procedure would violate the defendant's right to cross-examination of witnesses who appear against him.
In its October 19, 2006 Opinion, the Court determined that the defendant, Wayne Moruzin, was suffering from a mental disease or defect that rendered him incompetent to stand trial [Docket Item 91]. United States v. Moruzin, Cr. No. 05-306(JBS), 2006 WL 3000182 (D.N.J. Oct. 19, 2006). On July 9, 2007, the Government filed a motion requesting permission under Sell v. United States, 539 U.S. 166 (2003), to involuntarily medicate Mr. Moruzin in order to render him competent to stand trial [Docket Item 112]. In Sell, the Supreme Court determined that, in limited circumstances, the Constitution permits the Government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant in order to render the defendant competent to stand trial for serious crimes. Id. at 169. To do so, the government has the burden of proving that the proposed treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the trial's fairness, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests. Id. at 179.
Presently before the Court is the Government's motion to permit its psychiatric witness, Dr. Robert Lucking, to testify via video-conference from his North Carolina office at the defendant's Sell hearing [Docket Item 124]. The defendant opposes the Government's motion on the ground that testimony via video-conference would impinge on his constitutional right to confront witnesses against him [Docket Item 125]. For the reasons discussed herein, the Court will permit Dr. Lucking to testify via video-conference at the Sell hearing under procedures protecting Defendant's confrontation right, and thus will grant the Government's motion.
Moruzin was charged with bank robbery on January 5, 2005. Pursuant to the defendant's application to waive his right to counsel and assert his right to represent himself, the Court conducted a hearing and, on October 18, 2005, issued an Order permitting Moruzin to represent himself [Docket Item 40]. Meanwhile, a superseding indictment in October, 2005, added a charge of obstruction of justice by attempted jury tampering. However, once Moruzin began to exhibit unusual behavior, the Court, pursuant to 18 U.S.C. § 4241(a), ordered an evaluation of whether Mr. Moruzin was mentally competent to stand trial. Moruzin was transferred to the Federal Medical Center in Lexington, Kentucky ("FMC Lexington") for this mental health evaluation.
On October 5, 2006, the Court conducted a hearing on the issue of the defendant's mental competence at which the Federal Bureau of Prisons' Forensic Psychologist, Judith Campbell, Ph.D., testified. Based upon Dr. Campbell's testimony, the defendant's mental health diagnosis, and the defendant's behavior and demeanor, the Court determined that Mr. Moruzin was suffering from a mental disease or defect that rendered him mentally incompetent to stand trial, pursuant to 18 U.S.C. § 4241(d) [Docket Item 91].
In its Order dated October 19, 2006, the Court ordered that the defendant be committed to the custody of the Attorney General for hospitalization and treatment and directed the treatment facility to conduct a study regarding the likelihood of whether the defendant would regain his mental competence so as to permit the trial to proceed [Docket Item 92]. The resulting competency restoration study, conducted under Dr. Lucking's supervision at the Federal Medical Center in Butner, North Carolina ("FMC Butner"), produced a detailed forensic evaluation (the "FMC Butner Report"), dated March 13, 2007, finding continued incompetence and recommending that the involuntary administration of antipsychotic medication be prescribed, to be followed by a period for restoration of competence under 18 U.S.C. § 4241(d).
On July 9, 2007, the Government moved for the involuntary medication of Moruzin under Sell v. United States in order to restore his competency to stand trial*fn1 because Moruzin had refused to be treated voluntarily with psychotropic medication [Docket Item 112]. At the Sell hearing, the Government intends to present the testimony of psychiatrist Dr. Robert Lucking, who examined and treated the defendant at FMC Butner and who supervised the production of the FMC Butner Report on Moruzin's mental competency. On August 24, 2007, the Government moved that the Court permit Dr. Lucking to testify at the Sell hearing from FMC Butner via video-conference on account of a severe health condition that prevents Dr. Lucking from traveling and inhibits his capacity to testify comfortably in court [Docket Item 124]. On September 5, 2007, the defendant submitted his motion in opposition to the Government's request for testimony by video-conference on the ground that it would violate his constitutional right to confront the witnesses against him [Docket Item 125].
The Court conducted a hearing on this matter on September 17, 2007. At the hearing, Dr. Lucking testified telephonically in response to questions regarding his health condition and also on the indispensability of his testimony for the Sell hearing. With regard to his health condition and his capacity to travel, Dr. Lucking testified in detail to the fact that he has a medical condition that does not permit him to travel and that significantly inhibits his capacity to testify in court.*fn2
Dr. Lucking also testified about his familiarity with Moruzin's case and responded to questions regarding whether it would be feasible for another mental health professional at FMC Butner to testify about the defendant's mental health status and the advisability of prescribing antipsychotic medication at the Sell hearing. Dr. Lucking testified that he had met with the defendant on three occasions and that these three meetings amounted to roughly one hour of time. According to Dr. Lucking, no other psychiatrists at FMC Butner had met with the defendant. In addition, Dr. Lucking testified that Moruzin's mental health diagnosis was rendered by Dr. Angela Walden Weaver, Ph.D., and that Dr. Lucking's determination about whether Moruzin should be involuntarily medicated was made as a result of Dr. Walden Weaver's diagnosis and Dr. Lucking's own determination about what medications are available to treat Moruzin's condition.
Dr. Lucking testified that no other mental health professional at FMC Butner who examined Moruzin was qualified to testify about the advisability of involuntarily administering antipsychotic medication in Moruzin's case. Specifically, Dr. Lucking noted that Dr. Walden Weaver would be unable to testify in lieu of Dr. Lucking on the issue of whether to prescribe psychotropic medication against Moruzin's will because she is not a medical doctor and, as such, is unable to prescribe medication. Dr. Lucking also stated that it might be unethical for another psychiatrist at FMC Butner who ...