State v. J.D.B., 2023AP715-CR, 9/10/24, District I (recommended for publication); case activity
In a recommended-for-publication decision, COA wholly endorses all of J.D.B.’s arguments requiring a high burden of proof when the State seeks an involuntary medication order in order to render a defendant competent to stand trial. Along the way, COA offers a bevy of helpful holdings that are also applicable outside of this highly-specialized practiced area.
We know this is a long post, but the length is necessary given the nature of the appeal and the number of holdings reached by COA. Those seeking a TL;DR version will find one in our yellow box at the bottom.
At the time of the underlying offense in this case, “Jared” was nineteen years old. (¶5). His ailments include “partial left-side paralysis, a lumbering gait, and compromised speech and cognitive abilities all stemming from a traumatic brain injury sustained from a self-inflicted gunshot wound when he was eleven years old.” (Id.). He also has diabetes, has been previously diagnosed with schizophrenia and, while this case was pending, was diagnosed with brain cancer. (¶9). He also suffers from seizures. (¶14).
In August of 2022, police were dispatched to Jared’s home after he made homicidal threats to family members. (¶6). While being arrested for this conduct, Jared allegedly punched one of the officers. (Id.). As a result, he was charged with battery to a law enforcement officer. (¶7).
After first being transported to a hospital for four days, Jared had his initial appearance, at which time the court did not set bail. (¶8). Instead, Jared was remanded into custody after the issue of competency was raised at that hearing. (Id.). Two months later, an examiner concluded Jared was incompetent to proceed and, as a result, Jared was committed “forthwith” to the custody of DHS under § 971.14(5)(a). (¶11). Jared remained in the Milwaukee County Jail for an additional 106 days before being transported to Mendota for treatment. (Id.).
Several months after his arrival at Mendota, the treating doctor filed a motion to administer involuntary medication. (¶15). The circuit court granted the request. (¶20). After this appeal initiated, and while the medication order remained stayed, the matter was converted to Chapter 51 commitment. (¶21). On appeal, COA confronts a series of important issues:
Mootness
The State seeks to dismiss the appeal, arguing that it is moot because the underlying order has expired and there is no evidence in the record that Jared was, in fact, involuntarily medicated. (¶25). COA must therefore analyze whether mootness exceptions apply. (¶¶27-28). On that point, COA observes there are “few binding cases in Wisconsin interpreting and applying the Sell factors.” (¶29). Accordingly, COA holds:
“We agree with Jared that, given the importance of the rights and issues involved, the duration of the appellate process, and the maximum twelve-month timeline to restore competency under Wis. Stat. § 971.14, dismissal under these circumstances would effectively nullify a defendant’s right to appeal ‘questions of clear constitutional importance.'”
(Id.)
Application of the Sell Factors–Generally
Binding SCOTUS precedent in Sell establishes that
before forcibly medicating an accused person to competency to stand trial, the State must show that: (1) the State has an important interest in proceeding to trial; (2) involuntary medication will significantly further the State’s interest; (3) involuntary medication is necessary to further the State’s interest; and (4) involuntary medication is medically appropriate.
(¶32). It is the State’s burden of satisfying these factors by “clear and convincing evidence.” (¶33). However, the standard of review is unclear and unsettled under Wisconsin law. (Id.). Ultimately, COA holds that it need not resolve the issue, as “we reach the same conclusion with respect to all four Sell factors whether we apply a ‘clearly erroneous’ or ‘de novo‘ standard of review.” (¶34).
Sell Factor #1: Whether the State had an “important interest” in prosecuting Jared.
In order to involuntarily medicate Jared so as to render him competent to stand trial, there needed to be “important governmental interests are at stake.” (¶36). Under Sell, the State’s “interest in bringing to trial an individual accused of a serious crime is important.” (Id.). “Serious crime,” however, remains an undefined legal term of art. (Id.). COA therefore looks to § 969.08, which defines a “serious crime” in context of bail revocation or modification and includes battery to law enforcement as such an offense. (Id.). This legislative signal, coupled with the length of imprisonment at issue as well as the fact that this is a crime of violence, establishes that battery to law enforcement is a “serious crime” for the purposes of Sell. (Id.).
However, the circuit court cannot apply the first factor in a “categorical fashion.” (¶37). The State’s interest in prosecution can be lessened by the existence of special circumstances including, relevant to this case, “the potential for future civil commitment, and the length of pretrial detention.” (¶38). After dinging the circuit court for failing to conduct a sufficiently individualized analysis, COA holds that these special circumstances are present and “undermine the State’s interest in prosecution.” (¶39).
As to the potential for future civil commitment, “the record reflects a significant potential for Jared’s future civil commitment either through Chapter 51 proceedings […] or as the result of successfully asserting at trial a defense of […] NGI.”(¶41). There are “distinct, non-speculative probabilities for Jared’s future commitment […] and, as a consequence, the State’s interest in bringing Jared to trial is lessened.” (Id).
The next special circumstance, pretrial detention, brings us to another set of nesting dolls containing a series of interlocking and important holdings:
First, COA focuses on Jared’s detention without bail between his arrest in August 2022 and the formal suspension of the criminal proceedings in October 2022. (¶46). In COA’s view, this was a “significant” statutory violation as “[t]he plain language of the applicable statutes makes clear that it is only after the circuit court orders the defendant committed for treatment and suspends the proceedings that a defendant loses his or her eligibility for bail.” (¶45). It therefore specifically rejects the State’s argument “that defendants become ineligible for bail the moment competency is raised […].” (¶43). This deprivation of due process “lessens the importance of the State’s interest in prosecution.” (¶46).
Second, COA also focuses on what it believes to be another problematic aspect of this case: the State’s failure to timely transfer Jared to Mendota for treatment. (¶47). After analyzing state and federal authorities, COA holds:
We agree that the constitution demands that an incompetent defendant’s continued detention for competency restoration must be justified by progress toward that goal. Jackson, 406 U.S. at 738. The defendant’s due process rights are violated if the defendant fails to receive competency restoration treatment within a reasonable amount of time following the court’s entry of the order of commitment under WIS. STAT. § 971.14(5).
(¶51). COA holds that Jared’s “unconstitutional detention” in the Milwaukee County Jail “further lessens the importance of the State’s interest in” prosecution. (¶52).
Putting it all together, COA is persuaded there are ample special circumstances undermining the State’s otherwise important interest in prosecution given the unique facts of this case. (¶53).
Sufficiency of the Treatment Plan
Under governing Wisconsin law, an “individualized treatment plan [is] ‘a universal requirement’ to satisfy the second, third, and fourth Sell factors.” (¶55). Notably, COA’s prior decision in Green contains an exhaustive list of individualized requirements (which we won’t further recap here, but which is essential reading in this subject area). Here, COA identifies several flaws in the treatment plan submitted to the circuit court including a lack of specificity as to dosages of proposed medications, a lack of evidence that the lengthy list of proposed medications was “individually tailored” to Jared, and a failure to consider “important aspects of Jared’s medical history.” (¶¶56-60). Overall, COA stresses the important role that courts have as gatekeepers when assessing a proposed treatment plan in this context:
In sum, circuit courts cannot delegate to the treating physician their responsibility to determine whether the Sell factors have been met. Green, 369 Wis. 2d 658, ¶44. Because the circuit court determines whether the plan is sufficiently individualized and medically appropriate, the court must be provided a “complete and reliable medically informed record” from which to make those findings. Id., ¶¶2, 35. Because the record in this case is wanting in many critical respects, we conclude that Jared’s proposed treatment plan is not adequately individualized, and therefore, the State failed to satisfy the second, third, and fourth Sell factors.
(¶61).
Competency to Refuse Medication
The State also needed to prove that Jared was incompetent to refuse medication under § 971.14(3)(dm) and (4)(b). (¶62). COA holds that while the court made findings intended to satisfy these requirements, those findings were clearly erroneous. (Id.).
In this type of proceeding, the State must satisfy a standard identical to that found in Chapter 51 proceedings (and other involuntary medication case types)–whether the defendant was incapable of either “expressing an understanding” or “applying an understanding” of the advantages, disadvantages, and alternatives of medication. (¶64). The statute also requires the County to first prove that an adequate explanation of those advantages, disadvantages and alternatives has been given to the patient. (Id.).
Here, the State presented evidence that Jared disagreed with the doctor’s recommendations:
Dr. Illichmann testified that, prior to filing the request for an involuntary medication order, he sat down with Jared and went through every medication listed on the treatment plan to discuss the side effects and advantages and disadvantages of each. After explaining each medication, Jared continually responded that he felt he did not need medication. Dr. Illichmann testified that he believed Jared “lacks ability to apply information about medications to himself or his situation” because when Dr. Illichmann “tried to discuss the importance” of medications, their side effects, and their advantages and disadvantages, Jared gave the repeated answer of feeling like he did not need them.
(¶65).
As a result, the circuit court made a finding “that the defendant lacked an understanding of the side effects, advantages, disadvantages, and alternatives […]”. (¶67). Importantly, COA rejects part of Jared’s argument by holding that this finding, if supported by the record, would be sufficient to satisfy the statute. (Id.) However ,it ultimately agrees with Jared and reverses, because–on closer inspection–the circuit court’s finding is clearly erroneous. (Id.).
COA relies on Melanie L. to hold that the explanation in this case was insufficient as the doctor “did not testify about the extent to which he or others attempted to educate Jared, or the frequency with which these conversations were attempted.” (¶70). There was also no evidence that the doctor adequately “probed the issue of why Jared did not believe he needed medication” so as to conclude his “lack of understanding was ‘because of mental illness’ as required by statute and not some other cause.” (Id.). Moreover, the lack of a sufficiently individualized treatment plan also necessarily undermines the adequacy of the required explanation. (¶72).
The analysis of the competency to refuse issue is important reading for Chapter 51 practitioners, as that statutory scheme uses the same test for determining whether a person has been proven incompetent to refuse medications. Here, COA has authored an opinion that contains a robust reading of the Melanie L. requirements that should be cited in any future involuntary med appeal. Notably, the testimony presented in this case was similar to what is usually presented in such cases. The fact that it has now been rejected as insufficient means that many, if not most, medication orders are challengeable for those reasons we discussed at length in our post about SCOW’s last attempt to clarify the issue, D.E.W.
COA therefore reverses and vacates this medication order. (¶74).
As promised, here’s our top takeaways from this opinion:
- Appeals of involuntary medication orders present compelling arguments against mootness and these arguments can be used in other involuntary med cases.
- The circuit court acts as an important gatekeeper in these proceedings. The record, as developed by the State, must be robust and responsive to the criteria discussed here and in Green. Above all else, the record must be sufficient to enable the circuit court to exercise its independent judgment without impermissibly delegating that judicial authority to treatment providers. While circuit courts are often reluctant to act as armchair experts in other contexts, this statutory procedure does not permit the deferential approach used by the circuit court in this case.
- Relatedly, the medication decision requires a highly-individualized analysis and does not permit “generic” or “categorical” approaches when applying the Sell factors.
- Battery to law enforcement is a “serious crime” for the purposes of Sell; while COA does not definitively provide a test for “serious crime,” this case gives some guidelines that will be useful in future cases.
- Persons alleged to be incompetent have a right to bail until the proceedings are formally suspended under § 971.14(5)(a)1.
- It is a violation of due process for persons committed to the custody of DHS if they fail to receive competency restoration treatment within a reasonable amount of time following the entry of an order under § 971.14(5).
- Unconstitutional detentions stemming from #5 or #6 can undermine the State’s interest in prosecuting an otherwise “serious” crime.
- A treatment plan must be individualized and a failure to include dose ranges or to discuss a defendant’s known medical problems may be a violation of this requirement.
- The record must be similarly robust to find that the defendant is incompetent to refuse medication and must track a reinvigorated reading of Melanie L.’s strict requirements in order to pass muster on appeal.
- Although COA rejects an attempt to require more exhaustive findings in the involuntary medication context, it holds that these findings are still reviewable for clear error (thereby incentivizing clearer and more complete findings in future cases).
As a final note, we’d be remiss if we did not point out that this post was composed with the assistance of SPD Mental Health Practice Coordinator Lucas Swank, who is an essential resource for any readers with questions or concerns in this area.
