206 F.3d 9 (D.C. Cir. 2000)
United States of America, Appelleev.Russell Eugene Weston, Jr., Appellant
No. 99-3119
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 1999Decided March 24, 2000

Appeal from the United States District Court for the District of Columbia (No. 98cr00357-01)
Gregory L. Poe, Assistant Federal Public Defender, argued  the cause for the appellant.  A. J. Kramer, Federal Public  Defender, and L. Barrett Boss, Assistant Federal Public  Defender, were on brief for the appellant.
David B. Goodhand, Assistant United States Attorney,  argued the cause for the appellee.  Wilma A. Lewis, United  States Attorney, and John R. Fisher and Erik P. Christian, Assistant United States Attorneys, were on brief for the  appellee.
Before:  Henderson, Rogers and Tatel, Circuit Judges.
Opinion for the court filed Per Curiam.


1
Circuit Judge Henderson filed a separate concurring  opinion.


2
Circuit Judge Rogers filed a separate concurring opinion.


3
Circuit Judge Tatel filed a separate concurring opinion.

Per Curiam:

4
Appellant Russell Eugene Weston Jr. appeals  the district court's order authorizing the Bureau of Prisons  (Bureau) to forcibly medicate Weston with anti-psychotic  drugs based on the Bureau's determination that the treatment is medically appropriate and essential for Weston's  safety and for the safety of others.  Because the district court's order relied on testimony supporting forced medication for the purpose of making Weston competent to stand  trial, an additional justification which theBureau advanced  but the district court found unnecessary to reach, we reverse  the district court and remand for consideration of both of the  Bureau's justifications.


5
On October 9, 1998 Weston, a diagnosed paranoid schizophrenic, was charged in a six count indictment with the July  24, 1998 murder of two United States Capitol Police officers  and the attempted murder of a third.1  On April 22, 1999 the  district court found Weston, who is confined at the Federal  Correctional Institution in Butner, North Carolina (Butner), incompetent to stand trial and committed him for treatment  to restore his competency pursuant to 18 U.S.C. § 4241(d).The incompetency order provided that, should medical personnel conclude anti-psychotic injections were warranted, the  Bureau could seek involuntary medication authorization in  accordance with "the administrative procedures under 28  C.F.R. § 543 [sic],2 provided that counsel for Mr. Weston  receive reasonable notice before a hearing commences."  Appendix vol. i (App. i) 47.  The order further directed:  "No  administration of psychotropic medications to defendant  against his will shall occur without the prior approval of this  Court in a written Order;...."  Id.


6
On May 13, 1999 the Bureau conducted an involuntary  medication hearing without notifying Weston's counsel.  Weston was represented at the hearing by Ray Pitcairn, the Day  Watch Nursing Supervisor at Butner.  Following the presentation of evidence the hearing officer, Bryon Herbel, M.D., a  psychiatrist, determined Weston should be forcibly medicated.  Butner's warden affirmed the determination.  The district court held a hearing on May 28, 1999 to review the  Bureau's decision and in an order dated June 18, 1999 remanded the matter to the Bureau because Weston's counsel  had not been notified of the hearing in accordance with the  April 22, 1999 incompetency order and because the Bureau  had neither sought nor presented at the hearing evidence  favorable to Weston.


7
The Bureau conducted a second hearing before Dr. Herbel  on July 8, 1999.  Weston was again represented by Pitcairn  who presented the written report of Weston's expert witness,  Raquel E. Gur, M.D., also a psychiatrist.  In addition, Pitcairn offered arguments suggested to him by Weston's counsel, who were not themselves permitted to attend the hearing. The government offered the expert testimony of Sally C.  Johnson, M.D., Associate Warden for Health Services at  Butner and Weston's treating psychiatrist.  At the conclusion  Dr. Herbel determined Weston "suffer[s] from a mental  illness, and that medication is an appropriate treatment for  [his] illness, and that [he] can be treated against [his] will."App. ii 90-91.  He explained his decision to Weston as  follows:


8
The reason is that you are gravely disabled, you pose a risk of dangerousness to others and to yourself without treatment, and that you need to become competent to stand trial, and that no other inter--less intrusive intervention will be successful for them.


9
Id. at 91.  Weston appealed to the warden who again affirmed  the hearing officer, stating:


10
Medical staff have diagnosed you with Schizophrenia, Paranoid Type, Chronic.  The record indicates that you experience a variety of grandiose and paranoid delusions including a belief that you are able to reverse time, and that people who are killed are not really dead.  Such delusions have caused you to be dangerous to others, and potentially to yourself, gravely disabled, and incompetent for trial.  This conclusion is supported by the record. Mental Health staff have determined that you suffer from a mental disease which may be treated with psycho-tropic medication, and restore your competency for trial.  Therefore, your appeal is denied and staff may proceed accordingly.


11
App. ii. 3.


12
On August 20, 1999 the district court held a second judicial  review hearing.  In a decision dated September 9, 1999 the  court upheld the Bureau's decision to medicate Weston on the  ground that "the proposed medication is medically appropriate and that, considering less intrusive alternatives, it is  essential for the defendant's own safety or the safety of  others."  United States v. Weston, 69 F. Supp. 2d 99, 118 (D.D.C. 1999).  The court declined to review the Bureau's  additional justification, that medication was necessary to render Weston competent for trial, or to address Weston's claim  that forced medication would infringe his Sixth Amendment  right to a fair trial.  These two issues, the court found, were  not then ripe "where the defendant has not yet been arraigned and where there is no record evidence to suggest that the  government's medical reasons are pretextual."  Id. at 107.  In the court's opinion the issues could adequately be addressed later "[in] the event that medication successfully  renders the defendant competent to stand trial."  Id.  Weston contends the Bureau's decision is unsupported by the  record and that the Sixth Amendment argument is now ripe  for resolution.  We agree on both points.


13
As an initial matter, Weston asserts the district court  applied the wrong standards in reviewing the Bureau's determination "that anti-psychotic medication is medically appropriate and that, considering less intrusive alternatives, it is  essential for the defendant's own safety or the safety of  others."  69 F. Supp. 2d at 118.  Following the Supreme  Court's opinion in Washington v. Harper, 494 U.S. 210, 223  (1990), the district court reviewed the Bureau's medical/safety  justification substantively under a "reasonableness" standard,  see 69 F. Supp. 2d at 116-18, and procedurally under the  Administrative Procedure Act's "arbitrary and capricious"  test, see 69 F. Supp. 2d at 107 (citing 5 U.S.C. § 706(2)(A)).Weston maintains that the Supreme Court's decision in Riggins v. Nevada, 504 U.S. 127 (1992), in which the court  considered forced medication of a detainee, as here, rather  than of a convicted inmate, as in Harper, requires instead  review under the "strict scrutiny" and "de novo" standards.  It is true the Riggins Court recognized that decisions affecting a detainee's trial rights may warrant closer scrutiny than  those made for inmates who have already been tried and  convicted.  See 504 U.S. at 135.  ("Under Harper, forcing anti-psychotic drugs on a convicted prisoner is impermissible  absent a finding of overriding justification and a determination of medical appropriateness. The Fourteenth Amendment  affords at least as much protection to persons the State detains for trial.") (emphasis added;  citations omitted).  The  Court, however, declined to clarify the standards of review for  detainees.  The opinion makes no mention of the applicable  procedural standard and the Court found "no occasion to  finally prescribe ... substantive standards."  Id. at 136.  We  likewise need not decide the issue at this point, given the lack  of support for the district court's medical/safetydetermination, preferring instead to await the district court's findings  on remand using the guidance that Riggins provides.


14
In Riggins the Supreme Court overturned the Nevada  state court conviction of a defendant who had been involuntarily medicated during trial.  The Court acknowledged, as  did the district court below, that involuntary medication may  be justified by medical/safety concerns and might be justified  by the need to render a defendant competent for trial:


15
Nevada certainly would have satisfied due process if the prosecution had demonstrated, and the District Court had found, that treatment with anti-psychotic medication was medically appropriate and, considering less intrusive alternatives, essential for the sake of Riggins' own safety or the safety of others.  See Harper, supra, 494 U.S., at 225-226, 110 S.Ct., at 1039; cf. Addington v. Texas, 441U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (Due Process Clause allows civil commitment of individuals shown by clear and convincing evidence to be mentally ill and dangerous).  Similarly, the State might have been able to justify medically appropriate, involuntary treatment with the drug by establishing that it could not obtain an adjudication of Riggins' guilt or innocence by using less intrusive means.  See Illinois v. Allen, 397U.S. 337, 347, 90 S.Ct. 1057, 1063, 25 L.Ed.2d 353 (1970)(Brennan, J., concurring) ("Constitutional power to bring an accused to trial is fundamental to a scheme of 'ordered liberty' and prerequisite to social justice and peace").


16
504 U.S. at 135-36.  Nevertheless, the Court overturned the  state court medication order for inadequate factual findings,  in part because it "did not adopt the State's view, which was that continued administration of Mellaril was required to  ensure that the defendant could be tried" and did not "indicate a finding that safety considerations or other compelling  concerns outweighed Riggins' interest in freedom from unwanted anti-psychotic drugs."  Id. at 136.  The district court's  determination below suffers from similar defects.


17
First, although the district court, unlike the state court in  Riggins, made a finding that anti-psychotic medication is not  only medically appropriate but also essential to safety, the  finding is not supported by the record.  The evidence below  focused on the feasibility and desirability of restoring Weston's competency.  Thus, while the record focused on whether  the administration of antipsychotic drugs was "medically appropriate" to make him competent to stand trial, there is  comparatively little evidence on the safety issue.  Further,  what evidence there is indicates that in his current circumstances Weston poses no significant danger to himself or to  others.  Dr. Johnson herself testified at the August 20, 1999  hearing that, given Weston's "immediate containment situation," she felt confident the Butner staff "can prevent him  from harming himself or others under his immediate parameters of incarceration where he is in an individual room with  limited access to anything that he could harm himself with or  anyone else with, and he remains under constant observation."  JA ii 121.  In her view, "those precautions are adequate to prevent risk--to prevent episodes of harm to himself  or to others."  Id.  In light of this testimony, we cannot  sustain the district court's determination that involuntary  medication is "essential for the defendant's own safety or the  safety of others."  69 F. Supp. 2d at 118.  If the government  advances the medical/safety justification on remand, it will  need to present additional evidence showing that either Weston's condition or his confinement situation has changed since  the hearing so as to render him dangerous.


18
Second, the district court here (like the state court in  Riggins) failed to address the government's theory that medication is necessary to render Weston competent for trial,  describing the trial competency issue as "collateral" and notyet "ripe."  We disagree with this characterization.  Involuntary anti-psychotic medication has the potential to adversely  affect the defendant's ability to obtain a fair trial as guaranteed under the Sixth Amendment.  See United States v.  Brandon, 158 F.3d 947, 954 (6th Cir. 1998) (concluding forced  medication may implicate Sixth Amendment right);  United  States v. Morgan, 193 F.3d 252, 264-65 (4th Cir. 1999)  (acknowledging same).  Weston's challenge here, based on  this potential, is ripe for two reasons.  First, as noted above,  the evidence, including Dr. Johnson's testimony and the  determinations of both the hearing officer and the warden,  see supra pp. 11-12, focused on the need to restore Weston's  competency, placing the issue squarely before the district  court.  Second, and more important, because anti-psychotic medication may affect the defendant's ability to assist in his  defense, see Riggins, 504 U.S. at 137;  id. at 143 (Kennedy, J.,  concurring);  Brandon, 158 F.3d at 954, post-medication review may come too late to prevent impairment of his Sixth  Amendment right.  Accordingly, both the defendant, whose  right to present a defense may be infringed by involuntary  medication, and the government, whose eventual prosecution  of the defendant may be foreclosed because of the infringement, are entitled to pre-medication resolution of the Sixth Amendment issue.


19
For the foregoing reasons, we reverse the district court's  September 9, 1999 memorandum opinion and order and remand for the court to assess each of the Bureau's justifications and to consider the potential impact of compelled  medication on Weston's Sixth Amendment fair trial right.3Because the trial competency and Sixth Amendment issues  are legal rather than medical or penological issues, on remand the district court should retain jurisdiction to decide  them itself.  See Brandon, 158 F.3d at 960 ("district court  [must] make the legal determination of whether [defendant]  if forcibly medicated, would be competent to participate in a  trial that is fair to both parties," which "is distinct from the medical determination that the medical experts [ ] discuss")  (emphasis original).


20
So ordered.



Notes:


1
 The indictment charged two counts of murder of a federal  officer while engaged in his official duties in violation of 18 U.S.C.  §§ 1113 and 1111;  one count of attempted murder of a federal  officer while engaged in his official duties in violation of 18 U.S.C.  §§ 1114 and 1113;  one count of carrying and using a firearm during  and in relation to a crime of violence in violation of 18 U.S.C.  § 924(c);  and 2 counts of carrying and using a firearm during and  in relation to a crime of violence and causing a death thereby in  violation of 18 U.S.C. § 924(c) and 924(j)(1).


2
 Bureau regulation 549.43 requires that, before a patient's involuntary medication, a hearing be conducted by a psychiatrist, with  24-hour notice to the patient, at which he has the right to appear, to  have a staff representative, to present evidence and to request that  witnesses be questioned by his staff representative or by the  hearing officer.  The hearing officer's determination regarding  medication may be appealed to the institution's mental health  division administrator.


3
 The court should also consider whether there is any merit to  Weston's contention that medical ethics preclude ordering a patient  medicated in a potential capital case.



21
Karen LeCraft Henderson, Circuit Judge, concurring:


22
I concur in the majority's opinion but write separately to  express my belief that the applicable standards for reviewing  an institution's medical/safety determination appear to me, at  least, to be the same for a detainee as for a convicted inmate.


23
In Washington v. Harper, 494 U.S. 210, 223 (1990), the  Supreme Court adopted a substantive "standard of reasonableness" under the Due Process Clause in deciding to involuntarily medicate a prison inmate because "[t]he extent of a  prisoner's right under the Clause to avoid the unwanted  administration of antipsychotic drugs must be defined in the  context of the inmate's confinement" and because the reasonableness standard satisfies "the need to reconcile [the court's]  longstanding adherence to the principle that inmates retain at  least some constitutional rights despite incarceration with the  recognition that prison authorities are best equipped to make  difficult decisions regarding prison administration."  Id. at  222-24.  Applying this standard, the Court concluded that,  "given the requirements of the prison environment, the Due  Process Clause permits the State to treat a prison inmate  who has a serious mental illness with antipsychotic drugs  against his will, if the inmate is dangerous to himself or  others and the treatment is in the inmate's medical interest,"  494 U.S. at 227.  The same reasoning supports applying the  reasonableness standard beforeconviction and the Court  recognized as much in Riggins v. Nevada, 504 U.S. 127  (1992), noting that "in the trial or pretrial settings, Nevada  certainly would have satisfied due process if the prosecution  had demonstrated, and the District Court had found, that  treatment with antipsychotic medication was medically appropriate and, considering less intrusive alternatives, essential  for the sake of Riggins' own safety or the safety of others."504 U.S. at 135 (citing Harper, 494 U.S. at 225-226).


24
Procedurally, the Harper Court concluded that the role of  the courts is simply "to ensure that the decision to medicate  an inmate against his will is neither arbitrary nor erroneous  under the [substantive due process] standards."  494 U.S. at  228.  "An inmate's interests," the Court concluded, "are  adequately protected, and perhaps better served, by allowing  the decision to medicate to be made by medical professionals rather than a judge," id. at 232.  Again, the Court's rationale  applies no less to a detainee than to a convicted inmate.  I  therefore believe that the district court correctly adopted as  its procedural standard of review the one set forth in the  Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., which  permits agency action to be set aside only if it is " 'arbitrary,  capricious, an abuse of discretion, or otherwise not in accordance with law.' "  See 69 F. Supp. 2d at 116.  I further  believe that under this standard the district court properly  upheld the Bureau's determination that antipsychotic medication is "medically appropriate," a finding that is well supported by the record, although the majority opinion correctly  holds the evidence does not support the concomitant finding  that in his then-confinement situation Weston posed a safety  risk to himself or others*.


25
Finally, far from agreeing with Judge Tatel's apparent  concern over the defendant's "presentation" at trial, I see no  difference between his potentially altered state then, as compared to his conduct on the day of the murders, and the  status of a defendant whose defense to murder is of the "heat


26
of passion" variety.  No one would argue that due process  requires that the latter duplicate his "hot blood" in court.  In  any event the testimony of both lay and expert witnesses,  whether on direct or cross, will suffice to address any differences in Weston's appearance.

Rogers, Circuit Judge, concurring:

27
I concur in the  judgment of the court reversing the district court's order and  remanding the case for further findings.  I write separately  principally to note a reservation with regard to the proper  standard of review of a regulation of the Federal Bureau of  Prisons as applied to a pretrial detainee, and to clarify our  reasons for remanding.  I also join Judge Tatel's concurring  opinion describing the "daunting task" faced by the district  court upon remand.  See infra Tatel, J., concurring at 19.


28
Confronted with the question of whether a judicial hearing  is required before the State may treat a mentally ill convicted  prisoner with antipsychotic drugs against his will, the Supreme Court in Washington v. Harper, 494 U.S. 210 (1990),  held that, "[g]iven the requirements of the prison environment, the Due Process Clause permits the State to treat a  prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to  himself or others and the treatment is in the inmate's medical  interests" Id. at 227.1  Harper had been convicted of robbery,  was incarcerated for approximately four years during which  he was mostly housed in the prison's mental health unit, and  was then paroled on the condition that he participate in  psychiatric treatment.  While incarcerated he had consented  to the administration of antipsychotic drugs, and while on  parole he continued to receive psychiatric treatment.  Eventually, he was civilly committed, and his parole was revoked  after he assaulted two hospital nurses.  Upon returning to  prison, he initially consented again to treatment but in November 1982 he refused to continue taking his medications. He subsequently filed a civil action under 42 U.S.C. § 1983  for injunctive relief and monetary damages.  Id. at 217.  The  trial court denied relief and was reversed on appeal by the  Washington Supreme Court, which held that Harper had a  liberty interest in refusing antipsychotic medication and thus  was entitled to a hearing with full adversarial procedural  protections.  Id. at 218.


29
The Supreme Court reversed.  In the Supreme Court's  view, while Harper possessed "a significant liberty interest in  avoiding unwanted administration of antipsychotic drugs,"  due process was met where the State established by a  medical finding the existence of a mental disorder likely to  cause harm if not treated, and where the antipsychotic medication was prescribed by a psychiatrist, with the approval of a  reviewing psychiatrist.  Id. at 221-22.  The Court noted that  such protections "ensure[d] that the treatment in question  will be ordered only if it is in the prisoner's medical interests,  given the legitimate needs of his institutional confinement."Id. at 222.  Noting "[t]he legitimacy, and the necessity of  considering the States' interests in prison safety and security," the Harper Court concluded that "the proper standard  for determining the validity of a prison regulation claimed to  infringe on an inmate's constitutional rights is ... whether  the regulation is 'reasonably related to legitimate penological  interests.' "  Id. at 223 (citation omitted).  Most pertinent  here, the Supreme Court explained that this standard applies  "even when the constitutional right claimed to have been  infringed is fundamental, and the State under other circumstances would have been required to satisfy a more rigorous  standard of review."  Id. (emphasis added).  In other words,  the Supreme Court observed, while "inmates retain at least  some constitutional rights despite incarceration.... th[is]  standard of review ... applies to all circumstances in which  the needs of prison administration implicate constitutional  rights."  Id. at 223-24.


30
Subsequently, in Riggins v. Nevada, 504 U.S. 127 (1992),  the Supreme Court addressed a claim by a pretrial detainee  on direct appeal from his convictions that his right to a fair  trial was denied under the Sixth and Fourteenth Amendments by the refusal to suspend the administration of an  antipsychotic drug during his trial.  Shortly after his arrest,  Riggins had complained of hearing voices and a psychiatrist  prescribed Mellaril, an anti-psychotic drug.  The psychiatristlater increased the dosage in response to Riggins' continued  complaints.  Id. at 129.  After he was found competent to  stand trial, and after a hearing at which the trial judge denied


31
his motion to have the medication suspended until the end of  his trial, Riggins presented an insanity defense and testified  on his own behalf at trial.  Id. at 130-31.  The jury found him  guilty and he was sentenced to death.  Id. at 131.  The  Nevada Supreme Court affirmed his convictions, rejecting  Riggins' claims that forced administration of Mellaril denied  him the ability to assist in his own defense and prejudicially  affected his attitude, appearance, and demeanor at trial, and  that the State had neither demonstrated a need to administer  Mellaril nor explored alternatives to giving him 800 milligrams of the drug each day.  Id. at 131.  The Supreme Court  reversed and remanded, concluding that "[i]t is clearly possible that [the] ... side effects [of anti-psychotic medication]  had an impact upon not just Riggins' outward appearance,  but also the content of his testimony on direct or cross  examination, his ability to follow the proceedings, or the  substance of his communication with counsel."  Id. at 137.


32
In considering Riggins' "core contention that involuntary  administration of Mellaril denied him 'a full and fair trial,' "  the Supreme Court noted that its decision in Harper "provides useful background for evaluating this claim."  Id. 134.But contrasting the circumstances in Riggins with the  "unique circumstances of penal confinement" that had tempered its determination in Harper of what process is due a  convicted prisoner, the Supreme Court stated that "[t]he  Fourteenth Amendment affords at least as much protection to  persons the State detains for trial."  Id. at 135 (emphasis  added).  While the Court stated that it was not adopting a  standard of strict scrutiny, as it had "no occasion to finally  prescribe such substantive standards...."  507 U.S. at 136, it  nonetheless was clear that the Supreme Court did not simply  apply the Harper standard.  Id. at 156-57 (Thomas, J., dissenting).2


33
The Constitution and the Supreme Court long have recognized that the rights of a convicted prisoner are different  from those of a pretrial defendant.  See U.S. Constitution,  Amends. V & VI;  Riggins, 504 U.S. at 135;  Bell v. Wolfish,  441 US 520, 535-36 (1979).  Similarly, the standards are  different depending on whether the commitment because of  mental illness occurs before or after a criminal trial.  Compare Addington v. Texas, 441 U.S. 418, 428-29 (1979), and  Jackson v. Indiana, 406 U.S. 715, 738 (1972), with Jones v.  United States, 463 U.S. 354, 370 (1983).  To the extent that  Weston is in custody by reason of his incompetency to stand  trial, the relevant issues are at least his dangerousness to  himself and others, and the government's ability to bring him  to trial.  But until he is convicted, Weston's rights and the  relevant issues must be viewed through a somewhat different  prism than those for a convicted prisoner.  Weston's custodial  status does not entail the relinquishment of all rights that a  person facing trial possesses, and Riggins' departure from  Harper signals as much.  In other words, the issue raised by  Weston was not settled in Harper.  But see concurring  opinion of Henderson, J., at 14-15.


34
The Supreme Court may ultimately articulate a standard  for pretrial detainees that is different from the one applied in  Harper to a prison inmate, particularly with regard to protection of a pretrial detainee'sright to a fair trial.  See, e.g., United States v. Brandon, 158 F.3d 947, 956-60 (6th Cir.  1998) (citing Bee v. Greaves, 744 F.2d 1387, 1393-94 (10th Cir.  1984)).  Rather than foreclose the issue in this circuit at this  point, I agree that the court should await the decision of the  district court on remand to provide a record and analysis that  can be helpful for review on appeal.  See opinion at 6.  As the  record now stands, notwithstanding the district court's commendable effort to get a handle on a difficult issue, the  district court made insufficient findings and did not consider  all of the factors.  And Riggins, while declining to enunciate  explicitly the applicable substantive standard, nonetheless  provides significant guidance to the district court on the  nature of the relevant inquiry.  See opinion at 13 quoting  Riggins, 504 U.S. at 135-36.


35
As suggested by the language comprising this guidance in  Riggins, the district court on remand must explore fully both  the dangerousness and trial competency rationales for granting the government's motion.  The government sought forced  medication of Weston for two reasons:  to address Weston's  dangerousness to himself and others, and to make him competent to stand trial.  The evidence before the district court  focused on the latter, but the district court ruled that the  forced administration of the medication was justified because  of Weston's dangerousness.  As a result, there was no searching inquiry into whether less intrusive alternatives would  have been sufficient to control any potential danger posed by  Weston to himself and to others.  See opinion at 7.  Insofar  as we hold that the question of whether forced medication is  necessary to achieve competency for trial is ripe for adjudication, the district court must also make a searching inquiry  into whether less intrusive alternatives would make Weston  competent to stand trial.  There also remain the attendant  ethical issues Weston raises that the district court must  address.


36
In addition, the district court must address the effect of the  forced administration of drugs on Weston's right to a fair  trial.  The district court noted that Weston had argued that  the Bureau of Prisons' "decision to medicate him against his  will implicates his Fifth Amendment liberty interest in being  free from unwanted medication, his Sixth Amendment rights  to a fair trial and to counsel, and his First Amendment right  to free expression."  Concluding that where Weston had not  been arraigned and there was no evidence that the government's medical reasons were pretextual, the Due Process  Clause required the government only to satisfy Riggins'  "medically appropriate" standard, 504 U.S. at 135, the district  court further concluded that if the medication rendered Weston competent to stand trial the court could then address his  argument that the Due Process Clause or the Sixth Amendment required a heightened standard before he could be  forcibly medicated during trial.  The issues of trial competency and fair-trial rights are distinct but they are not as  separate as the district court suggests.  Weston raised a preliminary fair trial issue that is inextricably linked to the  determination of whether forced medication is necessary to  render him competent to stand trial and otherwise appropriate.


37
The district court, in ruling on the government's motion,  must consider several conflicting factors, including Weston's  right to trial and counsel, his right to be free from bodily  invasion, the government's interests in protecting his and  others' physical safety and in bringing him to trial.  Whether  the underlying issue is described simply as a matter of  whether the government has met its burden of proof or as a  balance between the government's interests and Weston's  rights, the issue of whether Weston's right to a fair trial will  be unnecessarily or impermissibly infringed cannot be postponed altogether.  His fair trial rights implicate the rights of  both parties, for the government has a right to know whether  by medicating Weston itwill forfeit the right to bring him to  trial, and if not, what conditions are to be placed on his  medication in order to preserve the prosecution.  Indeed,  Weston contends that ethical considerations preclude the  forced administration of psychotic drugs to make him competent in order to sentence him to death.  While other issues on  the conduct of a trial are appropriately addressed at a later  time, as the district court acknowledged, that circumstance  does not make unripe the preliminary questions that Weston  has raised.  As discussed in Judge Tatel's concurring opinion,  the district court must engage in a searching examination of  whether forced medication will impermissibly interfere with  Weston's right to a fair trial in light of the serious and  complicated issues raised by the effects that such medication  may have upon Weston's demeanor at trial and his ability to  assist in his own defense.  See infra, Tatel, J., concurring at  20-22.

Tatel, Circuit Judge, concurring:

38
Cure her of that.


39
Canst thou not minister to a mind diseas'd,


40
Pluck from the memory a rooted sorrow,


41
Raze out the written troubles of the brain,


42
And with some sweet oblivious antidoteCleanse the stuff'd bosom of that perilous stuff


43
Which weighs upon the heart?


44
William Shakespeare, Macbeth, act 5, sc. 3.


45
Centuries after Macbeth pleaded with his doctor to cure  Lady Macbeth, a "sweet oblivious antidote" exists.  Psychotropic drugs like Haldol and Mellaril, for example, are routinely prescribed for schizophrenia.  Powerful enough to  "[r]aze out the written troubles of the brain," psychotropic  drugs can also adversely affect a criminal defendant's right to  a fair trial.  See Riggins v. Nevada, 504 U.S. 127 (1992).


46
I agree with my colleagues that this case must be remanded for the district court "to assess each of the Bureau's  justifications [for forcibly medicating Weston] and to consider  the potential impact of compelled medication on Weston's  Sixth Amendment fair trial right."  Op. at 8.  I also agree  with Judge Rogers' standard of review discussion, as well as  with her explanation regarding why the fair trial issue is ripe.  I write separately to set forth some thoughts about the  daunting task the district court faces.


47
First, a little more about Russell Eugene Weston.  Forty-three years old and having a history of mental illness, Weston  has lived with family members for most of his life.  He has  worked for only brief periods as a laborer, maintenance man,  and mechanic.  The prison psychiatrist who treated Weston  and who concluded that he was not competent to stand trial,  Dr. Sally Johnson, reported that Weston told her the following:  While "working for NASA" in the early 1980's, he  developed a "Ruby Satellite System," a powerful reverse time  machine that enables users to "push time in reverse.... by  passing us through the Jurassic Sea, putting us into another  time frame."  For those like Weston with access to the "Ruby Satellite System," nothing is permanent--the user can simply  reverse time.  If convicted and executed, Weston will "simply  be time reversed, put into a safe in the Capitol, and be able to  resume his life at whatever point he chooses."


48
Weston gave Dr. Johnson considerable detail about the  Ruby Satellite System.  Although the system was originally  used infrequently, "those who are now in control are basically  cannibals."  They have overused the system and "worn time  down to 1/32 of one element of time," spawning the development and spread of "Black Heva," a disease similar to HIV or  the plague.  Black Heva "result[s] from human corpses rotting, turning black, and spreading the most deadliest disease  known to mankind."  Black Heva will soon reach "epidemic  proportions," killing thirty-five percent of the people in the  United States.  System overusealso has resulted in "computers not working right, bones being irregularly shaped, telephone poles and electric poles being uneven, buildings leaning, ... rock structures distorting and swelling, [and] unequal  ground swelling and wide spread earthquakes."  Users can  access the Ruby Satellite System through three different  consoles, one of which is on the first floor of the U.S. Capitol  and has the capacity to override the entire System.  Located  in the "great safe of the U.S. Senate," the override console is  accessible through a "room that is entered by going in the  front of the Capitol and taking a door to the left, next to the  elevators."  Because "time was running out," Weston had to  get to the override console in the Capitol so that he could  stem the spread of Black Heva and prevent further calamities.


49
On remand, the district court must answer the following  question:  In pursuing its right to try Weston for murdering  two Capitol police officers, can the government, in order to  make Weston competent to stand trial, forcibly medicate him  without impairing his right to a fair trial as guaranteed by the  Fifth and Sixth Amendments?  Weston's fair trial rights  include rights (1) not to be tried unless he is competent to  "consult with counsel, and to assist in preparing his defense,"  Drope v. Missouri, 420 U.S. 162, 171 (1975);  (2) to testify and  "present his own version of events in his own words," Rock v. Arkansas, 483 U.S. 44, 52 (1987);  (3) to be present in the  courtroom at every stage of the trial, see Illinois v. Allen, 397  U.S. 337, 338 (1970);  and (4) to present a defense, including  an insanity defense.  See 18 U.S.C. § 17 (setting forth requirements for insanity defense).


50
Forcible administration of psychotropic drugs can burden  these fair trial rights in several ways, one of which is through  the drugs' various side effects.  See, e.g., Riggins, 504 U.S. at  141-44 (Kennedy, J., concurring);  Washington v. Harper, 494  U.S. 210, 229-230 (1990).  The medication can cause parkinsonism, which is "characterized by rhythmical muscular tremors, rigidity of movement, ... and [a] masklike" face or  expression, PDR Medical Dictionary 1301 (1995);  akathisia, a  "syndrome characterized by an inability to remain in a sitting  posture, with motor restlessness and a feeling of muscular  quivering," id. at 41;  and tardive dyskinesia, "a syndrome  consisting of potentially irreversible, involuntary dyskinetic  movements ... characterized by rhythmical involuntary  movements of tongue, face, mouth, or jaw (e.g., protrusion of  tongue, puffing of cheeks, puckering of mouth, chewing movements)."  Physicians' Desk Reference 2000 at 2156;  see also  Harper, 494 U.S. at 230.  Should any of these side effects  occur, Weston could find it difficult if not impossible to focus  on the testimony of witnesses or to assist counsel with his  defense.  Riggins, 504 U.S. at 137.


51
In addition, jurors' perceptions of Weston's character could  be adversely affected if as they watch him react to particularly emotional testimony--for example the testimony of the  officers' co-workers--his expression is "mask like" or he is  constantly rhythmically moving.  The tendency of psychotropic medication to flatten or deaden emotional responses  could also be damaging, particularly if the government seeks  the death penalty, for the jury would then be especially  sensitive to Weston's character and any demonstrations of  remorse (or lack thereof).  See Riggins, 504 U.S. at 144  (Kennedy, J., concurring).  Justice Kennedy put it this way in  his concurring opinion in Riggins:


52
[S]erious prejudice could result if medication inhibits the defendant's capacity to react and respond to the proceedings and to demonstrate remorse or compassion.  The prejudice can be acute during the sentencing phase of the proceedings, when the sentencer must attempt to know the heart and mind of the offenderand judge his character, his contrition or its absence, and his future dangerousness.  In a capital sentencing proceeding, assessments of character and remorse may carry great weight and, perhaps, be determinative of whether the offender lives or dies.


53
Id. at 143-44.


54
Because the district court focused on the safety issue, the  record contains little information about the possible effects of  medication on Weston and nothing at all about their impact  on his fair trial rights.  On remand, therefore, the district  court will need to explore questions like the following:  How  likely is it that these side effects will actually occur?  How  severe are they likely to be?  Can side effects be mitigated or  controlled by reducing the dosage, changing the type of  medication, or administering medication to counteract these  effects, and if so, can this be accomplished without reducing  the drugs' potential for controlling delusions?  Considering  the answers to such questions as well as Weston's previous  experience with psychotropic drugs, the district court will  have to determine whether it is likely that the drugs will so  adversely affect Weston and the jury's perception of him that  he will be unable to obtain a fair trial.  Of course, the  difficulty inherent in predicting how a particular drug will  affect a particular individual may well lead the district court  to conclude that it cannot make this determination about  Weston without first medicating him.  In that event, I see no  reason why the potential for side effects would preclude the  district court from ordering medication, provided that, should  Weston become competent to stand trial, the district court  conducts a second hearing to determine the extent to which  any side effects Weston is actually experiencing might affect  his fair trial rights.


55
Regardless of how the district court resolves the side  effects issue, it will also have to consider the impact of the  drugs' intended effect--actually controlling Weston's delusions--on his fair trial rights.  Rendering Weston non-delusional may impair his ability to mount an effective insanity defense.  Anyone reading Dr. Johnson's description of  Weston's delusions might well doubt that Weston truly believes them, yet he convinced Dr. Johnson, an experienced  prison psychiatrist.  Dr. Johnson, of course, interviewed Weston in the unmedicated, delusional state he was in when he  allegedly committed the crime.  Will a jury that sees and  hears a different Weston, one who is medicated and nondelusional, be as likely to believe that he truly thought there  was a Ruby Satellite System?  I think the answer is obvious. A jury listening to a non-delusional Weston explain, perhaps  quite passively, that at the time of the crime he believed he  had to save the world from the Ruby Satellite System will be  considerably more skeptical than a jury that sees and hears  the person Dr. Johnson saw and heard:  Russell Weston,  delusional and unmedicated, explaining in the present tense  that there is a "Ruby Satellite System" and that he in fact  went to the Capitol in search of the override console to save  the country from "human corpses rotting, turning black, and  spreading the most deadliest disease known to mankind."


56
Were Weston's testimony the only way for him to present  an insanity defense, I would thus have serious doubts about  whether the government could involuntarily medicate him.  Unlike requiring a defendant to shave or wear glasses at trial,  actions which merely restore a defendant's appearance to  what it was at the time of the crime, see United States v.  Emanuele, 51 F.3d 1123, 1132-33 (3d Cir. 1995), forcible  medication chemically alters the brain and deprives the jury  of the opportunity to observe the defendant in the delusional  state he was in at the time of the crime.  To be sure, due  process does not require that a defendant presenting a "heat  of passion" defense "duplicate his 'hot blood' in court."Henderson, J., concurring at 2-3.  But because such a case involves no action by the government, it has nothing todo with the issue before us.  Here the question is whether due process permits the government through involuntary administration of psychotropic drugs to alter the defendant so that it  becomes impossible for him to appear before the jury as he  was when he committed the crime.  No one would suggest  that the government may prevent a defendant claiming insanity from presenting relevant evidence about his delusions .From a due process perspective, forcibly administering psychotropic medication--what Justice Kennedy called "manipulat[ing] the evidence"--seems no different.  Riggins, 504 U.S.  at 142 (Kennedy, J., concurring).


57
But Weston's testimony may not be the only way for him to  present an effective insanity defense.  Although at one point  during oral argument defense counsel took the position that  compulsory medication, by rendering Weston non-delusional,  would necessarily violate Weston's fair trial rights, at another  point he suggested that an effective insanity defense might be  presented through the testimony of Dr. Johnson, perhaps  assisted by videotapes of Weston.  On remand, therefore, the  district court should review the tapes to determine whether  they show Weston in his delusional state, and if so, whether,  when combined with psychiatric testimony, they would enable  defense counsel to mount an effective insanity defense.


58
A final point:  In assessing whether compulsory medication  would deprive Weston of a fair trial, the district court should  keep in mind that "the Constitution entitles a criminal defendant to a fair trial, not a perfect one."  Delaware v. Van  Arsdall, 475 U.S. 673, 681 (1986);  see also Rock, 483 U.S. at  55 ("[T]he right to present relevant testimony is not without  limitation [and] may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.")  (internal quotation marks omitted);  Allen, 397 U.S. at 342-45  (holding that although a defendant has a constitutional right  to be present at trial, expelling an obstreperous defendant  does not unconstitutionally infringe that right).



Notes:


*
 I say "correctly" only because Johnson expressly opined that  Weston was not dangerous "under his immediate parameters of  incarceration where he is in an individual room with limited access  to anything that he could harm himself with or anyone else with,  and he remains under constant observation" See Maj. Op. at 7  (quoting JA ii 121).  Other testimony from Johnson, however,  supports the court's finding of dangerousness.  See 69 F. Supp. 2d  at 109 (citing Johnson's opinion that "when she and other staff  members go into his room, doing so 'poses some immediate risk of  potential harm' to herself and to those persons" and that "the  defendant now refuses to respond to questions regarding suicide")  (record citations omitted).  I also note that in Harper the Supreme  Court questioned whether "physical restraints or seclusion are  acceptable substitutes for antipsychotic drugs, in terms of either  their medical effectiveness or their toll on limited prison resources." Harper, 494 U.S. at 227 (footnote omitted).  In the long term such  "alternatives" to medication may prove both harmful to Weston and  a drain on institutional resources, especially since, if he goes  unmedicated, Weston may very well be institutionalized indefinitely,  if not permanently.


1
 In so holding, the Supreme Court focused solely on the protections afforded the prisoner under the Due Process Clause of  the Fourteenth Amendment.  Id. at 213.


2
 See Riggins, 504 U.S. at 156-57 (Thomas, J., dissenting)  ("Either the Court is seeking to change the Harper standards or it is adopting different standards for detainees without stating its  reasons.").


