UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

WESTON, RUSSELL


99-3119a

D.C. Cir. 2000


*	*	*


Opinion for the court filed Per Curiam.


Circuit Judge Henderson filed a separate concurring  opinion.


Circuit Judge Rogers filed a separate concurring opinion.


Circuit Judge Tatel filed a separate concurring opinion.


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


On October 9, 1998 Weston, a diagnosed paranoid schizo- phrenic, was
charged in a six count indictment with the July  24, 1998 murder of
two United States Capitol Police officers  and the attempted murder of
a third.1 On April 22, 1999 the  district court found Weston, who is
confined at the Federal  Correctional Institution in Butner, North
Carolina (Butner), 




__________

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


incompetent to stand trial and committed him for treatment  to restore
his competency pursuant to 18 U.S.C. s 4241(d).  The incompetency
order provided that, should medical per- sonnel conclude antipsychotic
injections were warranted, the  Bureau could seek involuntary
medication authorization in  accordance with "the administrative
procedures under 28  C.F.R. s 543 [sic],2 provided that counsel for
Mr. Weston  receive reasonable notice before a hearing commences." Ap-
pendix vol. i (App. i) 47. The order further directed: "No 
administration of psychotropic medications to defendant  against his
will shall occur without the prior approval of this  Court in a


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


The Bureau conducted a second hearing before Dr. Herbel  on July 8,
1999. Weston was again represented by Pitcairn  who presented the
written report of Weston's expert witness,  Raquel E. Gur, M.D., also
a psychiatrist. In addition, Pitc-




__________

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


airn offered arguments suggested to him by Weston's coun- sel, who were
not themselves permitted to attend the hearing.  The government
offered the expert testimony of Sally C.  Johnson, M.D., Associate
Warden for Health Services at  Butner and Weston's treating
psychiatrist. At the conclusion  Dr. Herbel determined Weston
"suffer[s] from a mental  illness, and that medication is an
appropriate treatment for  [his] illness, and that [he] can be treated
against [his] will."  App. ii 90-91. He explained his decision to


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


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


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


App. ii. 3.


On August 20, 1999 the district court held a second judicial  review
hearing. In a decision dated September 9, 1999 the  court upheld the
Bureau's decision to medicate Weston on the  ground that "the proposed
medication is medically appropri- ate and that, considering less
intrusive alternatives, it is  essential for the defendant's own
safety or the safety of  others." United States v. Weston, 69 F. Supp.
2d 99, 118 


(D.D.C. 1999). The court declined to review the Bureau's  additional
justification, that medication was necessary to ren- der Weston
competent for trial, or to address Weston's claim  that forced
medication would infringe his Sixth Amendment  right to a fair trial.
These two issues, the court found, were  not then ripe "where the
defendant has not yet been arraign- ed and where there is no record
evidence to suggest that the  government's medical reasons are
pretextual." Id. at 107.  In the court's opinion the issues could
adequately be ad- dressed later "[in] the event that medication
successfully  renders the defendant competent to stand trial." Id.
Wes- ton contends the Bureau's decision is unsupported by the  record
and that the Sixth Amendment argument is now ripe  for resolution. We


As an initial matter, Weston asserts the district court  applied the
wrong standards in reviewing the Bureau's deter- mination "that
antipsychotic medication is medically appropri- ate and that,
considering less intrusive alternatives, it is  essential for the
defendant's own safety or the safety of  others." 69 F. Supp. 2d at
118. Following the Supreme  Court's opinion in Washington v. Harper,
494 U.S. 210, 223  (1990), the district court reviewed the Bureau's
medical/safety  justification substantively under a "reasonableness"
standard,  see 69 F. Supp. 2d at 116-18, and procedurally under the 
Administrative Procedure Act's "arbitrary and capricious"  test, see
69 F. Supp. 2d at 107 (citing 5 U.S.C. s 706(2)(A)).  Weston maintains
that the Supreme Court's decision in Rig- gins v. Nevada, 504 U.S. 127
(1992), in which the court  considered forced medication of a
detainee, as here, rather  than of a convicted inmate, as in Harper,
requires instead  review under the "strict scrutiny" and "de novo"
standards.  It is true the Riggins Court recognized that decisions
affect- ing a detainee's trial rights may warrant closer scrutiny than
 those made for inmates who have already been tried and  convicted.
See 504 U.S. at 135. ("Under Harper, forcing  antipsychotic drugs on a
convicted prisoner is impermissible  absent a finding of overriding
justification and a determina- tion of medical appropriateness. The
Fourteenth Amendment  affords at least as much protection to persons


detains for trial.") (emphasis added; citations omitted). The  Court,
however, declined to clarify the standards of review for  detainees.
The opinion makes no mention of the applicable  procedural standard
and the Court found "no occasion to  finally prescribe ... substantive
standards." Id. at 136. We  likewise need not decide the issue at this
point, given the lack  of support for the district court's
medical/safety determina- tion, preferring instead to await the
district court's findings  on remand using the guidance that Riggins


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


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


504 U.S. at 135-36. Nevertheless, the Court overturned the  state court
medication order for inadequate factual findings,  in part because it
"did not adopt the State's view, which was 


that continued administration of Mellaril was required to  ensure that
the defendant could be tried" and did not "indi- cate a finding that
safety considerations or other compelling  concerns outweighed
Riggins' interest in freedom from un- wanted antipsychotic drugs." Id.
at 136. The district court's  determination below suffers from similar
defects.


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


Second, the district court here (like the state court in  Riggins)
failed to address the government's theory that medi- cation is
necessary to render Weston competent for trial,  describing the trial
competency issue as "collateral" and not  yet "ripe." We disagree with
this characterization. Involun-


tary antipsychotic medication has the potential to adversely  affect
the defendant's ability to obtain a fair trial as guaran- teed under
the Sixth Amendment. See United States v.  Brandon, 158 F.3d 947, 954
(6th Cir. 1998) (concluding forced  medication may implicate Sixth
Amendment right); United  States v. Morgan, 193 F.3d 252, 264-65 (4th
Cir. 1999)  (acknowledging same). Weston's challenge here, based on 
this potential, is ripe for two reasons. First, as noted above,  the
evidence, including Dr. Johnson's testimony and the  determinations of
both the hearing officer and the warden,  see supra p. 4, focused on
the need to restore Weston's  competency, placing the issue squarely
before the district  court. Second, and more important, because
antipsychotic  medication may affect the defendant's ability to assist
in his  defense, see Riggins, 504 U.S. at 137; id. at 143 (Kennedy,
J.,  concurring); Brandon, 158 F.3d at 954, post-medication re- view
may come too late to prevent impairment of his Sixth  Amendment right.
Accordingly, both the defendant, whose  right to present a defense may
be infringed by involuntary  medication, and the government, whose
eventual prosecution  of the defendant may be foreclosed because of
the infringe- ment, are entitled to pre-medication resolution of the
Sixth  Amendment issue.


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




__________

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


medical determination that the medical experts [ ] discuss")  (emphasis
original).


So ordered.


Karen LeCraft Henderson, Circuit Judge, concurring:


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


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


Procedurally, the Harper Court concluded that the role of  the courts
is simply "to ensure that the decision to medicate  an inmate against
his will is neither arbitrary nor erroneous  under the [substantive
due process] standards." 494 U.S. at  228. "An inmate's interests,"
the Court concluded, "are  adequately protected, and perhaps better
served, by allowing  the decision to medicate to be made by medical
professionals 


rather than a judge," id. at 232. Again, the Court's rationale  applies
no less to a detainee than to a convicted inmate. I  therefore believe
that the district court correctly adopted as  its procedural standard
of review the one set forth in the  Administrative Procedure Act, 5
U.S.C. ss 551 et seq., which  permits agency action to be set aside
only if it is " 'arbitrary,  capricious, an abuse of discretion, or
otherwise not in accor- dance with law.' " See 69 F. Supp. 2d at 116.
I further  believe that under this standard the district court
properly  upheld the Bureau's determination that antipsychotic medi-
cation is "medically appropriate," a finding that is well sup- ported
by the record, although the majority opinion correctly  holds the
evidence does not support the concomitant finding  that in his
then-confinement situation Weston posed a safety  risk to himself or


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




__________

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


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


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


Confronted with the question of whether a judicial hearing  is required
before the State may treat a mentally ill convicted  prisoner with
antipsychotic drugs against his will, the Su- preme Court in
Washington v. Harper, 494 U.S. 210 (1990),  held that, "[g]iven the
requirements of the prison environ- ment, the Due Process Clause
permits the State to treat a  prison inmate who has a serious mental
illness with antipsy- chotic drugs against his will, if the inmate is
dangerous to  himself or others and the treatment is in the inmate's
medical  interests" Id. at 227.1 Harper had been convicted of robbery,
 was incarcerated for approximately four years during which  he was
mostly housed in the prison's mental health unit, and  was then
paroled on the condition that he participate in  psychiatric
treatment. While incarcerated he had consented  to the administration
of antipsychotic drugs, and while on  parole he continued to receive
psychiatric treatment. Even- tually, he was civilly committed, and his
parole was revoked  after he assaulted two hospital nurses. Upon
returning to  prison, he initially consented again to treatment but in
No- vember 1982 he refused to continue taking his medications.  He
subsequently filed a civil action under 42 U.S.C. s 1983  for
injunctive relief and monetary damages. Id. at 217. The  trial court
denied relief and was reversed on appeal by the  Washington Supreme
Court, which held that Harper had a  liberty interest in refusing
antipsychotic medication and thus  was entitled to a hearing with full




__________

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


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


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


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


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




__________

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


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


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


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


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


preliminary fair trial issue that is inextricably linked to the 
determination of whether forced medication is necessary to  render him
competent to stand trial and otherwise appropri- ate.


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


Tatel, Circuit Judge, concurring:


Cure her of that.  Canst thou not minister to a mind diseas'd,  Pluck
from the memory a rooted sorrow,  Raze out the written troubles of the
brain,  And with some sweet oblivious antidote  Cleanse the stuff'd
bosom of that perilous stuff  Which weighs upon the heart?  William
Shakespeare, Macbeth, act 5, sc. 3.


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


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


First, a little more about Russell Eugene Weston. Forty- three years
old and having a history of mental illness, Weston  has lived with
family members for most of his life. He has  worked for only brief
periods as a laborer, maintenance man,  and mechanic. The prison
psychiatrist who treated Weston  and who concluded that he was not
competent to stand trial,  Dr. Sally Johnson, reported that Weston
told her the follow- ing: While "working for NASA" in the early
1980's, he  developed a "Ruby Satellite System," a powerful reverse
time  machine that enables users to "push time in reverse.... by 
passing us through the Jurassic Sea, putting us into another  time
frame." For those like Weston with access to the "Ruby 


Satellite System," nothing is permanent--the user can simply  reverse
time. If convicted and executed, Weston will "simply  be time
reversed, put into a safe in the Capitol, and be able to  resume his
life at whatever point he chooses."


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


On remand, the district court must answer the following  question: In
pursuing its right to try Weston for murdering  two Capitol police
officers, can the government, in order to  make Weston competent to
stand trial, forcibly medicate him  without impairing his right to a
fair trial as guaranteed by the  Fifth and Sixth Amendments? Weston's
fair trial rights  include rights (1) not to be tried unless he is
competent to  "consult with counsel, and to assist in preparing his
defense,"  Drope v. Missouri, 420 U.S. 162, 171 (1975); (2) to testify
and  "present his own version of events in his own words," Rock v. 


Arkansas, 483 U.S. 44, 52 (1987); (3) to be present in the  courtroom
at every stage of the trial, see Illinois v. Allen, 397  U.S. 337, 338
(1970); and (4) to present a defense, including  an insanity defense.
See 18 U.S.C. s 17 (setting forth re- quirements for insanity
defense).


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


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


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


Id. at 143-44.


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


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


Were Weston's testimony the only way for him to present  an insanity
defense, I would thus have serious doubts about  whether the
government could involuntarily medicate him.  Unlike requiring a
defendant to shave or wear glasses at trial,  actions which merely
restore a defendant's appearance to  what it was at the time of the
crime, see United States v.  Emanuele, 51 F.3d 1123, 1132-33 (3d Cir.
1995), forcible  medication chemically alters the brain and deprives
the jury  of the opportunity to observe the defendant in the
delusional  state he was in at the time of the crime. To be sure, due 
process does not require that a defendant presenting a "heat  of
passion" defense "duplicate his 'hot blood' in court."  Henderson, J.,
concurring at 2-3. But because such a case  involves no action by the
government, it has nothing to do  with the issue before us. Here the


process permits the government through involuntary adminis- tration of
psychotropic drugs to alter the defendant so that it  becomes
impossible for him to appear before the jury as he  was when he
committed the crime. No one would suggest  that the government may
prevent a defendant claiming insan- ity from presenting relevant
evidence about his delusions.  From a due process perspective,
forcibly administering psy- chotropic medication--what Justice Kennedy
called "manipu- lat[ing] the evidence"--seems no different. Riggins,
504 U.S.  at 142 (Kennedy, J., concurring).


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


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