United States v. John Watson, Jr.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4388
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN WATSON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:13-cr-00336-TSE-IDD-1)
Argued: December 11, 2014 Decided: July 17, 2015
Before TRAXLER, Chief Judge, and WYNN and HARRIS, Circuit
Judges.
Reversed by published opinion. Judge Harris wrote the majority
opinion, in which Judge Wynn joined. Chief Judge Traxler wrote
a dissenting opinion.
ARGUED: Nicholas John Xenakis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Julia K.
Martinez, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Kenneth P. Troccoli, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
PAMELA HARRIS, Circuit Judge:
Following his arrest for firing a handgun at a Coast Guard
helicopter, appellant John Watson, Jr. (“Watson”), who suffers
from Delusional Disorder, Persecutory Type, was found
incompetent to stand trial and committed to the custody of the
Attorney General for mental health treatment and evaluation.
After Watson refused to take antipsychotic medication in order
to render himself competent, the district court granted the
government’s request that he be medicated by force. Given the
critical liberty interests at stake, we require the government
to meet a heavy burden to justify forcible medication, and we
require courts to conduct a searching inquiry in order to ensure
that this burden is met. In this case, we conclude, the
government has not met its burden of proving that involuntary
medication is substantially likely to restore Watson’s
competency, as required by Sell v. United States, 539 U.S. 166
(2003). Accordingly, we reverse.
I.
“The forcible injection of medication into a nonconsenting
person’s body . . . represents a substantial interference with
that person’s liberty.” Riggins v. Nevada, 504 U.S. 127, 134
(1992) (quoting Washington v. Harper, 494 U.S. 210, 229 (1990)).
The interference is “particularly severe” when, as in this case,
2
the medication in question is an antipsychotic, Riggins, 504
U.S. at 134, for the use of such medications threatens an
individual’s “mental, as well as physical, integrity,” United
States v. White, 620 F.3d 401, 422 (4th Cir. 2010) (Keenan, J.,
concurring). On the physical side, there is the “violence
inherent in forcible medication,” id., compounded when it comes
to antipsychotics by the possibility of “serious, even fatal,
side effects,” Harper, 494 U.S. at 229. But it is the invasion
into a person’s mental state that truly distinguishes
antipsychotics, a class of medications expressly intended “to
alter the will and the mind of the subject.” United States v.
Bush, 585 F.3d 806, 813 (4th Cir. 2009) (quoting Harper, 494
U.S. at 238 (Stevens, J., concurring in part and dissenting in
part)).
For those reasons, as we have recognized, the forcible
administration of antipsychotic medication “constitutes a
deprivation of liberty in the most literal and fundamental
sense,” Bush, 585 F.3d at 813 (quoting Harper, 494 U.S. at 238
(Stevens, J., concurring in part and dissenting in part)),
justified only by a government interest that rises to the level
of “essential” or “overriding,” Sell v. United States, 539 U.S.
166, 178-79 (2003) (quoting Riggins, 504 U.S. at 134, 135). The
government’s interest in prison safety and security, the Supreme
Court held in Harper, qualifies as such an interest, and may
3
justify involuntary medication when an inmate suffering from a
“serious mental illness” is “dangerous to himself or others,”
and “the treatment is in [his] medical interest.” 494 U.S. at
227.
Under certain circumstances, a mentally ill defendant who
is not dangerous to himself or others within the meaning of
Harper may nevertheless be forcibly medicated for the sole
purpose of rendering him competent to stand trial. See Sell,
539 U.S. at 179. But that is the exception, not the rule.
Forcible medication is not justified every time an incompetent
defendant refuses treatment; on the contrary, “those instances
may be rare.” Id. at 180. As we have emphasized, forcible
medication under Sell is “a tool that must not be casually
deployed,” and courts must be vigilant to ensure that such
orders, which “carry an unsavory pedigree,” do not become
“routine.” United States v. Chatmon, 718 F.3d 369, 373-74 (4th
Cir. 2013).
To “minimize[] the risk of erroneous decisions in this
important context,” we have set a deliberately high standard for
the government to satisfy before it may forcibly medicate solely
to render an inmate competent to stand trial. Bush, 585 F.3d at
814. Like other courts of appeals to consider the issue, we
require that the government meet its burden by the “clear and
convincing” standard. Id.; see, e.g., United States v. Dillon,
4
738 F.3d 284, 292 (D.C. Cir. 2013) (“Holding the government to a
clear and convincing standard of proof affords due regard to the
nature of the liberty interest at stake in forced-medication
cases.”); United States v. Green, 532 F.3d 538, 545 (6th Cir.
2008) (applying clear and convincing standard); United States v.
Gomes, 387 F.3d 157, 160 (2d Cir. 2004) (same). That is a heavy
burden, requiring “evidence of such weight that it produces in
the mind of the trier of fact a firm belief or conviction,
without hesitancy, as to the truth of the allegations sought to
be established,” or “evidence that proves the facts at issue to
be highly probable.” United States v. Heyer, 740 F.3d 284, 292
(4th Cir. 2014) (quoting Jimenez v. DaimlerChrysler Corp., 269
F.3d 439, 450 (4th Cir. 2001)).
In this context, we require that the government prove by
clear and convincing evidence each of four factors. “First, the
government must show that ‘important governmental interests are
at stake’ and that special circumstances do not sufficiently
mitigate those interests.” White, 620 F.3d at 410 (quoting
Sell, 539 U.S. at 180). Second, the government must show that
“involuntary medication . . . significantly further[s] [its]
interests,” which requires proof that the medication is
“substantially likely to render the defendant competent to stand
trial” and “substantially unlikely to have side effects that
will interfere significantly with the defendant's ability to
5
assist counsel at trial.” Id. (quoting Sell, 539 U.S. at 181)
(internal quotation marks omitted). “Third, the involuntary
medication must be necessary to further the government's
interests, and less intrusive means must be unlikely to achieve
substantially the same results.” Id. (citing Sell, 539 U.S. at
181). Fourth and finally, “the court must conclude that the
administration of drugs is medically appropriate and in the
patient’s best medical interests in light of [his] medical
condition.” Id. (citing Sell, 539 U.S. at 181). With this
demanding standard in mind, we now consider whether the district
court properly found that forcible medication is justified in
this case. United States v. Watson, No. 1:13-cr-366, 2014 WL
1901256, at *1 (E.D. Va. Apr. 29, 2014).
II.
A.
On September 28, 2012, Watson was observed shooting a
handgun at a Coast Guard helicopter flying overhead. The
helicopter was not damaged, and none of the three Coast Guard
employees on board was injured. On August 15, 2013, Watson was
indicted for attempted destruction of an aircraft,
18 U.S.C. § 32(a)(1), (8); possession of a firearm by a felon,
18 U.S.C. § 922(g)(1); and use of a firearm during a crime of
violence, 18 U.S.C. § 924(c)(1)(A).
6
Days after Watson’s arrest, the magistrate judge granted
the parties’ joint motion for a competency hearing, and Watson
was interviewed by licensed clinical psychologist Dr. Rebecca J.
Peterson (“Peterson”). Watson told Peterson that he had been a
covert operative for the British special forces since he was
seven years old, that the Coast Guard and Secret Service were
among the government agencies “working to help protect him from
danger and . . . guide him,” that certain “entities . . . ha[d]
‘tapped’ his phones and computer,” and “that someone ha[d] been
on his boat going through his letters and papers.” Watson
further indicated that this delusional system of beliefs had
been guiding his behavior since at least February 2009, when he
arrived in the Washington, D.C., area in order to seek the
protection of the British Embassy and was referred to St.
Elizabeth’s Hospital (“St. Elizabeth’s”) for mental health
treatment.
On the basis of this interview, Peterson concluded that
Watson was “unable to participate meaningfully and effectively
in his defense” as a result of his delusions, and in particular
his belief that his status as a covert operative for the United
Kingdom entitles him to diplomatic immunity. The magistrate
judge agreed, and Watson was transferred to the Federal Medical
Center in Butner, North Carolina (“FMC Butner”) for mental
health evaluation and treatment.
7
Approximately six months later, on April 4, 2013, the
government submitted to the court a report completed by FMC
Butner staff psychiatrist Dr. Robert G. Lucking (“Lucking”),
which recommended that Watson be forcibly medicated in order to
render him competent to stand trial. Because the government
relies exclusively on Lucking’s opinion to show there is a
substantial likelihood that forcible medication would render
Watson competent as required by Sell, we review Lucking’s report
and testimony in some detail.
In his report, Lucking diagnosed Watson with Delusional
Disorder, Persecutory Type, 1 a rare mental illness characterized
by “the presence of one or more nonbizarre delusions that
persist for at least one month.” 2 Lucking further reported that
Watson’s delusions had not been treated with antipsychotic
medication at FMC Butner, and that Watson had refused to accept
1The experts in this case use the terms “Persecutory Type”
and “Paranoid Type” interchangeably. For clarity and
consistency with the Diagnostic and Statistical Manual of Mental
Disorders, we consistently refer to Watson’s condition as
“Persecutory Type.”
2A delusion is “nonbizarre” if it involves a situation that
can conceivably occur in real life, such as being followed,
poisoned, infected, conspired against — or, as here, being
recruited to work as a covert operative for a foreign
government. “Bizarre” delusions, by contrast, are clearly
implausible, not understandable, and not derived from ordinary
life experiences, such as the belief that one’s internal organs
have been removed and replaced by someone else’s organs without
leaving a scar or wound.
8
such treatment. Lucking believed Watson to be neither gravely
disabled nor a danger to himself or other inmates, as would be
required to justify forcible medication under Harper.
Nevertheless, he recommended that Watson be forcibly medicated
with the antipsychotic risperidone, 3 asserting that
“antipsychotic medication is substantially likely to render
[Watson] competent to stand trial.”
In support of his opinion, Lucking asserted that “there is
extensive support in the psychiatric literature that individuals
with the diagnosis of a psychotic illness obtain substantial
reduction in their psychotic symptoms when treated with
antipsychotic medication,” and that “a body of evidence”
supports the related proposition that such individuals “can be
restored to competency when treated with antipsychotic
medication.” Lucking also asserted that Watson had taken
risperidone during his 2009 admission to St. Elizabeth’s, from
which Lucking drew the “logical inference [that Watson]
responded positively to the use” of that drug. However, Lucking
admitted that he did not have the medical records from that
3The experts in this case use the generic name
“risperidone” and the brand name “Risperdal” interchangeably.
For clarity, we consistently refer to the drug by the generic
name “risperidone.”
9
admission, and later testified that he would have recommended
risperidone even if Watson had never received it before.
Finally, during a hearing on the government’s request for
forcible medication, Lucking testified that his past experience
as a psychiatrist supported the use of risperidone. Lucking
asserted that he had treated approximately ten other patients
suffering from Delusional Disorder with antipsychotic
medication, and that he “believe[d] all of them” had been
restored to competency. Lucking was, however, unable to provide
any further information about the ten other patients, explaining
that he could “not remember details of patients [he] treated
maybe five, six, seven, or eight years ago,” and that it would
in any event be “inappropriate” to share such “treatment [and]
clinical information” in a public forum, “even with the
[district court].”
Lucking’s opinion regarding the efficacy of involuntary
medication was challenged on several grounds by the report of
defense expert and licensed psychologist Dr. James H. Hilkey
(“Hilkey”). With respect to the academic literature, Hilkey
emphasized that “there is little in the literature referencing
well controlled, double-blind research studies as to the
efficacy of pharmacological treatment of persons suffering from
Delusional Disorders.” He also pointed out that the studies
that do exist have consistently shown the Persecutory Type of
10
the disorder — from which Watson suffers — to be the “most
resistant” to treatment.
With respect to Watson in particular, Hilkey opined that
“[t]he chronic nature of [Watson’s] illness and the fixed, well
established nature of his aberrant thoughts” make his condition
resistant to treatment, whether pharmacological or
psychological. He expressed concern that the involuntary
treatment plan did not adequately address Watson’s “strongly
held beliefs and reported personal experiences with psychotropic
medications,” including “pronounced fears of death,” and opined
that “[f]ailure to compassionately address these fears [would]
only contribute[] to fears of persecution” and thus aggravate
his condition. Finally, Hilkey indicated that it was his
“strongly held opinion” that supportive and cognitive behavioral
therapy would “increase the likelihood [Watson’s] competency
could be sufficiently restored,” given Watson’s apparent
“capacity to form a degree of therapeutic alliance,” as
demonstrated by his trusting relationship with his attorneys.
B.
On March 7, 2014, the magistrate judge recommended that
Watson be forcibly medicated in order to restore his competency.
Watson, 2014 WL 1901256, at *1, *4. The magistrate judge’s
findings with respect to the first two Sell factors are relevant
to Watson’s arguments on appeal.
11
With respect to the first Sell factor, the magistrate judge
found “that an important government interest is at stake in the
prosecution of the defendant,” rejecting Watson’s argument that
that interest was mitigated by “the possibility of an
affirmative defense of not guilty by reason of insanity.” Id.
at *12, *14-15. In reaching this conclusion, the magistrate
judge assumed that such a defense could constitute a mitigating
special circumstance, but found that Watson had failed to prove
that the defense was “likely [to] be successful” because he had
not proffered expert testimony to that effect. Id. at *15.
With respect to the second Sell factor, the magistrate
judge found that the proposed treatment plan was substantially
likely to restore Watson’s competency. To reach this
conclusion, the magistrate judge relied entirely on Lucking’s
testimony and report, which, he noted, referenced the academic
literature and the experiences of Lucking’s other patients with
Delusional Disorder. Id. The magistrate judge held that
Hilkey’s forensic evaluation did not “undermine” Lucking’s
conclusion, solely on the ground that Hilkey’s report nowhere
“directly discredit[ed]” Lucking’s treatment plan. Id. at *16.
On April 29, 2014, the district court issued a brief order
adopting the recommendations and findings of the magistrate
judge and granting the government’s motion for involuntary
medication. Watson, 2014 WL 1901256, at *1, *4. The order has
12
been stayed pending resolution of this appeal. Order, United
States v. Watson, No. 1:13-cr-366 (E.D. Va. May 27, 2014), ECF
No. 76.
III.
On appeal, Watson challenges the district court’s findings
with respect to the first and second prongs of Sell. Because we
conclude that the district court clearly erred in finding that
the government had met its burden under the second prong of Sell
— and in particular, its burden of proving, by clear and
convincing evidence, that forcible medication is substantially
likely to restore Watson to competence 4 — we do not decide
whether a possible insanity defense is a special circumstance
that may mitigate the government interest in prosecution, or
4The dissent objects that this issue is not properly before
us, and that Watson’s argument on appeal is limited to the
district court’s failure to order that the government provide
supportive therapy in addition to forcible medication. We
respectfully disagree. While it is true that Watson emphasizes
Hilkey’s view that medication “must be combined with supportive
therapy in order to be successful,” he does so only in support
of his ultimate argument: that the only proposed treatment plan
actually before the court “will be unsuccessful,” and that “the
district court’s finding otherwise is clear error.” Watson Br.
26.
13
whether the district court otherwise erred in finding that the
government met its burden under the first prong of Sell. 5
A.
We have said that the second Sell factor involves factual
determinations subject to clear error review, see White, 620
F.3d at 410, and we recognize that our role is not to second-
guess a district court’s factual findings, see United States v.
Francis, 686 F.3d 265, 273 (4th Cir. 2012). We are, however,
charged with ensuring that the district court actually makes the
necessary findings, and that it makes them pursuant to the
proper legal standard — that it asks and answers the right
questions — in light of the record as a whole. See Jiminez v.
Mary Washington Coll., 57 F.3d 369, 379 (4th Cir. 1995) (“We
reverse a factual finding as being clearly erroneous if,
‘although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
5In the decision below, the district court assumed that a
possible insanity defense could be considered in the special
circumstances analysis under the first prong of Sell, see
Watson, 2014 WL 1901256, at *2, as have other courts within this
circuit, see, e.g., United States v. Duncan, 968 F. Supp. 2d
753, 765-66 (E.D. Va. 2013); United States v. Rodman, 446
F. Supp. 2d 487, 496-97 (D.S.C. 2006). There is, however,
division among the courts of appeals on the question. Compare
United States v. Morrison, 415 F.3d 1180, 1186 (10th Cir. 2005)
(likely insanity defense diminishes government interest in
trial), with United States v. Mikulich, 732 F.3d 692, 699-701
(6th Cir. 2013) (potential insanity defense does not undermine
government interest).
14
conviction that a mistake has been committed.’” (quoting United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948))).
And in this highly sensitive context, governed by the exacting
clear and convincing standard, it is especially important that a
district court consider and contend with substantial evidence
that would undermine the case for forcible medication, and that
it ensure that the government’s burden actually has been met.
See id. (clear error may occur when a district court
“disregard[s] substantial evidence that would militate a
conclusion contrary to that reached” or otherwise reaches a
conclusion “contrary to the clear weight of the evidence
considered in light of the entire record”). On the basis of our
review of the entire record, we conclude that the district court
clearly erred in finding that the government had met its burden
of proving, by clear and convincing evidence, that the proposed
treatment is substantially likely to restore Watson’s
competency. We further conclude that on the record before us,
that exacting standard cannot be met.
B.
Under the second prong of Sell, the government must prove,
by clear and convincing evidence, that involuntary medication
significantly furthers its interests. See Chatmon, 718 F.3d at
374. And as part of that showing, the government must
“demonstrat[e] that the proposed treatment plan, as applied to
15
this particular defendant, is ‘substantially likely’ to render
the defendant competent to stand trial.” United States v.
Evans, 404 F.3d 227, 242 (4th Cir. 2005) (emphasis in original).
Merely showing a proposed treatment to be “generally effective”
against the defendant’s medical condition is insufficient to
meet this burden. Id. at 241-42; see Bush, 585 F.3d at 816
(“[I]n order to satisfy this second factor of the Sell test, the
government must not only show that a treatment plan works on a
defendant’s type of mental disease in general, but that it is
likely to work on this defendant in particular.”) (emphasis in
original); see also United States v. Ruiz-Gaxiola, 623 F.3d 684,
700 (9th Cir. 2010) (finding this burden unmet where the
government’s “experts rely on generalities and fail to apply
their views to [the defendant’s] condition with specificity”).
Instead, the government must “relate the proposed treatment plan
to the individual defendant’s particular medical condition,”
Evans, 404 F.3d at 242, which requires consideration of factors
specific to the defendant in question, including not only his
medical condition, but also his age and the nature and duration
of his delusions, see id. at 241.
What is missing from the proceedings below is any finding
assessing the likely success of the government’s proposed
treatment plan in relation to Watson’s particular condition and
particular circumstances. The district court did find that
16
“[t]he record convincingly reflects that the government has
satisfied” the second prong of Sell. Watson, 2014 WL 1901256,
at *3. But nothing in the district court’s decision indicates
that it actually considered whether the evidence proffered by
the government sufficiently addressed Watson’s particular
medical situation. Rather, the district court appears to have
concluded that the “substantially likely” requirement had been
met merely because Lucking testified that it was. See id.
(finding that government had shown involuntary medication to be
“substantially likely to render the defendant competent to stand
trial” because “Lucking . . . testified that the treatment plan
he designed for defendant . . . satisfies these requirements”).
And if we go behind the district court’s order to the magistrate
judge’s report and recommendation, the result is no better: In
adopting Lucking’s conclusion, the magistrate judge pointed for
support only to Lucking’s reliance on the academic literature
and his experience with his own patients, see id. at *15,
neither of which bears on Watson’s particular medical condition
or circumstances.
It is critical that in evaluating the government’s case for
forcible medication under Sell, courts engage in the proper
inquiry: not whether a proposed treatment plan is likely to work
in general, but whether it is likely to work as applied to a
particular defendant. Permitting the government to meet its
17
burden through generalized evidence alone would effectively
allow it to prevail in every case involving the same condition
or course of treatment. See Evans, 404 F.3d at 241. Because we
are obligated to ensure that a given case is “sufficiently
exceptional to warrant the extraordinary measure of forcible
medication,” we cannot permit such deference here. White, 620
F.3d at 413; see also Evans, 404 F.3d at 241.
C.
In this case, the requirement that the court assess the
efficacy of antipsychotics as applied “with specificity” to
Watson’s circumstances, Ruiz-Gaxiola, 623 F.3d at 700, is more
than a formality. The district court’s failure to look beyond
Lucking’s conclusory assertion that the government’s burden had
been met is problematic precisely because there is a near total
absence of evidence in Lucking’s report or testimony that
“relate[s] the proposed treatment plan to [Watson’s] particular
medical condition.” Evans, 404 F.3d at 242. This is not a
case, in other words, where the district court’s failure to
properly synthesize or distill the evidence is harmless because
we can see for ourselves that the government has met its burden
under the second Sell prong. On the contrary: There is
virtually nothing in Lucking’s report or testimony — the
entirety of the government’s case — that is sufficiently
specific to Watson that it could satisfy the government’s burden
18
of showing that Watson is substantially likely to be rendered
competent by forcible medication, let alone meet the rigorous
clear and convincing standard. 6
Lucking, for example, argues that risperidone is likely to
restore Watson’s competency because “there is extensive support
in the psychiatric literature that individuals with the
diagnosis of a psychotic illness obtain substantial reduction in
their psychotic symptoms when treated with antipsychotic
medication.” In other words, he asserts: (1) antipsychotic
medication effectively treats psychotic symptoms; (2) Watson has
psychotic symptoms; (3) therefore, antipsychotic medication will
effectively treat his psychotic symptoms. See also J.A. 75
(Lucking testifying that Watson “has a psychotic symptom;
therefore, he needs treatment with an antipsychotic”). This is
exactly the kind of nonspecific, syllogistic reasoning we deemed
insufficient in Evans, see 404 F.3d at 241, and it has not
become any more persuasive over time.
6
The dissent takes the position that the only question
before us is whether the district court properly synthesized the
record evidence, and not whether that evidence supports the
district court’s holding. In our view, however, those issues
are so closely interrelated in the context of this case that we
are justified in addressing them together. As Watson argues on
appeal, the district court’s synthesis errors matter precisely
because the evidence that the proposed treatment plan will
succeed is so thin.
19
The insubstantiality of that reasoning is exacerbated here
by the weaknesses in the studies actually cited in Lucking’s
report. For one thing, many of those studies concern the
efficacy of antipsychotics in general, rather than risperidone
in particular, against psychotic illness in general, rather than
Delusional Disorder in particular. Cf. White, 620 F.3d at 421
(discounting probative value of doctor’s “professional
experience and expertise,” where doctor’s “area of expertise
[was] schizophrenia, not delusional disorders”). Because they
do not address the specifics of either the proposed treatment
plan or Watson’s condition, these studies cannot satisfy the
government’s burden of “relat[ing] the proposed treatment plan
to the individual defendant’s particular medical condition.”
Evans, 404 F.3d at 242.
Moreover, the cited studies that do specifically address
Delusional Disorder are equivocal at best. One study, Lucking
reports, finds a positive response to medication in fewer than
half of the cases reviewed, while another places the positive
response rate at less than 15%. Still another study identifies
Watson’s particular condition — the Persecutory Type — as having
an especially “poor response rate (50% improvement rate with no
reported complete recovery).” The one study cited by the
government that does unequivocally support the involuntary use
of antipsychotic medication to restore the competency of
20
defendants with the Persecutory Type of Delusional Disorder is,
by its own terms, vulnerable to “bias[] in favor of finding a
positive response to treatment” due to its experimental design.
Byron L. Herbel & Hans Stelmach, Involuntary Medication
Treatment for Competency Restoration of 22 Defendants With
Delusional Disorder, 35 J. Am. Acad. Psychiatry L. 47, 58
(2007).
This is not to say that these and other studies mentioned
in Lucking’s report are of no evidentiary weight at all. They
fairly could be understood to provide some evidence that
antipsychotic medication may be effective against Delusional
Disorder in general. But standing alone, without explanation or
analysis applying their findings to Watson as an individual, we
do not believe they can provide the requisite clear and
convincing proof that the forcible injection of risperidone is
substantially likely to succeed in treating Watson’s specific
persecutory delusions. Cf. Evans, 404 F.3d at 241-42 (finding
government report inadequate to prove that proposed treatment
plan was “substantially likely” to restore defendant’s
competency where it stated only that “such medication is the
‘primary’ way to treat Schizophrenia” and “nowhere addressed”
defendant’s individual concerns).
Lucking’s testimony regarding his past experience treating
patients with Delusional Disorder also fails to take account of
21
Watson’s particular condition and circumstances. The
experiences of similar patients treated with antipsychotics of
course could be relevant to Watson specifically — but here,
Lucking was unable to provide any information demonstrating that
his patients in fact were similarly situated to Watson. There
is, for instance, no evidence that they suffered from the same
type of Delusional Disorder, that they received the same
medication, that the medication was administered involuntarily,
or that their delusions were meaningfully similar in nature and
persistence. Indeed, Lucking indicated that he was unable to
recall any information about these patients, testifying that he
could “not remember details of patients [he] treated maybe five,
six, seven, or eight years ago,” and that it would, in any case,
be “inappropriate to share other people’s treatment [and]
clinical information,” “even with the [district court].” But
without information relating his patients’ experiences to
Watson’s own circumstances, that data set is just another form
of generalized evidence.
Nor do we think this gap can be filled with evidence that
is particularized to Watson but goes to an entirely different
question: not whether forcible medication is substantially
likely to render Watson competent to stand trial, but whether it
is substantially unlikely to have side effects that will
interfere with his ability to assist counsel. Those are two
22
separate and independent showings, each of which the government
must make under Sell’s second prong, 539 U.S. at 181, by clear
and convincing evidence, see Bush, 585 F.3d at 815; one cannot
substitute for the other. And as we have held, both showings
must be made “with respect to the particular defendant [the
government] seeks to medicate involuntarily,” id. at 815-16,
with the same “exacting focus on the personal characteristics of
the individual defendant and the particular drugs the
[g]overnment seeks to administer,” id. at 816 (quoting United
States v. Baldovinos, 434 F.3d 233, 240 n.5 (4th Cir. 2006)).
In this case, however, while the government does provide an
individualized analysis of Watson’s vulnerability to
counterproductive side effects from risperidone, that only
highlights its failure to provide comparable individualized
analysis of the likelihood that risperidone will actually
succeed in rendering Watson competent.
Finally, Lucking himself undermines the one section of his
report that purports to explain why risperidone was recommended
for Watson in particular. In that section, Lucking asserts that
risperidone is likely to be effective because Watson was treated
with risperidone during his 2009 admission to St. Elizabeth’s.
The report itself qualifies this assertion in at least two ways:
It admits that Lucking had not reviewed the hospital records
from that admission, and also that the mere fact that Watson
23
“was treated and released” by St. Elizabeth’s constitutes only
“indirect evidence of a positive response to antipsychotic
medication.” More importantly, the assertion was deprived of
significance during an April 30, 2013, hearing on the motion for
involuntary medication, when Lucking admitted that he would have
recommended risperidone even if he learned that Watson had never
taken it before. As Lucking made clear, his recommendation
rested not on any individualized assessment of Watson, but on
the belief that “antipsychotics are the treatment of choice for
psychotic symptoms” — the same nonspecific, syllogistic
reasoning we have previously rejected. See Evans, 404 F.3d at
241.
D.
We are concerned here not only with the deficiencies in the
government’s affirmative case for forcible medication, but also
with the substantial questions raised about the government’s
proposed treatment plan by Hilkey — questions never addressed by
the magistrate judge or district court. As we have recognized,
careful scrutiny by courts of proposed forcible administration
of antipsychotics is necessary to minimize the risk of error
where such important liberty interests are at stake. See Bush,
585 F.3d at 814. That scrutiny necessarily requires
consideration of any substantial and credible evidence that
24
undermines the case for forcible medication. But there is no
indication that such consideration occurred here.
The magistrate judge and district court did not examine and
then reject the concerns raised by Hilkey in his report, making
subsidiary factual determinations to which we would owe the
normal deference. Instead, they summarily disregarded Hilkey’s
report in its entirety, solely because Hilkey failed to state
expressly that the proposed treatment plan would not succeed.
Watson, 2014 WL 1901256, at *3, *16 (“As the Report and
Recommendation correctly notes, defendant’s medical expert, Dr.
Hilkey, did not state in his report that Dr. Lucking’s plan will
not succeed.”). But it is the government’s burden to prove, by
clear and convincing evidence, that its proposed treatment plan
is “substantially likely to render [Watson] competent to stand
trial,” White, 620 F.3d at 410 (quoting Sell, 539 U.S. at 181),
and not Watson’s burden to prove that it is not.
And by perfunctorily disregarding Hilkey’s report, the
district court here excluded from consideration significant
evidence that does indeed call into question whether forcible
medication is likely to “succeed” by restoring Watson’s
competency. For example, Hilkey disputes Lucking’s reading of
the scientific literature, asserting that “little is known about
[Delusional Disorder] compared to other psychotic disorders,”
and that what research does exist as to Delusional Disorder
25
indicates that individuals suffering from the Persecutory Type
are “most resistant” to treatment. Hilkey’s objections to the
scientific literature on the use of antipsychotic medication to
treat Delusional Disorder are particularly concerning in light
of Lucking’s heavy reliance on this research in his own report
and the magistrate judge’s second-order reliance on the same
research. Yet these concerns are barely acknowledged, let alone
adequately addressed, in the district court order.
The decisions below also failed to give adequate
consideration to Hilkey’s concern that Watson’s particular
persecutory delusions are especially unlikely to respond to
treatment. Hilkey opines that: (1) due to “[t]he chronic nature
of [Watson’s] illness and the fixed, well established nature of
his aberrant thoughts,” Watson’s condition is likely to be
“resistant to change,” and (2) without supportive therapy to
address Watson’s “strongly held beliefs and reported personal
experiences with psychotropic medications,” which “include
pronounced fears of death,” involuntary treatment will “only
contribute[] to [Watson’s] fears of persecution.” Those are
exactly the kind of individualized concerns that we have said
must be addressed by the government in order to meet its burden
of proving that the proposed treatment is substantially likely
to restore the defendant’s competency, see Evans, 404 F.3d at
241 (finding second-factor burden unmet where government
26
“nowhere addressed [the defense expert’s] concern that Evans’s
delusions of governmental conspiracies that ha[d] persisted
longer than 40 years [would] resist involuntary medication
precisely because the government administers the medication”) —
and yet they were summarily dismissed by the district court, see
Watson, 2014 WL 1901256, at *2-3, *16.
E.
In sum, the district court in this case did not undertake
the searching and individualized assessment of Watson’s likely
susceptibility to forcible medication that is required by our
case law. It took the government at its word when it argued
that the requirements of Sell had been met, without considering
whether the government had produced evidence “relat[ing] the
proposed treatment plan to the individual defendant’s particular
medical condition.” Evans, 404 F.3d at 242. This failure to
apply the proper legal standard exacerbated the district court’s
apparent failure to consider the concerns raised by Hilkey’s
report, which did relate to Watson specifically. See Chatmon,
718 F.3d at 376 (finding clear error where the district court
failed to “offer some reason why it did not” credit contrary
arguments). Perhaps as a result of these errors of synthesis,
the district court overlooked the issue lying at the heart of
this case: the meagerness of the evidence that forcible
treatment is substantially likely to restore Watson’s
27
competency, when his particular medical situation is taken into
account — especially as evaluated under the requisite clear and
convincing standard of proof.
Any one of these problems would raise questions under the
clear error standard of review, whether for misapprehension of
the relevant legal standard, failure to consider contrary
evidence, or reaching a conclusion against the clear weight of
the record. See Jiminez, 57 F.3d at 379. In this case, it is
enough to say that cumulatively, they leave us with “the
definite and firm conviction that a mistake has been committed,”
Francis, 686 F.3d at 273 (quoting United States v. Hall, 664
F.3d 456, 462 (4th Cir. 2012)), in a context where the costs of
error are exceedingly high. We therefore hold that the district
court clearly erred in finding that the government has met its
burden of proving by clear and convincing evidence — i.e.,
evidence of a sufficient weight to produce a “firm belief or
conviction, without hesitancy, as to the truth of the
allegations sought to be established,” Heyer, 740 F.3d at 292 —
“that the proposed treatment plan, as applied to this particular
defendant, is ‘substantially likely’ to render the defendant
competent to stand trial,” Evans, 404 F.3d at 242 (emphasis in
original).
We further conclude that this is the rare case in which a
remand is inappropriate because “the record permits only one
28
resolution of the factual issue”: that this burden cannot be
met. Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982); see,
e.g., Ruiz-Gaxiola, 623 F.3d at 696 (declining to remand where
“[t]here is no explanation that the court could provide on
remand and no findings consistent with the record before us that
would allow us to conclude that the government has met its
burden under the second Sell factor”). In Bush, 585 F.3d at
817, 818, and Evans, 404 F.3d at 242-43, we remanded rather than
reversing after finding the record insufficient to support
forced medication under Sell. But in those cases, we
articulated new legal standards, Bush, 585 F.3d at 817; Evans,
404 F.3d at 241-42, and our remands, at least in part, afforded
the parties their first opportunities to present evidence and
make arguments under those standards. The standard we apply
today, by contrast, was established over ten years ago in Evans,
and we believe that the government has had ample opportunity to
assemble and defend the evidence necessary to meet it.
Because the government must prove that it has satisfied
each of the four Sell prongs before it may forcibly medicate a
defendant, we need not reach Watson’s remaining arguments to
conclude that the government has not justified forcible
medication in this case.
29
IV.
Accordingly, the order of the district court is
REVERSED.
30
TRAXLER, Chief Judge, dissenting:
The district court granted the government’s petition to
involuntarily medicate John Watson in order to restore his
competency to stand trial. The majority reverses that order,
concluding that the government’s evidence was insufficient to
prove that the proposed treatment plan was substantially likely
to render Watson competent. In his appeal, however, Watson does
not challenge the sufficiency of the government’s evidence
establishing the necessity of medication. Instead, he argues
that the district court erred by not requiring supportive
therapy in addition to medication, which Watson contends would
increase the likelihood that he would be restored to competency.
This court generally does not address issues not raised by the
parties, and I believe it inappropriate in this case for the
majority to reverse the district court on an issue raised sua
sponte, particularly without giving the government notice of the
change in issues or an opportunity to address it. If the issue
were properly before us, however, I would find the evidence in
the record sufficient to support the district court’s order.
As to the issues actually raised by Watson, I conclude
that, as to one narrow issue, the district court failed to make
the necessary findings. However, I believe the proper course in
this circumstance is to vacate and remand for additional
31
findings, not simply reverse the district court outright.
Accordingly, I respectfully dissent.
I.
When seeking to involuntarily medicate a defendant for the
purpose of restoring his competency to stand trial, the
government must establish four factors by clear and convincing
evidence. See Sell v. United States, 539 U.S. 166, 180-81
(2003); United States v. Bush, 585 F.3d 806, 813-14 (4th Cir.
2009). First, the government must prove that “important
governmental interests are at stake” that are not mitigated by
“[s]pecial circumstances.” Sell, 539 U.S. at 180. Second, the
government must establish that forced medication “significantly
further[s]” the government’s interests because it is
“substantially likely to render the defendant competent to stand
trial” and “substantially unlikely” to have side effects that
would undermine the fairness of a trial. Id. at 181. Third, it
must show that forced medication is “necessary to further” the
government’s interests because “less intrusive means are
unlikely to achieve substantially the same results.” Id.
Fourth, the government must prove that the administration of the
requested drug is “medically appropriate, i.e., in the patient’s
best medical interest in light of his medical condition.” Id.
To carry its burden under Sell, the government must submit
a proposed treatment plan specifying the particular drug and
32
dosage it intends to administer. See United States v. Evans,
404 F.3d 227, 241 (4th Cir. 2005). For the treatment plan to
satisfy the requirements of the second factor, the government
must show that the plan relates
to the individual defendant’s particular medical
condition. In other words, the government,
considering all of the particular characteristics of
the individual defendant relevant to such a
determination, must first show that the treatment plan
will significantly further its interests. It must do
so by demonstrating that the proposed treatment plan,
as applied to this particular defendant, is
substantially likely to render the defendant competent
to stand trial and substantially unlikely to produce
side effects so significant as to interfere with the
defendant’s ability to assist counsel in preparing a
defense.
Id. at 242 (first emphasis added; footnote and internal
quotation marks omitted).
The question posed by the first Sell factor is a legal one,
and we therefore review the district court’s ultimate answer de
novo and any subsidiary factual determinations for clear error.
The remaining three factors pose factual questions subject to
clear error review. See United States v. White, 620 F.3d 401,
410 (4th Cir. 2010).
Clear error, of course, is a very deferential standard. “A
court reviewing for clear error may not reverse a lower court’s
finding of fact simply because it would have decided the case
differently. Rather, a reviewing court must ask whether, on the
entire evidence, it is left with the definite and firm
33
conviction that a mistake has been committed.” United States v.
Wooden, 693 F.3d 440, 451 (4th Cir. 2012) (internal quotation
marks and alteration omitted). “If the district court’s account
of the evidence is plausible in light of the record viewed in
its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact,
it would have weighed the evidence differently.” Anderson v.
City of Bessemer City, 470 U.S. 564, 573–74 (1985). “In cases
in which a district court’s factual findings turn on assessments
of witness credibility or the weighing of conflicting evidence
during a bench trial, such findings are entitled to even greater
deference.” Helton v. AT & T, Inc., 709 F.3d 343, 350 (4th Cir.
2013).
II.
Given the fact-bound nature of this appeal, I will first
summarize the primary evidence before the district court: the
report and testimony of Dr. Robert Lucking, the government’s
expert witness and staff psychiatrist at the Federal Medical
Center in Butner, North Carolina, the facility where Watson is
housed; a study by Byron L. Herbel and Hans Stelmach (the
“Herbel Study”) 1 that was relied upon by Lucking; and the report
1 See Byron L. Herbel & Hans Stelmach, Involuntary
Medication Treatment for Competency Restoration of 22 Defendants
With Delusional Disorder, 35 J. Am. Acad. Psychiatry & L. 47
34
of Dr. James Hilkey, a psychologist who served as Watson’s
expert witness.
A.
Dr. Lucking submitted a report detailing his views and
testified at the two Sell hearings conducted by the magistrate
judge. In his report, Lucking diagnosed Watson as suffering
from delusional disorder, paranoid (or persecutory) type and a
“substantial thought disorder.” J.A. 357. Lucking described
the nature of delusional disorder and stated his opinion that
Watson was incompetent to stand trial because his “paranoid
delusional beliefs” prevented Watson from “understand[ing] the
nature and consequences of the proceedings against him” and
prevented him from assisting his attorney. J.A. 359, 360.
Lucking stated his opinion that there was a “substantial
probability Mr. Watson’s competency can be restored” through
treatment with an antipsychotic medication. J.A. 376.
Lucking explained that antipsychotic medications can
restore the competency of those with active psychotic illnesses,
and he summarized various studies supporting this general
principle. As to delusional disorder more specifically, Lucking
(2007). The Herbel Study was submitted to the district court as
part of Watson’s opposition to the government’s petition.
35
noted in his report that “[p]ast opinion of the treatment of
delusional disorder with antipsychotic medication was
pessimistic. The prevailing opinion was that only a fraction of
individuals with delusional disorder would respond to treatment
(approximately 10%).” J.A. 371 (emphasis added). Lucking
explained, however, that “more recent literature indicates a
significantly better response rate,” J.A. 372, and he summarized
those more recent studies, which included several with rates of
successful treatment (i.e., full or partial remission of
symptoms) 2 exceeding 75%. Lucking acknowledged that there are
“no double-blind placebo-controlled or non-blinded placebo-
controlled trials in the literature related to the treatment of
delusional disorder,” and that the more recent literature
involved case studies, which yield “lower quality” evidence than
the evidence obtained through placebo-controlled trials. J.A.
372. These shortcomings notwithstanding, Lucking believed the
more recent studies “indicate delusional disorder can be treated
effectively with antipsychotic medication.” J.A. 374.
2
Lucking explained that “it is generally psychotic symptoms
which render an individual incompetent,” and that “the fewer
psychotic symptoms present, and the less intense the symptoms,
the more likely that individual is to be competent. Therefore,
even a partial response to antipsychotic medication can result
in a restoration of competency.” J.A. 370.
36
The report explained the difference between first- and
second-generation antipsychotic drugs and noted that second-
generation antipsychotics “are considered to be the first line
treatment for psychotic conditions due to [their] less onerous
side effect profile.” J.A. 376. The report discussed the three
antipsychotic medications that could be administered
involuntarily and noted that risperidone is the only second-
generation antipsychotic that could practicably be administered
involuntarily. Lucking stated in the report that Watson had
previously been admitted to a hospital in Washington, D.C.,
where he was treated with risperidone. Lucking inferred from
the fact that Watson was released from the hospital that he
responded positively to the drug, and his treatment plan for
Watson recommended the use of risperidone.
Lucking’s report stated that treatment with an
antipsychotic would not produce side effects that would
interfere with Watson’s ability to assist his attorney; that
Watson had no underlying disease that would preclude the
standard treatment of any side effects or make him susceptible
to particular side effects; that risperidone would not interact
with any of the other medications prescribed for Watson; and
that Watson had no “underlying medical illness or conditions
which would preclude or be worsened by the use of antipsychotic
medication.” J.A. 375.
37
In the report, Lucking explained that no less-intrusive
treatments were likely to achieve the same results as treatment
with risperidone. While acknowledging that psychotherapy can be
beneficial as an adjunct to treatment with antipsychotics,
Lucking noted that there is “no evidence that psychotherapeutic
techniques alone are effective alternatives for treatment with
antipsychotic agents.” J.A. 375 (emphasis added). Lucking also
indicated that therapy would not succeed in this case because
Watson does not understand that he has a mental illness, does
not believe he needs treatment, and would not participate in any
form of therapy.
During the Sell hearings held before the magistrate judge,
Lucking testified about the matters set out in his report and
reiterated his views that Watson’s delusional disorder rendered
him incompetent to stand trial and that treatment with an
antipsychotic medication was substantially likely to restore
Watson’s competency. Lucking also testified that he had treated
“[o]n an involuntary basis” approximately ten delusional-
disorder patients with antipsychotic medication, all of them
successfully. 3 J.A. 32. Lucking’s testimony also elaborated on
3 The majority questions whether Lucking’s testimony
establishes that the ten patients were treated involuntarily.
In my view, it clearly does. See J.A. 32 (“Q. How many patients
suffering from delusional disorder have you treated with
antipsychotic medication? A. On an involuntary basis, it’s not
38
the position expressed in the report that therapy would not be
helpful for Watson. Lucking explained that because thought
disorders and delusions respond positively to antipsychotic
medications but are not helped by therapy, he did not believe
therapy would be effective to restore Watson’s competency to
stand trial.
Although Lucking’s report recommended risperidone because
Watson had previously been treated with it and apparently
responded positively to it, Lucking testified at the hearing
that he would recommend risperidone even if Watson had never
taken the drug. As Lucking explained,
[t]he reason the risperidone was chosen is because we
are very limited. The fact that he had received it
before is a fraction of the reason for choosing that
medication. That medication is chosen, one, because
it’s appropriate to treat his delusional disorder;
two, the side effects are more tolerable than ones
from the 1st generation; the medicine is effective;
and I use it a lot, and I get [a] good response [to]
it. The fact that he had been on it is not the main
reason I chose it for the treatment plan.
J.A. 64-65; see also J.A. 76 (“[C]linically, I believe
[risperidone] is the best choice for treatment at this point in
time for Mr. Watson.”).
a lot of them because many of them – it’s a rather rare disorder
that you don’t see very often. So probably somewhere around ten
patients over the course of my career here I've treated with
antipsychotics.” (emphasis added)).
39
B.
Dr. James Hilkey, Watson’s expert witness, prepared a
report after interviewing Watson for nearly ten hours over the
course of four separate interviews. Hilkey agreed that Watson
was suffering from delusional disorder, persecutory type, and
that Watson was incompetent to stand trial.
Hilkey’s report confirmed that Watson had been previously
treated with risperidone during an inpatient hospital stay. The
hospital records reviewed by Hilkey noted that Watson had an
adverse reaction to higher dosages of lithium but mentioned no
adverse reaction to the risperidone. Watson, however, told
Hilkey that he was “terrified” of the side effects of
antipsychotic medications and that he had “severe reactions” to
the single dose of risperidone he took under court order. J.A.
381. In Hilkey’s view, Watson’s fears about the medication
“interfaced with his conspiratorial belief system.” Id.
As to treatment with antipsychotics, Hilkey stated that
“pharmacological treatment of Delusional Disorders [is] less
efficacious than with typical psychotic disorder[s] such as
Schizophrenia.” Id. Hilkey noted the “paucity of controlled,
double-blind studies on treatment of individuals with delusional
disorders,” id., and observed that the “existing studies” show
that the persecutory type of the delusional disorder is the most
resistant to treatment, J.A. 382.
40
Hilkey had “some question about the efficacy of
pharmacological treatment with Mr. Watson,” J.A. 383, noting
that “[t]he chronic nature of Mr. Watson’s illness and the
fixed, well established nature of his aberrant thoughts make
response to treatment (pharmacological and psychological)
resistant to change,” J.A. 383. However, Hilkey never directly
stated an opinion on the likely success of the treatment plan
proposed by Lucking. Hilkey instead focused on the need for
“[s]upportive therapy,” which “has been shown to be an effective
treatment.” J.A. 382. As Hilkey explained,
[t]he general goals of supportive therapy are to
facilitate the treatment adherence and develop a
therapeutic alliance, to provide education about the
disorder, to improve social skills (i.e. not talking
about delusional systems in social places) and to
manage behavioral and psychological problems
associated with the delusions. This is a slow
process; failure to offer this type of supportive
treatment in lieu of more aggressive therapy only
reinforces the established fears that characterize
persecutory delusional disorders.
J.A. 382-83 (footnote omitted). Given Watson’s “strongly held
beliefs and reported personal experiences with psychotropic
medications to include pronounced fears of death,” Hilkey
believed that “any treatment approach be it pharmacological or
psychological must be offered in a supportive manner designed to
mitigate the fears of the individual being treated. Failure to
compassionately address these fears only contributes to fears of
persecution.” J.A. 383. In Hilkey’s view, Watson’s relationship
41
with his attorneys showed his ability to form some degree of the
“therapeutic alliance” required for therapy to succeed, and
Hilkey “strongly believed” that supportive therapy “could
increase the likelihood his competency could be sufficiently
restored.” J.A. 384.
C.
The Herbel Study reported findings from an evaluation of
the case files of twenty-two men involuntarily medicated at FMC-
Butner, the same facility where Watson is housed and Dr. Lucking
works. Of the twenty-two cases studied, sixteen of the patients
suffered from delusional disorder, persecutory type; one had
delusional disorder, grandiose type; and five were mixed
persecutory and grandiose type. Overall, seventeen of the
twenty-two patients (77%) were reported restored to competency.
And of the sixteen patients diagnosed with delusional disorder,
persecutory type, eleven (69%) were reported restored to
competency. Of the five patients who were not restored to
competency, one was mixed type and the other four were
persecutory type.
The information reviewed was sufficient in nineteen cases
for the authors of the Herbel Study to determine how long before
treatment the symptoms had begun. The symptoms had been present
for five years or less for nine patients, seven of whom were
restored to competency. Six patients had had symptoms for seven
42
to ten years, and all six of those patients were restored to
competency. Of the four patients who were symptomatic for a
much longer period of time (thirteen to twenty-four years), only
one was restored to competency. 4
The study reported that seven patients were restored to
competency within six weeks of beginning treatment, but that the
other ten who were restored to competency did not shows signs of
improvement until undergoing at least three months of continuous
treatment, and that some of the patients required five months of
treatment before regaining competency. The authors thus
recommended treatment trials of at least four months, and noted
that many previous studies involved significantly shorter
medication trials. In the authors’ view, the too-short duration
of medication in the previous studies provided a “plausible
explanation” for the incorrect “conventional wisdom that these
patients are refractory to treatment with antipsychotic
medication.” J.A. 147; see also J.A. 141 (describing as
“empirically unsupported” the opinion asserted in forensic
psychiatric literature that “Delusional Disorder is notoriously
treatment resistant”).
4
The evidence in the record establishes that Watson had
been suffering from delusions since 2008 or 2009. Thus, when
the district court issued its order in April 2014, Watson had
been suffering from the disorder for five to six years.
43
The authors noted that some experts have expressed concern
that patients whose core delusion involves a belief that they
are victims of a governmental conspiracy were not likely to
respond to forced medication “‘precisely because the government
administers the medication.’” J.A. 149 (quoting United States
v. Evans, 404 F.3d 227, 241 (4th Cir. 2005)). As to the twenty-
two cases studied, sixteen had delusions of governmental
persecution, eleven of whom (65%) were restored to competency;
the five patients who were not restored to competency all had
such delusions. In light of that data, the authors concluded
that “the presence of delusions involving themes of persecution
by the same government that is implementing involuntary
medication does not appear to be a useful predictor of
nonresponse to treatment.” J.A. 149.
The authors noted that their study was subject to the
“usual limitations” inherent in “retrospective inpatient chart
review,” including the “lack of standardized clinical
assessments with rating scales and diagnostic instruments, as
well as lack of interrater reliability studies.” Id. Because
of those limitations,
some patients may have been misdiagnosed and wrongly
included or excluded from this study population.
Standard research methods to reduce bias, such as
random assortment to assigned treatment groups, the
use of a placebo control group, and blinded outcome
measures, were not possible in this study. Without
these safeguards, the opinions of the forensic
44
examiners may have been biased in favor of finding a
positive response to treatment.
J.A. 149-50. The authors, however, also pointed out a strength
of the study:
[T]he patient cohort was selected in a real-world
manner by criminal prosecution, after which they were
assessed and involuntarily treated in a real-world
manner at a forensic mental health facility. The main
contribution of this study was the observation of
treatment response in patients with delusional
disorder who, in contrast to the usual protocols in
community research studies, were not permitted to drop
out of treatment. That 10 of the 17 patients who
responded to treatment required continuous
antipsychotic treatment for at least three months, and
some up to five months, was unexpected. This result
provides a plausible explanation for the presumed
refractory nature of delusional disorder symptoms.
The real obstacle to a positive treatment response in
delusional disorder may not be the intrinsic
biological features of the illness, but may instead be
the difficulties in convincing these patients to
adhere to an adequate trial of medication.
J.A. 150 (emphasis added).
III.
When considering whether the government’s proposed
treatment plan was “substantially likely to render the defendant
competent to stand trial,” Sell, 539 U.S. at 181, the district
court concluded that Dr. Hilkey strongly recommended supportive
therapy but that he never opined that medication alone would not
restore Watson’s competency. On appeal, Watson contends that
the district court’s analysis reflects a clearly erroneous
understanding of Hilkey’s testimony. See Brief of Appellant at
45
2 (“[T]he district court clearly err[ed] by misunderstanding the
opinion of the defense expert about the necessity of holistic
treatment.”); id. at 25 (“The district court’s misunderstanding
of Dr. Hilkey’s conclusions constitutes clear error.”).
Acknowledging that Hilkey never directly stated that the
proposed treatment plan would not work, Watson contends that
when Hilkey’s report is considered in its entirety, its meaning
is clear: “Dr. Hilkey does not disagree with Dr. Lucking that
Mr. Watson should be medicated. To the contrary, Dr. Hilkey
agrees that medication is necessary, but it must be combined
with supportive therapy in order to be successful.” Brief of
Appellant at 24. Watson thus argues the district court clearly
erred by misinterpreting Hilkey’s report and by not requiring
the government to provide supportive therapy as part of the
treatment plan.
Rather than focusing on the need for supportive therapy,
however, the majority reverses the district court’s order after
concluding that the government’s evidence was insufficiently
related to Watson himself and his particular medical condition,
and that the government’s “generalized” evidence was
insufficient to carry its burden of proof under Sell. See
Majority Op. at 2 (“[T]he government has not met its burden of
proving that involuntary medication is substantially likely to
restore Watson’s competency . . . .”); id. at 17-18 (“Permitting
46
the government to meet its burden through generalized evidence
alone would effectively allow it to prevail in every case
involving the same condition or course of treatment.”).
A challenge to the overall sufficiency of the evidence,
however, is very different from a challenge to the sufficiency
of the district court’s distillation of the evidence. A
challenge to the sufficiency of the evidence asks whether there
is any plausible view of the evidence that supports the district
court’s decision. See Anderson, 470 U.S. at 573-74; United
States v. Springer, 715 F.3d 535, 545 (4th Cir. 2013); see also
VICI Racing, LLC v. T-Mobile USA, Inc., 763 F.3d 273, 283 (3d
Cir. 2014) (“A finding of fact is clearly erroneous when it is
completely devoid of minimum evidentiary support displaying some
hue of credibility or bears no rational relationship to the
supportive evidentiary data.” (internal quotation marks
omitted)). A challenge to sufficiency of the district court’s
distillation of the evidence, however, asks whether the district
court as factfinder properly “synthesize[d] the evidence in a
manner that accounts for conflicting evidence or the gaps in a
party’s evidentiary presentation.” Doe v. Menefee, 391 F.3d
147, 164 (2d Cir. 2004) (Sotomayor, Circuit Judge); accord
Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361 (4th Cir. 1983)
(explaining that clear error may be found where “the findings
under review . . . were made without properly taking into
47
account substantial evidence to the contrary”). An insufficient
distillation of the evidence is an error that can be corrected
by the district court, through an order on remand that considers
all evidence and properly accounts for contrary evidence.
Insufficient evidence, by contrast, cannot be corrected by the
district court -- insufficient evidence is insufficient,
regardless of the thoroughness of the order evaluating it.
In this case, Watson simply does not challenge the
sufficiency of the government’s evidence. Watson does not argue
on appeal that the government’s evidence, standing alone, was
insufficient to satisfy the Sell requirements, nor does he
contend that the government’s evidence was not sufficiently
individualized to him and his condition. Instead, by arguing
that the district court failed to grasp the import of Hilkey’s
report, Watson is challenging only the district court’s
synthesis of the evidence, not the existence of the evidence.
Indeed, Watson’s argument that Hilkey’s report establishes the
need for medication and supportive therapy effectively concedes
that the record contains evidence sufficient to establish that
Watson’s competency can be restored.
Thus, without acknowledging what it is doing, the majority
disregards the argument actually made by Watson and resolves the
appeal on an entirely different basis involving an entirely
different kind of error -- the government’s failure to carry its
48
burden of proof, rather than the district court’s failure to
properly synthesize the evidence. 5 Moreover, by reversing the
district court’s order without remanding, the majority is
granting relief that no one has sought, as Watson does not seek
a reversal, but instead asks this court to vacate and remand for
further proceedings. 6
It is well-settled that this court may affirm a district
court’s order on any basis appearing in the record. See, e.g.,
Blum v. Bacon, 457 U.S. 132, 137 n.5 (1982) (“[A]n appellee may
rely upon any matter appearing in the record in support of the
judgment below.”); Scott v. United States, 328 F.3d 132, 137
(4th Cir. 2003) (“We are, of course, entitled to affirm on any
ground appearing in the record, including theories not relied
5 While the majority does note some deficiencies in the
district court’s order and briefly mentions the cumulative
effect of the errors it identifies, the opinion nonetheless
makes it clear that the majority is reversing for insufficient
evidence. See Majority Op. at 2 (“In this case, we conclude,
the government has not met its burden of proving that
involuntary medication is substantially likely to restore
Watson’s competency.”); id. at 25 (“We therefore hold that the
district court clearly erred in finding that the government has
met its burden of proving, by clear and convincing evidence, . .
. that the proposed treatment plan, as applied to this
particular defendant, is substantially likely to render the
defendant competent to stand trial.” (internal quotation marks
omitted)).
6 Although Watson’s opening and reply briefs ask us to
vacate without mentioning remand, counsel made clear at oral
argument that Watson is asking us to vacate the district court’s
order and remand for further proceedings.
49
upon or rejected by the district court.”). When it comes to
reversing a district court’s order, however, our discretion is
much more constrained. As a general rule, this court does not
consider non-jurisdictional issues that are not properly
presented in an appellant’s opening brief, see, e.g., Suarez-
Valenzuela v. Holder, 714 F.3d 241, 248-49 (4th Cir. 2013), much
less issues that the appellant never even attempts to raise.
While we have the power to address issues not raised by the
appellant, see A Helping Hand, LLC v. Baltimore Cnty, 515 F.3d
356, 369 (4th Cir. 2008), we do not exercise that power in civil
cases unless the issue “establishes fundamental error or a
denial of fundamental justice,” In re Under Seal, 749 F.3d 276,
285-86 (4th Cir. 2014) (internal quotation marks omitted). 7
The majority does not contend that the error it identifies
rises to the level of a fundamental error, nor does it otherwise
attempt to explain why the facts of this case justify such a
departure from our settled practice. This court should not be
in the business of re-writing the parties’ briefs and raising
7 Of course, “[w]hen an issue or claim is properly before
the court,” a reviewing court “is not limited to the particular
legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction
of governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S.
90, 99 (1991) (emphasis added). This rule has no application in
this case because Watson does not challenge the sufficiency of
the evidence, and the sufficiency issue thus is not properly
before this court.
50
issues we think they should have raised. Watson does not
challenge the sufficiency of the evidence on appeal, and I
believe it is improper in this case for the majority to reverse
the district court on an issue the majority has raised sua
sponte, particularly where the government has been given no
notice of the change in the direction of this appeal nor an
opportunity to address the issue the majority finds dispositive.
IV.
As discussed above, I do not believe the sufficiency-of-
the-evidence question is properly before us. But if it were, I
would disagree with the majority’s analysis. In my view, the
evidence before the district court was sufficient to support the
court’s factual determination that involuntary medication was
“substantially likely to render the defendant competent to stand
trial.” Sell, 539 U.S. at 181.
A.
In finding the government’s evidence insufficient, the
majority focuses on our requirement that the government “show
that a treatment plan works on a defendant’s type of mental
disease in general, [and] that it is likely to work on this
defendant in particular.” Bush, 585 F.3d at 816. To show the
appropriate consideration of the defendant “as an individual,”
Evans, 404 F.3d at 240, the evidence must establish that the
experts recommending involuntary medication “actually considered
51
[the defendant’s] particular mental and physical condition in
reaching [their] conclusions,” id. In my view, Lucking’s
report, fairly read, is replete with evidence of his
consideration of Watson himself and his particular medical
condition.
According to the majority, the entirety of Lucking’s
analysis justifying the proposed treatment plan was that
“(1) antipsychotic medication effectively treats psychotic
symptoms; (2) Watson has psychotic symptoms; (3) therefore,
antipsychotic medication will effectively treat his psychotic
symptoms,” an analysis the majority rejects as “nonspecific,
syllogistic reasoning.” Majority Op. at 19. I disagree.
While Lucking did note in his report that “there is
extensive support in the psychiatric literature that individuals
with the diagnosis of a psychotic illness obtain substantial
reduction in their psychotic symptoms when treated with
antipsychotic medication,” J.A. 369, that was not the entirety
of his analysis when recommending medication. Lucking’s report
discussed delusional disorder in general, but also described how
the disorder presented itself in Watson and the nature of
Watson’s delusions. Lucking considered the general efficacy of
antipsychotic medications on psychotic illnesses generally, but
he then went on to consider the efficacy of antipsychotic
medications on Watson’s specific condition by discussing the
52
limited scientific literature addressing the treatment of
delusional disorder, acknowledging studies to the contrary, but
noting that the more recent literature shows a high rate of
improvement in response to medication. Indeed, as Lucking’s
report indicates, the Herbel Study shows a high treatment
response rate by patients with the persecutory subtype (69%
restored to competency) and high response rates by patients
whose delusions had persisted for approximately as long as
Watson’s. 8 Lucking therefore supported his proposed treatment
plan with scientific literature involving similarly situated
patients suffering from Watson’s specific disorder, as we
require. See Bush, 585 F.3d at 816 (concluding that Herbel
Study did not “relate[] to the particular circumstances” of the
defendant with 13-year history of untreated persecutory type of
delusional disorder, because Herbel Study showed 25% recovery
rate for defendants with “duration of untreated psychosis
greater than 13 years”); White, 620 F.3d at 421 (finding Herbel
Study to be of “limited assistance” in case involving female
defendant suffering from grandiose type of delusional disorder
8
As noted, Watson had been delusional for five or six years
prior to the district court’s ruling. Nine patients in the
Herbel Study had been symptomatic for five years or less, seven
of whom (77%) were restored to competency. Six patients been
symptomatic for seven to ten years before treatment, all of whom
(100%) were restored to competency.
53
because Herbel Study involved male defendants, only one of whom
had the grandiose form of the disorder).
In addition, Lucking considered whether Watson was taking
medication that would adversely interact with his proposed
treatment or had other medical conditions that would place him
at special risk for developing the more serious side effects or
preclude the standard treatment for managing any side effects.
Lucking also considered Watson’s beliefs about himself and his
illness when concluding that therapy would not be beneficial.
Cf. Bush, 585 F.3d at 818 (finding proposed treatment plan
inadequate where it recommended medication that can cause
diabetes without acknowledging that defendant had diabetes,
addressing how the medications would affect his diabetes, or
outlining a plan for controlling his condition).
And after considering all the circumstances, Lucking
determined, in his expert opinion, that treating Watson with
risperidone was substantially likely to restore his competence.
As Lucking explained, it was the delusional beliefs that were
rendering Watson incompetent, and risperidone
produces beneficial clinical effects such as
decreasing delusional beliefs. . . . By decreasing
delusional beliefs this decreases the influence they
have on decisions, judgements, and perceptions. This
will allow Mr. Watson to make reasonable, rational,
reality based decisions regarding the processing of
his legal charges. By decreasing delusional beliefs
and restoring more normal thought processes,
54
risperidone can improve the level of communication
between the client and his attorney.
J.A. 369. Given the amount of detailed information contained in
Lucking’s report and testimony, I fail to understand how the
majority can reject Lucking’s analysis as “nonspecific,
syllogistic reasoning.”
The majority contends that its rejection of Lucking’s
evidence is warranted because his report and testimony failed to
relate[] the proposed treatment plan to Watson’s
particular medical condition. . . . There is
virtually nothing in Lucking’s report or testimony . .
. that is sufficiently specific to Watson that it
could satisfy the government’s burden of showing that
Watson is substantially likely to be rendered
competent by forcible medication, let alone meet the
rigorous clear and convincing standard.
Majority Op. at 17-18 (emphasis added). While the majority
finds the government’s evidence insufficiently specific, it
provides no concrete example of how the evidence is inadequate
or what other information should have been presented. The
closest the majority comes to actually identifying the perceived
deficiencies is its suggestion that the evidence failed to
connect the proposed treatment plan “not only [to Watson’s]
medical condition but also [to] his age and the nature and
duration of his delusions.” Majority Op. at 16.
As recounted above, however, the evidence in the record
does precisely that. The government’s evidence addresses the
efficacy of involuntary treatment of those with the persecutory
55
form of delusional disorder, which is Watson’s “medical
condition.” The government’s evidence, particularly the Herbel
Study, shows success in treating the persecutory subtype of
delusional disorder and thus addresses the “nature” of Watson’s
delusions. The Herbel Study likewise shows success in
involuntarily treated defendants whose delusions have persisted
approximately as long as Watson’s, thus addressing the
“duration” of Watson’s illness. 9
While the majority contends that the district court did not
explicitly address questions raised by Dr. Hilkey about whether
Watson’s “particular persecutory delusions” would respond to
medication, Majority Op. at 26, a failure by the district court
to address a given issue cannot be equated to a failure of
proof. The evidence presented by the government provided bases
for the district court to conclude, despite the questions raised
by Hilkey, that the government’s proposed treatment plan was
substantially likely to restore Watson’s competency. Given the
wealth of information showing the government’s consideration of
9
As to age, the record shows that the government properly
recorded and reported Watson’s age in the relevant forms and
reports. Beyond the possible connection of age to the duration
of symptoms, however, there is nothing in the record suggesting
that a patient’s age is relevant to issues in this case. That
is, nothing in the record suggests, for example, that older
patients are more prone to suffer from the side effects of
antipsychotics, or that patients of a particular age are more
or less responsive to antipsychotic drugs.
56
Watson’s specific diagnosed psychological condition as well as
his physical condition, the majority’s rejection of the
government’s evidence simply cannot be squared with our highly
deferential standard of review.
B.
The majority draws support for its conclusion on Lucking’s
testimony at the Sell hearing that he would have recommended
risperidone for Watson whether or not Watson had previously
taken it. In the majority’s view, this testimony shows that
Lucking’s recommendation “rested not on any individualized
assessment of Watson, but on the belief that ‘antipsychotics are
the treatment of choice for psychotic symptoms’ -- the same
nonspecific, syllogistic reasoning we have previously rejected.”
Majority Op. at 24.
Lucking’s risperidone recommendation was based on Lucking’s
belief that Watson had previously taken it without incident and,
as discussed above, on an individualized assessment of the
particular disorder affecting Watson, the other medications
Watson was taking, and whether Watson had any underlying
conditions that would cause or complicate the treatment of any
side effects. Moreover, Lucking reached his recommendation by
relying on studies involving treatment of patients suffering
from Watson’s specific disorder. Lucking’s recommendation was
therefore based on a consideration of Watson’s particular
57
diagnosis and physical condition. That Lucking also had more
generalized reasons to chose risperidone 10 does not somehow
negate the individualized aspects of Lucking’s analysis and
render it insufficient as a matter of law.
C.
The majority also suggests that the government’s evidence
is insufficient because the academic literature relied upon by
Lucking does not “bear[] on Watson’s particular medical
condition or circumstances,” Majority Op. at 17, and because of
“weaknesses” the majority perceives in the studies that support
Lucking’s conclusions, id. at 20. Again, I disagree.
1.
As noted by the majority, not all of the studies cited in
Lucking’s report specifically address the treatment of
delusional disorder, and not all of those specifically
addressing delusional disorder show a positive response to
treatment by a majority of the patients. Nonetheless, Lucking’s
report discusses several studies, including the Herbel Study,
that provide clear support for the use of antipsychotic drugs in
the treatment of delusional disorder generally and more
10As Lucking’s report and testimony established, second-
generation antipsychotics are preferred over first-generation
antipsychotics because of their less-severe side-effect profile,
and risperidone is the only second-generation medication that
can practicably be administered involuntarily.
58
specifically in the treatment of the persecutory form of the
disorder. 11
While the studies that discuss the general efficacy of
antipsychotics in the treatment of psychotic illnesses may not
bear on Watson’s particular medical condition, I am perplexed by
the majority’s claim that the other studies do not bear on
Watson’s condition. The issue in this case is whether Watson,
who suffers from delusional disorder, should be involuntarily
treated with antipsychotic medication. Lucking relied on
literature addressing the treatment of delusional disorder with
antipsychotic medication, including the Herbel Study, which
11
As the majority concedes, the Herbel Study “unequivocally
support[s] the involuntary use of antipsychotic medication to
restore the competency of defendants with the Persecutory Type
of Delusional Disorder.” Majority Op. at 20-21. In addition to
the Herbel Study, Lucking’s report discusses a 1995 article
reviewing 209 cases of delusional disorder being treated with
antipsychotics, which determined that 53% of the patients fully
recovered, 28% partially recovered, and 20% did not improve.
While there is no indication of how many of the patients
suffered from the persecutory form of the disorder, the study
revealed that “[t]reatment was positive regardless of delusional
content,” J.A 372 (emphasis added), thus indicating that the
persecutory form of the disorder is no less responsive to
medication. And since the record establishes that “even a
partial response to antipsychotic medication can result in a
restoration of competency,” J.A. 370, the study’s 81% full-or-
partial recovery rate clearly supports Lucking’s opinion that
delusional disorder can be successfully treated with
antipsychotics. Lucking’s report also discusses a 2006 study
involving eleven patients with delusional disorder, ten of whom
had a complete remission of symptoms after being treated with a
first-generation antipsychotic.
59
studied the efficacy in the prison context of involuntary
medication to restore the competency of defendants suffering
from delusional disorder. The scientific literature thus
directly addresses Watson’s specific condition and was properly
relied on by Lucking and the district court. Indeed, if these
studies do not bear on Watson’s particular medical condition, it
seems unlikely that any academic literature short of a paper
devoted entirely to the treatment of the actual defendant in
question would meet the majority’s unexplained standard for
“bearing” on an incompetent defendant’s particular medical
condition.
2.
More troubling than the majority’s claim that the academic
literature does not bear on Watson’s particular condition,
however, is the majority’s failure to give any weight to the
supportive studies when determining the sufficiency of the
evidence before the district court. The majority concedes that
the Herbel Study provides unequivocal support for the
government’s proposed treatment plan, but it dismisses that
study as “vulnerable to bias in favor of finding a positive
response to treatment.” Majority Op. at 21 (alteration and
internal quotation marks omitted). The majority does not
mention the other supportive studies, presumably because of the
unidentified “weaknesses” perceived by the majority.
60
The majority’s treatment of these studies, particularly its
rejection of the Herbel Study, fails to respect the limited role
of an appellate court applying clear-error review. The question
in this case is not whether the majority itself is persuaded by
Dr. Lucking and the studies he relied on, but whether there is
any plausible view of the record that clearly and convincingly
establishes the propriety of the proposed treatment plan. See
Anderson, 470 U.S. at 573–74. And when answering that question,
we are required to view the evidence in the light most favorable
to the government, the prevailing party. See United States v.
Antone, 742 F.3d 151, 155 n.1 (4th Cir. 2014) (reviewing
district court’s order finding defendant subject to indefinite
civil commitment as a sexually violent predator).
As noted above, Lucking’s report discussed studies that
concluded that delusional disorder, including the persecutory
subtype, can be successfully treated with antipsychotic
medications, and he also discussed studies reaching the opposite
conclusion. The district court was thus presented with
conflicting evidence about the efficacy of treating delusional
disorder with antipsychotic medications, a conflict that the
court implicitly, but nonetheless undeniably, resolved in the
government’s favor. And under our standard of review, this
court is obliged to defer to the district court’s resolution of
the conflict. See Anderson, 470 U.S. at 574 (explaining that
61
deference to district court’s factual findings is required “even
when the district court’s findings do not rest on credibility
determinations, but are based instead on physical or documentary
evidence or inferences from other facts”).
Rather than treating the positive studies as evidence
supporting the proposed treatment plan, however, the majority
treats the conflict in the evidence as an opportunity for
factfinding. The majority weighs the conflicting scientific
literature and declares it “equivocal,” and then rejects the
equivocal evidence as insufficient to support Lucking’s opinion.
This approach is inconsistent with our role as a reviewing
court, “for our function is not to reweigh the evidence
presented to the district court.” United States v. Charleston
County, 365 F.3d 341, 349 (4th Cir. 2004); see Ceraso v. Motiva
Enters., LLC, 326 F.3d 303, 316 (2d Cir. 2003) (“The weight of
the evidence is not a ground for reversal on appeal, and the
fact that there may have been evidence to support an inference
contrary to that drawn by the trial court does not mean that the
findings are clearly erroneous.” (citation omitted)).
Moreover, the majority’s specific criticism of the Herbel
Study -- that it is vulnerable to bias -- provides no basis for
removing the Study from the sufficiency-of-the-evidence
equation. As noted above, the authors of the Herbel Study
acknowledged that “[s]tandard research methods to reduce bias,
62
such as random assortment to assigned treatment groups, the use
of a placebo control group, and blinded outcome measures, were
not possible” given that the study consisted of a “retrospective
inpatient chart review.” J.A. 149-50. These criticisms,
however, could be levelled against all of the studies, positive
or negative, addressing the treatment of delusional disorder.
As the record makes clear, delusional disorder is very rare, and
there are no controlled studies of the use of antipsychotic
medication to treat delusional disorder, only case studies,
which yield “lower quality” evidence than do controlled studies.
Notwithstanding the limitations inherent in the limited
available scientific literature, both Dr. Lucking and Dr. Hilkey
relied on the available literature when reaching their
conclusions. There is no evidence in the record raising any
question about the propriety of that reliance, nor is there any
other evidence that otherwise would permit us to reject the
Herbel Study or the other studies supporting Lucking’s position
and exclude them from consideration when evaluating the
sufficiency of the evidence.
The majority suggests that the supportive studies would be
entitled to some evidentiary weight if there had been some
“explanation or analysis applying their findings to Watson as an
individual.” Majority Op. at 21. However, all of the
information necessary to apply to the findings of these studies
63
to Watson is found in Lucking’s report, which makes it clear
that the studies involved the use of antipsychotic medications
to treat those suffering from delusional disorder, including the
persecutory subtype of the disorder. Lucking’s report does not
use impenetrable scientific jargon when describing the studies,
and the district court was thus more than capable of reading
Lucking’s report and drawing its own conclusions about the
various studies discussed in the report. See, e.g., United
States v. Bales, 813 F.2d 1289, 1293 (4th Cir. 1987) (explaining
that where the district court acts as factfinder, “the judge
weighs the evidence, determines the credibility of the
witnesses, and finds the facts . . . [and] may select among
conflicting inferences to be drawn from the testimony”). While
it perhaps would have been helpful if Lucking had explicitly
testified that the studies addressed the very condition
affecting Watson, his failure to do so cannot be grounds for
reversal when that information was otherwise presented to the
district court.
When the scientific evidence is considered along with
Lucking’s report and testimony and viewed in the light most
favorable to the government, see Antone, 742 F.3d at 155 n.1, I
believe that evidence is sufficient to support the district
court’s order.
64
D.
To the extent the majority’s real complaint is that the
government’s evidence is not compelling enough to constitute
clear and convincing evidence as a matter of law, then I again
disagree.
Evidence crosses the clear and convincing threshold if it
is “of such weight that it produces in the mind of the trier of
fact a firm belief or conviction, without hesitancy, as to the
truth of the allegations sought to be established, and, as well,
as evidence that proves the facts at issue to be highly
probable.” Springer, 715 F.3d at 538 (internal quotation marks
omitted).
In my view, a factfinder could reasonably find the Herbel
Study more compelling and its conclusions more persuasive than
the earlier studies questioning the efficacy of medication for
delusional disorder. As previously noted, ten of the seventeen
Herbel-Study patients restored to competency took three months
or longer to respond to the medication, a period significantly
longer than the medication trials involved in the earlier, more
pessimistic studies. See J.A. 150 (“That 10 of the 17 patients
who responded to treatment required continuous antipsychotic
treatment for at least three months, and some up to five months,
was unexpected. This result provides a plausible explanation
for the presumed refractory nature of delusional disorder
65
symptoms.”). Moreover, unlike earlier studies of voluntary
treatment for delusional disorder, the Herbel Study demonstrates
the efficacy of medication when the subjects are not permitted
to drop out of treatment. Because the Herbel Study assessed the
success of involuntary treatment administered under
circumstances largely identical to those at issue in this case
and provides a reasonable basis for discounting the more
pessimistic conclusions of other studies, I believe a factfinder
could reasonably find that the Herbel Study clearly and
convincingly supports the government’s position. Cf. United
States v. Gillenwater, 749 F.3d 1094, 1103 (9th Cir.) (O’Connor,
J.) (finding district court did not clearly err in accepting
testimony of Dr. Lucking over defense expert who “relied
exclusively on older studies,” when Lucking “relied on more
recent studies indicating that the older negative view was
mistaken”), cert. denied, 135 S. Ct. 222 (2014).
Similarly, there is evidence in the record making it
reasonable for the factfinder to assign significant weight to
Lucking’s recommendation. As noted above, Lucking testified
that he had involuntarily medicated approximately ten
defendants suffering from delusional disorder, all of whom were
restored to competency. His personal success in treating the
same disorder as Watson’s, under the same circumstances that
Watson would be treated, could reasonably be viewed by the
66
factfinder as strong evidence that the treatment plan proposed
by the government was substantially likely to restore Watson’s
competency.
The majority, however, dismisses the evidence of Lucking’s
experience because Lucking provided no details about those
patients and we therefore do not know how many of his patients
suffered from the persecutory type of disorder or what type of
medication was used. While more detail would be helpful, I do
not believe the lack of detail somehow renders Lucking’s
experience irrelevant, particularly since the Herbel Study shows
a high response rate for all delusional-disorder patients,
including those with the persecutory subtype, and finds that the
presence of delusions of governmental persecution “does not
appear to be a useful predictor of nonresponse to treatment.”
J.A. 149. Because the factfinder would be entitled to consider
Lucking’s testimony in light of the other evidence presented at
trial, see, e.g., Davis v. Richmond, Fredericksburg & Potomac
R.R. Co., 803 F.2d 1322, 1327 (4th Cir. 1986), the findings of
the Herbel Study make the lack of detail in Lucking’s testimony
less significant than the majority suggests. Under these
circumstances, I believe it is improper for the majority to
refuse to consider Lucking’s testimony about his experience
treating defendants with delusional disorder as part of its
evaluation of the sufficiency of the evidence.
67
In my view, then, the record thus provides a plausible
basis for the factfinder to slide extra weight over to the
government’s side of the scale and conclude that the evidence
clearly and convincingly establishes the propriety of the
proposed treatment plan. Although there is evidence supporting
a contrary conclusion and raising questions about certain
aspects of the government’s proposed plan, that contrary
evidence does not raise such substantial questions about the
government’s evidence as to render it insufficient as a matter
of law, but instead simply creates questions of fact for
resolution by the factfinder. See, e.g., United States v.
Heyer, 740 F.3d 284, 292 (4th Cir. 2014) (“[E]valuating the
credibility of experts and the value of their opinions is a
function best committed to the district courts, and one to which
appellate courts must defer.” (internal quotation marks
omitted)). I therefore disagree with the majority’s conclusion
that the government’s evidence was insufficient to carry its
burden of proof.
V.
I now turn to the merits of Watson’s argument that the
district court clearly erred by misinterpreting Hilkey’s report
and the need for supportive therapy in addition to medication.
68
A.
In its order, the district court acknowledged that while
Hilkey “strongly support[ed] the use of supportive . . .
psychotherapy alongside pharmacological treatments, Hilkey “did
not opine in his forensic evaluation that Dr. Lucking’s
treatment plan will be unsuccessful.” J.A. 340. Citing
Lucking’s report and testimony, the district court held that the
proposed treatment plan was substantially likely to render
Watson competent to stand trial, and the court granted the
government’s motion to involuntarily medicate Watson without
requiring the government to provide supportive therapy.
On appeal, Watson argues that the district court erred by
finding that Hilkey only suggested supportive therapy in
addition to medication. Watson contends that Hilkey’s report
made it clear that medication must be combined with supportive
therapy for the medication to succeed in restoring his
competency. Watson argues that because the district court
misunderstood Hilkey’s report, the district court never gave
proper consideration to the evidence contradicting Lucking’s
evidence and thus clearly erred. 12 See, e.g., Wooden, 693 F.3d
12The majority touches on this issue in the course of
identifying various deficiencies in the district court’s order.
According to the majority, the district court “summarily
disregarded Hilkey’s report in its entirety, solely because
Hilkey failed to state expressly that the proposed treatment
69
at 454 (finding clear error where district court ignored
substantial amount of contradictory evidence). In support of
his argument, Watson points to Hilkey’s statement that “any
treatment approach be it pharmacological or psychological must
be offered in a supportive manner designed to mitigate the fears
of the individual being treated.” J.A. 383 (emphasis added).
According to Watson, this statement “unequivocal[ly]” shows
Hilkey’s view that “[a]ny treatment must be offered in a
supportive manner. Otherwise, forcible medication just
reinforces fears of persecution.” Brief of Appellant at 24.
In my view, Hilkey’s report is much less conclusive on this
point than Watson contends. Regarding supportive therapy,
Hilkey stated that “[s]upportive therapy has been shown to be an
effective treatment” for delusional disorder, J.A. 382, and that
“[t]he literature on treatment of persons with delusional
[disorder] strongly encourages the use of supportive and
plan would not succeed.” Majority Op. at 25. The majority
contends that the district court thus failed to address Hilkey’s
questions about Lucking’s reading of the scientific literature,
Hilkey’s view that “the fixed, well established nature” of
Watson’s delusions made them “resistant to change,” J.A. 383, or
Hilkey’s belief that supportive therapy was required to maximize
the likelihood that medication would be effective. As
previously noted, however, insufficiency of the government’s
evidence, not inadequacy of the district court’s findings, is
the basis for the majority’s reversal of the district court’s
order.
70
cognitive behavioral psychotherapy for the treatment of
Delusional Disorder,” J.A. 384. Noting that “Watson has the
capacity to form a degree of therapeutic alliance should someone
attempt to do so,” Hilkey stated his “strongly held opinion”
that such supportive therapy “could increase the likelihood his
competency could be sufficiently restored.” Id. (emphasis
added).
While it is apparent that Hilkey thought supportive therapy
was very important, the district court correctly observed that
Hilkey never directly stated that the proposed treatment plan of
medication without therapy would not work. Indeed, Hilkey’s
statement that supportive therapy could increase the likelihood
of success suggests that medication alone has at least some
likelihood of success. And the statement that Watson emphasizes
-- that “any treatment approach be it pharmacological or
psychological must be offered in a supportive manner,” J.A. 383
(emphasis added) -- seems to implicitly acknowledge that there
are supportive and non-supportive ways to administer either
approach to treatment, medication or therapy. Under this
reading, Hilkey’s recommendation that medication be administered
in a supportive manner does not amount to a statement that
supportive therapy is required. Given the lack of clarity in
Hilkey’s report, I cannot find clear error in the district
court’s conclusion that Hilkey did not opine that medication
71
alone would not be effective to restore Watson’s competency.
See Anderson, 470 U.S. at 573-74 (factual findings are not
clearly erroneous “[i]f the district court’s account of the
evidence is plausible in light of the record viewed in its
entirety”); id. at 579 (deferring to trial court’s
interpretation of ambiguous testimony).
Although I do not believe that the district court’s
interpretation of Hilkey’s report is clearly erroneous, I
nonetheless agree with Watson that the district court’s findings
are inadequate to show that it properly considered the entire
range of evidence relating to supportive therapy. While
Hilkey’s report is ambiguous as to whether supportive therapy is
required, the report unambiguously establishes that supportive
therapy is beneficial as an adjunct to medication in that it
can, inter alia, encourage compliance with the treatment plan
and help mitigate the persecutory fears that might otherwise be
exacerbated by the government forcibly administering the
medication. Dr. Lucking made the same point in his report,
noting that “there is evidence” that psychotherapy is
“beneficial to an individual with psychotic symptoms . . . as an
adjunctive treatment to the antipsychotic agents to improve such
things as insight, compliance, or coping skills.” J.A. 375.
The district court thus had before it evidence from both
the government and the defense establishing that supportive
72
therapy is a beneficial addition to a medication-based treatment
plan for patients suffering from delusional disorder, with no
evidence raising any doubts about that conclusion. The court
also had before it Dr. Hilkey’s undisputed 13 opinion that
including therapy in the treatment plan would increase the
likelihood that the plan would succeed in restoring Watson’s
competency to stand trial. The district court noted Hilkey’s
strong preference for using therapy along with medication, but
it did not acknowledge the additional benefits obtained when
supportive therapy is added to a medication plan or the
medication-success-enhancing nature of supportive therapy. And
while the district court noted Lucking’s view that therapy alone
would not help Watson, the court did not explain why it
determined that therapy should not be required in addition to
medication. 14
13Lucking did not affirmatively state that therapy
increases the likelihood that medication will be successful, but
nothing in his report or testimony contradicts or raises
questions about Hilkey’s view.
14
Lucking testified that therapy alone would be ineffective
because delusions respond to medication, but not therapy, and
because Watson did not agree that he was mentally ill and would
not participate in therapy. While using therapy as an adjunct
to medication would seem to eliminate at least a portion of
these concerns, Lucking did not address whether adjunctive
therapy would be appropriate in this case.
73
In my view, the evidence of the benefits of adjunctive
supportive therapy is, at the very least, relevant to the
factual question of whether the government’s medication-without-
therapy plan was not merely likely, but “substantially likely,”
Sell, 539 U.S. at 181 (emphasis added), to restore Watson’s
competency. Given the sensitive nature of “an involuntary
medication order, which trenches upon the elemental individual
liberty interest in refusing the invasive administration of
mind-altering medication,” United States v. Chatmon, 718 F.3d
369, 376 (4th Cir. 2013), it is important for the district court
to fully consider treatment options that maximize the likelihood
the treatment will succeed. And in this case, where there is
disagreement over the medication-success-rates in the limited
available scientific literature, but agreement among the expert
witnesses that adjunctive therapy can increase treatment
compliance, it seems especially important for the district court
to give explicit consideration to the value of adjunctive
therapy. Cf. Herbel Study, J.A. 150 (“The real obstacle to
positive treatment response in delusional disorder may not be
the intrinsic biological features of the illness, but may
instead be the difficulties in convincing these patients to
adhere to an adequate trial of medication.”).
While I do not suggest that the district court was required
to order adjunctive supportive therapy, the court was at least
74
required to acknowledge the evidence establishing its benefits.
See Chatmon, 718 F.3d at 376 (“Of course, a district court need
not credit a defendant’s evidence or accept his arguments, but
its findings should offer some reason why it did not.”); Wooden,
693 F.3d at 454 (“Although the district court might not have
been required to accept that the evidence recounted above proved
Wooden’s ongoing pedophilia, the court was required to at least
consider the evidence, and account for it, when concluding
otherwise.”). The district court’s failure to consider relevant
evidence when determining that the government’s plan was
substantially likely to succeed means that the court’s factual
finding cannot be sustained. See United States v. Francis, 686
F.3d 265, 273 (4th Cir. 2012) (“A court commits clear error when
it makes findings without properly taking into account
substantial evidence to the contrary.” (internal quotation marks
omitted)); Jiminez v. Mary Washington Coll., 57 F.3d 369, 379
(4th Cir. 1995) (explaining that district court clearly errs
when it “disregard[s] substantial evidence that would militate a
conclusion contrary to that reached”).
B.
I turn now to the question of remedy. The majority,
finding the government’s evidence insufficient, reverses the
district court’s order without remanding for additional
proceedings. As I have explained, however, the sufficiency of
75
the government’s evidence is not properly before this court.
Instead, the only issue properly before this court is whether
the district court’s factual findings are sufficient to support
the court’s substantially-likely-to-succeed conclusion.
When an appeal turns on an error by the district court, the
proper remedy would normally be to vacate the district court’s
order and remand for further proceedings, so as to give the
district court the opportunity to reconsider the issue; only in
unusual cases would this court render judgment for a party after
identifying an error by the district court. See Pullman-
Standard v. Swint, 456 U.S. 273, 291-92 (1982) (noting that when
a district court fails to make required factual findings, “a
remand is the proper course unless the record permits only one
resolution of the factual issue”); aaiPharma Inc. v. Thompson,
296 F.3d 227, 235 (4th Cir. 2002) (noting, after finding error
by district court, that “[o]rdinarily, the proper course would
be to vacate the district court’s judgment and to remand,” but
concluding that “special circumstances allow us to put aside the
district court’s procedural error and render a decision on the
merits” (emphasis added)); see generally Chatmon, 718 F.3d at
376 (“Because the district court erred in its analysis of the
third Sell factor, we vacate the involuntary medication order
and remand for further findings.”); Wooden, 693 F.3d at 463
76
(vacating and remanding for reconsideration after identifying
numerous deficiencies in district court’s factual findings).
In this case, the record is not so one-sided that it
renders the district court’s error harmless, nor is there any
other reason to bypass the usual remand route. 15 Accordingly,
because I believe that the only error in this case is the
district court’s failure to address the issue of adjunctive
supportive therapy, I would vacate the district court’s order
and remand for further proceedings to permit the district court
reconsider the issue and make the findings necessary to support
its ultimate conclusion.
VI.
For the reasons set out above, I believe that the
sufficiency of the government’s evidence is not properly before
15 In the majority’s view, “remand is inappropriate because
the record permits only one resolution of the factual issue:
that this burden cannot be met.” Majority Op. at 28-29
(internal quotation marks omitted). For the reasons previously
discussed, I strongly disagree with the majority’s assessment of
the record. Even if the evidence were insufficient, however,
this court in such circumstances has previously remanded rather
than reversed. See Bush, 585 F.3d at 817-18 (finding
government’s proof deficient in several respects and
“remand[ing] this issue for consideration of further evidence,
if it is deemed appropriate, and findings by the court”); Evans,
404 F.3d at 242-43 (finding government’s evidence insufficient
to carry Sell burden and “remand[ing] with instructions for the
district court to reassess the motion after affording the
parties the opportunity to supplement the record in a manner
consistent with this opinion”).
77
this court and that it is improper for the majority to reverse
the district court on an issue the majority has raised sua
sponte. The majority’s reversal is particularly inappropriate
since the government has had no opportunity to brief the issue
or defend the sufficiency of its evidence before this court.
Indeed, counsel for the government will surely be surprised by
the outright reversal in this case, given that the only relief
sought by the appellant was the vacating and remanding for
reconsideration of the district court’s order. Nonetheless,
even if the sufficiency of the evidence were properly before us,
I believe that the evidence is more than sufficient to survive
appellate review. And as to the issues actually raised by
Watson, 16 I would vacate the district court’s order and remand
16Watson also challenges the district court’s analysis of
the first Sell factor, which requires the government to show
that important interests are at stake that are not mitigated by
special circumstances. See Sell v. United States, 539 U.S. 166,
180 (2003). Watson contends that he would likely succeed in
establishing an insanity defense, which would subject him to
civil commitment, see 18 U.S.C. § 4243(a), and that the district
court therefore erred by not treating that defense as a special
circumstance that mitigated the government’s interest in
prosecution. As the district court noted, however, an insanity
defense and the competency-to-stand-trial inquiry focus on
different questions, and there is nothing in the record
establishing or even suggesting that the delusions prevented
Watson from recognizing the wrongfulness of his actions. See
United States v. Mackey, 717 F.3d 569, 574 (8th Cir. 2013)
(“That Mackey was delusional at the time of his arrest does not
necessarily mean that he could mount a successful insanity
defense.”). I see no error in the district court’s conclusion
that the record established only the possibility that Watson
78
for reconsideration and additional findings by the district
court on the necessity of adjunctive therapy.
Accordingly, I hereby respectfully dissent from the
majority’s decision to reverse the district court’s order
granting the government’s petition to involuntarily medicate
Watson.
would assert and ultimately succeed on an insanity defense, and
that the mere possibility of establishing the defense did not
substantially undermine the government’s strong interest in
prosecuting Watson. Cf. United States v. Evans, 404 F.3d 227,
239-40 (4th Cir. 2005) (explaining that the “unlikely future
civil confinement” of the defendant does not “make unimportant
the Government’s interest in prosecuting [the defendant] on the
serious charges against him”).
79