Originally Posted - October 25, 2005

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US Court Ruling On Forced Drugging Favors Albany DMV Protester

ALBANY--It was 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 rights.

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."

Alexandra had 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. Constitution.

More importantly, at least to governmental officials, she's that dreaded "C" word----a constitutionalist.

Judge Stephen 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."

"Although certain 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 evidence'.

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.

Illegal entry 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 incarceration.

Following his 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.

The government 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.

"Although we 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".

The Reinhardt 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.

Criminal defense 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

After Alexandra 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.

Her alleged 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 with them.

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.

But Alexandra 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 Scotland Ave.

A looming question in this Alexandra case is why was she removed to Kirby?

Albany Police 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.

Nagging questions 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.

Robin Siegal, 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.

According to 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.

According to Gerber's report, Gerber seemed to find that an unreasonable request by Alexandra.

After receiving 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 done".

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.

Kelley's observation was that "Ms. Barely" was alert but not cooperative with the evaluation". He said her mood was "angry and defiant".

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 them.

Was Alexandra 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?

But Alexandra's 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 case.

A physician 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.

Carpinello's husband, Anthony Carpinello, is a state Supreme Court justice in the Appellate Division, Third Department.

However, according to attorney Michael Feit, Judge's Keefe's order is an alleged false document.

Perhaps 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 exist.

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".

Alexandra was transported to Kirby on Sept. 11 although she had no previous arrest record, allegations of violent behavior or mental illness.

Under the 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.

OMH forensic 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.

Mid-Hudson is 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, MD.

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 Education Department.

In addition, 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".

Rodriguez's report 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.

The state Department of Health says that Musat has only a limited license in medicine as she is not a citizen of the United States.

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.

According to 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 oath".

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 situation".

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 be vacated.

Although Mental 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.

Feerick 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 involuntarily.

According to 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.

Despite patients 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 about Barely/Early/Alexandra.

According to 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 County.

"Initially, by 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 rights.

'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".

Frederick points 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.

According to 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".
June Maxam 10-25-05

© 2005 North Country Gazette