A federal judge in Brooklyn has authorized a second round of forced medical treatment in a case where the first attempt failed to restore a defendant to mental competency with an anti-psychotic drug.

Eastern District Judge Eric Vitaliano (See Profile) said federal prosecutors had established a substantial likelihood that four more months of forced treatment, but with a different anti-psychotic drug, would enable Osmond Decoteau to assist in his defense.

Decoteau, who suffers from a delusional disorder, is accused of masterminding a $20 million mortgage loan fraud. He underwent court-ordered treatment earlier this year but remains incompetent (United States v. Decoteau, 08-cr-736).

Read memoranda from the government and the defense.

In April, Vitaliano permitted authorities to forcibly administer Risperdal, an anti-psychotic medication, to the defendant (NYLJ, May 2). However, that effort failed, like a prior effort to treat Decoteau through non-invasive “talk therapy,” and the government requested another chance with a different drug.

Last week, Vitaliano approved a second four-month treatment protocol with the drug Haldol, as recommended by Bruce Berger a staff psychiatrist at the federal prison in Butner, N.C., where Decoteau is detained.

Vitaliano’s decision rested on the U.S. Supreme Court’s 2003 holding in Sell v. United States, 539 U.S. 166 (2003), which established a four-part test for determining when the government can involuntarily medicate a criminal defendant to restore competency, and a 2004 opinion from the U.S. Court of Appeals for the Second Circuit, United States v. Gomes, 387 F.3d 157, holding that a predicted 70 percent success rate with the proposed treatment is sufficient to meet the “substantial likelihood” threshold.

Berger testified that it is not unusual for a patient who did not respond to one medication to respond to another. He cited a recent study indicating that patients with delusional disorders similar to Decoteau’s have a 73 percent chance of being restored to competency through treatment with anti-psychotic drugs. Another study also suggested that the treatment protocol recommended for Decoteau had a reasonable chance of succeeding.

Michael Weil of Federal Defenders of New York, which represents Decoteau, pointed out in a Sept. 24 letter to the court that none of the studies address the likelihood of an anti-psychotic medication succeeding when a different drug has failed.

Assistant U.S. Attorney Daniel Spector countered that nothing in the record “supports Decoteau’s contention that the failure of Risperdal undermines the substantial likelihood of success of a second anti-psychotic drug.”

Vitaliano said the statistical studies are of “secondary significance” and “merely provide a useful yet inexact guidepost for evaluating the expert testimony that is actually offered about an incompetent subject defendant.”

Here, Vitaliano said, Berger’s testimony “more than suffices” and found “clear and convincing proof that there is a substantial likelihood that renewed involuntary medication of Decoteau with a different anti-psychotic medication will restore his competency without inflicting any significant or detrimental side effects.”

At the prior hearing, a defense psychiatrist, Lawrence Siegel, estimated that the Risperdal treatment had at best a 50 percent chance of succeeding. However, at the most recent hearing the defense did not present expert testimony.

“The defense places all of its eggs in the broken basket carrying the argument that the government has failed to establish through Dr. Berger’s testimony at the initial and continued hearings a substantial likelihood that a second round of chemical treatment would restore Decoteau to a level of competency sufficient to enable him to assist in his own defense,” Vitaliano wrote. “With the defense objection rejected by the Court, Dr. Berger’s expert recommendation as to the course of treatment and the period of time needed to implement it are unchallenged.”

Weil was not available for comment.

The U.S. Attorney’s office declined comment.