your morning there please the court my name is been stepped a federal public defender from greenville south carolina and i represent michael scott scotty sanderson i represent began representing mr sanderson his initial appearance the district court in greenville and february of two thousand and eleven when he was brought in on the complaint that ultimately turned into the indictment for violation of title eighteen  section twenty two fifty five twenty two fifty eight and have sought represent him throughout this process at the competency hearings and at the cell here in which we hear just a little bit of background on mr sanders and i believe the record will reflect that he was he's a convicted sex offender here in virginia as a result of a conviction from an incident that occurred in may of one nine hundred ninety seven he was convicted at a bench trial and in one thousand nine hundred eighty eight january and was sentenced in july of ninety eight since that time he has remained on probation he's been back in front of the court and you used on a couple of occasions relating to i believe two instances of failure to register as a sex offender in virginia and related probation violations he was last in court in newport news in september of two thousand ten when his probation was continued and then shortly after that well about a month and a half after that in november of two thousand and ten he was unaccounted for and the probation office in virginia newport news was that they were going to defer prosecution on both a probation violation and a fatal register to the district to the federal court in south carolina so as far as i know he still remains under state probation  in newport news and that's part of our position is that he is own indefinite probation they are and will far as we know will still be under their supervision whatever happens in this case but nevertheless he disappeared in some time or after the court hearing the issued a warrant for him in november they tracked him down in greenville south carolina and his warrants were sent down in november the ninth of two thousand and eleven he was arrested by the bremer county sheriff's office put in jail and about a month later in february the federal complaint was issued and so we go from there  our position in this situation case is that the cell factors we had the hearing we went through the four cell factors and we don't contest the issues regarding medical necessity and are they medically appropriate and and those things the second third and fourth factors are not an issue here today our contention is that while the government may have an important governmental interest in prosecuting mr sanderson for this failed to register charge that the special circumstances that the courts say can lessen the government's interest apply in this case an override the important governmental interest a process just to clarify do you concede that the government has an important interest here well they have an important interest because it's a serious offense in the course of already rule that anything that carries ten years is a by definition a serious offense so the law is well settled in that you can see that your only argument is with whether or not there are special circumstances yes ok and we contend that the special circumstances doesn't matter at all that in addition to being a serious offense it appears to be a continuing offense in the sense that as best we can tell your client still hasn't registered or complied with the law well he can't comply now when minute he got locked up he was unable to comply what or what or where or sure and says that if we agree with your position that he's going to at some point be able or be willing to comply with the law that's part of my concerns that the law is going to continue to be flouted if in fact we agree with you that that this is not the time to prosecute this defendant well it i agree it is a continuing crimes much as a felon in possession of a firearm is a continuing offense but he's own  supervision that he's not a court supervision in virginia here and if he were to get out he is immediately on their supervision again for an indefinite period of time and so he has that hanging over him which is the potential of a probation violation and he also you know wherever he if he gets out wherever he gets released from he is required to register whether it's here virginia or north carolina where he's been held at the federal medical center at butner or wherever he he has to register but he hasn't he hasn't registered before and hasn't been amenable to any sort of monitoring before what what indication is there in his background that he registering and you know he would have to he's always going to have to register he's and he's oh and far as we know until the state of virginia turns him loose from probation he's always going to be under their probation but he's like so many other sex offenders that they're supposed to register and they end up in court cause they haven't registered but he's also on probation which i think is an additional thing because most sex offenders could freely go from one place to another as long as they register within the prescribe time limits that they that they have to but for him to leave virginia he's supposed to get permission before he leaves on in this case they say he didn't he just disappear doesn't he have three prior failing to register  convictions one in two thousand three want to two thousand and seven and then this most recent arrest in two thousand and eleven he's been convicted twice and then there's this that's correct i'm not all about the dates but those because the dates i have sometimes they give you the date of risk versus the date of conviction but yes he's been convicted twice in virginia and the probation office has dealt with that as well as the court and you put news  position is that like the in the white case that the special circumstances would mitigate in this man not facing the exceptional and extraordinary situation of having to be forcibly medicated in order to render him co because that he's not a danger to himself he's not a danger to other people so the competency issue is the only one that's before the court i don't know that i agree with the he's not a danger to other people by definition the fact that he's been identified as someone who is required to register at least implies that there is some potential for danger to the larger community so this is different i think than than white in that we have some manifestation of a probability of being a danger to others however you know i recognize that the he's not the worst case offender but there is still some recognition at that and that's in part why he's required to register that's true and we were all were dealing in the future probably future situations probabilities and he was convicted in ninety eight the act occurred in ninety seven he's during all the time he's been out on prison out of prison he's not committed any other offenses it's not being convicted are convicted of when he may have committed this offense if a to register but i'm not aware of any other things that he's committed they had by then that's enough point you're not aware of any other things that he has committed that's true but the court operates in what people have been convicted of i think rather than what they may have committed they just hadn't been caught doing that's the truth and based on what the doctor said and what the criminal history shows he has not been convicted of anything other than the registration violations since he went to court in two thousand and one nine hundred ninety eight and  again i understand that that is a serious matter and the government has an interest in knowing where these people are but the court in white has said there's a lot of serious cases and there's a lot of reasons why they govern may have to want to prosecute these people but the prospect of forcibly medicating somebody is an exceptional is an extraordinary measure that you only be applied rarely rather than routinely and it's our contention again based on the facts of the case that in sanderson's issue which is a non violent offense now and i would also point out that it's it is a routine fade register case the statute provides for people who commit further crimes of violence while they are in the failure to register situation and they the penalties are his you know one of the he's been locked up since two thousand and eleven so he's got twenty four months and so to speak that he would get credit for as we had has noted in would be a category five criminal history score because i would come at least from three points for the virginia conviction which still would count against him to two more points for being on probation and some more points for these the fact that it can't be civilly committed cut in favor of the government in this case are were slightly well if in some ways it does in some ways it does because if if you could be civilly committed than i'd be saying well they can they can keep him longer because they committed with a home where they can committee was if they think he's a danger to himself or others which obviously would go against our situation so i guess in some way probably cuts toward the government can say well they just have to turn him loose and my contention is what they just have to turn him loose it's not like they're just going to put him out on the street and say ok you got to register if you don't we're going to be looking for you because he's on state probation he's required he's going to be required to come back to virginia to get back into the system the newport news and remain in that situation with the court down there i realize you haven't brief this and i appreciate any the best answer you can give but what is the state to the extent of your knowledge of the supreme court's jurisprudence on how long government can hold somebody awaiting their competency in other words if we were to reverse here what to the extent you can answer my question what's the outside limit before some due process kind of claim ripens so that he has to be released now in other words i assume that the government theoretically could say all right we're just going to hold you pretrial detention until you regain your competency i mean as a as a facial matter the government can do that right i don't know that and they maybe they can i mean i would i guess the district court would have to decide whether he could be released on a bond well but those that the district courts already decided he can't be released on about he has been detained he's a he is an indicted federal right that's a status that's right and that's a status nothing we do here in this case will change that stat if we a and further maybe i'm not being clear i can tell from your face not being clear and i'm not asking not doing a good job of asking the question i think i understand is a pretrial detainee right and like every other preach that detainee he  would have a trial date under the speedy trial act etc etc except in this case he's incompetent to stand trial and so as a matter of due process he can assist in his own defense and therefore he can't be brought to trial so the law says ari what do we do in this situation one of the answer is you forcibly medicate a pretrial detainee who is incompetent who won't voluntarily accept the medications right and supreme court and sell in those prior cases said well here here the interests that are involved in cetera et cetera but there's no question a pretrial detainee has a liberty interest in not being forcibly medicated ok so that's where we are so my question to you not asked very well is apart from force medication what is the due process boundary if there is one and i have to assume there is one at least for citizen what is the due process boundary at which government can no longer just hold a person as a pretrial detainee waiting for him or her to regain competency first david is i don't know what i would suggest that one place to begin would be the statutory maximum on the senate's in the case of this man i would think that would be a reverse and send it back and say no the the special circumstances do not warrant forcible medication it seems to indicate from what i've seen that the government takes a position where we just have to dismiss the charge and these will but that's the government's resource that's the government's choice right now it is but i don't i haven't seen anything that suggested and one of these cases where they have been sent back and said you can't do this that they have just the government sa well we'll just wait we'll just continue to hang on to him for example i don't know what happened so i checked in white and what happened was the indictment was dismissed without prejudice which means she would be subject to further prosecution correct and that's a lot different than sit ninon continuing to sit in a detention facility ok but but you don't know of any reason a person couldn't continue to sit in the detention facility until the legal reason i could that's what i mean y read i would go back to the district court and ask the court to force the government's hand and then i guess would be back up here on some kind of situation like that right which is what i was asking you how soon would you be back as quick is that we could get the papers  sanderson is a nonviolent offense it is a continuing offense and in one sense that makes it like well the minute he gets out he could be picked up again if he doesn't do it is it's not like the government's interest in prosecuting a  non registering sex offender would just disappear because he's under he's under an obligation forever to do this but then what would be your argument if we're back here on this very same issue picked up again we've got the very same set of facts than what if he's still if the insanity she i mean if the right a competency issue is still there it would i guess would be the same thing other that you know who knows he may get out and do something else i think the government can be very creative  looking for things that he might have done while he was out there than just not registering because they would do those things that he may have been he may have committed but not have been convicted of those things that they can find that they can charge him with i mean charging him with things and convicting people of things are are way way different things we deal with all the time but  someone is always going have to register i mean i don't know that his situation may change that he may get out of jail that's what it looks like is the truth of the matter is apparently there's going to be a cohort of citizens who are just going to spend their time in jail you know back where i come for failing to register as a six figure they have gotten from his probation in virginia and ended up in our state south carolina living in a motel room where the walls were plastered with pornographic pictures and he had to surround built taylor swift who he believes this is common law wife and now he's been evaluated he still has a sexual proclivity for under age children and this being attracted to teenage girls and being with women who have children he doesn't believe that he's done anything wrong he doesn't believe that he has any obligation to register as a sex offender he believes that he can just get the paperwork in order and you say he believes that he has no obligation etc does he believe he's on probation i don't know he believes that when it you know he believes he has no obligation to register how can you not know whether he believes he's on probation because judge davis in the evaluation reports he stated that he said to the evaluate i don't know what he stated in regard to probation but he stated that there was a problem if he could get his representation  order represent his self or find another attorney then he would be able to be released and move to the british virgin islands or the dominican republic where he would not have to register as a sex offender so i know specifically he's made statements about the six he registered in virginia attended to his conviction very he registered and he and it's our video ever register after that anywhere any time i would have to double check the record i know i don't know ok fair enough i don't it i know he registered as mr steps in but then he immediately left the state moved south carolina and of course did not register and what makes this one of the that this court was concerned and why that if we allow involuntary medication in that case we risk it becoming routine and i think we can all agree that we should not routinely medicate people against their will even in an effort to restore competency to stand trial in this case there are several has not allowed or we're not allowed to attempt to restore him to competency through force medication then he is going to to walk away and there's no way that we can enforce his requirement that he register as sex been a misstep says well he's on probation in virginia which is certainly true well we see how far that's gotten us virginia has not been effectively monitoring or able to control his whereabouts where he goes or what he does because he ended up in our state and so even if he's picked up on the probation violation and brought back to virginia or even if he goes out and he doesn't register as a sex offender and we try to arrest him again that we're going to be back in the same exact position the state of virginia will have no opportunity to enforce registration requirements ways the federal government will have no opportunity to enforce is it to send him back to virginia the day after he was picked up in south carolina i don't understand this argument a h there was an arrest warrant for mr sanderson issued in virginia which was a detainer against him when he was picked up in south carolina correct or there was no federal involvement in this case whatsoever in the first forty eight hours after he was arrested in south carolina is not correct he was arrested but i don't dispute that he was arrested by a local officer a state or local officer in south carolina don't understand your question and i don't spew was it a question well i don't care enough ok there's a little history sure this this sort of offense didn't even exist ten years ago right no sir ok but it exists now and the reason it exists is that congress obviously thinks it's important for the community to be aware of where convicted sex offender zone is a community safety thing and maybe i was not clear to you and i realize it wasn't a question you're providing history my point is not what virginia will or will not do my haunt is mr sanderson in a unique position because if he's not if we can't forcibly medicate him and restore his competency to go to trial the disorder requirement has no has no teeth because he can keep going back out and failing to register going wherever he wants without any way to to control that movement and each time he comes back in here if he's mentally incompetent we're going to be going through the same procedures can be said of that that would be the case if we ship them back to virginia after that's the point i was trying to make and maybe i didn't make it clearly is that regardless of who takes control of him if this court reverses and he's released there's no in foresman mechanism whether it be the virginia probation or whether it be the federal government trying to get him to comply with his his sort a requirement but because the doctors were clear he's they do not think he's going to be restored to competency on his own and they trot it went before magistrate judge mcdonald he sent him off to be evaluated came back he's incompetent all right well let's send him back to butner and see if we can get him to take the medicine and see if his competency can be restored that way without involuntary medication has mom talked to him they had a sister talk to him he said i don't give a crap what they think and he's been there for two years and he's still not taking the medicine and the doctor said he's not going to take the medicine i was on the only way that he can be restored to competency is to involuntary medication so what's the answer to my earlier question if you know i realize you have been briefed mr johnson but how long can the government hold somebody in pretrial detention hoping wishing for competency right yes i did we don't know what that might be but but there is some point presumably there some point when when when when due process is no you can't continue to hold this person yeah i agree with that ok and frankly i would be very surprised  government can hold him under due process to the maximum extent of what his sin it would be if he's convicted of the offense i don't know the answer to that question and certainly there has to be a reasonable miss component and that's part of our concern is that if this court  reverse the district court's order the doctors have already said we've tried everything we can short of involuntary medication we're not going to be able to restore his competency what if what if what if a court were to say no you can't medicate and then the third putin dalla he becomes to include you know at some point he's been in what i don't know three years four years five years presumably some therapist will say to him now you know mr pretrial detainee you're in here because you won't take the medications and you know you've probably been in here longer down than you would have been in here had you gone in and pled guilty to it three years ago is that totally fallacious i mean i'm no psychologist that none of us are psychologist but there's that i mean does that make can't say that it's outside the realm of possibility ok i think a psychiatric nurse a college would try it because either way he's going to be a button right i mean it's pretty clear i think that for this defendant if he's forcibly medicated voluntarily medicated restores competency goes any the go to trial and it's going to be like a two hour trial exactly either goes to trial or he pleads guilty why should we force of the medicaid to get in there he's already there he's not going to go anywhere for the next couple years unless the government choose chooses to dismiss the prosecution which is entirely up its prosecutorial discretion just like the government chose to prosecute him instead of send him back to virginia the government can choose within the constraints of due process how long they keep him at butner and medicaid s s e what you're saying but the problem with that is if you reverse then mr steps going to argue your honor we can't for or i assume he will i would he he can't be forcibly medicated the doctor he's been in there two years has been taking the medicine the doctors have tried everything to elt everything else that they can to restore his competency at this point your honor after two years or whatever time it will be once you get sent back to the district court your honor on do press process grounds you have to release him and i simply afaik he in i'm not going to come in on the street the way the argument would be but it's certainly a fair fair argument i don't think that we can hold him we can't hold him indefinitely and i don't think that we can hold  not sure it's frankly it's come up much in the context of a cell analysis but i don't know why hasn't come up i'm certainly not the first person to think of it and i don't know  you asked me how much sure that it would be i'm not sure and i don't know and i think that's part of the problem we need to go ahead and prosecute him now we can in the uncertainty and because whether it's two years or four years or whatever there's no indication that he's going to be brought to competency in any other method in the government has an interest in prosecuting this man a convicted sex offender who's now on his third failure to register and to bring as much of the law down on him as as we can because it's obvious that the things that have come down upon him up until this point are not work and i think a couple of things we talked about some things that distinguish this case from white  another i think that is fair to point out is that in white the prognosis was much more uncertain for miss white who had delusional disorder of the grandiose type and literature was vague at best about what the chances were of restoring her to competency worse she forcibly medicated that a special circumstance that goes to the first factor is just simply something that's and i mean that seems to be accounted for in the other cell factors the likelihood of success with respect to reputed protocol i think it relates to more than one factor and i think it relates to do the first factor because i think this court discussed in a why the fact that that prognosis was was not as hopeful for her as for him it is and so that that does way as to the second thing for self it is but i think it shows that that these are not special circumstances that mitigate against the government's interest is it's a circumstance that mitigates in favor of the government's interest as well as showing that this is medically appropriate for mr sanders and that's likely to restore him to competency is not likely to hinder his ability to communicate with his lawyer and that it's necessary in this instance i correct that the order in this case contemplates forcible medication through sentencing i'd have to double check it but i would not be surprised if the and so what's the sentence and sent back to butner or springfield there's no legal mechanism for the united states forcibly to medicate him so long as these not a danger to him  himself or other people by virtue of the schizophrenia and we know there's no dispute although judge certainly is correct to point out that there's sort of an inherent danger you know in a convicted sex offender we're talking about an imminent danger to one or one to oneself or others in the contemplation of civil commitment i agree ok so so i mean if the government prevails here pretty much we're going to be in the exact same status quo that we're in today a few weeks from now subject to appeals and petition if he refuses to take his meds because the conviction is a certainty you agree with me there's going to be a one hour trial that's probably longer than it's actually going to take her because it's they just produce a document to show that he's the same person who was convicted and virginia and the absence of any registration effort on his part of so so that's where we are probably have the sentencing the same day probably waive the p s r well have a look at the statute in a while but wasn't there also an attempt at least some indication that they would have to assess whether or not he was competent at the time of the commission of the events that was in the judge's order and that's not a slam dunk in fact it may be likely that he was not assume there's a mens rea a component to the offense so to say it's a slam dunk i'm not sure i mean that maybe but maybe not and i think that's a that's a fair point that's the men's wear element for failing to register months dating is that is a knowing knowing what right what would you have to show have you prosecuted one of these before i personally have not you have not but so when we say knowingly what does that mean i think you have to show that he knew that he had an offense for which he was required to register and in fact he's been convicted of having to register a couple that he has certainly the trial would not be be arraigned yes and he pled not guilty or not guilty plea was entered on his behalf and ordinarily there'd be a scheduling order of some sort that required pretrial motions within a few couple of weeks of the arraignment right so as that's why i asked the question yes he's been arraigned and i think all of that was put on hold pending the results of his competence and and then judge anderson put in the order that the doctor said that he would not be able to really produce an opinion on insanity at the time of the offense because he so incompetent he cannot engage with the doctors on it and that's the reason why that hasn't been addressed up until up until this point and you know i make that point not to necessarily disagree with my colleague it may well be a slam dunk but there are some hoops that would have to be jumped over before we get to that point and and i agree with that i just think that the evidence on future dangerousness you would agree that's not the most compelling evidence just in my times except i briefly respond oh absolutely the the i think it was either in two thousand six or two thousand and seven there when he was released from one of his prison stints there was an evaluation he was found to be at as compared to other sex offenders at low to moderate risk free if in however  eight and was arrested on this offense in january of two thousand and eleven so you're talking about a period of about thirteen years and mr point we don't know of any other substantive offenses that he has committed i think it's fair to point out that o thirteen years he's been a president prison for seven years because he was in prison for five years on the other line sex offense he's on a two year prison term for one of those failure to register offenses so for more than half the time he's been in jail and then in the six years that he has been out he's now want to start prosecution for failing to register so we think there are serious concerns especially the circumstances in which he was arrested and the fact that he continues to report having sexual proclivity for under age children shows that he is a danger to at something they're going to before he comes back to south carolina and has a competency hearing i believe that they will render their opinion about whether he was criminally responsible at the time of the offenses or whether on the insanity issue so we'll have to we will have to deal with that and the case would be internal whether he knowingly failed to register whether he had some mental illness at the time that he came from virginia to south carolina that interfere with his ability to make decisions and whether he should be  held legally accountable or not but let's assume that if he is convicted of the charge well that really back up if he's if they find him to be insane then of course we're going to be in a situation where the only question is is he a danger to himself or to others will have a risk assessment hearing and the court will have to decide well he we the whole team or we put him out on conditional release kind of like probation without not being on probation but nevertheless we're in a similar type a situation they when they want him to take medication they may think it's best for him but he may still say you know what we've been through this whole trial i'm done with it you can't continue to forcibly medicate me i'm not taking the stuff and what they do with him who knows but johnson says the been in for seven years since ninety eight five on the original virginia conviction and two on one of the failure the registers if that's correct i'm curious to know what he got on the other failure to register you know one of them may have been in conjunction with a probation violation ok that's all right i'm not i'm really not sure not even sure when they say somebody gets two years in jail how much they might actually do because it differs from state to state and it's hard to keep up with but this situation is we want to i guess we want to punish people who don't register sex offenders and we want them to register well we don't know whe people going to register because sanderson or anyone else like him there's all these class of people that just don't do what they're supposed to do and they get locked up and they for not doing they get out again and they may do it they may comply they may not comply he complied during some periods of time while he was in virginia under supervision and i don't know what the nature of the failures to comply were where they moved from one county to another and didn't register whether he just flat out what registering altogether i don't know how the law is on that but i would say that that  you know oftentimes if i have a client i have a cloud of butner other than mr sanderson who's in a similar situations that these on supervised release and they say he needs to be taken medication in order to be rendered competent and we were staring down the same situation he didn't want to stay in but i said well you know if you don't want to stay at butner you might just take the medication that dr herbal recommends and we can do with this thing pretty quick the work he did he's going back in a in a couple weeks sanderson is a different animal and you know maybe if he had a different lawyer want to get it in to go out of the hang on to him i don't know maybe they certainly they could say well if we're going to turn loose of in we're going to put aside with we're going to prosecute him later we'll consider putting him out on a bond and you know what we're going to let him out on the one he's got to register as a sex offender number two he needs to take medication as recommended by pretrial services or whoever and that would be one way to get him out of the penal situation which is what it is and he's locked up in pretrial detention and he could comply with the law and this this continuing offense is only continuing as long as you're not under registration and he's not he's not in violation of the law now because he can't register and he's at the place where all the sex offender well which is i see what you're getting at the it's a continuing offense in the sense that limitations i guess doesn't accrue until the government has reason to think that you've entered a state without registering but but it's a complete offense in the sense that he was found in south carolina didn't under educated and therefore he can be prosecuted i mean it's a completely defense even though it's a continuing offense ok he can he allegedly committed  thank you very much