Opinion
C4-03-16
May 25, 2004
ORDER
Summary:
The Court entered an order finding a defendant not mentally competent to stand trial. Thereafter, the Court remanded the defendant to the custody of the Attorney General to be hospitalized and evaluated for a reasonable period of time not to exceed four months. When the four months lapsed, the defendant was released, prompting the Government to file a motion requesting that the defendant be ordered to submit for further treatment. The Court denied the motion, however, finding by a preponderance of the evidence that further hospitalization was neither warranted nor appropriateunder the circumstances. In addition, the Court informed the parties itwould schedule a dangerousness hearing and directed the parties to workout the logistics of the defendant's dangerousness evaluation.
This matter comes before the Court as the result of the Government's Motion for Further Treatment filed on March 25, 2004. For the reasons set forth below, the motion is DENIED.
I. BACKGROUND OF THE CASE
On August 27, 2003, a competency and evidentiary hearing was held in Bismarck, North Dakota. Thereafter, on September 2, 2003, the Court entered an Order finding that the defendant, Raymond Azure, was not mentally competent to stand trial. (Docket No. 46) The Defendant was remanded to the custody of the Attorney General to be hospitalized and evaluated for a reasonable period of time not to exceed four months. Azure was subsequently transported to the Federal Medical Facility in Butner, North Carolina.
On February 2, 2004, a Forensic Evaluation was completed at the Federal Medical Center in Butner. Unfortunately, the Court was not kept apprised of Azure's status and Azure was released from the custody of the Federal Medical Center on or about February 19, 2004. The Court did not receive the Forensic Evaluation until March 22, 2004. Azure had been returned to North Dakota before the evaluation was received. The Forensic Evaluation confirmed the diagnosis of a mental disease or a defect, i.e., dementia, and a diagnosis of pedophilia.
The Forensic Evaluation included a recommendation that Azure be committed for an additional four-month period of time to continue the treatment regimen of vitamin B12 injections designed to improve his cognitive functioning. Prior to his release from the Federal Medical Center in Butner, Azure had received a series of vitamin B12 injections which included seven daily injections from December 23-December 30, 2003, and five weekly injections administered on January 5, January 12, January 19, January 29, February 2, and February 9, 2004. Azure had been scheduled to receive one additional weekly injection on February 16, but did not because of his departure from the Federal Medical Center. Azure was also scheduled to receive 1-2 monthly injections but those were also not administered due to his release.
On March 25, 2004, the Government filed a Motion for Further Treatment and requested further hospitalization so that Azure could complete the vitamin B12 series of injections. On May 23, 2004, a hearing was scheduled in Bismarck to address the issue of whether Azure was a candidate for further hospitalization and, specifically, whether there was a substantial probability Azure would become competent to stand trial with further treatment. The parties relied upon two expert witnesses to address that issue; namely, Dr. Bruce T. Capehart, a staff psychiatrist at the Federal Medical Center in Butner, North Carolina; and Dr. James Reichmuth, a psychiatrist in private practice in the San Francisco, California, area. The following is a summary of their testimony presented at the hearing.
Dr. Bruce P. Capehart is a staff psychiatrist at the Federal Medical Center in Butner, North Carolina, and has held that position since June 2002. He is one of five staff psychiatrists at the 300-bed federal facility. Dr. Capehart has never met Raymond Azure but he reviewed all of Azure's medical records from the Federal Medical Center.
Dr. Capehart described the treatment regimen that Azure had undergone while a patient at the Federal Medical Center. As previously noted, Azure had undergone daily vitamin B12 injections for one week and received weekly injections for five weeks. Azure was scheduled for one additional weekly injection and 1-2 additional monthly injections thereafter. Dr. Capehart said it was hopeful that the vitamin B12 injection therapy could improve Azure's cognitive functioning. Dr. Capehart said vitamin B12 injections are "worth a try" and studies have shown that some patients display some mild to modest gains with the injection therapy. Dr. Capehart said one should generally see improvement in a couple of months, but frequently, a patient does not experience profound changes. Dr. Capehart was asked whether there was a substantial probability that Azure would be competent to stand trial with additional vitamin B12 injections and he responded by stating he was unable to answer the question and did not have an opinion on the matter.
Dr. James Reichmuth was called as an expert witness by the defense. Dr. Reichmuth is a staff psychologist at the Community Solutions Clinic near San Francisco. Dr. Reichmuth has never examined Raymond Azure but had also reviewed the medical records.
Dr. Reichmuth is familiar with the diagnosis of dementia and treats a number of patients for that mental disorder. With respect to his opinion on vitamin B12 injections as a treatment therapy, Dr. Reichmuth said that with a series of daily and weekly injections, it would be expected to see dramatic improvements within six weeks if any improvements are to be seen. However, Dr. Reichmuth said dementia caused by a vitamin B12 deficiency is "exceedingly rare." Further, Dr. Reichmuth said he would expect to see improvement within a matter of days if any improvement would be evident with a series of vitamin B12 injections.
Of significant importance is the fact Dr. Reichmuth testified that reversible dementia occurs in less than 1% of all dementia cases and that includes vitamin B12 deficiency-induced dementia. In other words, vitamin B12-induced dementia is included in the general category of dementia cases, but reversible dementia occurs in less than 1% of all dementia cases. Dr. Reichmuth said approximately 25% of all elderly dementia patients he treats have a vitamin B12 deficiency but he has never seen a reversible case of dementia with a regimen of vitamin B12 injections. Dr. Reichmuth opined there is not a substantial probability that Raymond Azure will become competent to stand trial with further treatment.
On rebuttal, Dr. Capehart said he did not disagree with Dr. Reichmuth's opinion that reversible dementia occurs in approximately 1% of all cases, including vitamin B12 deficiency-induced dementia.
Based on the evidence presented at the hearing on May 23, 2004, the Court finds that further treatment and/or hospitalization of Raymond Azure to determine whether an additional series of vitamin B12 injections to treat his dementia is not warranted. It is well-established in the medical literature that vitamin B12 deficiency-induced dementia is "exceedingly rare". It is highly unlikely that Azure's condition of dementia would be reversed if he were re-hospitalized for further treatment. Reversible dementia occurs in less than 1% of all dementia cases which includes those cases involving a vitamin B12 deficiency. It is clear from the testimony of the expert witnesses that rarely, if ever, are there improvements shown in patients with dementia who have undergone a treatment regimen of vitamin B12 injections. The preponderance of the evidence has shown that further treatment and hospitalization to continue a series of vitamin B12 injections is neither warranted nor appropriate in this case, and the likelihood of a reversal of Azure's dementia with further vitamin B12 injections would be exceedingly rare.
It is well-established in the Eighth Circuit that there is a three-part scheme for determining mental competency to stand trial under 18 U.S.C. § 4241. United States v. Ferro, 321 F.3d 756, 760 (8th Cir. 2003). That three-part scheme was addressed in detail in the Court's Order of September 2, 2003. In the event it becomes apparent the defendant will not attain sufficient capacity to proceed to trial, the next step is to conduct a "dangerousness hearing" in accordance with the provisions of 18 U.S.C. § 4246. The purpose of this hearing is to determine whether the defendant would pose a "substantial risk of bodily injury to another person or serious damage to property of another upon release." United States v. Ferro, 321 F.3d 756, 761 (8th Cir. 2003). Therefore, with a determination having been made that Azure is not competent to stand trial and further treatment is not warranted, it is incumbent upon the Court to conduct a "dangerousness hearing." The purpose of this hearing is to determine whether Azure would pose a substantial risk of bodily injury to another person upon release. This mandates the need for a risk assessment or a dangerousness assessment of Azure. Dr. Capehart said dangerousness assessments are conducted at the Federal Medical Center in Butner, North Carolina, and such evaluations require thirty (30) days to complete.
The parties are ordered to meet and confer within the next thirty (30) days to determine when, where, and by whom the dangerousness assessment(s) should be conducted. Following the completion of the dangerousness assessment, the matter will be scheduled for a "dangerousness hearing" in accordance with the provisions of 18 U.S.C. § 4246. The parties are requested to provide the Court with a status report concerning the dangerousness assessment within the next thirty (30) days.