is the first issue that i'd like to address that is that the government is charging is the government charging the defendant with a serious crime is at thirteen twenty six so before you get to that i'm looking at the transcript of the march twenty four hearing and the court starts out by saying it is my understanding given in the hearing today that the parties wish to proceed on a cell determination prior to the court ordering an evaluation  jurists notes why why would you ever agree to that wasn't a cell quite clear that that's not the orderly procedure it goes with dangerousness and then you would go cell hearing well if the government was moving forward on on the basis of sell well that's not my question so i'll says in fairly explicit terms i would  government then you go to a cell procedure so why would you encourage the district court to go to just the opposite well it based on the evidence that we had we felt that that was the best way why i felt that going forward on the cell issue with the better because it is the standard is of much higher and i believe that the evidence that we had would demonstrate that force met convicted the advisory guidelines for about ninety two months or to one hundred fifteen months but that's that's to course more than trivial no it's not no it's not that but that's that's has to do with his criminal record  act itself in the sense that tells themselves you decide you don't look just at the act like at the individual in this case you've got an individual with a pretty impressive criminal record but if convicted of this crime would be facing some pretty serious time that the government may have a pretty serious interest in being able to proceed with a prosecution yes but yes that's true but the act itself of being in the united states is not serious in that it is not a crime of violence or it's not a crime of moral turpitude in the sense that mr vaska is used a false passport or falsely declared himself to be a u s citizen or did something some other are serious and which crimes aren't when when when congress has already decided there are we're going to in one of the ways we're going to indicate seriousness is is to set out a sentencing range and then the sense the commission comes up with a guideline range and whether a crime is serious enough or not serious enough serious enough under the self analysis right given that sells as you look at the offender as well as the offense and given that congress is the legislative branch is deciding this crime series enough that we think somebody should go to prison or could go to prison for twenty years in the case of a thirteen twenty six with with aggravated felony so so i'm having a problem understanding why this should be a judicial determination or  it has serious consequences because of his criminal history but the act itself i don't believe right why should we just regard his criminal history in deciding whether the governmental interest in this case is serious enough to require force medication why should we look at the criminal history because when it comes down to the end of the process with the guidelines and the aggravated history of the sentence in this case it's a combination of and the guideline at least the guideline i would suggest congress and the sentencing commission felt that was wouldn't that be part of the package but it would be but i think there's perhaps too much emphasis on that aspect of it overall what he did in this particular instance i mean he was but that's where you're losing me because i could see that you don't necessarily equate the length of sentence to the seriousness but on the other hand that doesn't end the  inquiry because of the underlying nature of what he takes up there makes it a serious package and why wouldn't that be appropriate for the government to be able to like to submit on that issue but i'd like to discuss i have about forty seconds left and i'd like to address the remaining issues and one and the major one is when the government proceeded with their doctor or their expert he was not eight he listed a lot of medications that he would like to use but he never could tell me or never could state under oath the likely outcome of using those medications for success on he could just give me a generalized in our institution we have a seventy six percent interest for success what's what what is the degree of particularity that needs to be in a judicial order  method of administration is how how much do you micromanage it well i think first of all you ask yourself did did the government establish that these medications would be reasonable and have a likelihood of success the specific drugs if if the court is comfortable with that then you see then the court would specify all right you mentioned these four five drugs just so we this court feels comfortable with allowing you to administer these five drugs of proving a single drug you could give the the order could specify a number of medications at least as they've been proved up in the hearing that's correct and then leave it to the doctor's discretion which ones  sponte issue a status ruling our status hearing wanted to report within i believe sixty days of the order and then we were going to actually have a hearing four months post order that the specific drugs were the ones on or are what's going on i think you raise a good question they're very very germane because i did receive a call from the doctor in springfield dr wolfson and he told me  that what's going on your client is just sitting here and nothing is being done i think we need to do is perhaps to make sure we are up to date is to have an evaluation ordered by dr wolfson at a minimum to talk about what what the current status is of mr vaska is because even at the hearing before judge for broad dr wilson admitted he had not seen or examined mr vos kids for nearly ten months and he was concerned that perhaps some of the testimony that he might be dated if we were to remain and shouldn't the district court hold a harper hearing  to allow the district court to approve a range of drugs but what is the specificity that you're looking for like offer for first there was a l springfield and the policies that they had in place that although the defendant engaged in what i would consider and i think what dr wilson would consider dangerous behavior while in custody both in san diego at the m c c at the oklahoma city transfer center and some conduct that occurred while at f m c springfield in terms of potential sexual assaults on staffers that that conduct did not rise to the level is that we look at cells opinion with very very methodically and carefully goes through wire harpur analysis is important as a foundation instead of backing into the dangerous dangerousness now if the parties agree there's no evidence of dangerousness i don't think cells as you have to go through a meaningless exercise but in this one of the first things the point of getting into before judge surprise that oh yes he's got these sexual assaults he's got this history so it's kind of in there but it's not the focus that seems to me the supreme court is making it clear that sells order is a rare circumstance are circumstances therefore let's see if there's a dangerousness component where we have already established objective factors where you can measure dangerousness if you go to the styles now becomes this the stuff we're now getting into is that well a twenty year you know sentence or guideline or you know now we're looking searching about for some kind of objective measurement and i just brought took into account in terms of rendering his his opinion and rendering the order i think it's something that the judge needs to be made aware of it is something that went into the analysis and the evaluation of dr wolfson it's create i guess a straw man in his mind that somebody else was responsible for for some of the sexual misbehavior that he was accountable for or that he was attributable to him and that really did part of psychosis so i think dr wolfson brought that up the government elicited that testimony as something that was relevant for the court to consider as part of his psychosis part of his conduct long custody but just a bra specifically avoided that in r trying to understand the regime the government is advocating here we're not just talking about this case because whatever this case decides we'll basically if we go with what you're presenting to us and the record of this case is that it's ok even though there are elements of dangerous conduct working in the case it's ok for the government and the defendant to stipulate that conduct isn't part of the analysis and i'm not sure that that's what so allows us to do maybe it does but that's what i'm concerned about well your honor it's something that was brought to the court's attention the court also had the benefit  his report and then after the hearing the benefit of dr wilson's testimony in both his report and his testimony he makes it very clear and this is kind of a paradox of the sell opinion that you have in conjunction with harper that you have  a person mr hernandez vasquez who although has engaged in what might be considered dangerous conduct while in custody that conduct doesn't rise to the level based on the medical professionals who are evaluating and taking care of him to to allow them based on their policies based on how they treat these patients at their facilities to forcibly medically them but under that under how they've used how they view harper they're aware of harper they're aware of cell and that that kind of conduct can the precautions can be taken they can put them in lockdown history at least i think we're talking about three different things because substantively understand what you're saying but bases for doing that dangerous to self dangerous to others which are recognized the law and have a long a long history when you add to that a new reason for doing it which is the government wants to try somebody who's who's psychotic or otherwise a competent that that's a more complicated inquiry and you're it's not it's not clean it's not like well you know this is a good reason to do it let's just do it you have to go through this whole four part of alice's the cell talks about s just made a decision we're going to bypass the harper inquiry rather than than putting it in front of the court and saying here's what we've got you know maybe maybe there's no finding of dangerous that could be made but but that evidence these would be put on so the court can evaluate it and then and then  but let me just say why i am concerned this is forcibly medicating the defendant we do not want district judges undersells and as i understand it are under harper to get a  lesser threshold to impose a cell's kind of forced medication by putting in a slipping a little bit of dangerousness evidence where they would not have been it would never pass the harper test so that you you sort of prejudiced the court toward allowing a cell's forced medication where there's this dangerous aspect floating around and it hasn't been focused so that the procedural safeguards that are there and the legal safeguards that are there for the defendant before he's forcibly medicated get focused on and what i'm uncomfortable about the government's position is it seems to say it's ok we can skip harper and we'll get if there's any sort of dangerousness stuff the judge will have it in front of him or her the court first of all we were seeking a style course medication that was what was remand recommended by the medical professionals of springfield in the alternative we were also seeking that if the court didn't believe that forcibly medicating committed to the custody of the attorney general based on a dangerousness evaluation under forty two forty six so that is another reason why he's dangerous conduct was at least brought before the court because if the court judge broadsided you know what i don't think the government has forty to forty six for commitment in the government at that point is conceding that he's not going to be restored to competency with respect to any type of force with force no medication and he's we're going to dismiss the charges but perhaps we believe that he might be a danger to society again your to himself and might be somebody who needs to be civilly committed under forty to forty six so that's another reason why he's dangerous conduct while in custody needs to be brought before the court in a sense because the government brought this up to the court's attention it to consider all the factors factors from the storm to compensate undersell and if that was not appropriate if the court did not agree with the government's position then it would move towards  defendant civil rights and the government's interests that that you start with the traditional one that the person is dangerous to others that's deeply embedded in the law and nobody's really going to argue with that and you have you have that analysis and then if that doesn't work you know then you go to yourself hearing if that doesn't work maybe you talk about civil commitment but but there's a logic to proceeding in that order that wasn't present in this record at all got it all very clear that he didn't think harper was appropriate that there was no reason to forcibly medicate him under harper based on his conduct in custody that there were ways to address that conduct keeping him in lockdown  we've got your point i think it's also important to move on to the specificity of use the substance of the order that you have to honor with respect to the specificity specificity i think the  is misplaced in that that although rivera guerrero talks about let's go through with specificity the types of drugs it's exact i would just surprised it here but that's how it is orders and his orders as the method of treatment and type of medication to be  at the discretion of the treating medical professionals with them bureau presence i mean i read that it seems to me after having had this hearing where specific drugs are discussed and i understand that the prescription should be written by the drop by the judge but they had a discussion about any limitation there in terms of he turns it over to the discretion of dr wolfson after hearing dr wilson to what counsel to use the second generation of engage in bad behavior what you've done is on the flip side are arguing to us that we should say it's ok for a district court to hear detailed evidence on dosages risk  and likelihood of success and then say at the end of the process do whatever you may at your discretion and minister growth there's no limitation well you're right why are you why don't you want the doctor to have some guidance some resolution from the dried how does the doctor know which of the drugs to or is that is ok or is the judge basically saying i've heard evidence on five drugs and because there are no limitations just use any of the five drugs or maybe of six drugs or walk in fashioning his order at the end of the hearing gives up practice and retires so the only people now who are around to enforce the defendant's rights are people who don't have the experience of having been in front of judge for brock how does the defense counsel kno ave been persuaded that are legitimate and have met the style standards therefore the doctor may proceed to use at the doctor's discretion and in the order and sequence that the doctor may determine but there are limitations on what the doctor can do well i think that's why there was a status conference set up within sixty days a report and then a status for months afterwards so the staff report to be issued within sixty days and a status for months afterwards to check on the prognosis for the progress of the treatment of mr hernandez vasquez i think i don't want this disagreement to seem bigger than it is because i understand your position you're not arguing that the doctor can do any darn thing he wants to you're arguing that the order should be understood in the context of the presentation with the understand it's going to be a status hearing and the concern i think we're trying to raise is that well it and i would be on does the drafting in order for a judge about how to treat somebody who's got a broken slate start with the first question do you think that the doctor as a blank slate no i do not your honor so you think there are limitations where do the limitations come from and where they express i think the limitations come from what happens in the report that issued to the judge sixty days afterwards and a status hearing for months afterwards during the sixty days pardon me what can they do during the sixty days mr hernandez vasquez in the manner that was laid out before judge who brought that he found eminently reasonable why shouldn't the order specify these are the drugs that that can be  because dan's now you look at the order there's nothing that suggests the doctor can't i think turn it after frankenstein or wire off somehow me i think one that doesn't give enough credence or credibility to medical professionals secondly i think it becomes dangerously we'll let me tell you a little experience that at least two judges on this panel had and that was the lethal injection protocol of mr morales and when judge fogel's order was actually read the counsel in the people who were advising them on behalf of the state of california so the doctors needed specificity they didn't have they weren't told exactly what to do but they were told with their duties were and what their limitations were so it does make a difference and it does seem to me that i don't really have a lot of trouble why the government is so resistant to including some degree of guidance to the doctors some of the teaching and and you're arguing so vigorously when you are arguing that all of these restrictions are there implicit in the order what is wrong with making them explicit but i'm not sure that i think that goes down a very slippery slope to tying the hands of the medical profession treating someone with a broad place like that's judge justice prior talks about that he said that's one of the reasons that you try to do a harper hearing because when you get into the style hearing you you necessarily have it doesn't it's they can use any they can to whatever medical treatment they think in their discretion is appropriate to restore him to compensate it doesn't it doesn't say you know what's wrong with saying you can use five drugs and you can use them in your discretion in the dosages in the method medically appropriate how's that going down a slippery slope it seems to me that's that's explicitly what's required in united states versus now i don't know if you want i'll concede that point i don't think there's anything wrong with that but i think that that in terms of laying out specific drugs and then you get closer to specific collection and moving from just thirty days on this type of treatment thirty days if that doesn't work you're allowed to move to your law actually inject i actually agree with you about this that you could get to specific s y s mr garcia the question you could you could micromanage it and say you know you should use a fifty c c s syringe and you should only do it three times a day and so on it's over them and that's i don't think that's what we're talking about this disorder doesn't have any he's less than a minute you're the guy that's as far as to specifics right so we are not conceding that they would substantially likely render mr vosges competent to stand trial because there was no evidence and quite understanding that you're not conceding that if the judge rules against you on that yes and so as i have been persuaded under the cells analysis of these drugs are appropriate that there is a proper balance between the risk of harms and side effects and probability of success what are you looking for in the order that would kabam the doctor discretion that isn't there now thank you that the court would have thirty minutes the institution to use five anti psychotic drugs has a risk of heart attack and two you're arguing that of the five one of them of the six of the serfs wanted then you would argue has another standard that's correct definitely against your honor but of the remaining five that the institution could use those in the dosage that they feel is medically appropriate and that we have a status year which apparently the judge did order you know already did that ok thank you thank you very much appreciate counsel's all right the next case on calendar is the united states versus