little good morning my name celia rhodes of the federal public defender's office and i represent mr x this case is about the right to make personal medical decisions free from government intrusion prosecutors are asking to override mischances substantial liberty interest in refusing unwanted medical treatment and forcibly inject her with entire psychotic drugs against her will soley in the hopes that doing so will render her competent to stand trial now that's an extreme request the supreme court has held that the government can only forcibly medicate defendants to restore competency in rare and limited circumstances forcible medication is a violent intrusion that's not automatically permitted just because a prosecutor can't proceed with the case due to mental illness and in fact it's constitutionally prohibited absent an extraordinary showing by the state as justice kennedy put it in his decision in reagan's and that's why the supreme court and sal established a detailed and intentionally demanding standard that makes forcible medication orders the exception and counsel counsel pointed out in her written opposition that the government presented essentially no evidence proving the likelihood of success which is the specifics over parliament undersell the prosecutors ha the obligation to prove that and to propose the specific proposed treatment plan and i know you've talked about multiple psychologists at the proposed treatment plan was written by a single psychologist who did not testify and was after defense experts the defense and that's their support that the doctor opined that it was substantially likely but of course that doesn't prove that a treatment plan is substantially likely and in fact before circuit evans rejected that it's not logical fallacy just because something is the standard treatment doesn't prove what you're getting out is actually the th wrong so i think it's really important to remember that this is a checklist where each independence hall requirement is mandated so it's true that under the th prong it's relevant whether something is the standard of care because the question is whether it's in someone's best medical in prosecutors actually put on qualified experts who estimate the likelihood of success so the point under this prong is you have to show that it's substantially likely which is a certain percentage point and that's true of the cases where the government relies on so in breedlove the doctors relied on a study that showed a ninety three percent success rate for that forcible injection treatment plans with that medication for that particular condition and in killing water multiple studies indicated a seventy percent success rate and that is a fairly universally true principle that courts mandate that experts get on the scene and actually estimate the likelihood which makes we have dr service and as i read the nd cell factor it requires that the government demonstrate that the administration of the drug is substantially likely which is what you just said substantially likely to both render the defendant competent to stand trial which i think is covered by dr silvis among among others as well as unlikely to have side effects that would significantly interfere with the defendant's ability to assist counsel so are you saying that the government failed on both in both factors yes i'm saying that the government failed to produce say contrary to some of the other factors in this case i believe the district judge did say clear and convincing evidence in his on the record right in his findings on the record ok and which you obviously disagree with now on the  factor which do you think is your strongest argument the nd the failure of the government to satisfy factor number two undersells number four and i would think that those are the two probably most and i think that too is easy because we have this these huge number of cell cases that tell you exactly the type of evidence that you have to put forward and again i think it's important that this isn't a preponderance right so if this were a preponderance standard i think an expert or be a key official on the stand and having him just parrot the legal standard with no supporting evidence whatsoever does not qualify as clear and convincing evidence and that's why in all of those cases prosecutors are putting experts on the stand who say ok well i've looked at these studies and in five studies the success rate ranges from you know say seventy to ninety three percent and that's how districts are able to determine whether that constitutional bar because that's important is a legal standard that district courts have to apply so whether based on that evidence that constitutional bar of substantially on substantial likelihood it has been met because the idea is that clear point is the united states didn't present small and because it has to be an indicator of success and you know it's true that if there's some super rare disorder where we don't know what the treatment is yet and what's going to be effective they're not going to be able to produce a study but the point undersell is at that point they shouldn't be looking at and so it has to be projected studies because it's not about the specific condition because it's not six sufficiently reliable or it's not the specific proposed medication which cell itself said is necessary you have to look at the specific medication because different medications are going to have different side effects and different likelihood of success so it's important to have specific data to that and we have no data so we don't even know we have no idea what the basis for that conclusion is and we don't even know what dr silvis net by substantially likely that's a legal standard so we can't possibly know if that means the seventy percent threshold which is what is sort of universally been accepted the the you had the opportunity  him and said well how can you know how do you know that this is going to work and he admitted he said delusional disorder is difficult to treat it depends on the personality of the patient though he didn't explain how that would impact the slips into likelihood for mr james and and just went on t know i don't know and so when pressed look i mean i guess that would be the response of any that i don't know how it's going to work it works in seventy percent of the cases i don't know whether she's in the thirty percent of the s i'm glad you brought that up your honor because courts actually require more than what i'm even talking about so they don't require a doctor say well seventy percent of cases generally courts require specific evidence to that defendant which is why it's important that the face said as i understand is that this is something that happens to middle aged persons more than any other group and she was middle aged but that's only say there was no other kind of characteristic and women all saw so does that mean that no middle aged women can be medicated for the purposes of competence for trial unfortunately b o p s unlike other cases didn't address  your question about how dawn asking you what your position is so i think that that means that when dr silvis testified oh don't worry this condition is rare but we have a treatment plan that says oh wait i'm asking you the other question yes that mean that no middle aged women can ever be drugged for the purpose of making them competent to try i think that's very possible but we have no idea because the government faile you please the court my name is maria cardona and i am trial counsel on behalf of the united states in this matter and i'm joined here today with my co counsel rhyme clear and i submit to the court that we actually have a very straightforward  isn't even a battle of the experts because as your honour's noted the experts in fact agree on several in several critical respects experts agree that ms james suffers from a persistent belief that she's being persecuted that she lacks insight into her mental illness and her expert in fact agreed with the government experts that medication is the only viable option so let's start her to the district  standard yes the government told the court at the hearing that that would be the standard the parties agreed and that was addressed in the government's own motions and the government believe is in the record regarding the th factor the district court transcript is a little unclear and i don't think the district judge said clear and convincing when ruling on it though he may well have applied it is you as you  indicating but but it's not clear on the record in the ruling what specific evidence overcame the clear and convincing burden that the government had with regard to the  testified that this is the standard of care treatment for ms james's disorder that's at page one hundred and eighty six dollars and he testified that she does not have any risk factors for side effects that would be expert explained dr sonya explained that this defendant had had really suffered from her mental illness in a way that destroyed her personal relationships and got her fired from her job that resulted in her not taking care widow actually was testifying was not asked specifically about that factor at the hearing but it was in her report and so the ph numbers for that the page number for that would be four hundred and thirty five of her report where she talked about  t the government said at the beginning of the hearing that that would be the standard in track and presented evidence to meet that standard throughout the years that's my my recollection i don't have a page number in front  and from what i could tell that the court the court only apply only only use the words anyway clear and convincing with respect to the nd prong should that be concerning to us that it appears to me anyway that the district order didn't necessarily apply the clear convincing standard call for promise and i hear you saying that that that that is in fact the governing standard why is that not a reversible error right there well i think that what's important is to look at the record and the whether the evidence itself did support that standard and so i submit that the the adjutant's in the record far exceeds a clear and convincing standard here and so even if the court didn't explicitly record meets the standard but the to support that news no i would say that the court did apply that standard didn't say that it was applying a different standard as to one factor about it was applying to the other factors and so although it could have maybe started out more explicitly and it's order i think if you look at the avenues that was presented the evidence meets that standard  i'd like to just touch on it so a factor number two opposing counsel has raised some points about whether or not the government met its burden was with respect to the fact that the medication would significantly further the government's interests here are the defendants on x or offered an opinion that it was close substantially likely that proper medication would render her competent that's at page three hundred and fifty three d at the salad hearing testified that the government asked after some of us that the test at the sol hearing rather was substantially likely that this proposed medication would render her competent and he said that is my opinion yes ma'am and you can contrast that to his opinions that he offered to other points in the transcript he was not merely saying he just answering yes or no to the government's questions at other points he would say i have to qualify that or i need to answer further this was someone who testified that he had been a psychiatry just for thirty seven years and had treated hundreds of patients with these medications and he testified for the that he had reviewed the medical records that he spoke with dr blackwood about this case that he had reviewed the proposed treatment plan and concern it independently whether he agreed with with those recommendations and that he spoke with the defendant herself dr black treatment likely to resolve her symptoms that's at page four hundred and fifty one and and i should point out too that the district court heard from both of the experts that there had been a b o p hearing and that at that hearing that the psychiatry department for this facility hurt testimony from different medical personnel and independently decided that she agreed that this was that that mr eames had delusional disorder that the proposed medication was the only effective treatment for a delusional disorder or an effective treatment for a delusional disorder that's i page fo explicitly talked about it in its order and the court certainly could have had a more detailed reasoning and order however i'm not aware of any case requiring the court to make any particular recitations the court on the record did talk about each of the force all factors and say that he found the government met its burden and the court said in its written order that it had considered the government's cell motion which contained a lot of information about the facts of the case and which also attached the records of the administrative hearing which showed that the chief of psychiatry agreed with this treatment plant and which discussed dr blackwood's report so the court although it didn't explicitly talk about each individual factor with respect to those reports it said having considered all of this evidence i find that the government  based on the testimony he had heard that he wanted to have ms james offered to trigger the proposed voluntary treatment before each injection and he also said that he wanted to have interim reports each month about whether she was experiencing any side effects and what whether she had improvement and he wanted an interim lengthier reporter at the three month mark and so i think that that combined with the fact these factors some evidence but still on the th factor again i go back to the th cell factor the transcript seems to indicate that he did just what the defendant's complaining about that said the standard which says the court also finds the benefits and potential benefits when compared to the potential side effects that the administration of the recommended drugs are medically appropriate which is and then he got  interrupted and then he says he kind of moves on off of that so i don't see maybe you can point somewhere in the record where the judge in connection with the th factor said my decision is based upon x y and z evidence such as what you've told me is in the record is there a place where the judge did the because i don't see it on the transcript well you know and i should clarify i was talking about the written order in the written order at the current set having consider the all standard care that was being administered and that the effects were rare and treatable and that in her case that she was locked up to be restored to a compromise for the purpose of interfere with the defendant's ability to participate and her tits and so on and to confer with counsel and so that's when doctor so this was testifying about things like whether she would be drowsy and  talked about how he talked about how there were ways to counter that that often over time as things get better and there were a side effect medications and that's what that testimony goes to and also the fact that but then separately you look at the side effects also to determine if it's medically appropriate for this defendant because if it's you know if it's going to be an unhealthy thing and that's not something that courts should allow to go forward and so that's really where a more serious side effects come into play in other words the nd prong is more about the interests of justice before the process or about in her radical in right i think in good medical and her medical self interest then is there an area that the district i mean district court or the testimony in the record and evidence indicates there were specific problems to her and so i guess aside from dyskinesia which is more specific to which which opposing counsel is discussing which is something that women that are older are more likely to suffer that that i guess is one of the things that is more specific to this defendant however doctor's office did address that at the hearing and talked about how not only had he never seen it in thirty seven years with hundreds of patients but that one of the reasons he hasn't seen it is because they go to such lengths to ensure that they're monitoring people that have this treatment so that they can detect early on whether there are any indications that this might occur and so he talked about an involuntary movement scale tests that would be performed to check how they would be talking to the defendant regularly whether it she would have physical examinations so that they would know whether any of this was  fund if they bring up any particular subject to her that had not been addressed or should have been addressed essentially your honor we object to the ruling so if there are no additional cost at that time did they give any grounds specific grounds for the objection to the r its consideration of the claim no in it well not with respect to sell factors twenty three dollars or four with the governmental interest out of the defense did raise for the courts consideration the prospect of civil commitment on the length of time that she would serve but with respect to these other factors no and in fact in the defendant's response to the government so motions the defendants stated essentially we don't government proposed to the district court clear and convincing evidence as a standard i do believe that in the future for louisiana judges that there aren't that many orders the judges happy's that standard so i believe that the opinion that  point just very quickly in a nd because i want to well maybe maybe the th gong is actually better to focus on since we haven't focused on that the evidence that the government cites for that is is a sort of generic evidence about the standard of care treatment for this diagnosis and doctor's office even says that he says my recommendation is based on this diagnosis you know some so my recommendation is because she's been diagnosed with this thing this is what we should do but that's interest of the individual not the short term interests of the justice system which is what home to is focused on and so the th circuit has said that for that are required to consider her particular diagnosis and her particular medical conditions it's not just that you can say well we usually prescribe this type of medication for this type of diagnosis they have to actually provide evidence from her medical history that this will benefit her personally and the only benefits that the government has provided are that she will be rendered competent for a very short time soley for trial berkus as because the nd trial is over as the government said at the hearing they're going to get her off this medication because if it goes up to a year she starts to increase her odds of getting really serious side effects they have to take her off that medication the government said that an expert said that social have this very short window of competency and then the sort of big symptom improvement reference which was by the in turn in her report