United States District Court, D. Alaska
ORDER REGARDING MOTION FOR INVOLUNTARY ADMINISTRATION
OF PSYCHIATRIC MEDICATION
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE.
Before
the Court at Docket 68 is the government's Motion for
Involuntary Administration of Psychiatric Medication to
Restore Defendant to Competence Pursuant to Sell v.
U.S. Defendant Louis Holger Eklund filed an opposition
at Docket 85. The motion was referred to the Honorable
Magistrate Judge Matthew M. Scoble, who heard evidence and
arguments on the motion on June 17, 2019.[1] Magistrate Judge
Scoble's Initial Report and Recommendation recommended
that the government's motion be denied.[2] The government
objected to the Initial Report and
Recommendation.[3] Magistrate Judge Scoble's Final Report
and Recommendation continued to recommend that the motion be
denied.[4] The government timely objected to the
Final Report and Recommendation.[5]
The
matter is now before this Court pursuant to 28 U.S.C. §
636(b)(1). That statute provides that a district court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.”[6] A court is to “make a de novo
determination of those portions of the magistrate judge's
report or specified proposed findings or recommendations to
which objection is made.”[7] But as to those topics on which
no objections are filed, “[n]either the Constitution
nor [28 U.S.C. § 636(b)(1)] requires a district judge to
review, de novo, findings and recommendations that the
parties themselves accept as correct.”[8]
Based
on the current record before the Court, it appears that the
government has shown all four Sell v. United States
factors by clear and convincing evidence. However, before the
Court makes its findings and reaches legal conclusions, Mr.
Eklund must be afforded the opportunity to give testimony
relevant to the Sell considerations. In United
States v. Gillenwater, the Ninth Circuit recognized that
“Congress has explicitly provided a defendant a
statutory right to testify at a pretrial competency
hearing.”[9] The Gillenwater Court then held
that “a defendant's right to testify at his
pretrial competency hearing is of a constitutional
magnitude.”[10] “A defendant's right to
testify is personal and therefore may be relinquished only by
the defendant. Additionally, the ‘relinquishment of the
right [to testify] must be knowing and
intentional.'”[11]
At his
Sell hearing, Mr. Eklund complained that “I
didn't get a chance to call any witnesses in my favor. I
mean, I wasn't-there's a whole bunch of things I
could bring up that I have been bringing up this whole time,
but I'm repeating myself on issues that aren't being
addressed.”[12] At the government's request, the
Magistrate Judge then confirmed with defense counsel that
counsel had considered calling witnesses but elected not to
“for strategic tactical reasons.”[13] Mr. Eklund
interjected that “[defense counsel] never spoke to me
about that. We didn't come to that decision mutually. We
didn't have a conversation about it.”[14] The record
before the Court does not indicate whether Mr. Eklund sought
to have himself called as a witness or that he knowingly and
intentionally waived his right to testify at the
Sell hearing.
“Where
a defendant's competency is at issue, defense counsel
will play an important role in ensuring that a defendant
understands his right to testify, that it can be waived, and
the consequences of either decision. Not infrequently,
defense counsel may encounter a defendant who wishes to
testify despite counsel's honest contrary recommendation.
Nonetheless, the Constitution and our case law compel us to
conclude that the ultimate decision is for the defendant to
make.”[15]
In
light of the current record in this case, defense counsel
shall confer with Mr. Eklund about his right to testify and
shall file a notice within fourteen days of this
order indicating whether Mr. Eklund seeks to give
testimony relevant to the Sell considerations or
whether he is making a knowing and intentional waiver of this
right.[16]
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Notes:
[1] Docket 93 (minutes of Sell
hearing).
[2] Docket 108.
[3] Docket 114 (government's
Objections to Initial Report and Recommendation); see
also Docket 119 (defendant's Response to
Government's Objections to Initial Report and
Recommendation).
[4] Docket 126.
[5] Docket 128 (Notice of Preservation of
Objections and Ripeness of ...