[00:00:00] Speaker 00:
Good morning, and thank you, Amy.

[00:00:02] Speaker 00:
We only have one case on the docket this morning, of course, and that's United States versus Deere, 22-1303.

[00:00:11] Speaker 00:
We'll hear from the appellant.

[00:00:16] Speaker 02:
Good morning.

[00:00:16] Speaker 02:
May it please the court, Jake Rochebeau for the appellant, Robert Deere.

[00:00:22] Speaker 01:
To find by clear and convincing evidence that forcibly medicating a defendant is substantially likely to restore them to competence, a district court must consider and contend with substantial evidence that would undermine the case for forcible medication.

[00:00:35] Speaker 01:
Here, over the course of a three-day hearing, the defense presented hours of testimony from three experts explaining why restoration was not substantially likely, particularly in light of Mr. Deer's delusional disorder, his extraordinarily long duration of untreated psychosis, or DUP, and his age.

[00:00:52] Speaker 01:
In its written cell order, the district court failed to discuss this evidence, instead only noting the mere fact that two of the three experts testified and that they counsel is is the test that you're asking us to apply.

[00:01:04] Speaker 04:
Is that the test that applies in our circuit?

[00:01:08] Speaker 04:
It seems to me you're looking at tests that we see in the fourth and ninth circuit, I believe.

[00:01:15] Speaker 04:
Which is exactly how you've described what the court should have done here.

[00:01:21] Speaker 04:
Is that the test that's applied in our circuit?

[00:01:26] Speaker 01:
This court hasn't expressly held what level or specificity of findings is required in a cell order.

[00:01:37] Speaker 01:
However, this court has recognized that in light of just the nature of the liberty interest at stake here, that heightened standards do apply.

[00:01:46] Speaker 01:
So for example, this court held in Bradley that the burden of proof has to be clear in convincing evidence.

[00:01:55] Speaker 01:
And in Chavez, this court required that a high degree of specificity was required in the treatment plan.

[00:02:02] Speaker 04:
But neither of those opinions have said that

[00:02:07] Speaker 04:
The court had to go through what the defense has raised and discount that evidence.

[00:02:14] Speaker 04:
Is that correct?

[00:02:15] Speaker 01:
That's correct.

[00:02:16] Speaker 01:
Neither of those cases address this specific issue here.

[00:02:19] Speaker 01:
But just as a general matter, this court has acknowledged that the standards this court sets must weigh the vital constitutional interest in the balance.

[00:02:30] Speaker 01:
This is what this court said in Bradley in deciding that the Convincing Evidence standard applies.

[00:02:34] Speaker 01:
And in another context where you- Counsel, can I interrupt there?

[00:02:38] Speaker 06:
I just want to talk a bit more about Chavez because you mentioned it did discuss

[00:02:43] Speaker 06:
I think it used to phrase something akin to particularized findings being required, but that was as to the medication or the actual drugs, the list of drugs that would be used.

[00:02:55] Speaker 06:
And we don't, you know, there's just nothing here at issue as far as that particular conclusion.

[00:03:02] Speaker 06:
Are you suggesting we could extend that out somehow to require more particular findings about

[00:03:13] Speaker 06:
Other facts?

[00:03:15] Speaker 01:
Yeah, so I'm not saying that Chavez or Bradley somehow control the standard here, that they're dispositive.

[00:03:22] Speaker 01:
I'm simply analogizing to those cases that this court has recognized that in light of the fundamental liberty interest at stake in cell, it's important to have that heightened standards apply.

[00:03:35] Speaker 01:
And in Chavez, this court aligned itself with the Fourth and Ninth Circuits in finding the higher degree of specificity

[00:03:43] Speaker 01:
than the district court did there was required for the treatment plan, specifications in the treatment plan.

[00:03:51] Speaker 01:
And similarly, the Fourth and Ninth Circuits have said that particularized findings are required in finding to support the district court's conclusion that a defendant is substantially likely to be restored.

[00:04:07] Speaker 06:
Well, there was testimony here, for instance,

[00:04:13] Speaker 06:
about the Mr. Deer's age and the duration of his illness.

[00:04:22] Speaker 06:
And there was testimony about all that from the government's experts.

[00:04:26] Speaker 06:
And the district court made it very clear that he not only found the government's experts credible, but that he definitely

[00:04:38] Speaker 06:
found the weight of the evidence favored their testimony.

[00:04:41] Speaker 06:
So why isn't that specific enough to encompass fairly particular findings about those issues?

[00:04:52] Speaker 06:
Age, duration of the condition, and cognitive diminishment, that sort of thing.

[00:05:02] Speaker 01:
Well, so there's no doubt that tons of evidence was presented from both sides about a duration of untreated psychosis.

[00:05:10] Speaker 01:
The problem is that the district court didn't, and that those are the basis, those are the factors that all the experts discussed in explaining their underlying conclusion or their ultimate conclusions as to whether there was a substantial likelihood of restoration or not.

[00:05:24] Speaker 06:
Right.

[00:05:25] Speaker 06:
But the court favored and made clear why it favored the two

[00:05:31] Speaker 06:
Uh, government experts, and it was because of their long term, you know, uh, experience at this institution in Springfield, because of their individualized experience with this defendant, their clinical experience with this individual.

[00:05:49] Speaker 06:
It weighed that so much more heavily.

[00:05:52] Speaker 06:
Why doesn't that encompasses what I'm saying?

[00:05:56] Speaker 06:
that weight that the court put on their testimony, why doesn't that encompass their testimony about all of these matters?

[00:06:04] Speaker 01:
Because the district, yeah, I think so.

[00:06:08] Speaker 01:
So the district court.

[00:06:10] Speaker 01:
The only justification it gave for finding that there was a substantial likelihood of restoration for siding with the government's experts was their experience and personal observations of Mr. Deer.

[00:06:26] Speaker 01:
But just because... Well, that's pretty large.

[00:06:29] Speaker 05:
That's not small.

[00:06:31] Speaker 05:
It's not like a small, insignificant point.

[00:06:34] Speaker 01:
But it's certainly a relevant consideration, but in light of all of the evidence that was presented and these heavily disputed issues as to whether to the extent to which duration of untreated psychosis, the extent to which is age, the extent to which delusional disorder is even treatable with medication.

[00:06:55] Speaker 01:
Those were heavily contested issues that the district court didn't discuss at all.

[00:07:00] Speaker 01:
All it said was, in light of the government experts' experience and personal observations, I'm giving full weight to literally everything they said.

[00:07:10] Speaker 04:
Well, as regards to the duration of his psychosis, isn't it agreed in this record that no one knows how long he's had this psychosis?

[00:07:22] Speaker 01:
No one knows exactly how long.

[00:07:26] Speaker 01:
Dr. Preston Beck, the government's expert, testified that it was somewhere between 15 and 30 years.

[00:07:33] Speaker 01:
The defendant's experts consistently referred to 30 plus years.

[00:07:39] Speaker 04:
But they didn't know.

[00:07:40] Speaker 04:
They didn't know.

[00:07:42] Speaker 04:
Because he's not been treated, you see, over time.

[00:07:46] Speaker 04:
So no one knows.

[00:07:47] Speaker 04:
When did this start?

[00:07:48] Speaker 04:
No one knows.

[00:07:49] Speaker 01:
They were just guessing.

[00:07:51] Speaker 01:
No one knows for sure, but the evidence and the only evidence is that we have is based on the testimony of the experts.

[00:07:57] Speaker 01:
They were, that's what evidence is in the record.

[00:08:00] Speaker 01:
And they testified that it was at least 15 years.

[00:08:02] Speaker 01:
At least the minimum that anyone testified to.

[00:08:05] Speaker 01:
And that's extremely important because the only evidence.

[00:08:10] Speaker 01:
The entire in all of the government's evidence, all the studies, they relied on their personal experience treating patients.

[00:08:17] Speaker 01:
There were only four.

[00:08:21] Speaker 01:
four patients or defendants who had had delusional, untreated delusional disorder for 13 years or more.

[00:08:27] Speaker 01:
And all four of those patients are referenced only in the herbal study.

[00:08:32] Speaker 01:
And of those four, only one was successfully restored.

[00:08:36] Speaker 01:
So, granted, that's an extremely small sample, but it's the only evidence we have.

[00:08:40] Speaker 01:
There are 4 patients with untreated delusional disorder for 13 or more years and only 1 of the 4 was restored.

[00:08:48] Speaker 01:
And if the governance burden to prove by by clear and convincing evidence is substantial likelihood of restoration and.

[00:08:56] Speaker 01:
in light of his specific diagnosis of delusional disorder that's gone untreated for more than 13 years.

[00:09:02] Speaker 01:
The only evidence in the record is it's more than 13 years.

[00:09:04] Speaker 01:
25% is not a substantial likelihood.

[00:09:10] Speaker 04:
So you would require a study that would evidence support for the government's due.

[00:09:19] Speaker 01:
I don't know that a study would be required in every single case for every, you know, but where the only study is, where the only patients we have are four and only one of them was successful.

[00:09:32] Speaker 04:
And isn't that a problem?

[00:09:34] Speaker 04:
I mean, we see that in the testimony in this case, that there aren't a lot of studies dealing precisely with the issue that we have here.

[00:09:43] Speaker 04:
So the experts on both sides really had very little hard evidence, if you will,

[00:09:49] Speaker 04:
To look at that's true.

[00:09:51] Speaker 01:
It's just an incredibly small sample size disorder is a rare disease that the experts testified that it's extremely rare.

[00:09:59] Speaker 01:
for someone to have this duration of untreated psychosis.

[00:10:03] Speaker 01:
And so the sample size is really small, but that's a problem for the government, not for the defendant.

[00:10:09] Speaker 01:
The government has the burden to prove by clear and convincing evidence that it's substantially likely.

[00:10:15] Speaker 01:
And substantially likely everyone tends to agree is 70% or more.

[00:10:20] Speaker 00:
I don't mean to interrupt you, but

[00:10:24] Speaker 00:
I think I hear you moving to your second issue.

[00:10:30] Speaker 00:
And to me, these issues are rather distinct, whether or not the government has satisfied its burden and the threshold that you started with, whether or not, assuming that there's a requirement of particularized findings, whether the court's findings were adequately particularized.

[00:10:47] Speaker 00:
And I want to follow up in that regard with Judge Morris's question, and that is,

[00:10:52] Speaker 00:
I think the parties would agree that the court went about trying to explain his findings based on which experts he found more credible.

[00:11:05] Speaker 00:
Do you agree with that?

[00:11:08] Speaker 00:
Yes.

[00:11:09] Speaker 00:
And in your criticism in today and in your briefing, I understand to be, well, that doesn't explain

[00:11:19] Speaker 00:
how the court analyzed these three factual components, the defendant's age, the efficacy of psychotropic medication to restore competency for someone with sustained delusional disorder and the duration of his delusional disorder.

[00:11:39] Speaker 00:
And my question is, in light of what you're saying, the sparsity of empirical evidence

[00:11:48] Speaker 00:
Isn't the, at the end of the day, the question, whether or not we can meaningfully review why the district court arrived at the findings that he did on step 2 of the cell inquiry.

[00:12:00] Speaker 00:
And in light of this.

[00:12:01] Speaker 00:
In light of what you're alluding to the sparsity of the empirical data, the fact that these Dr Preston.

[00:12:08] Speaker 00:
Uh, did.

[00:12:10] Speaker 00:
on cross-examination, take these questions about the efficacy of psychotropic medication, the fact that the defendant was in his 60s, the fact that he had, you had said 58, you're probably right, I had remembered it between 10 and 30 years.

[00:12:25] Speaker 00:
But all of these three factual components did go into the

[00:12:29] Speaker 00:
Uh, evidence in which the district court then assess the credibility of Dr Preston.

[00:12:36] Speaker 00:
Why isn't that enough at least to allow us meaningful review of why she arrived at her findings?

[00:12:44] Speaker 01:
I think.

[00:12:45] Speaker 01:
Part of the problem with the findings not being sufficient for meaningful review is there's not enough findings for this court to find that the district court's ultimate finding is correct.

[00:13:02] Speaker 01:
We're the only justification the court gave for crediting the testimony of the government's experts.

[00:13:09] Speaker 01:
is that they have a lot of experience and they personally observed Mr. Deer, that just doesn't equal correct opinion when the district court should have actually looked at the underlying basis for the opinion and explored

[00:13:28] Speaker 01:
I mean, at least mentioned what the defense experts, the basis of the defense experts opinions were that his duration of untreated psychosis and age and delusional disorder meant that it was substantially unlikely.

[00:13:42] Speaker 01:
And then explain why it was rejecting those, like for what the actual reason why those are less supported

[00:13:52] Speaker 01:
um by uh in in the scientific community or uh or for whatever reason so certainly the the experience of the experts is a relevant consideration but it's just not enough to show this court or the defendant or anyone that their conclusions were actually correct well we're not supposed to decide are we i mean this first i've heard that we're supposed to decide

[00:14:18] Speaker 00:
Which expert's correct.

[00:14:20] Speaker 00:
That's for the district court.

[00:14:22] Speaker 00:
I mean, we're just supposed to decide whether or not he gave a particularized explanation, right?

[00:14:29] Speaker 01:
Right.

[00:14:30] Speaker 01:
But I mean, the district court can give a reason for a finding.

[00:14:35] Speaker 01:
That doesn't mean that it's a sufficient explanation.

[00:14:38] Speaker 01:
OK.

[00:14:39] Speaker 01:
I mean, we know that he gave a reason.

[00:14:42] Speaker 01:
Yeah.

[00:14:42] Speaker 01:
Just in light of the evidence presented, that wasn't a sufficient explanation.

[00:14:47] Speaker 00:
Let me ask one, we'll give you a little bit more time, but I do wanna just follow up with this question.

[00:14:54] Speaker 00:
If he gave a reason, for example, if the district court said, well, I have looked at the evidence about the defendant's age that he was 64, I find that some of the data talks about whether or not he was 65 to 85,

[00:15:12] Speaker 00:
Which I think was some of the subject matter that Dr Preston confronted and that the court says that the fact that he's 64 really would not.

[00:15:21] Speaker 00:
In my district court's opinion would not diminish the efficacy of psychotropic medication for Mr. dear.

[00:15:29] Speaker 00:
And I also find the district court that.

[00:15:32] Speaker 00:
that psychotropic medication generally can be effective to restore competency for individuals with sustained delusional disorder, but it doesn't say one word about the duration.

[00:15:45] Speaker 00:
Is the explanation adequately particularized because the district court dealt with two of the three factual components and not the third?

[00:15:56] Speaker 00:
What is the limiting principle on the depth of particularity that you're asking us to adjudicate?

[00:16:07] Speaker 01:
Right.

[00:16:07] Speaker 01:
I mean, I think it would just have to vary on a case by case basis.

[00:16:11] Speaker 01:
I don't think there's a bright line rule of the number of things they have to discuss.

[00:16:16] Speaker 01:
And that's just the nature of trying to determine whether a district court's findings were adequate.

[00:16:23] Speaker 01:
I think you just have to look at

[00:16:25] Speaker 01:
the main bases for the opinions, competing opinions on either side, and certainly address them to some extent.

[00:16:35] Speaker 01:
And here, the district court discussed literally nothing of what the defense expert says.

[00:16:41] Speaker 01:
So under really any standard, that can't be enough.

[00:16:44] Speaker 04:
Well, I know we're over time, and now we're still going.

[00:16:52] Speaker 04:
What is our scope of review here?

[00:16:56] Speaker 04:
Is it de novo?

[00:16:59] Speaker 01:
It's de novo for the sufficiency of the findings.

[00:17:02] Speaker 04:
Okay.

[00:17:03] Speaker 04:
And if we go into that pond, can't we look at all the evidence?

[00:17:08] Speaker 04:
I mean, this is a real tight case.

[00:17:11] Speaker 04:
It's not like a lot of the cases we see where we have volumes of record.

[00:17:15] Speaker 04:
We have basically two sides.

[00:17:17] Speaker 04:
One side has these doctors, the other side has their doctors.

[00:17:21] Speaker 04:
So we look at the doctors, both sides.

[00:17:24] Speaker 04:
That's de novo review, isn't it?

[00:17:27] Speaker 04:
And if we have the district court saying, I believe this group of doctors over the other side's doctors, don't we therefore have a basis for the court's ruling?

[00:17:42] Speaker 04:
Because we know what those rulings are, what those opinions are.

[00:17:47] Speaker 04:
That's a de novo review, isn't it?

[00:17:51] Speaker 01:
I believe so, yeah.

[00:17:53] Speaker 01:
I mean, you're reviewing de novo

[00:17:56] Speaker 01:
whether the explanation was sufficient in light of the evidence presented.

[00:18:02] Speaker 01:
And here I'd submit that in light of the evidence presented, the district court's explanation was insufficient because it did not address any of the defense expert's testimony at all.

[00:18:21] Speaker 02:
I see that I'm out of time.

[00:18:22] Speaker 00:
Did you have any other questions?

[00:18:23] Speaker 04:
No, thank you.

[00:18:25] Speaker 00:
Judge Morris, did you?

[00:18:26] Speaker 04:
No, I'm good.

[00:18:27] Speaker 04:
Thank you.

[00:18:28] Speaker 00:
Okay.

[00:18:28] Speaker 00:
Thank you.

[00:18:29] Speaker 00:
We did go a little over time.

[00:18:31] Speaker 00:
Amy, let's give Ms.

[00:18:32] Speaker 00:
Miller three additional minutes and we'll give the appellant a minute and a half for your rebuttal.

[00:18:43] Speaker 00:
Ms.

[00:18:43] Speaker 00:
Miller.

[00:18:44] Speaker 03:
Good morning and may it please the court, Marissa Miller for the United States.

[00:18:49] Speaker 03:
Both sides agree that there are two distinct issues in this case.

[00:18:52] Speaker 03:
One of them is whether the district court clearly aired when it made this factual finding, and the other is whether the district court's order is sufficient to enable meaningful appellate review.

[00:19:02] Speaker 03:
Unlike the defense, we believe the answer to that second question is fairly straightforward.

[00:19:08] Speaker 00:
Ms.

[00:19:08] Speaker 00:
Miller, one of the things that you did argue in your response brief was that just as you're about to develop

[00:19:16] Speaker 00:
that the findings were adequately particularized, but you didn't address, I don't think, the threshold argument that the appellant has that particularized findings are required.

[00:19:29] Speaker 00:
Do you concede that particularity in the findings is necessary for a cell order as step two?

[00:19:38] Speaker 03:
Believe I would your honor, but I would just argue that the district court's order met that threshold for particularity.

[00:19:45] Speaker 03:
The only case we really have on point in the 10 circuit is United States versus angle heart.

[00:19:51] Speaker 03:
But this case is a bar cry from Engelhardt, which was a case where the district court gave a somewhat meandering ruling from the bench in which it provided no explanation for why it was restricting Mr. Engelhardt's First Amendment rights.

[00:20:06] Speaker 03:
Whereas here, we have a 20-page order.

[00:20:09] Speaker 03:
We have 50 factual findings.

[00:20:12] Speaker 03:
There can always be more analysis, but the district court gave us or gave this court what it needs to understand the basis of the court's decision.

[00:20:21] Speaker 03:
especially with respect to this factual finding at issue where the district court said it was relying on the opinions given by the government's experts and those opinions were more persuasive because the government's experts had a stronger clinical and factual foundation for them.

[00:20:38] Speaker 00:
Well, even for a pretrial detainee or let's say a supervised release condition, we do require particularity in the findings to justify

[00:20:50] Speaker 00:
even a condition on release that an individual has to take psychotropic medication.

[00:20:56] Speaker 00:
So, it seems a little counterintuitive to say that pretrial detainee is entitled to particularized findings and is not entitled to particularized findings.

[00:21:10] Speaker 00:
For example, in this case where the defendant is a pretrial, he's not been adjudicated guilty,

[00:21:15] Speaker 00:
And for a supervised relief release after an adjudication of guilt after prison time that that individual is entitled to particularized findings to justify a supervised release condition.

[00:21:30] Speaker 00:
So, it seems a little counterintuitive not to require particularity for a pre trial detainee like Mr. dear.

[00:21:37] Speaker 03:
Again, Your Honor, we're not arguing that no particularized findings are required in this context.

[00:21:42] Speaker 03:
We absolutely agree that the district court has to make those particularized findings.

[00:21:47] Speaker 03:
Excuse me.

[00:21:49] Speaker 03:
The dispute between us and the defense is essentially that the threshold for those findings is not so high that this order, which contains 50 specific factual findings, doesn't surmount that bar.

[00:22:02] Speaker 00:
Okay.

[00:22:03] Speaker 00:
I'm sorry.

[00:22:03] Speaker 00:
I think I've misunderstood.

[00:22:05] Speaker 00:
Go ahead.

[00:22:06] Speaker 03:
I think ultimately Mr. Deer's argument on this point rests on a single quote from an out of circuit case, United States versus Watson, in which the Fourth Circuit said that district courts have to contend with substantial evidence that undermines the case for medication.

[00:22:21] Speaker 03:
But I think we have to be very careful with this language and make sure that we're reading it in context.

[00:22:26] Speaker 03:
It's one thing to quote this language, which is dicta, but it's another thing to create an entirely new legal rule based on it.

[00:22:33] Speaker 03:
In addition to not being binding on this court, Watson simply doesn't stand for the proposition that the defense claims it does.

[00:22:40] Speaker 03:
Watson isn't a case about how detailed the district court's order was.

[00:22:45] Speaker 03:
It's a case about the district court getting the legal standard wrong because the district court entirely failed to consider the specific defendant's individual chances of being restored by the medication at issue.

[00:22:57] Speaker 03:
So this language doesn't support the idea that a district court has to explicitly address and perhaps reject

[00:23:05] Speaker 03:
every piece of evidence that's raised by the defense, the best and I think fairest interpretation of what the Fourth Circuit is saying with this language is when we have a case where the district court has missed a huge chunk of the required legal analysis and the defense presented evidence on that issue, then it's especially problematic because that really confirms that the district court is ignoring this important consideration in the analysis.

[00:23:32] Speaker 00:
How did the district court process and analyze and decide the impact of Mr. Deer's age on his susceptibility to being restored to competency?

[00:23:48] Speaker 03:
Certainly, Your Honor.

[00:23:49] Speaker 03:
I believe that question is essentially answered by the district court's credibility finding in which it explains that it gave more opinion to the weight of the government's experts versus the defenses.

[00:24:02] Speaker 03:
Judge Moritz used the word encompass.

[00:24:05] Speaker 03:
I tend to think of it very similarly.

[00:24:07] Speaker 03:
The district court is essentially incorporating all of that testimony into its order.

[00:24:14] Speaker 03:
Of course, it would make everyone's life easier in appellate world.

[00:24:18] Speaker 03:
If the district court provided a very clear explanation, if the district court said.

[00:24:22] Speaker 03:
The government's experts think that age doesn't matter until someone reaches 85, the defenses expert think it does matter.

[00:24:29] Speaker 03:
I'm signing with the government's experts because they have more experience in this field.

[00:24:33] Speaker 03:
But we already know all of that information from the district court's order.

[00:24:37] Speaker 00:
So where do I look in Dr Preston's testimony where he said this defendant's age 64 will not inhibit his ability to be restored to competency through psychotropic medication.

[00:24:53] Speaker 03:
Well, I think Dr. Sarasin testified to that point.

[00:24:57] Speaker 03:
I can look up the record citation for you if it would be helpful.

[00:25:01] Speaker 03:
I believe Dr. Preston Bach, and this was one of the ways I think in which the government's experts were quite credible, acknowledged that the impact of age is really unclear.

[00:25:12] Speaker 03:
We only have two studies that speak directly to delusional disorder, and only one of them really looks at age, and oddly, the older patients did better.

[00:25:23] Speaker 03:
I guess I say oddly, but the reality is, one of the things with age is there's so many confounding factors.

[00:25:32] Speaker 03:
We're looking at, in particular, cognitive, neurocognitive deficits.

[00:25:37] Speaker 03:
And when someone is advanced in age, there is an increased likelihood of that being present.

[00:25:44] Speaker 03:
So I think Dr. Prestonbach acknowledged that there is probably a correlation between, there may be a correlation between advanced age

[00:25:53] Speaker 03:
and restoration chances, but Dr. Prestonbach relied on her experience treating people like this to conclude that Mr. Deer's age in this case was not going to affect him and that perhaps the better predictor of whether Mr. Deer would be successfully restored was his intellectual, whether he had an intellectual disability or something like dementia, which Dr. Prestonbach very clearly concluded that he did not.

[00:26:23] Speaker 06:
I think it's an argument, kind of a harmless error argument in some ways.

[00:26:27] Speaker 06:
I mean, we don't have the district court pointing to any of that evidence, but the evidence is in the record.

[00:26:36] Speaker 06:
And when we're conducting our de novo review, we can look at that record.

[00:26:43] Speaker 06:
So, I mean, it seems that you're suggesting if particularized findings were required, for instance, regarding age,

[00:26:52] Speaker 03:
Well, I guess the evidence was there, but my first response is that the district court did make a particularized finding with respect to age.

[00:27:01] Speaker 03:
It just it didn't show the work behind it, but I'm not sure that's necessarily required.

[00:27:06] Speaker 04:
He does make a precise finding as regards age.

[00:27:12] Speaker 04:
Finding a fact number two exactly acknowledges the age and says age is not an impediment to restoration of competency through the administration.

[00:27:21] Speaker 04:
of anti-psychotropic medications.

[00:27:24] Speaker 03:
Yes.

[00:27:25] Speaker 03:
And I think in a lot of ways, looking at paragraphs two and 12 and 14, it shows that the district court was considering all of this evidence that the defense presented, even if it didn't specifically identify it as the defense's evidence.

[00:27:40] Speaker 03:
So the defense's main arguments here were age, which the district court addresses in paragraph two,

[00:27:46] Speaker 03:
intellectual disability, which I believe is in paragraph 12.

[00:27:51] Speaker 03:
The district court talks about duration of untreated psychosis and it talks about the efficacy of this medication.

[00:27:56] Speaker 03:
And so I don't think we have a concern where the district court is absolutely ignoring everything he heard.

[00:28:02] Speaker 03:
He's just not identifying it as the defense's arguments.

[00:28:07] Speaker 03:
But sorry, Judge Moritz, just to respond to your question.

[00:28:11] Speaker 03:
Yes, I think there is a bit of a harmless error aspect here

[00:28:17] Speaker 03:
I think we're talking about de novo review, but we're also talking about clearly erroneous findings of fact.

[00:28:25] Speaker 03:
And one of the things we see in a lot of the 10 circuit case laws, and we see this in the Seton case, which obviously is unpublished, but as this court said in United States versus Wacker,

[00:28:38] Speaker 03:
Yeah, sometimes it would be really helpful if the district court would be more precise in articulating the reasons for how it's coming to the decision that it did.

[00:28:47] Speaker 03:
But when there's evidence in the record that answers those questions, that's not necessarily, that doesn't rise to the level of something like angle hardware.

[00:28:57] Speaker 03:
There's truly nothing in there that draws a connection between the district court's conclusion and I guess the evidence that it heard.

[00:29:09] Speaker 03:
I'd like to discuss the district court's paragraph about the scientific literature, because I don't believe that that requires remand either.

[00:29:16] Speaker 03:
It's not unusual for the district court to say or write something that's subject to multiple interpretations.

[00:29:22] Speaker 03:
But when these statements are challenged on appeal, we don't go out of our way to adopt the most problematic construction of those statements that suggests that the district court might have misunderstood the facts or the law.

[00:29:33] Speaker 04:
So are you saying we look at everything here in the light most favorable to the government?

[00:29:40] Speaker 03:
Yes, your honor.

[00:29:41] Speaker 03:
Well, I believe we look at everything here in the light most favorable to the district court.

[00:29:47] Speaker 03:
I think we the district court receives a presumption that it is following the law.

[00:29:51] Speaker 03:
It understands what's going on in the case.

[00:29:55] Speaker 03:
And here, you know, I don't I don't actually think there's a lot of ambiguity in this paragraph.

[00:30:01] Speaker 03:
There's really only 2 possible interpretations.

[00:30:03] Speaker 03:
And neither of them, honestly, this paragraph is not really necessary to support the district court's finding because the district court didn't base this finding on its own independent evaluation of the academic literature.

[00:30:18] Speaker 03:
It based this finding on the opinions of the government's experts as well as their experience and their opportunities to speak with Mr. Deer.

[00:30:26] Speaker 06:
And you're talking about, go ahead Judge Moritz.

[00:30:29] Speaker 06:
Well, I was just gonna say, I'm not sure how we can make that determination

[00:30:33] Speaker 06:
from paragraph 21, it's quite inconsistent because it seems to be talking about, it seems to be crediting the studies cited by the government's experts, but then the studies it then says are less persuasive and small were the studies cited by the government experts, even though it doesn't seem to understand that.

[00:30:55] Speaker 06:
And from what you just said, which is, well, it didn't really rely on those studies, that may be true.

[00:31:03] Speaker 06:
How do we know that?

[00:31:04] Speaker 06:
I mean, it just it just leads in with some published studies show it doesn't say, well, I'm not going to make a determination one way or the other, because I'm really relying on the personal experience of these two experts and not on these studies.

[00:31:19] Speaker 06:
We just don't necessarily know that, do we?

[00:31:22] Speaker 03:
We don't know it for certain, but I think I would go back to the point that

[00:31:26] Speaker 03:
this court sees cases all the time where a district court says something that might be a little confusing and where we're not going to assume and perhaps demand reversal or remand choosing the assumption that makes the district court seem like it has no idea what's going on as long as there's an interpretation out there that's somewhat sensible, which I do believe we have here because I think the, I don't have as much trouble with this paragraph as perhaps the defense does.

[00:31:54] Speaker 03:
because the defense's argument is that, well, all the studies had small sample sizes.

[00:31:59] Speaker 03:
So that doesn't help us distinguish between the ones the court found more or less persuasive.

[00:32:04] Speaker 03:
But I think that's a direct reference to the fact that one of these proceedings studies, which obviously didn't even make it into the record, had a sample size of seven people versus the ones having 22 people and 15 people.

[00:32:19] Speaker 03:
And certainly it's all- So how do you read this paragraph?

[00:32:23] Speaker 04:
So certainly, so did the district court rely on it?

[00:32:27] Speaker 04:
Did the district court rely on studies?

[00:32:30] Speaker 04:
Or is the district court saying, well, there's some studies over here and then there's some studies over there.

[00:32:34] Speaker 04:
And then we have the next paragraph, paragraph twenty two.

[00:32:38] Speaker 04:
I don't know if the district court rely on these studies by reading this.

[00:32:42] Speaker 03:
I guess I interpret it as the district court relying on those studies, but I don't think if the other interpretation is the district court saying the studies are really confusing, there's evidence on both sides, then that's not really problematic either because even if that's not the basis for the district court's decision, there's more than enough in its reliance on the government's experts to support this particular factual finding.

[00:33:14] Speaker 03:
Before I run out of time, I wanted to address very quickly the defense's discussion of the evidence on duration of untreated psychosis, because I do think the defense has perhaps overstated the weight of that evidence.

[00:33:30] Speaker 03:
There were two concrete pieces of evidence presented to the district court on DUP.

[00:33:35] Speaker 03:
One of them was the Herbel and Cochrane study in which, yes, there were four patients

[00:33:40] Speaker 03:
Who had a greater than 13 years and only 1 of them was restored, but the implication from this can't be that people in this in this range in this cohort have a 25% chance of restoration.

[00:33:53] Speaker 03:
And that's because as both the authors of the study said, and the government's experts testified.

[00:33:59] Speaker 03:
Two of those people didn't take the medicine for a long enough period of time, so they're not valid data points.

[00:34:06] Speaker 03:
And even once you remove them, the fact that there's a 50% success rate doesn't tell us anything.

[00:34:11] Speaker 03:
If we think back to our college statistics course, with a sample size of two, if your theory is that there's a 70% restoration rate, it's entirely consistent with that hypothesis to test two people and have one be restored and one not.

[00:34:27] Speaker 03:
The other evidence that was put in the record on duration of untreated psychosis was Dr. Prestonbach's own personal experience in which she said that she had treated patients with DUPs in the range of 10 years, 20 years, and 40 years, and all of them had been successfully restored.

[00:34:45] Speaker 00:
How do we know that that was what the district court was relying on?

[00:34:51] Speaker 03:
I think the district court's reliance here, I think paragraph

[00:34:57] Speaker 03:
I think the paragraph in which the district court made a credibility determination that the government's experts were more credible versus the defendants explains exactly how it made this decision.

[00:35:08] Speaker 03:
It's a battle of the experts, right?

[00:35:10] Speaker 03:
The district court judge is sitting there and he's listening to conclusions and scientific analyses presented by several different people.

[00:35:18] Speaker 03:
And he's determining which he finds more persuasive.

[00:35:22] Speaker 03:
And not only is the district court not necessarily required to explain those credibility determinations, here, I think it's entirely reasonable for the court to place more evidence on the government's experts testimony for the reasons we gave in the brief.

[00:35:39] Speaker 03:
And we have to recognize that to the extent that the defense has concerns with those credibility determinations, we give them

[00:35:50] Speaker 03:
significant deference once we're on appeal.

[00:35:54] Speaker 03:
The defense argues that these aren't credibility.

[00:35:56] Speaker 00:
Let me ask it a different way.

[00:35:58] Speaker 00:
Is what you just explained, is that part of the content of the government's expert witnesses testimony or is that your explanation for why the district court's findings was consistent with substantial evidence?

[00:36:15] Speaker 03:
The discussion of

[00:36:17] Speaker 00:
Would you just explain about the effect of the duration of the delusional disorder?

[00:36:22] Speaker 03:
Yeah, Dr. Preston-Bach testified specifically that those two patients did not receive medication for an adequate period of time.

[00:36:32] Speaker 03:
The authors of the cell study, sorry, the Herbell study also point that out.

[00:36:39] Speaker 03:
I perhaps put my own gloss on it by reminding us of how statistics work, but I hope that's not going too far beyond the record.

[00:36:48] Speaker 06:
I do have one more question.

[00:36:51] Speaker 06:
You keep talking about credibility and in paragraph 22, we do have that statement about they both testified credibly, but it isn't really at all about credibility, is it?

[00:37:02] Speaker 06:
I mean, I know you discussed it in the brief, but it seems that it's a lot more about weight than it is credibility.

[00:37:08] Speaker 06:
And I don't think there was any finding that the various experts that Mr. Deer presented were not credible.

[00:37:18] Speaker 06:
was there.

[00:37:19] Speaker 06:
So don't we have to assume this is weight, not credibility?

[00:37:23] Speaker 03:
I would disagree, Your Honor, and let me explain why.

[00:37:26] Speaker 03:
Certainly, there are differences between credibility determinations involving a lay witness who's describing a series of events and battling experts.

[00:37:38] Speaker 03:
But what's important here is what is required

[00:37:43] Speaker 03:
For the district court, and I guess how, how the defense, I think the defense want these wants these things treated differently.

[00:37:49] Speaker 03:
And I would say that the case tells us they're not the defense hasn't cited and we haven't found any case that says a credibility determination involving expert witnesses.

[00:37:58] Speaker 03:
is a different thing.

[00:38:00] Speaker 03:
But I can cite the court several cases, which I'd be happy to do in a 28-J letter, in which there is a battle of the experts and the fact finder is a judge.

[00:38:10] Speaker 03:
And when it goes up on appeal, the court of appeal says, the district court clearly made this decision because it trusted the site's experts over those.

[00:38:18] Speaker 03:
And we give great deference to that determination.

[00:38:20] Speaker 03:
So yeah, maybe credibility isn't the right word for it.

[00:38:24] Speaker 03:
But the resolution of conflicting evidence and how much weight it gets

[00:38:28] Speaker 03:
is something the law is clear that is firmly within the fact-finder's discretion.

[00:38:32] Speaker 04:
I'm glad Judge Moritz brought it up because every time I read credibility in your brief, I wanted to scream because it's not a credibility determination.

[00:38:41] Speaker 04:
You're not saying that any of these experts lied, are you?

[00:38:47] Speaker 04:
You're saying that the district court looked at their

[00:38:53] Speaker 04:
backgrounds, the information that they provided the court and determined which of the two groups of experts it would rely on in its ruling.

[00:39:04] Speaker 04:
And it's a weight thing.

[00:39:05] Speaker 04:
It's not credibility.

[00:39:07] Speaker 04:
Nobody's saying anybody lied.

[00:39:10] Speaker 03:
Of course, Your Honor, and perhaps that's the wrong use of the term credibility, although the district court talks about crediting, right?

[00:39:17] Speaker 03:
Whose version of events are we crediting?

[00:39:19] Speaker 06:
The reason for that was because of the weight it gave to the personal experience of these experts.

[00:39:29] Speaker 06:
That's why it credited over the others the testimony, which is weight.

[00:39:34] Speaker 06:
But either way, I understand your point, I guess.

[00:39:37] Speaker 06:
We don't look at it.

[00:39:40] Speaker 03:
We would respectfully ask the court to affirm.

[00:39:43] Speaker 00:
Ms.

[00:39:43] Speaker 00:
Briscoe, do you have any questions?

[00:39:45] Speaker 03:
No.

[00:39:46] Speaker 00:
Judge Moritz?

[00:39:47] Speaker 03:
Nope.

[00:39:48] Speaker 00:
Okay, Amy, I think I gave the appeal one and a half minutes.

[00:39:53] Speaker 02:
You may proceed.

[00:39:58] Speaker 02:
You're on mute.

[00:40:01] Speaker 02:
Thank you, your honor.

[00:40:02] Speaker 01:
First, I just want to push back on the idea that Watson is not about inadequate findings.

[00:40:06] Speaker 01:
It certainly is.

[00:40:07] Speaker 01:
The Fourth Circuit found multiple errors, one of which was the government's failure to present specific evidence.

[00:40:17] Speaker 01:
And then an independent error was the district court's failure to adequately analyze the available evidence and consider the

[00:40:29] Speaker 01:
the evidence that undermined and discuss the evidence that undermined the case for forcible medication.

[00:40:34] Speaker 01:
That's at four starting at four twenty seven in that case.

[00:40:38] Speaker 06:
There is a big difference between no evidence, which was what the situation Watson no evidence versus there's evidence.

[00:40:45] Speaker 06:
We just don't exactly know which one the district court was looking to.

[00:40:51] Speaker 01:
Right.

[00:40:52] Speaker 01:
But

[00:40:53] Speaker 01:
Right.

[00:40:54] Speaker 01:
And the Fourth Circuit said that those were independent errors.

[00:40:57] Speaker 01:
So the government failed to present evidence and independently, the district court failed to analyze the defendant's evidence.

[00:41:07] Speaker 01:
So here, I'm not saying there was literally no evidence.

[00:41:10] Speaker 06:
It failed to say that there wasn't any, basically.

[00:41:14] Speaker 06:
That's all right.

[00:41:15] Speaker 06:
Go ahead.

[00:41:16] Speaker 01:
And then real quickly, just on harmless error, there is not a true harmless error analysis for when a district court fails to make particularized findings.

[00:41:26] Speaker 01:
The only way you would be able to not remand when there's failure to make sufficient findings is if the record allows for only one conclusion.

[00:41:34] Speaker 01:
That's where this court could conclude as a matter of law that the district court would clearly error in finding otherwise.

[00:41:39] Speaker 01:
So that's this court to reverse and remand.

[00:41:42] Speaker 01:
Thank you.

[00:41:43] Speaker 00:
Judge Morse, do you have any other questions?

[00:41:46] Speaker 05:
No, thank you.

[00:41:47] Speaker 00:
Okay, Judge Briscoe, to you.

[00:41:48] Speaker 00:
No, thank you.

[00:41:49] Speaker 00:
Okay, thank you, counsel.

[00:41:50] Speaker 00:
It was well presented.

[00:41:51] Speaker 00:
Did you raise it in your arguments today?

[00:41:53] Speaker 00:
This better will be submitted.

[00:41:55] Speaker 00:
Thank you.