IN THE UNITED STATES DISTRICT COURT 


FOR THE WESTERN DISTRICT OF PENNSYLVANIA 


UNITED STATES OF AMERICA ) 

) 

v. ) Criminal No. 05-33 Erie 

) 

JOHN DOUGLAS GRAPE ) 

OPINION ON INVOLUNTARY MEDICATION 

This matter comes before the Court for consideration of the issue of whether to 

medicate the Defendant, John Douglas Grape, involuntarily to restore him to competency in 

order to stand trial. 

On February 4, 201 0, we determined that Mr. Grape was not competent to stand trial 

and ordered him to a medical facility to determine whether there is a substantial probability 

that in the foreseeable future he will attain the capacity to permit the trial to proceed. Mr. 

Grape arrived at the United States Medical Center for Federal Prisoners at Springfield, 

Missouri on March 18,2010. By letter dated March 26, 2010, the Court and counsel received 

a letter from the Unit Manager of the Mental Health Unit at Springfield indicating that "Mr. 

Grape is unwilling to take medication at this time." (March 26, 201 

°Letter from Unit 

Manager J.M. Roberts, attached as Ex. 1 to doc. 127.) 

On March 30, 2010, the government filed a "Motion for Involuntary Medication of 

Defendant to Restore Competency," in which the government requests that we issue an Order 

mandating that Mr. Grape be involuntarily medicated. On April 12, 2010, the Court and 

counsel received a "Brief Forensic Report" prepared by Christina A. Pietz, Ph.D. and Robert 

G. Sarrazin, M.D. Doctors Pietz and Sarrazin report that Mr. Grape remains mentally 

Case 1:05-cr-00033-MBC Document 131 Filed 05/27/10 Page 1 of 18
incompetent and that it is substantially likely that he would be restored to competency through 

the administration of antipsychotic medication. The government filed a brief in support of its 

motion on April 20, 2010, and Defendant filed a brief in response on April 27, 2010. 

I. Background 

As the parties are well aware when Mr. Grape first refused to take medication against 

the advice of his doctors in December 2006, we held a hearing pursuant to Sell v. United 

States, 539 U.S. 166 (2003) to determine whether Mr. Grape should be subjected to forcible 

medication to restore him to competency. Thereafter, we issued an Opinion and Order 

allowing the Bureau of Prisons to forcibly medicate Mr. Grape. (Opinion and Order, 

September 6,2007, doc. 79.) Eventually, the United States Court of Appeals for the Third 

Circuit upheld our Order. United States v. Grape, 549 F.3d 591 (3d Cir. 2008). 

In the interim between our Order and resolution of the appeal, however, the Bureau of 

Prisons determined that Mr. Grape had become a danger to himself or others, allowing 

forcible medication pursuant to Washington v. Harper, 494 U.S. 210, 221 (1990). When staff 

confronted Mr. Grape with the fact that he was going to be forcibly medicated if he did not 

voluntarily submit to medication Mr. Grape agreed to voluntarily take the medication. After 

Mr. Grape began taking the medication he eventually was restored to competency. The 

forensic report on Mr. Grape after he was restored to competency showed a remarkable 

difference in his capacity. (See Opinion on Competency, February 4, 2010, doc. 125, at 6-7, 

citing the April I, 2008 Forensic Report.) Shortly after returning to the Erie County Prison, 

Mr. Grape stopped taking his medication and decompensated. The subsequent forensic report 

again demonstrated a dramatic turnaround in Mr. Grape's functioning when he is 

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unmedicated. (See Opinion on Competency, at 7-8, citing the August 1,2009 Forensic 

Report.) As a result, we once again found that Mr. Grape was not competent, and returned 

him to the medical facility for a period of restoration. (Opinion on Competency, February 4, 

2010, doc. 125; Order, February 4, 2010, doc. 126.) 

It is no surprise that we are faced with this issue again. In our February 4, 20tO 

Opinion determining that Mr. Grape was not competent we addressed the fact that we would 

likely confront the issue of forced medication again. 

If Mr. Grape again refused to take medication, we are uncertain 

whether another Sell hearing would be necessary. On the one hand, we have 

already held a hearing and found that the government met its burden to 

involuntarily medicate Mr. Grape. In addition, we now know that medication 

is likely to restore Mr. Grape to competency. On the other hand, Dr. Pietz 

stated in her Forensic Report that if Mr. Grape refuses to take his medication, 

another Sell hearing would be necessary, suggesting that she believes that the 

passage of time means that a new Sell hearing would be appropriate. In 

addition, we now know that Mr. Grape does suffer side effects from his 

medication. Therefore, we would need to determine under the Sell factors if 

the side effects would "interfere significantly with [Mr. Grape's] ability to 

assist counsel in conducting a trial defense, thereby rendering the trial unfair." 

Sell, 539 U.S. at 181. 

(Opinion on Competency, doc. 125, February 4,2010, at to-II.) 

II. Applicable Law 

The narrow issue presented in this case is whether Mr. Grape should be involuntarily 

medicated "in order to render [him] competent to stand trial." Sell, 539 U.S. at 179, 123 S.Ct. 

at 2184. The United States Supreme Court has recognized that an individual has a 

constitutionally protected liberty interest in avoiding the unwanted administration of 

antipsychotic drugs that can only be overcome by an "essential" or "overriding" state interest. 

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Riggins v. Nevada, 504 U.S. 127, 134, 135, 112 S. Ct. 1810 (1992), Washington v. Harper, 

494 U.S. 210, 221,110 S.Ct. 1028 (1990). 

In Sell, the Supreme Court explicitly allowed the forcible medication 

of an inmate "solely for trial competence purposes" in certain 'rare' instances. 

539 U.S. at 180, 123 S.Ct. 2174. The Court set a standard that the 

government must meet in order to overcome the inmate's liberty interest, as 

laid out in a four-factor test. First, 'a court must find that important 

governmental interests are at stake,' though '[s ]pecial circumstances may 

lessen the importance of that interest.' Id. Second, 'the court must conclude 

that involuntary medication will significantly further those concomitant state 

interests.' Id. at 181, 123 S.Ct. 2174. This includes finding that 

'administration of the drugs is substantially likely to render the defendant 

competent to stand trial,' and '[a]t the same time, ... that administration of the 

drugs is substantially unlikely to have side effects that will interfere 

significantly with the defendant's ability to assist counsel in conducting a trial 

defense, thereby rendering the trial unfair.' Id. Third, 'the court must 

conclude that involuntary medication is necessary to further those interests' 

and that 'any alternative, less intrusive treatments are unlikely to achieve 

substantially the same results.' I~ Fourth, and finally, 'the court must 

conclude that administration of the drugs is medically appropriate, i.e., in the 

patient's best medical interest in light of his medical condition.' Id. The 

Court then emphasized that the goal of this test is 'to determine whether 

involuntary administration of drugs is necessary significantly to further a 

particular governmental interest, namely, the interest in rendering the 

defendant competent to stand trial.' Id. 

Grape, 549 F.3d at 599-600. The government "bears the burden of proof on factual questions 

by clear and convincing evidence." Id. at 598. 

III. Analysis 

The following factors are no longer in dispute: (I) that important governmental 

interests are at stake; (2) that Mr. Grape was restored to competency through antipsychotic 

medication; (3) that the medication is necessary to further the government's interests as there 

are no alternative, less intrusive treatments that are likely to achieve substantially the same 

results as medication would; and (4) that the recommended treatment is medically appropriate. 

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Likewise we have identified two outstanding disputed issues: (1) whether, and to what 

extent, the likelihood that Mr. Grape will be civilly committed if he is not restored to 

competency diminishes the government's substantial interest in prosecuting this case; and (2) 

whether Mr. Grape's known side effects are so severe that they would interfere significantly 

with Mr. Grape's ability to assist counsel in conducting a trial defense, thereby rendering the 

trial unfair. 

In our Opinion on Competency we also raised the question of whether another Sell 

hearing would be necessary before rendering a decision on involuntary medication. In 

addition, we posed the question of whether Mr. Grape's mental illness has become worse over 

time, or more accurately, whether the doctors believe that Mr. Grape's mental status has 

deteriorated below what it was at the time of the Sell hearing. 

We have little input from the parties and the doctors to assist us in our analysis. They are 

silent as to whether a Sell hearing should be conducted, implying that no one believes that a 

hearing is necessary. On the issue of deterioration in mental status over time the doctors, who 

are the only ones qualified to offer an opinion, say nothing. The Defendant thoroughly 

addresses the likelihood of civil commitment, while in response the government attacks the 

civil commitment process as "uncertain," "murky," and unpredictable as to its length. Finally, 

only the Defendant addresses the issue of side effects. 

In large part we must rely on the medical experts to guide us as much as possible as 

we consider, among other things, Mr. Grape's history, his current mental status relative to his 

prior mental status, the extent of any side effects he would suffer from medication, and the 

likelihood of future civil commitment. At this point there is little new information offered by 

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the doctors. This is not to criticize the doctors. We are aware that the long and short of their 

position is that antipsychotic medication is the treatment of choice for someone in Mr. 

Grape's condition. We are also aware that the doctors did not observe the side effects Mr. 

Grape experienced while on the medication as he had ceased taking his medication long 

before he arrived back at Springfield. We agree that the best course for a person suffering 

from a mental disease is to listen to the advice of the doctor and take the medication. 

Our responsibility, however, involves more than just the medical issues as we must 

determine if we should override Mr. Grape's constitutionally protected Fifth and Fourteenth 

Amendment liberty interest in remaining free from unwanted medical treatment and forcefully 

medicate him against his will in order to stand trial. The Brief Forensic Report by Doctors 

Pietz and Sarrazin contemporaneously affirms medical information about Mr. Grape that is 

already known. The doctors do not even expressly indicate that Mr. Grape is currently 

refusing to take medication. Instead the Report contains the following generic statement: 

"While any rational basis for treatment refusal should be addressed, it must be recognized that 

treatment refusal of mentally ill defendants found incompetent to stand trial often stems from 

deficits induced by the illness itself and transient incompetence to make treatment decisions is 

exceedingly common in such populations." (Brief Forensic Report, April 12, 2010, at 1.) 

This exact statement appears in the doctors' February 15,2007 Forensic Report prepared prior 

to our Sell hearing. (Forensic Report, February 15,2007, at 1.) That is to say, there is 

nothing in the Brief Forensic Report that educates us at all as to the significance, if any, of the 

intervening events between the Sell hearing in June 2007 and today. There is no mention of 

the August 31, 2009 Forensic Report that appeared to show that Mr. Grape's mental status had 

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significantly deteriorated and no mention of the side effects that Mr. Grape actually 

experienced when he was medicated. 

The government, acknowledging that the circumstances ofthe case have changed, 

argues that the "case for involuntarily medicating Grape is stronger now than it was when the 

Court issued its previous order." (Government's Brief in Support, at 4.) In our Sell Opinion 

we characterized the issue of "whether medication is substantially likely to restore Mr. 

Grape's competency" as "the central question in this case." (Opinion, doc. 79, at 19.) This is 

no longer in question as we now know that medication did restore Mr. Grape's competency. 

This changed circumstance does indeed make the case for involuntarily medicating Mr. Grape 

stronger. However, the case for involuntarily medicating Mr. Grape is weakened by the 

likelihood of civil commitment and the fact that Mr. Grape does suffer side effects from the 

medication. As discussed below, we now find that the likelihood of civil commitment 

outweighs the government's interest in this case. 

A. Likelihood of Civil Commitment 

The government does not fully address the likelihood of civil commitment in its brief. 

Specifically, the government does not refer to the lengthy medical history of Mr. Grape, nor 

does it refer to the August 31, 2009 Forensic Report detailing Mr. Grape's history and 

deterioration after he ceased taking medication that presented strong evidence that Mr. 

Grape's mental diagnosis and pedophilia will cause him to be civilly committed in the event 

that he is not forcefully medicated. 

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The government's argument against the likelihood of civil commitment is "generic" in 

the sense that it could be used to argue against any defendant who refuses to take medication 

and is facing involuntary medication. The government first argues that "there is a great deal 

of uncertainty concerning the likelihood ofGrape's civil commitment." (Brief in Support, at 

5.) In addition, the government cites to the "murkiness of civil commitment" explaining that 

"[n]o one really knows what will happen to Grape in the civil commitment realm and it is 

unlikely that defense counsel will agree that Grape should be civilly committed indefinitely or 

at all." I d. The government's argument does not really address the central issue of whether 

the likelihood of civil commitment diminishes the government's interest. Sell, 539 U.S. at 

180, 123 S.Ct. at 2184. At best, the government's assertions that civil commitment is 

"uncertain" and that "no one really knows what will happen" are little more than a rephrasing 

ofthe issue without any supporting evidence or argument. The government does not explain 

how civil commitment is "uncertain." In addition, the government does not address the fact 

that in our Sell Opinion we found that there was no serious dispute that the likelihood of Mr. 

Grape reentering society unmedicated is extremely low, that the Third Circuit agreed with this 

finding, and that the medical evidence since that time appears to more strongly support a 

conclusion that it is substantially likely that Mr. Grape will be civilly committed. Finally, we 

discount the government's assertion regarding whether defense counsel will agree that Mr. 

Grape should be civilly committed since the ultimate decision as to civil commitment is made 

by a Judicial Officer under both federal and Pennsylvania state law. 

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This leaves us with the government's argument relying on the Third Circuit Court's 

holding on appeal of the involuntary medication order that "possible, even likely, civil 

commitment does not outweigh the government's interest in prosecution." (Brief in Support, 

at 5, citing Grape, 549 F.3d at 603.) This is an incomplete reading ofthe Third Circuit's 

opinion in light ofthe history of Mr. Grape's case. 

The first time we addressed this issue the facts of Mr. Grape's individual case were 

that he was unmedicated and incompetent. At that time we stated as follows: 

Even though a section 4246 hearing has not been held, we note that there is no 

serious dispute that the likelihood of Mr. Grape reentering society unmedicated 

is extremely low. Indeed, there is no other reading of the Medical Center's 

Harper hearing conclusion other than, but for his confinement, Mr. Grape 

would be a danger. Thus, the likelihood of civil commitment here does 

diminish the government's interest in this case. 

(Opinion, doc. 79, at 18.) On appeal, as the government points out, the Third Circuit Court 

held that the circumstances of Mr. Grape's likely civil commitment did not outweigh the 

government's important interests in prosecuting him. Grape, 549 F.3d at 603. However, 

when the Third Circuit Court issued its holding on this issue it acknowledged that Mr. Grape 

presented to them in a "restored mental state" after having been forcefully medicated under 

Harper while the appeal was pending. Id. at 600. The Court also stated that the "fact that 

Grape has already been involuntarily medicated and has been restored to competency 

diminishes his countervailing interest." Id. at 603. The Court acknowledged that Mr. Grape 

may return to his previous incompetent state, but that the Court could not be certain of "the 

likelihood or time line under which he would again become incompetent." Id. 

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Prior to arriving at its holding, the Court first considered whether Mr. Grape would be 

civilly committed presuming that he "would mentally deteriorate [from his current competent 

state] if not medicated." Id. at 600. The Court first reviewed both federal and Pennsylvania 

state law governing civil commitment for handling incompetent inmates. Id. at 601. The 

Pennsylvania rule concerns mentally ill inmates who pose a clear and present danger of harm 

to others. Id. Such a "danger" can be shown "by establishing that the conduct charged in the 

criminal proceeding did occur, and that there is a reasonable probability that such conduct will 

be repeated," or by "proof that the person has made threats of harm and has committed acts in 

furtherance of the threat to commit harm." 70 Pa. Cons. Stat. § 7301. The Third Circuit 

Court found that Mr. Grape, prior to his forced medication, "most likely fell within the 

category of individuals to whom" the Pennsylvania rule would apply. Grape, 549 F.3d at 601. 

The Court then noted that in our Sell Opinion we stated that "there is no serious 

dispute that the likelihood of Mr. Grape reentering society unmedicated is extremely low." Id. 

The Court continued, stating "we believe it is safe to assume that Grape would likely reenter 

this category if his paranoid schizophrenia returned." Id. Thus, the Court concluded that if 

Mr. Grape mentally deteriorated, he would likely be civilly committed under both the 

Pennsylvania and federal Statutes. The Court further stated that "it is not difficult to agree 

with the District Court's assessment that 'the likelihood of civil commitment here does 

diminish the government's interest in this case. '" Id. at 602. 

Despite the discussion addressing what would likely occur if Mr. Grape did 

deteriorate, the Court was clear when it rendered its holding that it was analyzing this issue 

with a mentally competent defendant who mayor may not become incompetent again. Id. at 

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603 ("due to the volatility of Grape's mental state, we cannot be certain of Grape's current 

mental health, or the likelihood and time line under which he would again become 

incompetent.") The Court reinforced the point explicitly in a footnote 

We also recognize, however, that Grape's forced medication pursuant 

to Harper before our decision in this instant appeal altered the Jacts ojhis case. 

Therefore, we decline to reach whether Grape's potential for indefinite civil 

confinement on the facts prior to his Harper medication would have sufficed 

under the first Sell factor to overcome the Government's stated interests. We 

limit our holding here to the facts of Grape's individual case, as presented to us 

at the time of our decision. 

Id. at 603 n. I 0 (emphasis added). 

To summarize, a review of the Court's entire discussion addressing the likelihood of 

civil commitment shows that the Third Circuit indicated that given an unmedicated and 

incompetent Grape, it agreed with us that "there is no serious dispute that the likelihood of 

Mr. Grape reentering society unmedicated is extremely low" and "the likelihood of civil 

commitment [] does diminish the government's interest in this case". Id. at 601, 602. The 

Court also corrected our statement that "but for his confinement, Mr. Grape would be a 

danger" to take into account that Grape was forcefully medicated at Springfield precisely 

because he was a danger: "we now know that, despite his confinement, Grape when not 

medicated already posed a danger." Id. at 601. 1 Finally, the Court explicitly declined to 

decide the issue of whether the "potential for indefinite civil confinement" of an unmedicated 

and incompetent Grape "would have sufficed under the first Sell factor to overcome the 

Government's stated interests." Id. at 603 n.10. 

Given that Mr. Grape has already shown himself to be a danger while confined once, we would not be 

surprised to learn that Mr. Grape is involuntarily medicated during his stay at Springfield while the government's 

motion is pending. 

11 

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Thus, when we first analyzed the issue of potential civil confinement we did so 

considering an unmedicated and incompetent Grape who was not a danger while confined. 

The Third Circuit agreed with our conclusion but explicitly limited its holding to its 

consideration of a medicated and competent Grape. We now must revisit the issue of 

potential civil confinement of an unmedicated, incompetent, and perhaps deteriorated Grape 

that we now know has the potential to be a danger to others even in confinement. Neither our 

previous decision nor the Third Circuit's holding addressed this situation. 

We now find that there is a substantial likelihood that Mr. Grape will be civilly 

committed if he is not medicated; indeed it is a near certainty. As before there is no serious 

dispute that the likelihood of Mr. Grape reentering society unmedicated is extremely low. 

When unmedicated Mr. Grape presents a danger to others that is mitigated solely by the fact 

of his confinement, but even while confined is not eliminated. Mr. Grape has already been 

involuntarily medicated precisely because he was a danger to others even though he was 

confined. 

If Mr. Grape is not involuntarily medicated and not otherwise restored to competency, 

then he will be subject to the provisions of section 4246 ofTitle 18. The Third Circuit laid 

out the legal framework in that event as follows: 

Section 4246 provides the method for handling a defendant once he IS 

determined incompetent. The District Court would first need to 

find[ ] by clear and convincing evidence that the person is presently 

suffering from a mental disease or defect as a result of which his release 

would create a substantial risk of bodily injury to another person or 

serious damage to property of another, [in which case] the court shall 

commit the person to the custody of the Attorney General. The 

Attorney General shall release the person to the appropriate official of 

the State in which the person is domiciled or was tried if such State will 

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assume responsibility for his custody, care, and treatment. The Attorney 

General shall make all reasonable efforts to cause such a State to 

assume such responsibility. If, notwithstanding such efforts, neither 

such State will assume such responsibility, the Attorney General shall 

hospitalize the person for treatment in a suitable facility, until­

(1) such a State will assume such responsibility; or 

(2) the person's mental condition is such that his release, or his 

conditional release under a prescribed regimen of medical, 

psychiatric, or psychological care or treatment would not create 

a substantial risk of bodily injury to another person or serious 

damage to property of another; 

whichever is earlier. 

549 F.3d at 600-01, quoting 18 U.S.C. § 4246(d). 

There is no doubt that Mr. Grape "is presently suffering from a mental disease or 

defect as a result of which his release would create a substantial risk of bodily injury to 

another person." If Pennsylvania does not assume responsibility for his custody, care, and 

treatment, then he will remain hospitalized in federal custody. He would not be eligible for 

release until a Court determines that he would not create a substantial risk of bodily injury to 

another person. We do not foresee this happening. 

Mr. Grape is a pedophile, he experiences paranoid delusions, and he suffers from 

schizophrenia. He spent ten years in prison as a result of a sexual assault on a minor and 

engaged in similar conduct upon his release. The evidence also shows that Mr. Grape will 

only take medication that restores him to competency within the rigid confines ofthe 

Springfield Medical Center. He ceased taking his medications while confined at the Erie 

County Prison showing that the fact of confinement is insufficient to ensure compliance. His 

history shows that he only ever took restorative medications in a specialized medical facility. 

Thus, we cannot say that he will ever attain a mental condition such that his release or his 

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conditional release under a prescribed regimen of medical, psychiatric, or psychological care 

or treatment would not create a substantial risk of bodily injury to another person. 

In the event that Pennsylvania did assume responsibility for Mr. Grape, the relevant 

Pennsylvania statute states as follows: 

Whenever a person is severely mentally ill and in need of immediate treatment, 

he may be made subject to involuntary emergency examination and treatment. 

A person is severely mentally disabled when, as a result of mental illness, his 

capacity to exercise self-control, judgment and discretion in the conduct of his 

affairs and social relations or to care for his own personal needs is so lessened 

that he poses a clear and present danger of harm to others or to himself .... If ... 

the person has been found incompetent to be tried or has been acquitted by 

reason of lack of criminal responsibility on charges arising from conduct 

involving infliction of or attempt to inflict substantial bodily harm on another, 

... clear and present danger to others may be shown by establishing that the 

conduct charged in the criminal proceeding did occur, and that there is a 

reasonable probability that such conduct will be repeated. [A] clear and present 

danger of harm to others may be demonstrated by proof that the person has 

made threats of harm and has committed acts in furtherance of the threat to 

commit harm. 

70 Pa. Cons. Stat. § 7301. Under this statute there is no doubt that Mr. Grape would be found 

to be a mentally ill inmate who poses a clear and present danger of harm to others. 

Specifically, we find that the government's evidence would establish that the conduct charged 

in the indictment receiving and possessing child pornography -- did occur, and that there is a 

reasonable probability that such conduct will be repeated. In addition, we further find that 

there exists proof that Mr. Grape has made threats of harm and has committed acts in 

furtherance of the threat to commit harm, by virtue of his prior conviction of attempted rape of 

a minor. Finally, we find that his diagnosis of pedophilia, his mental illness, and his past 

history show a clear and present danger ofharm to others. 

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Under either the federal or Pennsylvania framework we find that Mr. Grape will be 

civilly committed if a trial cannot take place. We further find that this near certainty of civil 

commitment significantly undermines the government's interest in prosecuting Mr. Grape. 

We also note that Mr. Grape has already been incarcerated for approximately 58 months; a 

fact that also lessens the government's interest in this case, albeit not very strongly given that 

Mr. Grape would likely face a very lengthy term of imprisonment upon conviction. We 

therefore conclude that the government is unable to establish by clear and convincing 

evidence an "essential" or "overriding" interest that can overcome Mr. Grape's 

constitutionally protected liberty interest in avoiding the unwanted administration of 

antipsychotic drugs. Riggins, 504 U.S. at 134, 135, Harper, 494 U.S. at 221. 

Another statutory avenue for civil commitment was recently held constitutional by the 

United States Supreme Court, increasing the likelihood that Mr. Grape would not be released. 

United States v. Comstock, _ U.S. _, 2010 WL 1946729, 78 USLW 4412 (May 17,2010). 

The government now has the option to seek civil commitment by certifying Mr. Grape as a 

sexually dangerous person pursuant to 18 U.S.C. 4248, "Civil commitment of a sexually 

dangerous person." 

B. Side Effects 

Finally, we now know that Mr. Grape does suffer serious side effects from the 

medication. Before we can enter an involuntary medication order the Supreme Court directs 

that we "must find that administration of the drugs is substantially unlikely to have side 

effects that will interfere significantly with the defendant's ability to assist counsel in 

conducting a trial defense, thereby rendering the trial unfair." Sell, 539 U.S. at 181. 

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The government does not weigh in on this issue. Defense counsel, who has 

represented Mr. Grape since his initial appearance in 2005, stated at the January 20, 2010 

competency hearing that Mr. Grape suffers severe side effects: 

As soon as he got back [from Springfield after he regained competence] I 

visited John at the [Erie County] jail. At that time I believe he had I don't 

believe he was receiving the medication at that time, but he was, as a side 

effect of the medication, was suffering what I would describe to the Court as 

severe tardive dyskinesia, involuntary muscle movements, that are sometimes ­

it's a central side effect of the psychotropic medication, just involuntary jerks, 

muscle contractions, and that he was - it looked like he was getting shocked 

every few seconds, just twitching, and having the reaction that I would 

describe as you've seen somebody get shocked the way they jump or twitch. It 

was very severe. 

(Transcript ofCompetency Hearing, January 19,2010, at 8.) 

When we first analyzed the issue we relied completely on the doctors' opinion that any 

side effects would not inhibit Mr. Grape's ability to be competent for trial or to interact with 

his attorney, stating that "we are in no position to challenge the medical experts' opinion on 

this question." (Opinion, doc. 79, at 26.) The Third Circuit Court limited its decision on this 

issue to the facts before it stating that "although we find that Grape did suffer side effects 

while taking antipsychotic medications, we have limited information on the exact side effects 

and severity." Grape, 549 F.3d at 605. The Court relied on our post-appeal finding that once 

Grape was medicated pursuant to Harper he was competent to proceed to trial, and also on the 

parties' representations at oral argument that the side effects were minimal. Id. 

We now know that Mr. Grape suffers more than minimal side effects as reported by 

his counsel, but we too have limited information, and no medical opinion, on the side effects 

he suffered. Although the information we have concerning Mr. Grape's side effects is not 

complete, it is concrete information that he does in fact suffer serious side effects. Based on 

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this information it is reasonable to conclude that the side effects would likely interfere with 

Mr. Grape's ability to assist his counsel. However, without more information we cannot come 

to a definite conclusion as to whether the side effects are such that they outweigh the 

government's interest in overriding Mr. Grape's interest in unwanted medication. Therefore, 

we cannot find, as Sell requires, "that administration of the drugs is substantially unlikely to 

have side effects that will interfere significantly with the defendant's ability to assist counsel 

in conducting a trial defense, thereby rendering the trial unfair." Sell, 539 U.S. at 181. 

IV. Conclusion 

In accordance with the above, we find that the government has not met its burden of 

establishing all of the requisite Sell factors by clear and convincing evidence, and therefore is 

unable to override Mr. Grape's liberty interest in refusing medical treatment. Accordingly, 

the government's motion to involuntarily medicate Mr. Grape will be denied. 

Mr. Grape remains under our Order committing him to the Springfield Medical 

Facility for a period ofrestoration.2 We expect that the medical staff at Springfield will 

continue to attempt to restore Mr. Grape to competency pursuant to our Order of February 4, 

2010 (doc 126). We remain hopeful that Mr. Grape will regain competency during this time. 

ORDER 

I1A:" 

AND NOW, this 7 day of May 2010, it is hereby Ordered that the 

government's Motion for Involuntary Medication of Defendant to Restore Competency (Doc. 

127) be and hereby is DENIED. 

2 At this time, Mr. Grape's initial period of restoration is set to expire on July 16, 2010. (March 26, 2010 Letter 

from Unit Manager J.M. Roberts, attached as Ex. 1 to Doc. 127.) 

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Case 1:05-cr-00033-MBC Document 131 Filed 05/27/10 Page 17 of 18
The Court has been informed by the medical staff at Springfield that Mr. Grape's 

"final staffing date" for his period of restoration is July 16,2010. Therefore, IT IS FURTHER 

ORDERED that any delay, but to no later than July 16,2010, resulting from the Court's 

determination that defendant is mentally incompetent to stand trial shall be excluded under 18 

U.S.C. Section 3161(h)(4). 

...ui. & c." -e:u ,\<- Malle B. Cohill, Jr. 


Senior United States District Court Judge 


cc: counsel of record 

Marty C. Anderson, Warden 


MCFP SPRINGFIELD 


U.S. Medical Center for 


Federal Prisoners 


P.O. BOX 4000 


Springfield, MO 65801 


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