Saturday, September 25, 2010

Case o' The Week: Ninth Doesn't Buy Government's Hard Sell -- Involuntary medication to restore comptency, Ruiz-Gaxiola

This week Judge Reinhardt writes, and CJ Kozinski joins, a great decision on Sell involuntary medication to restore competency. United States v. Ruiz-Gaxiola, Slip Op. 16275 (9th Cir. Sept. 24, 2010), decision available here.

Players: Important victory by D. Az. AFPDs Deirdre Mokos and Saul Huerta, Jr.. Decision by Judge Reinhardt, joined by Chief Judge Kozinski (both pictured above right) and Senior District Judge Robert J. Timlin.

Facts: Ruiz-Gaxiola was charged with illegal reentry, and was diagnosed with delusional disorder, grandiose type, and found incompetent to stand trial. Id. at 16280. The BOP failed in its Harper hearing to show that he was a danger to himself or the community, so the government sought involuntary medication under Sell to restore the defendant to competency. Id. at 16280-81 (quoting Sell v. United States, 539 166, 180-81 (2003).

Expert shrinks testified for the government and the defense; the magistrate and the district court found the government had met its burden by clear and convincing evidence and ordered involuntary medication. Id. at 16281. Ruiz filed an interlocutory appeal and obtained an emergency stay. Id.

Issue(s): “The government is allowed to medicate a defendant involuntarily for the purpose of rendering him competent to stand trial only in rare circumstances. The question is whether this case presents those rare circumstances.” Id. at 16280.

Held: “Our answer is that it does not.” Id. “We conclude that the district court erred in finding that the Sell factors were met without affording the question the thorough consideration and justification and especially careful scrutiny required . . .

Further, we hold that the district court clearly erred in finding that the government proved by clear and convincing evidence that the proposed regime of involuntary medication is substantially likely to restore Ruiz to competency, as required by the second Sell factor.

We also conclude that the district court clearly erred in finding that the government proved by clear and convincing evidence that the proposed treatment is medically appropriate, as required under the fourth Sell factor.” Id. at 16281 (internal quotations and citations omitted).

Of Note: Judge Reinhardt creates a new rule in this decision, and the Ninth joins five other circuits to require clear and convincing evidence as the government’s burden of proof to satisfy the Sell factors. Id. at 16289.

A second, new (albeit implicit) rule is that a lower court must make and articulate specific factual findings to support its conclusion that a Sell factor has been proven: “There is a compelling need in cases such as this for the district court to make factual findings so that the defendant may be assured that the trial court has conducted the stringent review mandated in light of the substantial infringement on his liberty interests, and so that upon review the appellate court may determine whether the findings are supported by clear and convincing evidence.” Id. at 16295.

Ruiz-Gaxiola is a lengthy, detailed, and sensitive treatment of the often barbaric practice of involuntary medication to restore competency to face trial – the opinion should be featured prominently in any defense opposition to a Sell motion.

How to Use: Two players in this Sell litigation did not fare well in Judge Reinhardt’s detailed opinion: FMC Butner (a BOP medical facility tasked with, among other things, restoring defendants to competency), and Butner psychiatrist Dr. Mark Cheltenham. Id. at 16284. Ruiz-Gaxiola is a published decision that is now ready-made impeachment for both actors. Butner shrinks are often repeat witnesses in national federal cases: if Dr. Cheltenham appears as a witness in your Sell matter, it’s worth chasing down the transcripts from the Ruiz-Gaxiola Sell hearing.

For Further Reading: C.D. Cal Senior District Judge Robert Timlin visited and joined this panel with Chief Judge Kozinski and Judge Reinhardt. Id. at 16275. What is that like, to be a visiting DJ in conference with a pair of legendary Ninth friends/foes who have been embracing and battling for decades? See article here. Maybe it's like visiting grandparents who are very fond of each other, yet bicker constantly? See blog here, discussing colorful dissent by Chief Judge Kozinski in United States v. Cruz, 554 F.3d 840 (9th Cir. 2009), majority decision written by Judge Reinhardt.

(Note, however, that Judge Timlin has been a federal judge since 1971, and a district judge since ‘94: he undoubtably held his own. See post here.

Image of the Honorable Chief Judge Alex Kozinski and Judge Stephen Reinhardt from

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at

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