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United States v. Berry

United States District Court, E.D. Michigan, Southern Division

August 31, 2017




         Honorable David M. Lawson Defendant Duane Berry was charged with violating the frauds and hoaxes statute, 18 U.S.C. § 1038(a), when he allegedly planted what looked to be a bomb in front of a building housing a Bank of America branch in downtown Detroit, Michigan. The “bomb” turned out to be fake. He has been found incompetent to stand trial, based on a diagnosis of a delusional disorder. The Bureau of Prisons believes that Berry's competence could be restored with antipsychotic medication. Berry refused to take them. The government now seeks an order to medicate Berry forcibly. That motion requires a hearing and evaluation as prescribed by Sell v. United States, 539 U.S. 166 (2003), and the government must offer “clear and convincing evidence” on each of four factors, addressed below, to overcome the defendant's liberty interest of avoiding forced medication.

         The Court already addressed the first Sell factor, finding that the government established that it has an important interest in continuing the prosecution of the defendant in this case. See dkt. #64, at 7. An evidentiary hearing was held on June 1, 2017, and the Court heard testimony from a psychologist and a psychiatrist who evaluated the defendant at FCI Butner in North Carolina. The parties requested leave to file post-hearing briefs, which were received recently. The government has established by clear and convincing evidence that the defendant's liberty interest must yield to the medication protocol outlined in this order.


         As noted in a previous order, Christine Scronce, Ph.D., a psychologist from the Metropolitan Corrections Center in Chicago, Illinois, diagnosed Berry as suffering from a Delusional Disorder, Mixed Type, First Episode, which currently is an acute episode. It appears that this mental illness has come upon the defendant gradually and later in life. Dr. Scronce interviewed Berry's ex-girlfriend, who stated that Berry became increasingly interested in filing lawsuits and complaints after he was released from a previous detention. She said his efforts consumed him, and he became increasingly withdrawn and isolated. However, it was the weeks before his arrest in 2015 on the present case when she noticed a radical change in his behavior. She said he became religiously preoccupied and sent her numerous messages about “end times.” She said it was very unlike him to be so religiously preoccupied and she found it odd for him to send her messages “all day long.” She also said that Berry stopped coming to visit their son, even though he was usually a very attentive parent. And she was concerned that Berry had not been in touch with her or his father in the months leading up to his arrest. She said that their son wrote Berry a note, to which he did not respond. According to his ex-girlfriend, this was very out of character for Berry, who was usually very close with his son.

         After Berry was found incompetent to stand trial and transferred to FCI Butner, he was seen by Dr. Kristina Lloyd, a psychologist, and Dr. Logan Graddy, a psychiatrist, who both testified at the evidentiary hearing about Berry's competency and proposed a treatment plan. Both are qualified mental health professionals.

         A. Dr. Kristina Lloyd

         Dr. Lloyd explained that she carries a patient load of around two dozen. Berry is one of her patients. She acknowledged that delusional disorder is somewhat rare and she has had only between six and ten patients with the disorder.

         Dr. Lloyd described Berry as very polite and cordial at their first meeting. She said that he interacted appropriately and did not show any signs of a delusional disorder at first. Because Berry did not present any indications that made the FMC Butner staff believe that he needed a higher level of security, he was placed into the open population. A few days later, Dr. Lloyd and her intern conducted a psychosocial assessment. The interview lasted approximately 30 minutes. In this second interview, Berry was able accurately to report some of his background information. However, when it came to job history, his answers were clouded by his delusions. Additionally, the interview was impeded by Berry's insistence that he wanted all of the interviews recorded in light of his Supreme Court case. Dr. Lloyd testified that the interview was complicated further because Berry, unlike other patients, wanted to direct the interview, and he had a list of legal concerns that he wanted to discuss first. After Berry exhausted the matters he wished to discuss, he allowed Dr. Lloyd to obtain the background information she was requesting. Consistent with his prior evaluation, Berry asserted that he worked as a “repo agent” for the IRS and he identified himself as a trustee for the Bridgewater Capital Trust.

         In the third meeting with Berry, Dr. Lloyd attempted to begin explaining the plan to restore him to competency. It started by determining if Berry understood the charges against him, evaluating his understanding of court procedures, and identifying strategies to working with his attorney. The interview also included some psychological assessment and an explanation of the specific skill sets that she would like to see demonstrated in order for him to be found competent. Initial treatment plans at FMC Butner tend to be very general and not tailored to specific patients. Typically, Berry would have been referred to a psychiatrist to determine whether medication was appropriate. Unfortunately, Berry refused to meet with a psychiatrist. In the fourth meeting with Dr. Lloyd, Berry merely stood in the office doorway holding a stack of folders and indicated that it was not appropriate to talk with her because they were “in litigation” and “[i]t is unlawful for [them] to be communicating.”

         Dr. Lloyd would have liked to perform two types of psychological tests on Berry: a standardized psychological assessment, which measures information about functioning, psychopathology, and level of effort; and a forensic assessment used to determine competency to stand trial. Berry refused to participate.

         Dr. Lloyd testified that she was able to conduct only five interviews with Berry. Each one was progressively shorter, with the first lasting approximately 75 minutes, and the final meeting taking place in a hallway for approximately 10 minutes. At that final meeting, Berry said that he could no longer speak with Dr. Lloyd, because he had begun legal proceedings against her and made a demand of $1, 000, 000. He refused to interact with her from that point forward. Dr. Lloyd was unable to conduct the extensive psychological testing that she would normally perform on a patient or observe Berry in a group restoration setting.

         Although Berry's participation limited the potential to restore his competency to stand trial, Dr. Lloyd was still able to confirm the diagnosis of delusional disorder. She based her diagnosis on her brief interviews with Berry, his legal filings, the prior diagnosis by Dr. Scronce, his medical records, interviews with counsel in this case and the FMC Butner staff, and materials provided by Berry. She concluded that Berry's competency has not been restored and he is not competent to stand trial at this time.

         Dr. Lloyd believes that medication, forced or otherwise, would benefit Berry. She said that medication is the first line of treatment for individuals with delusional disorders. In her experience, individuals who are treated with antipsychotic medication are more likely to be restored to competency than those who are not treated. In 2009, when she was an intern at FMC Butner, she was part of a study that considered whether forced medication works. The study reviewed all reports from every medical center in the Bureau of Prisons and analyzed the data to determine whether involuntary medication was effective for competency restoration purposes. From 2003 to 2009, forensic evaluators had requested judicial oversight under Sell 287 times. Of those, 133 patients were forcibly medicated. Included in that group of 133 patients were 15 cases of patients with delusional disorders. Of the 15 patients with delusional disorders, 11 were restored to competency (approximately 73%). Dr. Lloyd also noted that another study had been completed in 2007 by Drs. Herbel and Stelmach specifically looking at delusional disorder. In that study, 22 patients suffering from delusional disorder were force-treated; 17 were restored to competency. The average time for a person with delusional disorder to be restored to competency through forced medication was about 144 days. The shortest was 30 days and some took up to a year.

         Dr. Lloyd testified that the decisions about medication are left to the psychiatrists; she was hesitant to testify about medications. Nonetheless, she described the possible side effects of antipsychotic medications as generally minor, and they can be treated adequately on a case-by-case basis. Haldol, one of the proposed medications in this case, has a wide range of possible side effects, including an appearance of sedation or restlessness, weight gain, diabetes, high cholesterol, neuroleptic malignant syndrome (a potentially life-threatening effect), dystonic reaction (a painful involuntary contracting of the muscles), Parkinson's syndrome-like symptoms, and even sudden death.

         But Dr. Lloyd said that there are no alternatives to medication that effectively would restore Berry to competency. No studies show that traditional methods of psychotherapy, cognitive behavioral therapy, or any of the empirically-based therapeutic approaches are effective in treating delusional disorder without adjunct medical therapy. Furthermore, Berry remains preoccupied with his delusions even if the topics introduced to him have no relationship to his delusions. Dr. Lloyd said that talking with him is ineffective. Therefore, she surmised, if she were to confront Berry with evidence that he does not work for the government, he would likely argue against that ...

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