and th requirements that the government call the cell medication factors the government cannot meet its burden because of the grave liberty interest at stake this court holds a government to a high standard of proof and here the government could have and should have done better a couple  district court was to review the cell records and transcripts and determine whether the government's evidence was sufficient under the clear and convincing standard and nd the disputed findings here were not based on factual testimony that rather an expert opinion testimony and such opinion testimony is not believed or disbelieved in the same way a fact finder would credit or discredit factual testimony it's not dr gravity's credibility that the issue here but the well the fact that he had a neuro muscular incident in the past was we would argue speculative lee and irrationally disregarded actually in a way that was internally inconsistent with gravity's own testimony because the previous provider who he speculated had not believed mr o'mara actually did exactly what dr gravatt himself testified he would do if he did believe and i think that someone who's suffering the symptoms would be impaired especially with the other problems that are in the record the blood pressure incident the hypersomnia and the fact that he died towards well we don't know what he meant by  that but we do know that whatever he meant and he may not have been very articulate as that's one of the symptoms of his disease explaining it but that he feared taking riskier down over the ticket only under other medication that he had bad experiences and the fact that he may not have been able to articulate the a p a guidelines say to doctors to consider patients preference and the doctor also said that spirit don't have a similar side effect profile effect ignored evidence that your client had not in fact tolerated this drug that's correct he didn't nor did he and he didn't talk about it it was in the records he reviewed and i take you to be arguing that he didn't give adequate consideration to it but even more well it was my understanding he assumed that he considered that non factor because he said i don't know what happened he didn't think he acted as if it hadn't happened because he said i'm i don't know what happened i have a hypothesis that he was not a credible  whether the length of mr graham ours pretrial detention is a special circumstance that way is against the government's interest well that's a tricky because it's kind of a moving target in the sense of the longer he's question to even consider the other factors this is the serious but i still think when the court is granting alternately the decision how serious it is going to play and how serious what is the government interest and the fa you might have a serious enough government interest to say yes problem one there is a serious government interest coming one but then when the other problems are very weak and as the interest gets lesser and lesser as time passes and they've gotten the focusing only on dr rady the role i ability his expert opinion well i think we do bring up the time and in the sense of the government's interest in the sense that we talk at length about the fact that he overstated but there he was at butner for six and a half months instead of four there was nine months that passed between the competency finding and the cell hearing and then the cell hearing ends up being decided on a report that was done  two days without looking at him and i guess but i do like interested in that as a criticism of the government's degree of interest i'm sorry to interrupt you to get ari but that the district judge ruled on the extra time that was taken past the four months and that also wasn't right that that ruling he ruled that they had violated the statute and we are pressed and yes they violated statute but he ruled that it was not a ground  so i also appreciate that you're in an awkward position because your client does not concede that he is incompetent and so for example on the st factor one of the things that is maybe with cost is  dillon but the notion of rest in general deterrence you know an interest in and communicating to the public that these are serious offenses off on someone who is delusional when he committed the offense is just it's unclear that that's a  robust governmental interest but of course that's not an argument that you could make and under the rd factor which i gather you also don't challenge the question of whether involuntary medication is necessary to further the interests there it seems you know one of the significant questions is should more efforts have been made for voluntary medication to stop much more of a therapeutic relationship with the defendant and again that's an argument i understand you to be in a position to make didn't which which raises for me can you tell us why knowing some of these cases there is a defense psychiatric expert not available to you was not in this case there wasn't a now but is that just aware yes so when you talk about how long he's being held how do we know that he's being held in connection with the offenses that we're dealing with as opposed to assault on a u s marshal a year i believe it was march of two thousand seven hundred dollars so he must have been released by that he he i believe just i believe that there was an arrest warrant issued they can arrest him in this courthouse didn't arrest him at the time and library a year or two years i don't know which at which time we're sort of the u s marshal how can that be that he's been in prison or you know in connection with this of these offense i don't know that that jail as opposed to butler we don't know why he was out so i don't see how we can possibly deal with an argument that the government's interest that you're again now for the st time with our the briefing with the government diminished well i think he's at the d c jail he's only authorized to be hospitalized at butner for four months and they already blew through the app date so he can be hospitalized but more and more it's my understanding for any kind of valuation and i want to emphasize that just that dr gravity himself limited his own testimony and he admitted that was limited because of what he called the unfortunate failure to tamara and we argue that the paoli case for example supports the argument that the absence of a person examine taking a medical history increases the likelihood that erroneous result and the government's case is that it cites they are decided on a much different burden of proof and also involved issues that are much simpler than the side effect and medical practice issues which are quite nuanced to carry out its own witness pace himself he acknowledged that this was of sixteen prior cell hearings this is the only one we do not mean the defendant called it unfortunate he said he had to be careful regarding a painting on the medical appropriateness the evaluation was indisputably rush and the truth is that this this if you really look at the time of everything the truth is that this medical doctor who the government had to have to make its case on those two factors he resisted giving his opinion under the circumstances he did not want to do with you ultimately did which was rushed this report income and that history i don't know you know too much detail here but there was this you know at the end of march and then the prosecutors on vacation in the day he returned which was a week before the scheduled hearing he one earns  saying i need three weeks i can't do it on you know the new court order so then the prosecutor the next day has to follows emergency motion with mastery saying please order him to do this and then three days later the friday before the monday hearing judge bates rules  he's been held too long and the government's violated statute and it has to be done by april th so then on the monday hearing the prosecutor comes in still ask you not a street please help me get this guy please make him do this report that's on monday the night when the courts as that's your job and so then the next day and the day after that th and th or when he then writes this report instructs testifying so i think what's clear is that although gravity ended up relenting and doing this rush to court without evaluating defend medical information and i think that he sees that that's how he justified in his mind going ahead and testifying under these you know unfortunate circumstances that a question relevant to that there was some discussion in the lower court about the spoke to someone who is in the light of public attention but looking at that very a set of rules that was number the principle number three but there's another principle just below that number four is why you don't rely on that which says that the psychiatry's may permit his or her certification to be used for the involuntary treatment of any person only following his or her personal examination of that person to do so here seem to find that the person because of mental illness chemical your judgment as to what is in his or her own best interests and at such treatment substantial crime is likely to occur to the person or others so it's a it's a process question it's not a question as in some of our p and i have to look at that and see that used to call order a hospital and that's not the situation we have here in fact the situation we have here is a psychiatrist testifying from not on the basis of a personal examination but on the basis of the records correct right and and the at least in two thousand and seventeen or two thousand and eighteen the a p a guidance was that that was ethical in fact they  time in this country state by state a psychiatry school certifies somebody is as bad as being mentally ill and the authorities will come take the personal way or maybe there will be a hearing here after was that it was pretty had to pay to turn square corners here under those opinions so i guess on my point about our two great pointing out that it's a moral and legal question kind of saying like i'm just here to give you this information that i have years myself and it's that i give in every case andy and i don't know that we would we don't need a bright line like that in order to prevail here because there's a lot of problems with dr grant he has now i'm trying to understand what they are well that you said he ignored two things right and we know he didn't ignore may not have given way to consider appropriate weight but he reviewed the medical records well here rationally set aside the most important the rational yes because he says he set it aside for a reason that was internally inconsistent with his own testimony and it really made no sense that he was not crediting that given that he said that if someone said that to him he would do exactly what that provider did so it's really speculation by him he does set it aside he may have looked at it but then he puts it completely aside and the governments know the government's answer to this is that these could be products of delusion is obviously not a circular and also internally inconsistent in the sense that he was on a therapeutic dose of this riskier down at the time that he made this report and the government's arguing that this resolves delusions that they're sort of having it both ways there just makes no sense this is right and i just have a process question that's we're in a position now where judge bass has authorized involuntary medication and the record is clear that there is a one in four chance according to the data that dr grabby testified about that it will not restore him to competence and there's also a substantial portion of people put on these medications there's reason to believe mr carr might be among them who do suffer side effects and then there's a question mark whether the side effects would interfere with mr mckay to mars right to a fair trial and my process question is how is the evaluation read and by whom whether a patient is in fact restored and whether whatever side effects he is manifesting are such that we interfere with his right to a fair trial there i gather and i mean so are we in a situation where the court has given the last word and that's up to the prosecutor or know i think i guess i've been assuming perhaps wrongly that that it would be left to the butler people although that's one of the problems here you pointed out is that he's not going to be a partner for the trial but presumably he would be restored to competency on some kind of long acting secretary that medication and brought here within the period when that medication was still acting but it was only two weeks i think if i just it's just not clear to me who passes on that and whether there's any record of bad and have to change over time like i and i understand so could my my problem with it too is that the symptoms the side effects with the government's argument that don't worry we've shown that anything can be managed that can't be a good war it can't be the rule that the doctor can just say whatever we'll just try things and whatever if something bad happens we'll just fix it you know that can't be the  you know reassurances about how don't worry we can handle it and he's going to be in transit and in the d c jail for goodness knows how long if there's a trial there's going to be a long period of preparation and and what not and he's going to be biggs as i understood her point she was saying that whether it was that not that we should give special weight to any findings by the magistrate but that we should just look at the record findings in that i mean that's what the clear he has to find by clear and convincing evidence that these factors are met he makes it on the basis of five years in his review of the record ultimately it is of helen's burden to show that he clearly area of making these fi could render the medical opinion that he did we'd submit that that again if the call didn't seem to this new could a medical expert and in fact give a reliable medical opinion on the basis of a review of medical records personal examination of a patient before rendering it with liable medical opinion and if that's the case it's hard to see why judge bates couldn't rely on his opinion plus all of the other testimony and was engaging with mr martin as an observer and who was engaging with him as a doctor or as a as a medical professional involved in treatment from m testimony he talks about relying on the pharmacists reports that that was his mode of monitoring the situation was to go mara and he really doesn't talk about any talks about the information in the locks and then to par voluntary acceptance of a certain amount of it looks like just syrup well on a very intermittent basis they're also trying to see you know based on his voluntary acceptance what what they can do what they determined you know it again part is their report to the court that says this has failed and so that's my question is were they in a treating wall with respect to him i mean what i partly going off of your brief which says that dr believed that individual therapy along with medication was ideal and i'm trying to understand i i read the record and i know that there was a question whether individual therapy could what in the record shows for example that there was someone establishing a therapeutic relationship with this individual to the extent that that might have been possible that then could have aided voluntary  traffic medication and i just i just don't have a clear sense of who was in that role and when they say they're giving syrup as needed is that like he's supposed to swing by the pharmacy if he wants it and they just don't have a sense of that of treatment and what you can tell what they both described in their testimony and in their report was numerous efforts to try to as they said sort of see if they could talk him out of his beliefs and his resistance  taking medication they tried to sort of challenge his various you know essentially irrational beliefs about what was going on you know whether medication would help him those efforts were unsuccessful do you know whether they're doing that in  an interview or capacity or in it but the thing that that that made me wonder about this is the way that dr grabby really talks about the person on the scene being the pharmacist he doesn't talk about the person on the scene giving that in person treatment being dubois and his in terms of i think we're mixing twenty two different things here one is what the psychologists are trying to do they are certainly interviewing him to sort of they already know that he has been declared incompetent and that he's been diagnosed as suffering from active disorder i think they are trying to determine whether or not a that whether they agree with that diagnosis they also they are using whatever methods they have in terms of as they said try to challenge his beliefs now whether that rose to the level of what the magistrate wanted in terms of sort of talk therapy again and that was an issue that was you know presented to the district court judge these determine that it was not necessary to try to sort of some regime of talk therapy and that has not been challenged on appeal so right you know again we haven't reached it we believe it's been abandoned at that point it's not really properly before the courts of sort of going forward in terms of pharmaceutical treatment in other words the actual drugs what we know about what has been administered is truly what's reflected in dr emmons notes because she was the one who actually administered the syrup  well and i think what would dr grady says is that you know if there is an if the order for involuntary medication is ultimately presented then what he says is look he's going to work with the clinical pharmacist and get reports from her and essentially trying to determine sort of try to figure out what regime of medications would work there was a question i think raised during appellant's argument as to what sort of the process is to involuntary medicate of talent and then basically says i want a report every thirty days detailing the progress so it's clear that there's going to be ongoing monitoring by the court and offenses so my understanding is that the incident involving the marshal that there is a case in the d c superior court relating to that but it is trailing this case in other words it doesn't appear to me from the record that it ever resulted in a conviction but i don't know that for certain but yes he he was hospitalized in the context of that case after making a threat against the previous president yes so back was well judge judge base it's not i think if you look at it when respecting that part of the order which of course is not on appeal he did express concern about the fact that at this point in he recognized that look at it has now been held longer than his guidelines range would be that appellant he did say that we're looking to some extent because he is sort of demanding all of these legal proceedings which is his right but of course it does naturally extend the one so that case was in a sense sort of already in the works when this incident happened that's my understanding i was correct the government representing the court in that front of me so i don't want to be that if he will do and they terminate i believe yes it is the district court that is currently holding him i don't believe it is the superior court that on some separate authority is holding him that's my understanding you know again that is not an issue that has been presented here today so obviously we have reacted we don't believe this probably before this court i think for frontier issues there are significant but i rather than spare and all this this circle coming along acting injectable form i dunno i don't know the answer to that and not being a medical professional myself i know only limited things about how to and was to some limited degree more compliant on seroquel and so one wonders why dr grabby would say to the extent that he says anything about what the treatment plan is i would start him on  sleep it doesn't appear you can see it from his records of the times he accepts only sup there putin doses numbers are very small doses he doesn't seem to be willing to engage in sort of like a long term very consistent plan of consistently taking it so one of the factors that dr graham says is relevant is the patient's relative preference and dr graham says these various medications are roughly equally effective then you know just as a matter of the responsibility of the government when they have been at work why has he not chosen the one where there have been hasn't been a record of side effects well and that the patient you know under protest granted but that the patient has been relatively open to and hasn't had the delusion that he died on again this do so i don't think that there are any self care a doctor really was cross examined on this point in other words why not just take syrup well instead of that and again i looking at his treatment history looking at you know he's he's been treated for a number of years i think all the it's almost a decade's worth of medical records apparent that he's looking at it appears that risperidone is the one that he actually in terms of it having the best effect of restoring his mental health that's the medication that has worked the best he's to and a number of other medications are called being one of them but again you know i think dr grady's indication was that from his review of the records it was your spare time that he would start with but i think it's also important no  say and certainly the order is not just risperidone and nothing else you know other words we're not going to do anything else he says look we're going to start that's what i would start with but he also says i'm going to work with the patient and we're going to try to see what works best and if we have to change medications or if we have to change dosages that's something that can be done in addition dr grady says will look at what side effects may manifest themselves and try to adequately deal with those i i appreciate that and it's very difficult to sort of navigate the interplay between the court's responsibility and the lawyers on civility on the one hand and the medical expertise on the other but there is that warner here basically give carte blanche to butner to treat this man there's no time limit there is no dosage limit there's nothing really explaining how side effects would be addressed for example i have a question if somebody is given a two week long injection dr graham says i would manage the side effects and would take him off something if he had side effects but presumably if you have two weeks worth of a nd type of medication in your system you can't be taken off that tomorrow so that the lack of detail in contrast to the orders that i have seen and some of the other cases and other circuits i find concerning and i just would be interested in hearing from you about the really hasn't challenged sort of the micromanage the medical professionals i could also however imagine that that you know judge bates doesn't feel like that's something that he can sort of do and i think also there is a risk i think this sort of tying the hands of the medical professional and saying like i'm all going to allow this medication without a basis for saying why or that is going to be at this dosage etc and i think you know to the extent that appellant wanted that kind of sort of leash to be put on the medical professionals about you know he could have introduced his own medical expert if you wanted to he could have tried to quit in record saying look you know anything in this particular drug over this and now you should forbid the them from doing but again that  wasn't done here and i think you know i do you wonder as a as a matter of the affirmative obligations of the government and how we can really make sense of a cell hearing that is done without the specifics in place and again i just i think that that sort of that tension i think between sort of wanting to have a judge sort of manage this i think is is addressed by the fact that district court here is simply going to allow indefinite treatment and certainly if that became an issue down the road upheld would certainly you know be able to see legal redress in the star in the district courts and like looking enough is enough it isn't working or make them provide more information if he didn't get the relief he wanted for the district court he could come to this court again and ask for it to be reviewed so it's not as if he's simply going into sort of like a black hole from which you know he will never return i don't think that that is what's going on here and do you have a sense of is it when he appears in court or is that partner that makes the determination he's in the twenty five percent of patients for whom his is not restor reports in which the medical professionals attempt to sort of use medication to restore confidence at some point they will you know be able to say whether it's going to work or not if they believe that it works they submit a report to the court saying we find him co he comes back to the court and the court has to make the determination whether it agrees i mean that's not a final determination is only the court who ultimately can make a finding he is competent or not that could be challenged by a helens council or they could go along with it  you know the there's a hearing as to whether or not he's competent or not presumably you know to the extent that there are side effects that are interfering with competence or the ability to essentially to proceed to trial that is presumably something that appellant could talk to his own counsel about and would be able to counsel then i think to raise it with the court as why ultimately the medications aren't doing in fact the side effects are actually interfering with that at this stage of the proceedings and i just think that it's somewhat speculative as to what you know will happen i think ultimately in order to know whether it's going to work it has to be tried and told tried certainly nothing will happen and certainly you know right now we know that you know a public is not competent in the case cannot proceed i think again i do want to assure the court that you know my understanding is this isn't going to be some sort of just open ended blank check as to which you can or cannot will never have any remedy this i think definitely not the case in every and there's every indication that judge based intends to keep monitoring the situation to ensure that it doesn't you know drag on too long or that it doesn't have the effect that it's supposed to i realize or too far over your time and i apologize but just just on the that initial question about the government's interest clearly the government has an interest in it i think the questions come more to the amount of time this individual has been imprisoned and the general deterrence interest is an interest in such a person to communicate to the rest of the public that this is something that will not be tolerated i just given that you're there you know representing the government here whether you have any comment on it so i have to say i think if it's as you recognize it has been briefed so i mean i think he certainly cases like this are obviously in a very difficult to do when you have somebody with a severe mental illness like this at the same time severe mental illnesses can also lead to you know crimes much more serious than has and so it's obviously very difficult for you know long force on the floor of these in particular who deal with this on the ground for courts i think certainly for prosecutors but also for you know medical professionals within within the prison system to try to sort of balance all of these concerns i think here because so much you know attention is being paid to make gets worked out is just takes time for these legal proceedings to wind their way through the court system and come to a full resolution including before this court i don't think that the hard and fast rule of well these sorts of you know we're not going to have cell proceedings for these kinds of offenses because they aren't serious enough i think that would be unwise and i think again it will create sort of the lemmas like this haze but it is in the end you know i think it's think that was in the context of whether or not the government would be willing to abandon its criminal proceedings at the time rather than go through the self process and instead go through with civil commitment i'm not sure that that remark was was that you know if  the civil war if the criminal closed off table i'm not prepared to hear it sort of to say that and in this or that would be my decision to make that if this court were to disagree if no involuntary medication could be concerns about revealing private medical history and symptoms with them and that you know he should have had the opportunity to provide those things with the medical doctor who was the person in his care he was but that seems to me that's a rational thought but i guess it is his view i mean that he would have a doctor patient confidentiality just as much with these two as he would with with gravity or they're also not experts in the kind of things the medication issues that he might be taught that's a different point you're talking about a privacy concern which  he had that concern you and i one point out that the prosecutor did have a knowledge that this was a shorter time table than is normal given the issues and that's what we're focusing on is the serious more than a possibility based on gratis testament even if you look at the earlier testimony of grabby i wanted to say i didn't get a chance to say about the medical appropriateness strong that the joint the doctor had to balance the benefit treatment they the benefit to them is ways differently than when someone thinks that he's not getting a benefit it's not that the doctor couldn't of right it but to say well it's one hundred times on t v is safe and in fact that's just not medically that's  what's needed regarding crime one what we're not just getting is that a threat to the president is a serious offense that i'm not disputing but what we have raised is the length of time he was held that was a statutory violation and how long it will be before this is over and i guess i would argue that what's substantial enough evidence under the other prongs is affected by the government's interest and which is weakening by the day and