The opinion of the court was delivered by: Block, Senior District Judge:
Damion Hardy is charged with numerous crimes - including six murders - in connection with his alleged role in the "Cash Money Brothers" gang. Based on one of the murders, the government has given notice that it intends to seek the death penalty.
For the time being, however, Hardy cannot be tried because all agree that he is incompetent to stand trial. See Dusky v. United States, 362 U.S. 402, 402 (1960) ("The test must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding - and whether he has a rational as well as factual understanding of the proceedings against him.") (per curiam) (internal quotation marks omitted). Since he has refused all offers of mediation that might restore his competency, the government moves, pursuant to Sell v. United States, 539 U.S. 166 (2003), for an order authorizing the Bureau of Prisons ("BOP") to medicate him involuntarily. In addition, it moves, pursuant to Washington v. Harper, 494 U.S. 210 (1990), for an order authorizing involuntary medication on the ground that Hardy poses a danger to others.
On August 15, 2004, Hardy was arrested and housed at the Metropolitan Correction Center ("MCC") to await trial. Initial observations by a BOP psychologist did not raise any red flags. Similarly, Hardy's counsel opined that his client was competent to stand trial.
By the end of 2007, matters had changed. Hardy's learned counsel reported that interactions with his client "always included a mix of bizarre and relevant conduct," and that "over time the bizarre and delusional ha[d] almost wholly supplanted the relevant." Report of Lea Ann Preston-Baecht, Ph.D., at 7. Another BOP psychologist confirmed that Hardy labored under the delusion that "he is the Messiah and Allah will make things right." Id. In March 2008, a third diagnosed Hardy with paranoid schizophrenia and concluded that he was not competent to stand trial. Based on these reports, and with the consent of both the government and the defense, Judge Trager entered an order finding Hardy incompetent to stand trial on July 29, 2008.
Pursuant to Judge Trager's order, Hardy was remanded to the United States Medical Center for Federal Prisoners in Springfield, Missouri. There, Lea Ann Preston-Baecht, Ph.D., and Robert Sarrazin, M.D., studied whether Hardy could be restored to competency. Both reported their findings to Judge Trager in February 2009. Hardy was transferred from Springfield to the Metropolitan Detention Center ("MDC") shortly thereafter.
Dr. Preston-Baecht concluded that Hardy suffered from paranoid schizophrenia. According to the Diagnostic and Statistical Manual of Mental Disorders ("DSM"), paranoid schizophrenia (or, more formally, "schizophrenia, paranoid type") involves preoccupation with "delusions or frequent auditory hallucinations," without "disorganized speech, disorganized or catatonic behavior, or flat or inappropriate affect." In lay terms, Hardy manifested a persistent, irrational belief that something he referred to as "Ethou law" entitled him to immediate release without facing the charges against him.
Dr. Preston-Baecht concluded that Hardy was likely able to understand the nature of the charges and the criminal proceedings against him, but that his "delusional and at times, disorganized thinking" negatively impacted his ability to assist in his defense. Preston-Baecht Reportat 11. She opined that Hardy could not likely be restored to competency without antipsychotic medication, but that with such medication, it was "substantially likely that Mr. Hardy [would] be restored to competency" and "substantially unlikely to have side effects that would interfere significantly with his ability to assist counsel in conducting a defense." Id. at 13.
Dr. Sarrazin, the Chief of Psychiatry at Springfield, confirmed the prior diagnoses of paranoid schizophrenia, noting that Hardy "remain[ed] extremely delusional, particularly in light of the fact that he states that there is no case against him." Report of Robert Sarrazin, M.D., at 3. To treat Hardy, Dr. Sarrazin proposed a regimen of antipsychotic medication. He recommended that Hardy first be asked to take a second-generation antipsychotic (such as Abilify, Geodon or Risperdal) orally. If Hardy refused, it would be necessary to administer injections of haloperidol (also know as haldol), a first-generation antipsychotic. Dr. Sarrazin noted that first- and second-generation antipsychotics have "approximately equal efficacy." Id. at 11.
Dr. Sarrazin's report relied, in part, on studies of defendants found incompetent to stand trial. Those studies found that antipsychotic medication was able to restore a sizeable majority - ranging from 75 to 87 percent - to competency. Dr. Sarrazin opined that Hardy's response would be "similar to the cohort described" in those studies. Id.
Judge Trager ordered an evidentiary hearing, which took place on August 25 and November 24, 2009. Drs. Preston-Baecht and Sarrazin testified on August 25th; Dr. Richard Dudley, a defense expert, testified on November 24, 2009.
Dr. Preston-Baecht evaluated Hardy over a four month period during the restoration study. In addition to observing Hardy during her daily rounds, she conducted more than a dozen one-on-one interviews with him. Those observations and interviews formed the basis of her conclusions that Hardy suffers from paranoid schizophrenia, that he is not competent to stand trial, and that he is unlikely to be restored to competency without antipsychotic medication. She clarified that schizophrenia is a psychotic disorder, not a delusional disorder.
Dr. Preston-Baecht testified that Hardy's condition was continuous, but stable. See Tr. of Aug. 25, 2009, at 20 ("[Hardy] seems to have remained the same since the time that I met him in October of '08."). She testified that "in general the vast majority of [her] patients who have been involuntarily medicated have been restored to competency[,] . . . [m]ore than 75 percent have been restored." Id. at 26.
Dr. Sarrazin saw Hardy "many times" during the restoration study. Id. at 40. He repeated his diagnosis of paranoid schizophrenia, as well as his opinion that with antipsychotic medication there is "a substantial probability that [Hardy] would attain competency to stand trial." Id. Without it, he opined, Hardy "would not attain competency to stand trial." Id.
Dr. Sarrazin then elaborated on the proposed treatment plan outlined in his February 2009 report. He stated that he would provide Hardy with a copy of the involuntary medication order and try to elicit his cooperation with taking second- generation antipsychotics orally. If Hardy refused to cooperate, Dr. Sarrazin would use an intramuscular injection of short-term haloperidol in the hope that it could make Hardy more cooperative and willing to take second-generation antipsychotics. A short-term dose would also allow doctors an opportunity to observe how Hardy reacted to the medication before administering a long-acting dosage. If Hardy continued to refuse oral medication after several days and showed no serious adverse reaction to the short-acting haloperidol, Dr. Sarrazin would administer a long-acting intramuscular injection of the medication.
Dr. Sarrazin testified that haloperidol is equally as effective in treating schizophrenia as the second-generation medications, but has a different profile of possible side effects. He testified that there are multiple medications he can use to alleviate the stiffness that can be associated with haloperidol. He explained that a less common side effect, tardive dyskinesia (involuntary movement of the tongue and mouth), is associated with high doses of haloperidol over a long period of time, and that "[i]n the time frames we are looking at for Mr. Hardy and treating him for competency restoration, tardive dyskinesia usually does not become a concern." Id. at 54. He described a third possible side effect, neuroleptic malignant syndrome (loss of the body's ability to regulate temperature), as "extremely rare." Id. at 55.
Dr. Sarrazin then explained how his medical staff would monitor Hardy for side effects and treat them if they arose. He opined that none of the potential side effects would interfere with a defendant's ability to communicate with counsel and assist in his defense.
Concluding his direct examination, Dr. Sarrazin testified that antipsychotic medication, both first- and second-generation, is the medically appropriate treatment for schizophrenia. See id. at 58-59 ("The use of these medications is to improve someone's cognitive abilities, not make them worse, to improve their ability to interact with their attorneys, with their families, with the community, to improve their ability to work outside in the community."), 60 ("[I]t really has been the treatment of choice for many, many years."). Other therapies can be helpful, but without antipsychotic medication are unlikely to be successful.
On cross-examination, Dr. Sarrazin acknowledged that the relevant medical literature reflects a range of possible responses to antipsychotic medication. According to the American Psychiatry Association's ("APA's") "Practice Guideline for the Treatment of Patients with Schizophrenia," between 10 and 30 percent of patients will not respond at all to medication, while another 30 percent will have only a partial response. Dr. Sarrazin noted that a partial response may or may not be sufficient to restore competency to stand trial. See id. at 72 ("[T]he partial response my be enough for them to be competent. We do not have that particular aspect because [the practice guideline] doesn't use competency as an end point."). He accepted, however, that the most pessimistic view of the guideline is that only 40 percent of patients would respond to medication enough to be deemed competent to stand trial; the most optimistic interpretation is that 90 percent would.
Dr. Sarrazin further acknowledged that up to 30 percent of treated patients relapse within a year, even if they fully comply with their medication regimen.*fn1 He testified, however, that during his tenure as Springfield's Chief of Psychiatry, he was not aware of a single patient who was rendered competent, remained on medication while in the BOP's custody, and then deteriorated back to incompetence during the pendency of a case.
Dr. Sarrazin then walked through factors that, according to the DSM, increase the chances of a positive prognosis. He opined that Hardy had "good premorbid adjustment," meaning that, notwithstanding his antisocial behavior, he was "fairly doing well prior to the onset of symptons." Id. at 75. While acknowledging that there had not been a full neurological workup, Dr. Sarrazin further opined that Hardy "appears to be normal." Id. at 79. Later in his testimony, he stated that paranoid schizophrenia is a positive prognosis indicator "as compared to some of the others" such as disorganized and undifferentiated schizophrenia. Id. at 104.
Dr. Sarrazin acknowledged that some positive indicators - such as later-age onset, being female, good insight, treatment soon after onset and brief duration of active-phase symptoms - were not present in Hardy's case. Others - such as acute onset, good interepisode functioning, minimal residual symptoms, absence of brain abnormalities and family history - were either not applicable or unknown due to a lack of information.
Defense counsel questioned Dr. Sarrazin about a study of 1,475 defendants found incompetent to stand trial due to a psychotic disorder, a mood disorder or mental retardation. Dr. Sarrazin agreed that those suffering from a psychotic disorder were less likely to have their competency restored through medication than those suffering from a mood disorder. He pointed out, however, that the success rates for psychotic defendants were still high, with 72.8 percent being restored to competency within six months and 83.3 percent within one year.
Near the end of his testimony, Dr. Sarrazin testified that the BOP had compiled statistics on incompetent defendants referred for restoration studies for a 12-month period. Seventy-five percent of those for who were involuntary medicated were restored to competency. Dr. Sarrazin opined that "the vast majority" were medicated with first-generation antipsychotics. See id. at 106.
Dr. Dudley is a board-certified psychiatrist retained by the defense to review and respond to the BOP expert reports; he was not asked to conduct his own forensic evaluation of Hardy. He reviewed the BOP's medical file on Hardy (including the reports of Drs. Preston-Baecht and Sarrazin), interviewed Hardy's mother and brother, and met with Hardy on two occasions.
Dr. Dudley agreed that antipsychotic medication is the "treatment of choice" for paranoid schizophrenia. Id. at 122. He opined, however, that there was not a substantial likelihood that such medication would restore Hardy to competency, principally because of the absence of enough positive prognostic indicators. He further opined that Hardy was likely to experience side effects, but did not state whether those side effects would interfere with his ability to communicate with counsel in the preparation of his defense.
D. Post-Hearing Developments
Due to his untimely death, Judge Trager did not rule on whether Hardy could be involuntarily medicated. Instead, the case ...