just about a year ago that Albany resident Bliss Alexandra,
also known as Darlene Early, was being held at the Kirby
Forensic Psychiatric Center in Manhattan for the violent and
criminally insane, being forcibly injected with anti-psychotic
drugs after being arrested for protesting regulations of the
NYS Department of Motor Vehicles.
Last week's ruling
by the 9th Circuit, U.S. Court of Appeals, upholds what Ms.
Alexandra has been saying all along---the city of Albany and
the Albany Police Department violated her constitutional
The federal courts
are having increased problems with the constitutionality of
the government forcing anti-psychotic medications on alleged
mentally ill patients to make them competent for trial.
The ruling for the
U.S. Court of Appeals opens the door wide by Bliss Alexandra
to bring suit against the city of Albany and its police
department and Chief James Turley for a "serious and
substantial violation of a defendant's liberty interest."
initially been charged in August, 2004 by the Albany Police
Department with three counts of possession of a forged
instrument, Class D felonies which carry a penalty of up to
seven years in prison each on conviction. Eventually the
Albany County district attorney's office under DA David Soares
made a deal that allowed Alexandra to plead to a reduced
charge of criminal possession of a forged instrument---a
cardboard protest sign in the form of a license plate placed
on a car parked on private property.
Alexandra says the
car was parked on property across from her residence in a spot
that she had leased.
Police say that
the pieces of cardboard simulated to be license plates and the
mock inspection and registration stickers were forged
instruments and that she allegedly criminally possessed those
three forged instruments---chargeable under the state Penal
Law as class D felonies.
Alexandra says she
was merely expressing her constitutional right to freedom of
speech in expressing her disagreement with state laws that
require one to obtain permits and licenses in order to travel
the public highways.
But Albany City
Court judge Thomas Keefe decided that the 60-year-old DMV
protestor should be committed for a 90-day evaluation at Kirby
Forensic Psychiatric Center for the violent and criminally
insane in Manhattan, forcibly injected with antipsychotic
drugs, a violation of state Mental Hygiene Law, to insure that
she was competent to stand trial because it had been ruled
that she wasn't able to understand the charges against her or
aid in her own defense.
Bliss Alexandra is
a legal scholar and a paralegal. She knows the laws well,
especially the supreme law of the land---the U.S.
at least to governmental officials, she's that dreaded "C"
Reinhardt of California's 9th Circuit, U.S. Court of Appeals,
wrote for the unanimous three-judge panel ruling last week
that "the administration of involuntary medication ordinarily
constitutes a serious and substantial violation of a
defendant's liberty interest."
exceptions exist to the general rule prohibiting involuntary
medication, the law recognizes 'the importance of independent
medical decision-making' and the need for defendants to have
the 'opportunity…..to challenge [the adverse] medical
The appeal before
the 9th Circuit court involved questions relating to the
involuntary medication of a defendant awaiting trial in
federal court. After being arrested and charged with illegal
entry, the defendant, Mexican national Abisai Rivera-Guerrero,
was found incompetent to stand trial.
generally results in a light sentence but in Rivera-Guerrero's
case, due to the involuntary medication and commitment, he was
in essence sentenced without hearing for a two-year
commitment to the Federal Medical Center pursuant to an order
dated Nov. 4, 2003, the FMC doctors requested that the
district court issue another order permitting him to be
involuntarily medicated with ant-ipsychotic drugs for the
purpose of restoring his competency so that he could stand
trial. The court ordered that a hearing be held. When the
hearing began, the magistrate judge decided that it would be
held pursuant to Sell v. U.S. 539 U.S. 166 (2003)
rather than Washington v. Harper 494 U.S. 210 (1990)
After the government's witnesses, two FMC doctors testified,
defendant's counsel requested a continuance so that she could
prepare her rebuttal.
doctors had proposed anti-psychotic medication which had side
effects including nausea, diabetes, an irreversible facial
tick syndrome among others. The defendant's attorney argued
that she hadn't been provided with a list of the medications
before the hearing so she couldn't produce her own expert. She
asked for a continuance.
The district court
denied the request and issued an order permitting involuntary
medication. On Oct. 4, 2004, the order was ultimately
reaffirmed by the district court upon remand.
The Court of
Appeals reversed the district court's denial of the
continuance, vacated the involuntary medication order and
remanded it to the district court.
resolve this appeal on the ground that the district court
erred in failing to grant the defendant a continuance, the law
regarding involuntary medication guides our determination on
that question. The Supreme Court's refusal to permit
involuntary medication except in highly-specific factual and
medical circumstances illustrates the importance of a complete
factual and medical record upon which a judge can base his
decision", Reinhardt wrote. "Recognizing what is at stake, we
must be vigilant in our review of procedural rulings that deny
the defendant an opportunity to challenge the government's
case. "The Supreme Court has thrice recognized a 'liberty
interest in freedom from unwanted antipsychotic drugs".
decision ruled 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.
attorneys say that the decision addresses the issue that
mentally ill criminal defendants often spend excessive periods
of time waiting to be tried while the courts decide if they
are mentally competent to proceed to trial which results in
"de facto incarceration", as one lawyer terms it. http://caselaw.lp.findlaw.com/data2/circs/9th/0450493p.pdf
called the Albany Department of Public Safety last August to
complain about her personal property being towed by police
from a private driveway, Albany Police Chief JamesTurley
responded by telling her he was either going to arrest her or
have her removed to the Capital District Psychiatric Center.
And that he did.
Not only did he
cause her arrest on three felony charges but caused her to be
involuntarily committed with serial killers and rapists and
subjected to the forced injection of antipsychotic drugs.
crime-exercising free speech on private property. The legal
scholar and constitutionalist, with no apparent mental illness
history, was originally committed to Kirby last September for
a 90-day evaluation by Judge Keefe because he claimed two
examiners from the Albany County Correctional Facility,
associated with the Capital District Psychiatric Center, had
determined she had no comprehension of the charges against her
or of court procedure because she refused to discuss the case
Kirby, operated by
the state Office of Mental Health as is CDPC, is a maximum
security, 168 bed hospital on Ward's Island. Opened in 1995,
it provides secure treatment and evaluation for the forensic
patients of courts of New York City and Long Island.
wasn't in the court system of New York City nor was she
violent nor were her alleged crimes of a violent nature.
She was a resident
of Albany County which is served by the Mid-Hudson Psychiatric
Center in Poughkeepsie.
And then there's
CDPC in the police department's own back yard at 75 New
A looming question
in this Alexandra case is why was she removed to Kirby?
charged Alexandra with three felony counts of second degree
possession of a forged instrument but not only do the arrest
reports and felony complaints allegedly contain false
statements and information, but there appear to have been
egregious violations of her constitutional rights as well as
statutory law in her involuntary commitment and medication
including an alleged falsified court order and denial of her
right to counsel.
She now has a the
recent federal court ruling to support her claim.
exist about why and how she was removed from the Capital
District area, her family, friends and legal counsel and sent
to Kirby and the ensuing alleged rights violations.
On Aug. 31, Albany
city court Judge Keefe signed an order for the "examination"
of Darlene Barely.
director of the Albany County Department of Mental Health
thereafter assigned Michelle Gerber, a psychologist employed
by the Albany County Correctional Facility, and David J.
Kelley, coordinator of the mental health unit at the facility
to examine Alexandra. Neither one is a licensed physician and
neither one was familiar with Alexandra. Although no past
history of mental treatment or any allegation of violent
behavior was presented, Gerber and Kelley filed reports with
the court determining Alexandra was "incapacitated", thereby
causing her involuntary hospitalization at Kirby, a maximum
security facility for the criminally insane and violent.
Despite CDPC being
in their backyard, there is no indication that Alexandra was
transported there for an examination by licensed physicians.
reports filed with the court by Gerber, a licensed
psychologist since only May, 2004, and Kelley, "Barely" said
to be an aka for Darlene Early but with an incorrect birth
date for Alexandra, was "interviewed on Sept. 3 and was "not
cooperative". She told the interviewers that her arrest and
incarceration were "invalid" because her name was not Barely.
She demanded a written statement from the examiner with the
date, time, location and purpose of the examination along with
the signatures, titles and employer of the examiner.
Gerber's report, Gerber seemed to find that an unreasonable
request by Alexandra.
the documents, Gerber reports that "Ms Barely stated" that
'you two have a problem. I'm not the person written here
(pointing to the document with 'Darlene Barely' written on
it). Therefore, I have nothing to say about her and we're
Gerber told the
court that in her initial contact with the jail mental health
unit on Aug. 27, she had insisted that her name was "Darlene
Early" and she therefore was in jail 'under protest' and for
no reason. As is her constitutional right, Alexandra refused
to discuss her personal history with Gerber and Kelley, and
refused to discuss the charges and was not willing to discuss
the legal situation or process with them.
Claiming that she
was paranoid, because Alexandra chose to exercise her Miranda
rights, Gerber and Kelley, neither of whom are physicians or
board certified, told the court that the professional
paralegal was not able to acknowledge the charges or her legal
situation and was not "expected to be able to work
productively with an attorney to assist in her own defense".
They claimed that the legal scholar lacked the ability to
comprehend the legal system and courtroom procedures and was
an incapacitated person.
observation was that "Ms. Barely" was alert but not
cooperative with the evaluation". He said her mood was "angry
At that time,
Alexandra had been allegedly illegally incarcerated for more
than a week and had allegedly still not been provided copies
of the charges against her and related paperwork despite her
requests. Kelley said that her statement that Albany police
chief Turley had told her he was going to 'throw me in a
mental institution' constituted significant paranoia. However,
as an audiotape of the conversation between Turley and Early
clearly demonstrates, Alexandra was absolutely correct in her
statement. Both psychologists were distressed and disturbed
that Alexandra refused to discuss the charges against her with
paranoid in thinking that Turley was trying to have her
committed to a mental institution when she has him captured on
audiotape making that exact statement?
problems had still only just begun. Within a matter of days,
in violation of Mental Hygiene Law, Criminal Procedure Law,
Corrections Law and yes, the U.S. and New York State
Constitutions, it was ordered that she be forcibly
administered a myriad of anti-psychotic drugs in an attempt to
"rehabilitate" her so that she could be returned to Albany to
face her criminal charges. The 15 drugs, some in dosages up to
4000 mg daily, are known to cause cancer, liver damage and
other serious side effects.
This case in the
city of Albany is remarkably similar to the Riversa-Guerrero
contacted by The Empire Journal who spoke on condition of
anonymity said that "for any individual, especially one who
has never been exposed to any these drugs to be given a toxic
cocktail such as this is actually equivalent to attempted
murder, in my opinion".
'We are operating
in the same environment as occurred in Nazi Germany and China.
Dissents are given psych diagnoses as a way to lock them up",
the physician said. "However, I predict, merely from knowing
the side effects of these drugs and as listed in the
Physician's Desk Reference, that they are actually trying to
kill this woman. The judge is also practicing medicine without
a license by deciding that she should be involuntarily
committed and drugged".
On the basis of
Gerber's and Kelley's reports, Albany city court judge Keefe
signed a 90-day temporary order of observation on Sept. 9,
ordering that "Darlene Barely" be committed to the custody of
the state commissioner of the Office of Mental Health for care
and treatment in an "appropriate" facility of the OMH as
designated by Sharon Carpinello, OMH commissioner.
husband, Anthony Carpinello, is a state Supreme Court justice
in the Appellate Division, Third Department.
to attorney Michael Feit, Judge's Keefe's order is an alleged
intentionally false in order to claim the court and city
complied with state law and Alexandra's constitutional rights
when they did not.
Keefe's order in
which he says that it appears to his satisfaction that
"Darlene Barely" lacks the capacity to understand the
proceedings against "him" or to assist in "his" own defense as
a result of mental disease, claims that she was represented by
counsel and that counsel was given copies of the examination
reports of Gerber and Kelley and that no motion for the
requisite hearing had been made.
However, Feit says
although he consulted with Alexandra but hadn't been
officially retained, Keefe signed the order before Feit had
even received the Gerber/Kelley reports and before he could
request any hearing. Feit has advised Frederick that Keefe has
acknowledged on the record in open court that he signed the
temporary order without hearing and before counsel had
received the reports which constitutes a violation of the law
and safeguards afforded Alexandra.
The attorney says
that despite the judge's acknowledgement that the order was
issued unlawfully, the assistant district attorney, on the
record, refused to dismiss or reduce the charges against
Alexandra.. A transcript of the court proceeding is said to
The courts have
consistently held that "the accused is guaranteed that he not
stand alone against the state at any stage of the prosecution,
formal or informal", in court or out, where counsel's absence
might derogate from the accused's right to a fair trial".
The Court of
Appeals has held that it is firmly established that the due
process rights of a mentally ill patient must be fully honored
prior to administration of medication over their objection".
transported to Kirby on Sept. 11 although she had no previous
arrest record, allegations of violent behavior or mental
direction of Richard Miraglia, director of forensic services,
the Bureau of Forensic Services in the state Office of Mental
Health (OMH) coordinates the placement of persons and oversees
the delivery of inpatient services to individuals committed to
the custody of OMH commissioner Carpinello pursuant to various
sections of Criminal Procedure Law and Correction Law.
The Bureau of
Forensic Services is responsible for coordinating the delivery
of mental health services to individuals involved with the
state's criminal justice system.
facilities, with a total bed capacity of 695, include the
Mid-Hudson Forensic Psychiatric Center in Poughkeepsie, bed
capacity 264; Central New York Psychiatric Center at Marcy,
bed capacity, 206. and Kirby with 168.
designed to serve the upstate counties including Albany.
Kirby houses a
group of men who have committed some of the most notorious and
gruesome crimes in New York City's history including Daniel
Rakowitz, former East Village man, who admitted to chopping up
his ex-lover, boiled her remains in a soup and serving the
soup to the homeless. He has been in Kirby since 1991 after
being acquitted by murder by reason of insanity.
On Sept. 30, James
Hicks, acting director of clinical services at Kirby,
allegedly acting contrary to the provisions of the state's
administrative law addressing the Office of Mental Heath and
rights of patients, filed an order to show cause with the New
York Supreme Court, why Alexandra should not be forcibly
administered medications against her will. He based his
request on affidavits of Paul Sanon, MD, and Ana Rodriguez,
Rodriguez is not a
licensed physician but rather a resident, according to the
state Department of Health. . Although Mental Hygiene Law
states that a patient must be examined by two board certified
physicians before an order to forcibly administer drugs can be
issued, neither Sanon nor Rodriguez are board certified
according to the New York State Department of Health and
professional licensing/disciplinary division of the state
Rodriguez stated in her written report that Alexandra had been
interviewed in the presence of an attorney from the Mental
Hygiene Legal Services. This was later disputed on the record
at a court proceeding by Mary Beth Feerick, a MHLS attorney
indicating that Rodriguez's report contained alleged false
statements.. Rodriguez's report claims that Alexandra lacked
the capacity to refuse medication because she said she had no
mental illness and that her rights were being violated.
Rodriguez further claimed that Alexandra had disorganized and
paranoid thinking because she told Rodriguez that she had "the
constitutional Miranda rights and the right to remain silent".
is signed by Cristina Musat, acting clinical director at
Kirby, a certified psychiatrist with the American Board of
Neurology and Psychiatry. However, there is no indication in
Rodriguez's report that Musat was present during Rodriguez's
examination of Alexandra.
Department of Health says that Musat has only a limited
license in medicine as she is not a citizen of the United
Article 9 of
Mental Health Law provides that patients who object to any
proposed medical treatment or procedure may not be treated
over their objections except emergency treatment where the
patient is presently dangerous and the proposed treatment is
the most appropriate.
Upon a patient's
objection to involuntary and forcible injection of drugs,
Mental Hygiene Law requires that an independent review be
conducted by a physician who specializes in psychiatry and is
not an employee of the facility. In order to administer
antipsychotic medication to an involuntarily committed patient
over objection, there must be a judicial determination that
the state has established by "clear and convincing evidence"
that the patient does not have the capacity to decide for
herself whether or not to take the medication and that the
treatment was narrowly tailored to give substantive effect to
the patient's liberty interests.
Alexandra, Rodriguez wrote that she was "preservative about
her 'legal rights' and was being 'railroaded' since being
'yanked at my doorstep for no reason'. Alexandra said
Rodriguez found that she was paranoid because she repeatedly
requested to see the documents pertaining to her case
including her medical chart and was "'insistent that she had
not had the opportunity to defend herself in a grand jury,
continually making references to legal terminology"', stating
she had done her research about the case and that the previous
judge, Keefe, was a "de facto employee with no constitutional
While Gerber and
Kelley had claimed that Alexandra did not understand courtroom
procedure, Rodriguez found that she was paranoid because she
was "preservative about her legal rights" and although a
review of the report shows that Alexandra was extremely
specific and lucid about her rights, said that she had "poor
insight into her alleged illness and into her legal
Like Gerber and
Kelley, Rodriguez maintained that "Ms. Barely…..will likely be
unable to cooperate with his defense counsel and thereby be
unable to address his legal her legal (sic) needs".
Although the NYS
Department of Health confirms that Rodriguez is not a licensed
physician in New York State, she has signed a sworn affidavit
under the title of physician, claiming to be licensed. A DOH
spokesman said a resident could sign MD after their name but
that did not make them a licensed physician.
Both Sanon and
Rodriguez claimed to be the treating physicians of Alexandra
although neither had ever seen her before her involuntary
hospitalization at Kirby. Although the law provides that an
attorney must be present during the physician's examination of
the patient, according to Mental Hygiene Legal Services, no
legal counsel was present for Alexandra.
Based on the sworn
affidavits of Sanon and Rodriguez, both of which allegedly
contain false written statements, Hicks and Kirby filed a
petition with the New York Supreme Court for a final order to
forcibly administer a myriad of drugs including antipsychotic
medication to "Darlene Barely".
At the hearing
held Oct. 6 inside Kirby Forensic Psychiatric Center,
Alexandra's MHLS attorney Feerick advised Supreme Court judge
Martin Schoenfeld that the state and Kirby had failed to
comply with statutory and case law in regard to comply with
the safeguards guaranteed a patient such as legal counsel
being present during the examination done by two board
certified physicians as well as a hearing being held that was
open to the general public. She said due to the violations of
law and Alexandra's rights, that all orders and hearings must
Hygiene Law is specific that the independent review cannot be
conducted by a physician employed by the facility, Feerick
said that too was violated as the primary evidence presented
against Alexandra was the testimony of a psychiatrist employed
by the hospital who had not treated the patient.
demonstrated to Judge Schoenfeld that the hearing had been
illegally constituted because affidavits filed with the order
to show cause to involuntarily administer medication to
Alexandra were not in compliance as it is required that two
board certified physicians examine the patient in the presence
of an attorney when the state wants to medicate a prisoner
Frederick, who was present, despite the Supreme Court and
state Court of Appeals ruling that all rights must be fully
complied with for forced medication, Judge Schoenfeld said he
didn't feel that the repeated violations were important.
rights being spelled out by law, according to Frederick,
"Barely's" attorney was not allowed to cross examine the
state's only witness and no evidence or testimony of any
emergency or violent behavior by Alexandra was presented as
required before the court can order confinement and forced
drug treatment. Neither Alexandra nor her witness were allowed
to testify. By law, there must be three or more documented
violent occurrences before such confinement and forced
treatment can be ordered. In a 2000 decision by the state
Supreme Court, it was held "in order for a hospital to detain
a patient for involuntary psychiatric care, it must be
demonstrated by clear and convincing evidence that the patient
is mentally ill and in need of continued, supervised care and
treatment, and that the patient poses a substantial threat of
physical harm to herself and/or others".
The records show
that no such evidence or testimony was presented to the court
Frederick between Oct. 6 and 11, he obtained confirmation from
three independent sources, in addition to Alexandra, that
there had been material denials of due process as well as the
submission of false documents by the state.
On Nov. 16, Feit
advised Judge Keefe and the Albany County district attorney's
office that Keefe had committed Early/Alexandra to the custody
of OMH before he could make application for a hearing or file
a writ of habeas corpus and she was removed from Albany
making telephone calls to the MHLS attorneys who work under
the aegis of the various Appellate Divisions to provide legal
assistance to those confined, I sought to make every effort to
assure that Ms. Early would be treated humanely and
fairly…….Since that date, I have learned of the tragic and
horrible events that have ensured for Ms. Early……
Feit told Keefe
that the allegations against Alexandra were non-violent and
"hardly justifying the cruel way in which she has been
treated". He asked for a preliminary hearing in the matter.
People who have
not been found guilty of any crime but are simply being
"evaluated" are being intermixed at Kirby with convicted
serial killers and rapists, Frederick says.
He charges that
political dissents are being drugged and held for years in New
York without a trial in violation of their constitutional
'The defendant is
a thorn in the side of Albany officials", Frederick says. He
says that Alexandra is being punished for exercising her
political free speech rights. He says the required elements of
criminal intent to receive some "ill-gotten gain obviously are
missing since she is calling them and challenging their
authority". 'If it can happen to Darlene, anybody, you or I,
could be made to disappear in this dark hole without ever
having a trial. This is the exact same technique both Hitler
and Stalin used on political dissidents and others".
out that Alexandra's challenge of political authority is the
"kind of up-front political protest and political position
that the DMV doesn't really have a valid constitutional right
to regulate travel. If officials have a problem with their
legal foundation for regulating travel, they need to get the
proper process going to solve it, not illegally putting away a
free speech challenger".
The courts have
held that the Fifth Amendment Due Process clause permits the
government to involuntarily administer antipsychotic drugs to
a mentally ill defendant facing serious criminal charges in
order to render that defendant competent to stand trial but
only if treatment is medically appropriate, is substantially
unlikely to have side effects that may undermine the fairness
of the trial and taking account less intrusive alternatives.
Assuming that the defendant was not dangerous to himself or
others, he could not be ordered involuntarily to take
antipsychotic drugs solely to render him competent to stand
trial without consideration of important questions about trial
related side effects and risk of drugs to be used.
The higher courts
have found that a government may not deprive any person of
liberty without due process of law.
recent reports, in an attempt to counteract increasing
political activism and dissent with government, in an attempt
to stifle public opposition and attempts at reform, police
agencies nationwide are simply levying false charges against
their critics, labeling them "mental" in an attempt to not
only discredit them but to "teach them a lesson".
© 2005 North