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The federal government drove Abisai Rivera-Guerrero to the brink of sanity � and Ninth Circuit Judge Stephen Reinhardt doesn’t like it one bit. In a unanimous opinion Wednesday, Reinhardt became the latest in a line of federal judges to express acute discomfort with the government forcing antipsychotic medications on mentally ill patients to make them competent for trial. “The administration of involuntary medication ordinarily constitutes a serious and substantial violation of a defendant’s liberty interest,” Reinhardt wrote for a unanimous three-judge panel. While the Ninth Circuit was ostensibly considering the narrow question of whether U.S. District Judge Napoleon Jones Jr. improperly denied the defendant a continuance, Reinhardt took the opportunity to offer some pointed criticisms of the government’s desire to forcibly medicate someone into competence. “I’m not quite sure if one should read it as a slap on the hand for the district court, as a ringing endorsement of due process, or both,” said Diane Amann, a professor at UC-Davis’ King Hall School of Law and a former federal public defender. But Rory Little, a former federal prosecutor and a professor at Hastings College of the Law, saw little ambiguity there. “That’s the use of dicta to make law. That’s what Reinhardt is so good at,” he said. “I know he believes he’s doing the right thing, and maybe he is doing the right thing.” Since the opinion is based on the narrow continuance issue, Little added, there’s little possibility that the U.S. Supreme Court would accept it. “Judge Reinhardt is sort of well known for writing more broadly when he knows he has the opportunity, especially in cases that are cert proof,” he said. On the surface, the case of Rivera-Guerrero � a mentally ill Mexican national � gives one pause because he has been held for more than two years on charges of illegally re-entering the U.S., a crime that generally results in a light sentence. Ever since the court determined Rivera-Guerrero to be incompetent to stand trial shortly after his arrest in 2003, the government has been pushing hard to medicate him. After a hearing last year in which government doctors proposed a medication regimen with a list of side-effects � nausea, diabetes, an irreversible facial tick syndrome, to name a few � that arguably rival psychosis in terms of sheer discomfort, Rivera-Guerrero’s lawyer requested a continuance before presenting rebutting testimony. She said that the government had not provided her with the list of medications before the hearing, and she therefore could not present her own expert. But a magistrate judge refused to allow the continuance, as did Jones, of the Southern District of California, who got the case on remand after an initial Ninth Circuit appeal. Reinhardt found that to be particularly galling since it “resulted in the defendant’s inability to present any evidence that might rebut the government’s medical assertions.” He cited a 2003 U.S. Supreme Court opinion, Sell v. U.S., 539 U.S. 166, that says medication may only be administered if it is in “the patient’s best medical interest in light of his medical condition.” Because the government began medicating Rivera-Guerrero after the continuance was denied, Reinhardt ruled Wednesday that the district court must get a new report on the defendant’s medical status and, depending on his medical status, prosecute, release or attempt to commit him. Ninth Circuit Judge Richard Clifton and Senior U.S. District Judge Charles Weiner � sitting by designation from the Eastern District of Pennsylvania � joined Reinhardt in the opinion. Amann and Barry Portman, a San Francisco federal public defender, said the remand addressed an important issue: Mentally ill criminal defendants often end up waiting for years while lawyers fight over whether they can be tried. This can amount to de facto incarceration, Portman said, even though government mental institutions “are supposed to be the resort of last resort.” But there are no easy solutions, he said. Amann agreed, adding that she is particularly uncomfortable with medicating someone just for a trial. “There’s something unsavory, if you will. To put someone in jeopardy, further jeopardy for the liberty,” she said, “you’re just sort of trying to get them OK for the short period of time with no promise that you’ll continue treatment.” Little said that Reinhardt’s opinion should make prosecutors more cautious about that problem. “This case will be used, without a doubt, as a case to provide guidance in involuntary medication cases,” he said, “even though it’s not a case based on that law.” The case is U.S. v. Rivera-Guerrero, 05 C.D.O.S. 9125.

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