[00:00:01] Speaker 03: Case number 18-3082, the United States of America versus John Paul Gamara, Appellant. [00:00:07] Speaker 03: Mr. Wright, the Appellant. [00:00:09] Speaker 03: Mr. Coleman, the Appellate. [00:00:11] Speaker 03: Good morning. [00:00:12] Speaker 03: Good morning. [00:00:13] Speaker 03: May it please the Court, Lisa Wright, representing Mr. John Paul Gamara. [00:00:16] Speaker 03: I'd like to reserve two minutes for a rebuttal. [00:00:20] Speaker 03: The government rightly faced a high burden in seeking to forcibly mitigate Mr. Gamara in an attempt to restore his competency for trial. [00:00:28] Speaker 03: had to establish four things by clear and convincing evidence, and as to the second and fourth requirements, what the government called the cell medication factors, the government did not meet its burden. [00:00:38] Speaker 03: Because of the grave liberty interests at stake, this court holds the government to a high standard of proof, and here the government could have and should have done better. [00:00:46] Speaker 03: A couple of points about the clear error standard of review. [00:00:50] Speaker 03: An important aspect of which is that this court must give due regard to the trial court's opportunity to judge written discredibility. [00:00:56] Speaker 03: First, because the cell evidence came in before the magistrate, this court is in as good a position as the district court was to review the cell reports and the transcripts and determine whether the government's evidence was sufficient under the clear and convincing standard. [00:01:12] Speaker 03: And second, the disputed findings here were not based on factual testimony, but rather on expert opinion testimony. [00:01:19] Speaker 03: And such opinion testimony is not believed or disbelieved in the same way a fact finder would credit or discredit factual testimony. [00:01:27] Speaker 03: It's not Dr. Grady's credibility that's at issue here, but the reliability of his expert opinions based on his own explanation of what went into forming them. [00:01:38] Speaker 01: What evidence is there contrary to any opinion that Dr. Grady expressed? [00:01:45] Speaker 03: Well, the fact that he had a neuromuscular incident in the past was, we would argue, speculatively and irrationally disregarded actually in a way that was internally inconsistent with Dr. Grady's own testimony because the previous provider who he speculated had not believed Mr. [00:02:08] Speaker 03: Gamara actually did exactly what Dr. Grady himself testified he would do if he did believe somebody had a neuromuscular side effect, which would be to titrate the dosage. [00:02:20] Speaker 01: The way that the defendant described it was that he had stiffness. [00:02:25] Speaker 01: And I think Dr. Grady said that was the... But that wouldn't interfere with his competency to stand trial. [00:02:31] Speaker 03: Well, if it was a Parkinsonian side effect, which I think was the suggestion from Dr. Grady, that's what that sounded like. [00:02:38] Speaker 03: that suggests that he was in the category of people who were subject to this Parkinsonian symptoms, and I think that someone who's suffering those symptoms would be impaired, especially with the other problems that are in the record, the blood pressure incident, the hypersomnia. [00:02:55] Speaker 01: And the fact that he died was [00:02:57] Speaker 03: Well, we don't know what he meant by that, but we do know that whatever he meant, and he may not have been very articulate, as that's one of the symptoms of his disease, explaining it, but that he feared taking risperidone over, particularly over other medication, and that he had had bad experiences. [00:03:15] Speaker 03: And the fact that he may not have been able to articulate it, the APA guidelines say that [00:03:20] Speaker 03: doctors to consider patients' preference. [00:03:23] Speaker 03: And the doctor also said that risperidone have a similar side effect profile and effectiveness profile to these other antipsychotics. [00:03:31] Speaker 03: So the fact that he would choose risperidone over these others, it shows a disregard that really draws into question also the opinion. [00:03:42] Speaker 04: So let me be clear. [00:03:42] Speaker 04: In your brief, your argument is, as you started out here, given the government's burden [00:03:49] Speaker 04: the reliability of this doctor's testimony is the only issue that you're raising. [00:03:56] Speaker 04: And you say in your brief, he ignored evidence that your client had not in fact tolerated this drug. [00:04:07] Speaker 04: That's correct. [00:04:08] Speaker 04: He didn't ignore it, did he? [00:04:11] Speaker 04: I mean, he talked about it. [00:04:12] Speaker 04: It was in the records he reviewed. [00:04:15] Speaker 04: And I take you to be [00:04:17] Speaker 04: arguing that he didn't give adequate consideration to it, but he didn't ignore it. [00:04:23] Speaker 03: Well, it was my understanding he assumed that he considered that a non-factor because he said, I don't know what happened. [00:04:32] Speaker 03: He acted as if it hadn't happened because he said, I don't know what happened and I have a hypothesis [00:04:41] Speaker 03: that it was not a credible report, but I don't know. [00:04:44] Speaker 03: So he treated that as a non-factor when it should have been a factor. [00:04:48] Speaker 03: Also, as far as we know, he paid no mind to, there was no reference to the blood pressure incident, the hypersomnia, Mr. Gamara's repeated expressions of fear of taking resperidone in particular. [00:05:09] Speaker 02: Ms. [00:05:09] Speaker 02: Wright, are you making no argument with respect to the first cell factor, whether the length of Mr. Gamara's pretrial detention is a special circumstance that weighs against the government's interest? [00:05:23] Speaker 03: Well, that's tricky because it's kind of a moving target in the sense that the longer he's in, at some point, yes. [00:05:30] Speaker 03: I mean, we're now at 29 months. [00:05:32] Speaker 03: We're now over the high end of the [00:05:36] Speaker 03: guidelines. [00:05:37] Speaker 04: But you haven't raised that argument on appeal, have you? [00:05:41] Speaker 03: Not challenging that specifically, but I think when it occurred. [00:05:43] Speaker 04: Well, I think it's significant that you haven't. [00:05:46] Speaker 04: I mean, it was raised in the district court, and the district court gave his reason. [00:05:50] Speaker 04: But you haven't challenged that in your brief. [00:05:53] Speaker 03: Well, it's my understanding that that is kind of a threshold question to even consider the other factors. [00:06:00] Speaker 03: Is this serious? [00:06:01] Speaker 03: But I still think when the court is weighing ultimately the decision, [00:06:05] Speaker 03: how serious it is it's got to play in. [00:06:07] Speaker 04: How serious what is? [00:06:09] Speaker 03: The government interest. [00:06:11] Speaker 03: You might have a serious enough government interest to say yes, prong one, there is a serious government interest prong one, but then when the other prongs are very weak and as the interest gets lesser and lesser as time passes and they've gotten there largely what they're seeking. [00:06:28] Speaker 03: So that's in your brief? [00:06:30] Speaker 03: No, that is not an argument. [00:06:32] Speaker 03: How do we even know? [00:06:33] Speaker 03: I guess it's implicit in my argument that they didn't ultimately meet their burden. [00:06:39] Speaker 04: And my argument's about the rushed... Well, let me... I'm stressing you on this because you're an experienced appellate attorney. [00:06:46] Speaker 04: And when I was working on this case, I was surprised you hadn't raised it. [00:06:52] Speaker 04: That's your choice and decision. [00:06:55] Speaker 04: So you're focusing only on Dr. Grady's, the reliability of his expert opinion. [00:07:04] Speaker 03: Well, I think we do bring up the time and in the sense of, and the government's interest in the sense that we talk at length about the fact that he overstayed at Butner. [00:07:14] Speaker 03: He was at Butner for six and a half months instead of four. [00:07:16] Speaker 03: There was nine months that passed between the competency [00:07:20] Speaker 03: finding and the cell hearing. [00:07:22] Speaker 03: And then the cell hearing ends up being decided on a report that was done in two days without looking at him. [00:07:29] Speaker 03: And I guess I feel like implicit in that is a criticism of the government's degree of interest. [00:07:33] Speaker 02: I'm sorry to interrupt. [00:07:35] Speaker 02: Sorry. [00:07:36] Speaker 02: But the district judge ruled on the extra time that was taken past the four months. [00:07:43] Speaker 02: And that also wasn't appealed, right? [00:07:47] Speaker 02: ruling, he ruled that they violated the statute and we are pressing, yes, they violated the statute, but he ruled that it was not a ground for dismissal. [00:07:55] Speaker 02: So I also appreciate that you're in an awkward position because your client does not concede that he is incompetent. [00:08:02] Speaker 02: And so for example, on the first factor, one of the things that is, maybe we've crossed this bridge in Dillon, but the notion of resting general deterrence [00:08:14] Speaker 02: an interest in communicating to the public that these are serious offenses on someone who was delusional when he committed the offense. [00:08:23] Speaker 02: It's just, it's unclear that that's a robust governmental interest, but of course that's not an argument that you could make. [00:08:29] Speaker 02: And under the third factor, which I gather you also don't challenge, the question whether involuntary medication is necessary to further the interest. [00:08:38] Speaker 02: There it seems, one of the significant questions is, [00:08:43] Speaker 02: should more efforts have been made for voluntary medication, to establish more of a therapeutic relationship with the defendant. [00:08:51] Speaker 02: And again, that's not an argument I understand you to be in a position to make. [00:08:56] Speaker 02: Which raises for me, can you tell us why, I know in some of these cases there's a defense psychiatric expert not available to you. [00:09:05] Speaker 02: It was not in this case. [00:09:07] Speaker 02: There wasn't, I know, but is that just, [00:09:11] Speaker 02: anything you can shed light on. [00:09:13] Speaker 02: I don't have information on that. [00:09:17] Speaker 01: We received the communication from the U.S. [00:09:19] Speaker 01: Marshal here that Mr. Gamar is being held in the D.C. [00:09:25] Speaker 01: jail. [00:09:26] Speaker 01: Is that correct? [00:09:27] Speaker 01: Yes. [00:09:29] Speaker 01: But the communication also indicated that a year ago he was arrested and charged with assaulting a U.S. [00:09:37] Speaker 01: Marshal in this court's library. [00:09:41] Speaker 01: Are you aware of that? [00:09:43] Speaker 06: Yes. [00:09:44] Speaker 01: So when you talk about how long he's being held, how do we know that he's being held in connection with the offenses that we're dealing with as opposed to assault on a U.S. [00:09:55] Speaker 01: Marshal a year ago? [00:09:57] Speaker 01: And second of all, how can it be that he was out in the library court [00:10:04] Speaker 01: One year ago. [00:10:06] Speaker 01: Can you explain that to me? [00:10:07] Speaker 03: Oh, I think it was two years ago. [00:10:09] Speaker 03: I'm sorry. [00:10:09] Speaker 01: Well, the marshals said a year ago. [00:10:11] Speaker 03: I believe it was March of 2017. [00:10:14] Speaker 01: So he must have been released by that time? [00:10:18] Speaker 03: I believe that there was an arrest warrant issue. [00:10:22] Speaker 03: They didn't arrest him in this courthouse. [00:10:24] Speaker 03: They did not arrest him at the time. [00:10:26] Speaker 03: And then shortly thereafter, when the offense for which he was arrested in this case happened, [00:10:31] Speaker 03: I believe that's when they executed the – an arrest warrant had been issued at the interim. [00:10:34] Speaker 01: But here's my question. [00:10:35] Speaker 01: Yeah. [00:10:36] Speaker 01: You say he's been in prison all this time, and yet he was in the court library a year or two years – I don't know which – at which time he assaulted a U.S. [00:10:46] Speaker 01: Marshal. [00:10:47] Speaker 01: How can that be that he's been in prison all the – in connection with this – these offenses? [00:10:53] Speaker 03: I don't know that that [00:10:55] Speaker 03: that case you're referring to as going forward as a criminal case? [00:10:59] Speaker 03: I know that he was, arrest was processed, but I'm not sure. [00:11:02] Speaker 01: You see what I'm getting at is that it's, there's no record here, and we don't know why he's in the DC jail as opposed to Butner. [00:11:12] Speaker 01: We don't know why he was out. [00:11:14] Speaker 01: So I don't see how we can possibly deal with an argument that you're making now for the first time without any briefing that the government's interest is diminished. [00:11:27] Speaker 03: Well, I think he's at the DC jail. [00:11:29] Speaker 03: He's only authorized to be hospitalized at Butner for four months. [00:11:32] Speaker 03: And they already blew through that date. [00:11:34] Speaker 03: So he couldn't be hospitalized at Butner anymore, it's my understanding, for any kind of evaluation. [00:11:40] Speaker 03: So he's simply here, it's my understanding, he's waiting [00:11:43] Speaker 03: B.C. [00:11:43] Speaker 01: Jail for this appeal to – Has he been considered a danger to himself or others? [00:11:48] Speaker 03: Absolutely not. [00:11:50] Speaker 01: The government – Even after the assault on a U.S. [00:11:53] Speaker 01: Marshal? [00:11:54] Speaker 03: It's my understanding the government has never taken that position, and I believe the reports by Demisa and other reports in the record say that he's been – they don't consider that an issue, and specifically said there's no Washington v. Harper ground for – Thanks. [00:12:08] Speaker 03: – medicating him. [00:12:11] Speaker 03: I want to emphasize that Dr. Grady himself limited his own testimony, and he admitted that was limited because of what he called the unfortunate failure to examine Mr. Gamara. [00:12:26] Speaker 03: And we would argue that the Paoli case, for example, supports our argument that the absence [00:12:32] Speaker 03: in-person exam and taking a medical history increases the likelihood of an erroneous result. [00:12:37] Speaker 03: And the government's cases that it cites, they are decided on a much different burden of proof and also involved issues that were much simpler than these, side effect and medical appropriateness issues, which are quite nuanced. [00:12:49] Speaker 03: The caveats the witness placed himself, he acknowledged that this was out of 16 prior cell hearings. [00:12:56] Speaker 03: This is the only one where he did not meet with the defendant. [00:12:59] Speaker 03: He called it unfortunate. [00:13:00] Speaker 03: He said he had to be careful regarding opining on the medical appropriateness. [00:13:04] Speaker 03: The evaluation was indisputably rushed and the truth is that this, if you really look at the timing of everything, the truth is that this medical doctor [00:13:13] Speaker 03: who the government had to have to make its case on those two factors resisted giving his opinion under these circumstances. [00:13:19] Speaker 03: He did not want to do what he ultimately did, which was rush this report and come. [00:13:24] Speaker 03: And the history – I don't know too much detail here, but there was this email at the end of March, and then the prosecutor was on vacation, and the day he returned, which was a week before the scheduled hearing, [00:13:36] Speaker 03: He learns of Grady's response saying, I need three weeks. [00:13:40] Speaker 03: I can't do it on, you know, I need a court order. [00:13:42] Speaker 03: So then the prosecutor the next day has to file this emergency motion with the magistrate saying, please order him to do this. [00:13:49] Speaker 03: And then three days later, the Friday before the Monday hearing, Judge Bates rules that he's been held too long and the government's violated the statute and it has to be done by April 30th. [00:13:59] Speaker 03: So then on the Monday hearing, the prosecutor comes in still asking the magistrate, please help me get this guy here. [00:14:05] Speaker 03: Please make him do this report. [00:14:06] Speaker 03: That's on Monday the 9th. [00:14:08] Speaker 03: And the court says, that's your job. [00:14:10] Speaker 03: And so then the next day and the day after that, the 10th and 11th, are when he then writes this report and starts testifying. [00:14:16] Speaker 03: So I think what's clear is that although Grady ended up relenting in doing this rushed report without evaluating the defendant personally, he emphasized [00:14:27] Speaker 03: He emphasized in his testimony that the question whether or forcibly Medicaid, Mr. Gamaro, was what he called a moral and legal question, and that he wasn't opining on that. [00:14:36] Speaker 03: He was simply giving the court medical information. [00:14:39] Speaker 03: And I think that seems that that's how he justified in his mind going ahead and testifying under these unfortunate circumstances. [00:14:47] Speaker 02: I have a question relevant to that. [00:14:48] Speaker 02: There was some discussion in the lower court about the medical ethics rules, the American [00:14:56] Speaker 02: the Psychiatric Association Principles of Medical Ethics, and I think Judge Bates determined that the ethical rule that was cited was not relevant because it spoke to someone who is in the light of public attention. [00:15:14] Speaker 02: But looking at that very set of rules, that was number, [00:15:18] Speaker 02: principle number three, but there's another principle just below that number four is why you don't rely on it, which says that the psychiatrist may permit his or her certification to be used for the involuntary treatment of any person only following his or her personal examination of that person. [00:15:34] Speaker 02: To do so, he or she must find that the person, because of mental illness, cannot form a judgment as to what is in his or her own best interest and that without such treatment, substantial impairment is likely to occur to the person or others. [00:15:47] Speaker 02: So it's a process question. [00:15:49] Speaker 02: It's not a question as in some of our prior cases about whether medical ethics would trump the law demands, but it's a question about the process under which an individual can testify. [00:15:59] Speaker 02: And I'm curious whether you repudiate the relevance of that. [00:16:04] Speaker 03: No, I will just say I miss that. [00:16:07] Speaker 03: I'd have to look at that and see if that is referring to the kind of testimony that Dr. Grady gave, then yes, that would be an authority that would be needed. [00:16:16] Speaker 01: That provision deals with civil commitment. [00:16:19] Speaker 01: And the involuntary treatment means that the person is [00:16:24] Speaker 01: taken from their home or wherever and put into an asylum, we used to call it, or a hospital. [00:16:32] Speaker 01: And that's not the situation we have here. [00:16:35] Speaker 01: And in fact, the situation we have here is a psychiatrist testifying from, not on the basis of a personal examination, but on the basis of records. [00:16:45] Speaker 01: Correct? [00:16:46] Speaker 01: Right. [00:16:46] Speaker 01: And the, at least in 2017 and 2018, [00:16:52] Speaker 01: the APA guidance was that that was ethical. [00:16:57] Speaker 01: In fact, they said just that. [00:16:59] Speaker 01: And Judge Bates quoted that. [00:17:01] Speaker 01: So I don't see that there's an ethical problem. [00:17:04] Speaker 03: We're not arguing that it's an ethical violation. [00:17:07] Speaker 03: And I think to the extent that that point four is about civil, it may not technically [00:17:15] Speaker 03: be a violation, I don't have to look at it, but it certainly reflects on what the APA thinks is appropriate in making these kinds of decisions. [00:17:23] Speaker 01: There used to be a time, my guess is it's an old provision, because there used to be a time in this country where [00:17:30] Speaker 01: State by state, a psychiatrist could certify somebody as being mentally ill and the authorities would come take the person away and maybe there would be a hearing afterwards, but it was pretty perfunctory. [00:17:44] Speaker 01: Most of the states have now done away with that because of a series of decisions by the Supreme Court regarding due process hearings before the commitment. [00:17:53] Speaker 03: Right. [00:17:54] Speaker 03: Well, certainly under CEL and Dillon, that's obviously not the procedure that the [00:18:03] Speaker 03: And so I guess on my point about Dr. Grady pointing out that it's a moral and legal question and kind of saying, like, I'm just here to give you this information that I have. [00:18:11] Speaker 03: Here's my cell appendix that I give in every case. [00:18:14] Speaker 03: And I guess I would say to the court, this is a moral and legal question. [00:18:17] Speaker 03: And this court needs to decide, like, what standard are we holding the government to here? [00:18:23] Speaker 03: There's other reliability questions. [00:18:25] Speaker 04: So your rule would be that in order to order this type of medication, there must be a personal interview [00:18:33] Speaker 04: by someone the government is relying on for an expert opinion? [00:18:41] Speaker 03: Well, on the medication factors, they need a doctor, an MD. [00:18:45] Speaker 03: And I don't know that we don't need a bright line like that in order to prevail here, because there's a lot of problems with Dr. Grady's testimony. [00:18:53] Speaker 04: So I'm trying to understand what they are. [00:18:55] Speaker 04: Well, you said he ignored two things, all right? [00:19:01] Speaker 04: And we know he didn't ignore. [00:19:03] Speaker 04: He may not have given what you consider appropriate weight, but he reviewed the medical records. [00:19:12] Speaker 03: Well, he irrationally set aside the most important [00:19:15] Speaker 03: Irrationally? [00:19:17] Speaker 03: Yes, because he set it aside for a reason that was internally inconsistent with his own testimony. [00:19:23] Speaker 03: It really made no sense that he was not crediting that, given that he said that if someone said that to him, he would do exactly what that provider did. [00:19:32] Speaker 03: So it's really speculation by him, and he does set it aside. [00:19:36] Speaker 03: He may have looked at it, but then he puts it completely aside. [00:19:42] Speaker 03: And the government's answer to this that these could be products of delusion is obviously circular and also internally inconsistent in the sense that he was on a therapeutic dose of this risperidone at the time. [00:19:57] Speaker 03: that he made this report, and the government's arguing that this resolves delusions, so they are sort of having it both ways there. [00:20:04] Speaker 03: It just makes no sense. [00:20:05] Speaker 02: Ms. [00:20:05] Speaker 02: Wright, I just have a process question. [00:20:09] Speaker 02: We're in a position now where Judge Bates has authorized involuntary medication, and the record is clear that there is a one in four chance, according to the data that Dr. Grady testified about, that it will not restore him to confidence. [00:20:25] Speaker 02: And there's also a substantial portion of people put on these medications, there's reason to believe Mr. Gamara might be among them, who do suffer side effects. [00:20:37] Speaker 02: And then there's a question mark whether those side effects would interfere with Mr. Montgomery's right to a fair trial. [00:20:43] Speaker 02: And my process question is, how is the evaluation made and by whom, whether a patient is in fact restored and whether whatever side effects he is manifesting are such that would interfere with his right to a fair trial? [00:21:02] Speaker 02: Are we in a situation where the court has given the last word and that's up to the prosecutor? [00:21:11] Speaker 03: I guess I've been assuming, perhaps wrongly, that it would be left to the butner people, although that's one of the problems here that we pointed out. [00:21:23] Speaker 03: is that he's not going to be a butner for the trial. [00:21:26] Speaker 02: But presumably he would be restored to competency on some kind of long-acting psychotropic medication and brought here within the period when that medication was still acting, but... There's only two weeks, I think. [00:21:41] Speaker 02: It's just not clear to me who passes on that and whether there's any record of that. [00:21:47] Speaker 03: And that could change over time. [00:21:50] Speaker 03: I understand, and so could the, my problem with it too is that the symptoms, the side effects can change, like their cumulative. [00:21:58] Speaker 03: The Parkinsonian in particular, the longer you're on it, the more likelihood that it's gonna get worse. [00:22:05] Speaker 03: And so they may send him from Butner and he's having mild stiffness, or less than stiffness, but then he gets along the way. [00:22:14] Speaker 03: We haven't had actually a cell hearing where the government has met its burden of proof [00:22:18] Speaker 03: of showing that anyone other than Butner can manage these symptoms. [00:22:22] Speaker 03: So I think there's a lot of problems with the government's argument that don't worry. [00:22:28] Speaker 03: We've shown that anything can be managed. [00:22:30] Speaker 03: That can't be the rule. [00:22:31] Speaker 03: It can't be the rule that the doctor can just say, whatever, we'll just try things. [00:22:35] Speaker 03: And if something bad happens, we'll just fix it. [00:22:38] Speaker 03: That can't be the rule. [00:22:40] Speaker 03: And I don't understand how he can leave Butner [00:22:46] Speaker 03: if their whole side effect management, which Judge Bates relied on heavily, is keyed specifically to button our special expertise, special staffing, and uniquely positioned reassurances about how, don't worry, we can handle it. [00:23:00] Speaker 03: Then he's going to be in transit. [00:23:02] Speaker 03: And at the DC jail, for goodness knows how long, if there's a trial, there's going to be a long period of preparation and whatnot. [00:23:10] Speaker 03: And he's going to be sitting over there. [00:23:12] Speaker 03: The government cites a case saying they have a psychiatrist there. [00:23:16] Speaker 03: That's not what Dr. Grady testified was going to be provided. [00:23:19] Speaker 03: He talked about the clinical pharmacist and all the monitoring. [00:23:23] Speaker 03: So we don't think that's an answer at all. [00:23:26] Speaker 04: All right. [00:23:27] Speaker 04: Why don't you save the rest? [00:23:28] Speaker 03: Thank you. [00:23:29] Speaker 04: I'll give you a couple of minutes on the bottom. [00:23:31] Speaker 04: Let's hear from the government. [00:23:38] Speaker 04: Good morning. [00:23:39] Speaker 00: Good morning. [00:23:40] Speaker 00: May it please the court, my name is Nick Coleman, and I represent the United States. [00:23:44] Speaker 00: Appellant has not met his burden of showing that Judge Bates clearly erred in finding that the second and fourth cell factors were met in this case. [00:23:53] Speaker 00: I respectfully disagree with counsel that essentially this court should ignore Judge Bates' rulings and look solely to the magistrate. [00:24:04] Speaker 00: It was not the magistrate who made the rulings, ultimately. [00:24:07] Speaker 00: It is the district court's judgment, and that was the one made by Judge Bates. [00:24:11] Speaker 02: As I understood her point, she was saying that whether it was, not that we should give special weight to any findings by the magistrate, but that we should just look at the record because Judge Bates was not in any better position than we are because he was ruling on a cold record. [00:24:32] Speaker 02: If that were... And I'm not sure he made factual findings in any event. [00:24:37] Speaker 00: Well, he did make factual findings in the, I mean, that's what the clear, he has to find by clear and convincing evidence that these factors are met. [00:24:44] Speaker 00: He makes it on the basis of findings in his review of the record. [00:24:47] Speaker 00: Ultimately, it is appellant's burden to show that he clearly erred in making these findings, and we respectfully submit that that hasn't been shown here. [00:24:57] Speaker 00: In essence, it seems to me that the appellant is arguing that Dr. Grady must have conducted a personal interview of the appellant before he could render the medical opinion that he did. [00:25:11] Speaker 00: We'd submit that, again, if the appellant doesn't seem to dispute that a medical expert can, in fact, give a reliable medical opinion on the basis of a review of medical records. [00:25:23] Speaker 00: And here, that is what Dr. Grady did. [00:25:26] Speaker 00: Dr. Grady also reviewed the extensive reports of Dr. DeMiza and then Ms. [00:25:32] Speaker 00: Laxton and Dr. Dubois, who had conducted numerous personal interviews of appellants. [00:25:37] Speaker 00: had observed his condition, diagnosed him as suffering from either schizoaffective disorder or schizophrenia, and had also opined themselves that the appellant was likely going to need medication to be able to be restored to confidence. [00:25:54] Speaker 04: The council's point is only Dr. Grady was a medical doctor. [00:25:58] Speaker 00: That's true, Your Honor. [00:26:00] Speaker 00: But again, I'm not aware of any other legal context in which a court has held that a medical doctor must perform a personal examination of a patient before rendering a reliable medical opinion. [00:26:14] Speaker 00: And if that's the case, then it's hard to see why Judge Bates couldn't rely on his opinion, plus all of the other testimony and reports in the record [00:26:24] Speaker 00: of, you know, again, these are psychological experts. [00:26:27] Speaker 00: These are people who are PhDs in psychology who have observed it. [00:26:32] Speaker 02: Mr. Coleman, the record leaves me uncertain as to who was [00:26:40] Speaker 02: engaging with Mr. Gamara as an observer, and who was engaging with him as a doctor, or as a medical professional involved in treatment. [00:26:50] Speaker 02: From Mr. Grady's testimony, he talks about relying on the pharmacist's report, that that was his mode of monitoring the situation, Mr. Gamara. [00:27:01] Speaker 02: And he really doesn't talk about, I mean, he talks about the information in the Laxin and Dupont report, [00:27:08] Speaker 02: Can you clarify for us, the Lacson and Dubois task was to observe and report, or were they also in a treating role? [00:27:19] Speaker 02: Who was engaging in a treatment role with this individual over the six months? [00:27:24] Speaker 00: So the persons who were trying to treat him were at the Butner Institute, and this is certainly Dr. Dubois and Ms. [00:27:33] Speaker 00: Laxton under his supervision. [00:27:35] Speaker 00: They were attempting to see if his competency could be restored, sort of essentially while at the facility without an involuntary medication order. [00:27:45] Speaker 00: You do have Dr. Enman, the clinical pharmacist, who, based on his voluntary acceptance of a certain amount of, it looks like just Syroquel on a very intermittent basis, they're also trying to see, based on his voluntary acceptance, what they can do. [00:28:03] Speaker 00: What they determined, again, it's their report to the court that says this has failed. [00:28:10] Speaker 02: So that's my question, is were they in a treating role with respect to him? [00:28:15] Speaker 02: And I'm partly going off of your brief, which says that Dr. Grady believed that individual therapy along with medication was ideal. [00:28:28] Speaker 02: And I'm trying to understand, I mean I read the record and I know that there was a question whether individual therapy could [00:28:36] Speaker 02: substitute for medication that Mr. Grady doesn't want medication, right? [00:28:40] Speaker 02: And he hasn't challenged the third cell factor. [00:28:44] Speaker 02: But the government's responsibility is nonetheless to meet that factor. [00:28:47] Speaker 02: And I'm just, I just am having trouble understanding what in the record shows, for example, that there was someone establishing a therapeutic relationship with this individual to the extent that that might have been possible that then could have aided [00:29:04] Speaker 02: voluntary psychotropic medication. [00:29:07] Speaker 02: And I just don't have a clear sense of who was in that role. [00:29:11] Speaker 02: And when they say they're giving Seroquel as needed, is that like he's supposed to swing by the pharmacy if he wants it? [00:29:17] Speaker 02: I mean, I just don't have a sense of [00:29:20] Speaker 02: that situation. [00:29:22] Speaker 00: In terms of his acceptance of medication, I think what you can definitely tell from the record is when he arrived, Dr. Dubois and Ms. [00:29:30] Speaker 00: Laxton, they are the ones responsible trying to see whether or not he can be restored to confidence. [00:29:35] Speaker 00: They are trying in the sense that is a kind of treatment and what you can tell, what they both described in their testimony and in their report, was numerous efforts to try to, as they said, sort of [00:29:47] Speaker 00: see if they could talk him out of his beliefs and his resistance to taking medication. [00:29:52] Speaker 00: They tried to sort of challenge his various essentially irrational beliefs about what was going on, whether medication would help him. [00:30:02] Speaker 00: those efforts were unsuccessful, as they said. [00:30:05] Speaker 02: Do we know whether they're doing that in an interviewer capacity? [00:30:08] Speaker 02: The thing that made me wonder about this is the way that Dr. Grady really talks about the person on the scene being the pharmacist. [00:30:20] Speaker 02: He doesn't talk about the person on the scene giving the in-person treatment. [00:30:24] Speaker 02: being Dubois and his intern. [00:30:28] Speaker 00: I think we're mixing two different things here. [00:30:30] Speaker 00: One is what these psychologists are trying to do. [00:30:34] Speaker 00: They are certainly interviewing him to sort of, they already know that he has been declared incompetent and that he's been diagnosed as suffering from schizoaffective disorder, I think. [00:30:45] Speaker 00: they are trying to determine whether they agree with that diagnosis. [00:30:50] Speaker 00: They are using whatever methods they have in terms of, as they said, trying to challenge his beliefs. [00:30:56] Speaker 00: Now, whether that rose to the level of what the magistrate wanted in terms of sort of talk therapy, [00:31:03] Speaker 00: Again, that was an issue that was presented to the district court. [00:31:08] Speaker 00: Judge Bates determined that it was not necessary to try to sort of some regime of talk therapy. [00:31:13] Speaker 00: And it has not been challenged on appeal. [00:31:15] Speaker 00: So again, we haven't briefed it. [00:31:17] Speaker 00: We believe it's been abandoned. [00:31:19] Speaker 00: And at that point, it's not really properly before the court. [00:31:21] Speaker 00: Just sort of going forward in terms of pharmaceutical treatment, [00:31:25] Speaker 00: In other words, the actual drugs. [00:31:27] Speaker 00: What we know about what has been administered is certainly what's reflected in Dr. Henman's notes, because she was the one who actually administered the Seroquel. [00:31:36] Speaker 00: And I think what Dr. Grady says is that if the order for involuntary medication is ultimately presented, then what he says is, look, he's going to work with the clinical pharmacist. [00:31:51] Speaker 00: and get reports from her and essentially trying to determine sort of try to figure out what regime of medications would work. [00:31:59] Speaker 00: There was a question, I think, raised during Appellant's argument as to what sort of the process is going forward. [00:32:07] Speaker 00: And I think it's, if you look at Judge Bates's order, which is on page 210 of the, I think, volume one of the appendix, what it shows is that, you know, he, the district court orders the medical staff at Butner to involuntary medicate Appellant. [00:32:25] Speaker 00: And then basically says, I want a report every 30 days detailing the progress. [00:32:31] Speaker 00: So it's clear that there's going to be ongoing monitoring by the court. [00:32:36] Speaker 01: And Dr. Gray... He stayed the order, that order. [00:32:39] Speaker 00: Right, right. [00:32:39] Speaker 00: So right now nothing is happening. [00:32:41] Speaker 00: That's correct. [00:32:42] Speaker 00: So this order, this is what would happen if, as we respectfully submit, this court [00:32:48] Speaker 00: were to affirm his order, then ultimately he would be able, once the case returned to his jurisdiction, he'd be able to lift that stay, and this order would then go into effect. [00:32:59] Speaker 00: Right now, nothing is happening, that's correct. [00:33:01] Speaker 00: But what would happen would go forward. [00:33:02] Speaker 00: Do you know if Gamera was imprisoned for any other offenses? [00:33:06] Speaker 00: All right, so my understanding is that the incident involving the marshal, that there is a case [00:33:15] Speaker 00: in the D.C. [00:33:16] Speaker 00: Superior Court relating to that, but it is trailing this case. [00:33:20] Speaker 00: In other words, it is sort of in a holding pattern while this case proceeds first. [00:33:30] Speaker 00: I believe it was the current president, Your Honor. [00:33:35] Speaker 01: I also read that he made a threat against President Obama. [00:33:40] Speaker 00: That was some years earlier. [00:33:43] Speaker 00: So I believe he was held – I don't know what the ultimate legal outcome was of that case, I'm sorry. [00:33:48] Speaker 00: It doesn't appear to me from the record that it ever resulted in a conviction, but I don't know that for certain. [00:33:56] Speaker 00: But yes, he was hospitalized in the context of that case after making a threat against the previous president. [00:34:04] Speaker 00: Yes. [00:34:04] Speaker 04: So back to Judge Randolph's earlier questions. [00:34:09] Speaker 04: What authority is he currently being held? [00:34:14] Speaker 00: So my understanding is that at the beginning of this case he was held at the preliminary hearing as a danger to essentially based on [00:34:25] Speaker 00: the danger of the offense and I don't care about this. [00:34:28] Speaker 04: Judge Bates didn't have a problem with the fact that the time had expired at that point when he was ruling. [00:34:35] Speaker 00: Well, Judge Bates, it's not, I think if you look at it when, respecting that part of the order, which of course is not on appeal, he did express concern about the fact that at this point, and he recognized that look, an appellant has now been held longer than his guidelines range would be. [00:34:53] Speaker 04: But he said the appellant was at fault. [00:34:56] Speaker 00: He did say that, look, to some extent because he is sort of demanding all of these legal proceedings, which is his right, but of course it does naturally extend the length of the proceedings, but he also said that there was an interest in... So at some point was he released on these charges and held [00:35:12] Speaker 04: on the superior court charges? [00:35:14] Speaker 00: No, my understanding is that the incident with the marshal occurred before this one. [00:35:20] Speaker 00: So that case was, in a sense, sort of already in the works when this incident happened. [00:35:25] Speaker 00: That's my understanding. [00:35:26] Speaker 04: So is it correct? [00:35:28] Speaker 04: Is the government representing the court that Mr. Gamara is now being held [00:35:33] Speaker 04: in connection with the determination that he is incompetent to stand trial? [00:35:39] Speaker 00: My understanding is that he's not being held because of his incompetency per se. [00:35:42] Speaker 00: He's being held in this case on the basis of whatever findings were made. [00:35:47] Speaker 00: Again, I don't have that order in front of me, so I don't want to speak. [00:35:50] Speaker 04: No, I'm just trying to understand, is he being held, as it were, pursuant to judge basis [00:35:55] Speaker 00: I believe, yes, it is the district court that is currently holding him. [00:35:59] Speaker 00: I don't believe it is the superior court that on sort of separate authority is holding him. [00:36:03] Speaker 00: That's my understanding. [00:36:06] Speaker 00: You know, again, that is not an issue that has been presented here today, so obviously we haven't briefed it and we don't believe it is properly before this court. [00:36:14] Speaker 02: I think the forfeiture issues are significant, but I also think it's complicated given that Mr. Gomara, for example, because he denies that he needs the medication, wouldn't argue for a less intrusive way of administering it, or [00:36:34] Speaker 02: Seroquel rather than Risperidol. [00:36:38] Speaker 02: Does Seroquel come in a lung acting injectable form? [00:36:42] Speaker 00: Do you know? [00:36:43] Speaker 00: I don't know the answer to that. [00:36:45] Speaker 00: I'm not being a medical professional myself. [00:36:47] Speaker 00: I know only limited things about how these drugs work and what they do and how exactly they are administered. [00:36:54] Speaker 02: And of course the reason that I'm asking is because he expressed a specific aversion to and in fact had side effects on [00:37:01] Speaker 02: and expressed the most immune ability to and was to some limited degree more compliant on Seroquel and so one wonders why [00:37:13] Speaker 02: Dr. Grady would say, to the extent that he says anything about what the treatment plan is, I would start him on lying acting. [00:37:20] Speaker 00: Well, there are, I think, two very good reasons. [00:37:24] Speaker 00: Dr. Grady points out that, you know, he's not just sort of pulling risperidone out of a hat. [00:37:28] Speaker 00: It, based on his review of the medical records, it appeared to be the most effective treatment to sort of restore a parent's mental health. [00:37:37] Speaker 00: Syracueil, with respect to Syracueil, the second problem is that although a parent seems to be willing to sort of take Syracueil on a very intermittent basis, as he says, just to help them sleep, [00:37:50] Speaker 00: It doesn't appear, you can see from his records that at times he accepts only subtherapeutic doses and others, very small doses. [00:37:57] Speaker 00: He doesn't seem to be willing to engage in sort of like a long-term, very consistent plan of consistently taking it. [00:38:04] Speaker 00: So because of that, really although he may be more amenable to Seroquel, it's with conditions. [00:38:12] Speaker 00: Namely, it's only when he wants to take it and only a few days. [00:38:17] Speaker 02: But I think you appreciate that my question is if [00:38:20] Speaker 02: one of the factors that Dr. Grady says is relevant is the patient's relative preference, and Dr. Grady says these various psychotropic medications are roughly equally effective, then just as a matter of the responsibility of the government, why has he not chosen the one [00:38:41] Speaker 02: where there hasn't been a record of side effects and that the patient, under protest, granted, but that the patient has been relatively open to and hasn't had the delusion that he died on. [00:38:55] Speaker 00: Again, so I don't think that during the self-hearing, Dr. Grady was cross-examined on this point. [00:39:01] Speaker 00: In other words, why not just take Seroquel instead of that? [00:39:04] Speaker 00: And again, I can't put words in his mouth, not being a medical professional, be able to say why that for someone in an appellant's condition, [00:39:12] Speaker 00: why Seroquel would not be as effective as Risperidone. [00:39:15] Speaker 00: What we can see, I think, from the record, and what Dr. Grady says, is that, look, looking at his treatment history, looking at, you know, he's been treated for a number of years. [00:39:23] Speaker 00: I think it's almost a decade's worth of medical records, apparently, that he's looking at. [00:39:27] Speaker 00: And it appears that Risperidone is the one that he actually, in terms of it having the best effect of restoring his mental health, that's the medication that has worked the best. [00:39:36] Speaker 00: He's taken a number of other medications, Seroquel being one of them, [00:39:40] Speaker 00: But again, I think Dr. Grady's indication was that from his review of the records, it was risperidone that he would start with. [00:39:47] Speaker 00: But I think it's also important to note, Dr. Grady doesn't say, and certainly the order is not just risperidone and nothing else. [00:39:53] Speaker 00: In other words, we're not going to do anything else. [00:39:55] Speaker 00: He says, look, we're going to start. [00:39:56] Speaker 00: That's what I would start with. [00:39:58] Speaker 00: But he also says, I'm going to work with the patient. [00:40:00] Speaker 00: and we're going to try to see what works best. [00:40:03] Speaker 00: And if we have to change medications or if we have to change dosages, that's something that can be done. [00:40:08] Speaker 00: In addition, Dr. Brady says we'll look at what side effects may manifest themselves and try to adequately deal with those. [00:40:14] Speaker 02: I appreciate that and it's very difficult to sort of navigate the [00:40:21] Speaker 02: interplay between the court's responsibility and the lawyer's responsibility on the one hand and the medical expertise on the other. [00:40:29] Speaker 02: But there is, the order here basically gives carte blanche to Butler to treat this man. [00:40:37] Speaker 02: There's no time limit. [00:40:38] Speaker 02: There's no dosage limit. [00:40:40] Speaker 02: There's nothing really explaining how side effects would be addressed. [00:40:45] Speaker 02: For example, I have a question. [00:40:46] Speaker 02: If somebody's given a two week long injection, Dr. Grady says, oh, we would manage the side effects. [00:40:52] Speaker 02: We would take him off something if he had side effects. [00:40:54] Speaker 02: But presumably, if you have two weeks worth, [00:40:57] Speaker 02: of a psychotropic medication in your system, you can't be taken off that tomorrow. [00:41:02] Speaker 02: So the lack of detail in contrast to the orders that I've seen in some of the other cases and other circuits, I find concerning, and I just would be interested in hearing from you about that. [00:41:17] Speaker 00: Apparently it hasn't challenged sort of the content of the order here. [00:41:20] Speaker 00: I know, I know. [00:41:21] Speaker 00: In other words, it's just the basis for even giving it. [00:41:23] Speaker 00: I would say that, you know, I could imagine some district judges wanted to take, you know, a little bit more of a sort of a helicopter approach and sort of micromanage the medical professionals. [00:41:35] Speaker 00: I could also, however, imagine that, you know, Judge Bates doesn't feel like that's something that he can sort of do. [00:41:42] Speaker 00: And I think also there is a risk, I think, to sort of tying the hands of the medical professional and saying, like, I'm only going to allow this medication [00:41:50] Speaker 00: without a basis for saying why, or that it's going to be at this dosage, etc. [00:41:55] Speaker 00: And I think to the extent that appellant wanted that kind of sort of leash to be put on the medical professionals at Butler, you know, he could have introduced his own medical expert if he had wanted to. [00:42:09] Speaker 00: He could have tried to put in records saying that, look, you know, anything, this particular drug over this amount, you should forbid them from doing, [00:42:18] Speaker 00: But again, that wasn't done here. [00:42:20] Speaker 02: And I think, you know, the... But I just wonder as a matter of the affirmative obligations of the government and how we can really make sense of a cell hearing that is done without the specifics [00:42:36] Speaker 02: in place. [00:42:38] Speaker 00: And again, I think that that sort of, that tension I think between sort of wanting to have a judge sort of manage this, I think is addressed by the fact that that's why Judge Bates wants a report every 30 days. [00:42:53] Speaker 00: detailing what, you know, essentially what is being done and what the results are. [00:42:59] Speaker 02: Appellant will also be... And does it have an outer limit on the time that that Mr. Gamara is going to be a funder? [00:43:04] Speaker 02: They can keep trying, trying, trying. [00:43:07] Speaker 02: The statute doesn't provide a limit. [00:43:09] Speaker 00: Right. [00:43:09] Speaker 00: It doesn't. [00:43:10] Speaker 00: And the order doesn't provide a limit. [00:43:11] Speaker 00: Right. [00:43:12] Speaker 00: But I think it is, I don't think that it would be fair to assume that the district court here is simply going to allow indefinite treatment. [00:43:23] Speaker 00: And certainly, if that became an issue down the road, a panel would certainly be able to seek legal redress. [00:43:29] Speaker 00: I mean, you could start in the district court saying, look, enough is enough. [00:43:33] Speaker 00: It isn't working. [00:43:34] Speaker 00: Or make them provide more information. [00:43:36] Speaker 00: if he didn't get the relief. [00:43:38] Speaker 00: If he wanted it from the district court, he could come to this court again and ask for it to be reviewed. [00:43:41] Speaker 00: So it's not as if he's simply going into sort of like a black hole from which he will never return. [00:43:48] Speaker 00: I don't think that that is what's going on here. [00:43:50] Speaker 02: And do you have a sense of, is it when he appears in court, or is it Butner that makes the determination, A, he's in the 25% of patients for whom confidence is not restored, and or he's showing up [00:44:06] Speaker 02: for court and has sort of tics or neuromuscular facial grimacing that's gonna really just impede his ability to appear in a non-bizarre way for a jury. [00:44:20] Speaker 02: How does all that cash out just as a process matter? [00:44:24] Speaker 00: So I think what happens is you have these periods of 30 days of the time in which, or at least punctuated by 30 day reports in which the medical professionals attempt [00:44:36] Speaker 00: to sort of use medication to restore competence. [00:44:39] Speaker 00: At some point, they will be able to say whether it's going to work or not. [00:44:44] Speaker 00: If they believe that it works, they submit a report to the court saying, we find him competent. [00:44:48] Speaker 00: Then it comes back to the court, and the court has to make the determination whether it agrees. [00:44:53] Speaker 00: I mean, that's not a final determination. [00:44:54] Speaker 00: It's only the court who ultimately can make the finding, he is competent or not. [00:44:58] Speaker 00: That could be challenged by appellant's counsel, or they could go along with it. [00:45:06] Speaker 00: there's a hearing as to whether or not he's competent or not, presumably to the extent that there are side effects that are interfering [00:45:16] Speaker 00: with competence or the ability essentially to proceed to trial, that is presumably something that an appellant could talk to his own counsel about. [00:45:25] Speaker 00: And it would be up to counsel then, I think, to raise it with the court as why ultimately the medications aren't doing. [00:45:31] Speaker 00: In fact, the side effects are actually interfering with that. [00:45:34] Speaker 00: At this stage of the proceedings, I just think that it's somewhat speculative as to what will happen. [00:45:41] Speaker 00: I think ultimately, in order to know whether it's going to work, it has to be tried. [00:45:46] Speaker 00: Until it's tried, certainly nothing will happen, and certainly right now we know that appellant is not competent and the case cannot proceed. [00:45:57] Speaker 00: Again, I do want to assure the court that my understanding is this isn't going to be some sort of just open-ended blank check as to which an appellant will never have any remedy. [00:46:09] Speaker 00: That's, I think, definitely not the case. [00:46:12] Speaker 00: There's every indication that Judge Bates intends to keep monitoring the situation to make sure that it doesn't drag on too long or that it doesn't have the effect that it's supposed to do. [00:46:21] Speaker 02: I realize I've kept you far over your time, and I apologize. [00:46:24] Speaker 02: but just on that initial question about the government's interest. [00:46:30] Speaker 02: Clearly, the government has an interest in prosecuting such serious offenses as threats on the life of the president, as the punitive use of explosives involving potentially nuclear matter. [00:46:44] Speaker 02: I mean, there's just not, nobody's debated that. [00:46:48] Speaker 02: I think the questions come more to the amount of time this individual has been [00:46:53] Speaker 02: imprisoned, and the general deterrence interest is an interest in projecting, you know, this can't go on, but where you have an individual who's delusional, [00:47:11] Speaker 02: It feels unseemly, and I don't know how else to say it, to use a prosecution of such a person to communicate to the rest of the public that this is something that will not be tolerated, and I just, given that you're representing the government here, whether you have any comment on that. [00:47:27] Speaker 00: So obviously, as you recognize, it hasn't been briefed, so I think the certainly cases like this are obviously very difficult to deal with when you have somebody with a severe mental illness like this. [00:47:43] Speaker 00: at the same time, severe mental illnesses can also lead to crimes much more serious than this. [00:47:50] Speaker 00: And so it's obviously very difficult for law enforcement authorities, particularly who deal with this on the ground, for courts, I think, certainly for prosecutors, but also for medical professionals within the prison system to try to sort of [00:48:07] Speaker 00: balance all of these concerns. [00:48:10] Speaker 00: I think here, because so much attention is being paid to make sure that appellants' rights are respected, that the process goes through, it is extending these proceedings. [00:48:22] Speaker 00: It is extending them for a very long time. [00:48:27] Speaker 00: I don't think anybody can cast blame here. [00:48:29] Speaker 00: It's just how that it's worked out, and it just takes time for these legal proceedings to win their [00:48:34] Speaker 00: way through the court system and to come to a full resolution, including before this court. [00:48:39] Speaker 00: I don't think that a hard and fast rule of, well, these sorts of, you know, we're not going to have cell proceedings for these kinds of offenses because they aren't serious enough. [00:48:49] Speaker 00: I think that would be unwise. [00:48:52] Speaker 00: And I think, again, it will create sort of [00:48:55] Speaker 00: Dilemma is like this case. [00:48:57] Speaker 00: But in the end, I think it's just sort of what comes from the fact that we take self-proceedings so seriously and that they do take a lot of time. [00:49:09] Speaker 02: And he's not been deemed incompetent to make his own medical decisions. [00:49:12] Speaker 02: I mean, that's another thing that's puzzling. [00:49:18] Speaker 00: Right. [00:49:18] Speaker 00: Well, in a sense, that's what the cell hearing does. [00:49:23] Speaker 00: That's ultimately what the cell hearing does in the context of a criminal case. [00:49:27] Speaker 00: It ultimately says, no, you're going to have to be involuntarily medicated, and it follows a lot of the same law that I think that was there. [00:49:33] Speaker 02: Thank you, and I do apologize for the amount of time. [00:49:36] Speaker 00: Thank you. [00:49:36] Speaker 00: Are there any further questions? [00:49:38] Speaker 04: So in your responses to Judge Pillard, is the government still in the position it is not interested in pursuing civil commitment? [00:49:44] Speaker 00: So I can't answer that question at this stage because we obviously still think in the first instance that, you know, the criminal proceeding should go forward. [00:49:53] Speaker 00: Obviously, if we couldn't do that. [00:49:55] Speaker 00: I'm sorry, Your Honor? [00:49:57] Speaker 04: The government told Judge Bates at the time he was addressing this. [00:50:01] Speaker 00: Right. [00:50:02] Speaker 04: Now, further down the road, and I just want to know what the government's position is. [00:50:09] Speaker 00: I don't think that I can answer that question just yet. [00:50:12] Speaker 00: I think that was in the context of whether or not the government would be willing to abandon its criminal proceedings at the time rather than go through the cell process and instead go through with civil commitment. [00:50:22] Speaker 00: I'm not sure that that remark was that, you know, if the civil, if the criminal proceedings were closed off. [00:50:31] Speaker 00: I'm not prepared here sort of to say that – and it certainly wouldn't be my decision to make – that if this court were to disagree, if no involuntary medication could be done, and ultimately we're at a standstill that nothing more would happen, that I'm just – I'm not sure what those who have that authority would decide to do. [00:50:52] Speaker 00: If there are no further questions, we respectfully submit the judgment. [00:50:55] Speaker 04: As you know, no one's been asked who has the authority to make this decision. [00:50:59] Speaker 00: Well, I certainly haven't. [00:51:00] Speaker 04: That's all. [00:51:01] Speaker 00: Don't ask for that. [00:51:02] Speaker 00: So thank you. [00:51:05] Speaker 04: All right. [00:51:06] Speaker 03: Council for Aptone? [00:51:08] Speaker 03: I can make a few points. [00:51:11] Speaker 03: Grady was the only person qualified to testify about medication side effects and the specific benefits of a medication. [00:51:17] Speaker 03: That's his training. [00:51:17] Speaker 03: The other people aren't trained in that. [00:51:19] Speaker 03: And I want to point out that Laxton and Dubois [00:51:22] Speaker 03: although the defendant talked to them, they noted that he expressed concerns about revealing private medical history and symptoms with them, and that he should have had the opportunity to provide those things with the medical doctor who was the person in whose care he was. [00:51:39] Speaker 02: But that seems – I mean, that's irrational, but I guess it is his view. [00:51:42] Speaker 02: I mean, that he would have a doctor-patient confidentiality just as much with these [00:51:46] Speaker 03: to as he would with Grady. [00:52:00] Speaker 03: I want to point out that the prosecutor did acknowledge that this was a shorter timetable than is normal, given the issues. [00:52:10] Speaker 03: And that's what we're focusing on, is the seriousness of what's going on here. [00:52:13] Speaker 03: Also, the district court's opinion was infected with the speculative discounting of neuromuscular by Grady, because the court said [00:52:27] Speaker 03: that notwithstanding the risk of side effects, including the possibility that Mr. Guimara might experience neuromuscular side effects, that's what the court relied on. [00:52:36] Speaker 03: But the thing was that that sort of assumes that Grady credited it. [00:52:40] Speaker 03: And in fact, he didn't. [00:52:42] Speaker 03: There was more than a possibility. [00:52:44] Speaker 03: based on Grady's testimony, if you look at the earlier testimony of Grady. [00:52:49] Speaker 03: I didn't get a chance to say about the medical appropriateness prong that the doctor had to balance the benefit versus the suffering, and he actually appeared to sort of misunderstand [00:53:02] Speaker 03: that inquiry and that equation when he basically justified the medical appropriateness by saying if a patient in the community came to me, when that's not at all analogous, because when someone's seeking treatment, the benefit to them is ways differently than when someone thinks that he's not getting a benefit. [00:53:20] Speaker 03: It's not that the doctor couldn't override it, but to say, well, it's advertised on TV is safe and effective, that's just not medically, that's not what's needed. [00:53:29] Speaker 03: Regarding prong one, [00:53:31] Speaker 03: What we're not disputing is that a threat to the president is a serious offense. [00:53:35] Speaker 03: That I'm not disputing. [00:53:36] Speaker 03: But what we have raised is the length of time he was held, that there was a statutory violation, and how long it will be before this is over. [00:53:44] Speaker 03: And I guess I would argue that what's substantially enough evidence under the other prongs is affected by the government's interest, which is weakening by the day. [00:53:55] Speaker 03: And last, I guess, [00:54:01] Speaker 03: What we're saying overall in this Ties into Prong 1 is this is just way too serious. [00:54:06] Speaker 03: This is not the way that the government should be doing this, that if the government – United States wants to inject a citizen with a harmful substance, they have to do better. [00:54:15] Speaker 03: And maybe they got 90 percent of the way here, but they didn't get over the clear and convincing line, and we would ask the court to reverse Judge Bates' ruling and find clear error. [00:54:26] Speaker 04: Thank you.