\\usanyesscan01\alshare7\nacarta_holdings\decoteau competency\09.24.12 decoteau post-hearing briefing.wpd

Case 1:08-cr-00736-ENV Document 91 Filed 09/24/12 Page 1 of 5 PageID #: 340 U.S. Department of Justice
United States AttorneyEastern District of New York BY HAND & ECF
The Honorable Eric N. Vitaliano
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
United States v. Osmond DecoteauCriminal Docket No. 08-736 (ENV) The government respectfully submits this post-hearing letter brief in further support of the government’s motion for anextension of the Court’s order authorizing forcible medication,pursuant to 18 U.S.C. § 4241(d). For the reasons set forthbelow, the record establishes that there is a substantiallikelihood that continued forcible medication will restoreDecoteau to competency, and therefore the Court should grant theinstant application. See United States v. Gomes, 387 F.3d 157(2d Cir. 2004).
On September 11, 2012, this Court held a hearing at which one of Decoteau’s treating physicians at the Bureau ofPrisons (“BOP”), Dr. Berger, testified. Dr. Berger testifiedthat Decoteau was currently being treated with 50mg of theantipsychotic medication Risperdol every two weeks. See Transcript of Hearing, September 11, 2012 (hereinafter “Tr.”), at4. Dr. Berger explained that Decoteau was not experiencing anyside effects from the medication, however Decoteau showed “nosignificant improvement in his delusional or psychotic leaps thatare perceptible.” Id. Dr. Berger further testified thatDecoteau’s current Risperdol dosage represented the upper leveldosage of such medication. Id. Because the Risperdol has notbeen effective thus far, Dr. Berger and his team recommended Case 1:08-cr-00736-ENV Document 91 Filed 09/24/12 Page 2 of 5 PageID #: 341 switching the medication to Haldol, another antipsychoticmedication. Id., at 5. As with the administration of Risperdol,Dr. Berger and his team planned to begin the administration ofHaldol slowly, in relatively low doses, and build upward asnecessary, to minimize any potential side effects. Id., at 6.
Dr. Berger repeatedly and consistently testified that, in his medical opinion, there was a substantial likelihood thatHaldol would restore Decoteau to competency, despite the failureof Risperdol to do so. On direct examination, Dr. Bergertestified that, in his clinical experience, if a firstantipsychotic medication fails, he would attempt to treat thepatient with a second, different antipsychotic medication. Tr.,at 7. In Dr. Berger’s experience, treatment with a secondmedication after the first had failed is “very often, but notalways” successful. Id. Dr. Berger likened such second attemptsto antidepressant or antihypertensive medications, and noted that“[w]hy a person responds to one chemical and not another isliterally unknown.” Id. Dr. Berger testified that, in hisexperience, it was “fairly frequent” that a patient would respondto a second antipsychotic medication after failing to respond toinitial treatment with a different antipsychotic medication. Tr., at 8. Similarly, on cross examination, Dr. Berger testifiedthat “I generally have the impression, but [sic] as a clinicianover time that a second type of medication is generallysuccessful more often than not. Exactly what percentage, I don’tknow.” Tr., at 19.
Dr. Berger repeated this conclusion a third time when questioned by the Court. Dr. Berger noted that a new studyreleased in July 2012 reflects that patients with delusionaldisorder are 73% likely to be restored to competency throughtreatment with antipsychotic medications. Tr., at 35; Cochrane,Herbel, Reardon and Lloyd, The Sell Effect: InvoluntaryMedication Treatment is a “Clear and Convincing” Success, July 2,2012 (hereinafter “the Cochrane Study”)(introduced as GX 100 atthe September 11, 2012 hearing). Dr. Berger conceded that thechances of successful treatment of Decoteau were reduced in lightof the failure of Risperdal. Tr, at 34. Nonetheless, Dr. Bergermade clear that, even with this reduction, there remained asubstantial likelihood of success: [T]he numerous studies specifically to thedelusional disorder shows about 73 percentchance of the person being restored tocompetency with medication treatment, notsingle medication treatment, but medication Case 1:08-cr-00736-ENV Document 91 Filed 09/24/12 Page 3 of 5 PageID #: 342 treatment of one, two or even three trials. The study was unable to break out how manypeople required a second trail of medicationor not, so I don’t know percentages. I stillthink it is less likely now that he has hadone failure[,] to what percentage or whatexact degree it is reduced, I honestly don’tknow. I still think it is substantial, but Idon’t have the percentages.
Upon further questioning from the Court, Dr. Berger noted that it was difficult for him to opine on the legalrequirement, but, “from a clinical perspective, I would go aheadand do it, thinking it was a substantial probability.” Tr. 36. Dr. Berger further noted that, if he was counseling Decoteau hisfamily, his general theme would be that there was a substantiallikelihood that Haldol would lead to restoration of Decoteau’scompetency. Tr. 36-37.
The Record Establishes a Substantial Likelihood of Success Significantly, Dr. Berger foresaw this very circumstance during his initial testimony before the Court onFebruary 7, 2011, when he noted that the failure of one medicine“would not imply that all other antipsychotics wouldn’t work.” Transcript of Hearing, February 7, 2011 (hereinafter “BergerFebruary Testimony”) at 35. Moreover, Dr. Berger’s experience,as well as the Herbel study, reflect that patients withdelusional disorder respond more slowly to treatment thanpatients with other types of psychiatric disorders. See Herbeland Stemlach, Involuntary Medicaiton Treatment of CompetencyRestoration of 22 Defendants with Delusional Disorder, J Am AcadPsychiatry Law 35:47-59 (2007); Tr. 31. In light of this record, therefore, it is perhaps not surprising that the initial treatment of Decoteau has notsucceeded. Nothing in the record, however, supports Decoetau’scontention that the failure of Risperadal undermines thesubstantial likelihood of success of a second antipsychotic drug. Indeed, as the Court noted during oral argument, As I understand Dr. Berger’stestimony. . .there is certainly a cautionaryflag because the Risperdol didn’t work. However, based on his overall clinicalexperience, and to the extent that thestudies are helpful, since they are notconclusive in any way on this issue, that his Case 1:08-cr-00736-ENV Document 91 Filed 09/24/12 Page 4 of 5 PageID #: 343 testimony is that there is a substantiallikelihood that a new round, a fresh round,after flushed out Mr. Decoteau, a round ofHaldol treatment has a substantial likelihoodof restoring Mr. Decoteau to competence;isn’t that the question before the court? Unlike the first hearing, Decoteau called no witnesses to rebut Dr. Berger’s September 11, 2012 testimony. Instead,with respect to the instant application, the defense is reducedto demanding that “the court should require a study, possiblysomething that has been peer reviewed, some sort of data.” Tr.,at 51.1 As an initial matter, the Court already has two studiesbefore it –- the Herbel study and the Cochrane study. As Dr.
Berger noted, the Cochrane study, which is the more recent of thetwo, includes patients who were treated with multiple types ofantipsychotic medications, and it is therefore entirelyappropriate for the Court to rely on this study in reaching aconclusion here. Even assuming, arguendo, that such studies are inapposite, Decoteau’s suggested standard goes far beyond whatthe law requires. Indeed, in Gomes, which sets the standard inthis Circuit, “the district court chiefly relied on the testimonyof Drs. Mrad and Sarrazin to find a substantial likelihood thatGomes's competency could be restored through chemical treatment.” Gomes, 387 F.3d at 162. Similarly, the Court here may rely onthe uncontested testimony of Dr. Berger, whose conclusions arebased upon his 22 years of clinical practice at Butner treatingpatients suffering from delusional disorder and other psychiatricdisorders. See Berger February Testimony, at 6. Moreover, Decoteau’s suggested standard would, as a practical matter, create an impossibly high barrier for thegovernment. As noted in Dr. Berger’s initial treatment plan,there are several possible antipsychotic medications which can beadministered to treat delusional disorder. To prevail under sucha standard, the government would require peer-reviewed studiesconcerning the relative effectiveness of every possibleconstellation of antipsychotic medications after an initialfailure of treatment. Conveniently, no such studies exist, nordo they appear to have been contemplated by treating 1Decoteau conceded at oral argument that he was not challenging the issue of the side effects of the antipsychoticmedication, as that issue has been previously addressed by theCourt. Tr., at 45.
Case 1:08-cr-00736-ENV Document 91 Filed 09/24/12 Page 5 of 5 PageID #: 344 psychiatrists or the Second Circuit. This Court shouldtherefore reject Decoteau’s invitation to create a new, one-sidedand unworkable standard, which is inconsistent with both SecondCircuit law and Dr. Berger’s two decades of experience.
For the reasons set forth above, the government respectfully submits that the Court should grant the government’sapplication for an extension of the period of forcible medicationfor an additional 120 days, pursuant to 18 U.S.C. § 4241(d). Moreover, as noted in the government’s August 30, 2012submission, if the Court grants this application, the governmentrespectfully requests that the Court specify that the BOP, ratherthan the prosecutor, file monthly progress reports, as thetreating physicians at the BOP have direct knowledge ofDecoteau’s progress and are in the best position to report to theCourt.
Daniel A. SpectorAssistant U.S. Attorney(718) 254-6345

Source: http://www.nylj.com/nylawyer/adgifs/decisions/110612decoteaugov.pdf

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