State v. Barzee

2007 UT 95
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20060627
Plaintiff and Appellee,
v.
F I L E D
Wanda Eileen Barzee,
Defendant and Appellant. 	December 14, 2007
---
Third District, Salt Lake
The Honorable Judith S. Atherton
No. 031901886
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Christine Soltis,
Kris C. Leonard, Asst. Att’ys Gen., John K. Johnson,
B. Kent Morgan, Alicia H. Cook, Salt Lake City, for
plaintiff
David V. Finlayson, Scott C. Williams, Salt Lake
City, Jennifer Gowans, Randall K. Spencer, Provo,
for defendant
---
DURHAM, Chief Justice:
¶1 	This case comes before us on an interlocutory appeal
from the district court’s order granting the State of Utah’s
motion to compel medication of the defendant, Wanda Barzee. 	This
opinion contains the views of the majority of the court as to all
parts of the analysis except Part III.A regarding the appropriate
standard of review for the second Sell factor and Part III.D.2.
Part III.D.2 of this opinion addresses whether involuntary
administration of antipsychotic medication is substantially
likely to render Ms. Barzee competent to stand trial. 	This
opinion, as discussed in Part III.D.2, concludes that it is not,
but this opinion is not the majority opinion on that issue. 	The
majority opinion on that issue concludes otherwise, as set forth
in Justice Durrant’s separate opinion, and thus affirms the
district court’s order granting the State’s motion to compel
medication. 	Justice Durrant’s opinion is joined by Associate
Chief Justice Wilkins and Justice Parrish. 	The dissenting view
concerning the standard of review for the second Sell factor in

1 When the Salt Lake District Attorney decided to pursue
compelled medication for Ms. Barzee, previous motions to compel
medication filed by the Utah State Hospital and the Attorney
General were withdrawn.
No. 20060627 	2
Part III.A and the entirety of Part III.D.2 of this opinion is
that of myself; Justice Nehring concurs in my result.
BACKGROUND
I. 	PROCEDURAL HISTORY
¶2 	In March 2003 	Ms. Barzee and her husband, Brian David
Mitchell, were arrested and charged with multiple felonies in
connection with their alleged abduction of a minor. 	Ms. Barzee
was charged with aggravated burglary, aggravated sexual assault,
aggravated kidnaping, and attempted aggravated kidnaping, or in
the alternative, conspiracy to commit aggravated kidnaping. 	The
State filed a petition to inquire into Ms. Barzee’s competency.
Two court-appointed evaluators determined that Ms. Barzee was
suffering from mental illness of a psychotic nature and that her
competency was “severely compromised.” 	Both evaluators found
that, due to the nature of her psychosis, Ms. Barzee had “severe
impairments” in her ability to engage in the reasoned choice of
legal strategies and options, and thus concluding that Ms. Barzee
was “severely impaired with respect to her present capacity to
consult with her counsel and participate in the proceedings
against her with the reasonable degree of rational
understanding.” 	The district court concluded that Ms. Barzee was
not competent to proceed. 	Ms. Barzee was then transferred to the
Utah State Hospital, where she currently remains.
¶3 	Since its initial ruling, the district court has
conducted two hearings to review Ms. Barzee’s competence. 	After
the first review hearing in August 2004, the district court
determined that while Ms. Barzee was still incompetent to stand
trial, there was a “substantial probability that [she] may become
competent in the foreseeable future.” 	One year later, after the
second review hearing, the district court concluded that
Ms. Barzee remained incompetent. 	Following that hearing, the
Salt Lake District Attorney’s Office filed a motion to compel
medication. 1 	At the Medication Hearing, the district court heard
testimony from Drs. Kreg Jeppson, Paul Whitehead, Raphael Morris,
and Xavier Amador; the court subsequently granted the State’s
motion to compel medication. 	Ms. Barzee filed this interlocutory
appeal; we have jurisdiction pursuant to Utah Code section 78-2-
2(3)(h) (2002).

2 According to testimony at the Medication Hearing, a
delusion is a fixed false belief. 	Bizarre delusions are
different from nonbizarre delusions in that bizarre delusions are
impossible, for instance “twist[ing] your body up, into a little
pocket” or “a belief that a Martian has come down and placed a
computer chip in the floor.” 	Alternatively, Ms. Barzee’s belief
that she receives messages from a prophet is regarded as a
nonbizarre delusion. 	See Diagnostic and Statistical Manual of
Mental Disorders 324 (4th ed. text rev. 2000) (DSM-IV). 	There
are numerous types of delusions, grandiose being the subtype
where the “central theme of the delusion is the conviction of
having some great (but unrecognized) talent or insight . . . or
being a prominent person[,] . . . [and the delusion] may have
religious content.” 	Id. at 325.
3 Shared psychotic disorder is “characterized by the
presence of a delusion in an individual who is influenced by
someone else who has a longer-standing delusion with similar
content.” 	Id. at 298.
4 “Delusional disorder is characterized by at least 1 month
of nonbizarre delusions without other active-phase symptoms of
Schizophrenia.” 	Id.
3 	No. 20060627
II. 	DIAGNOSES AND OPINIONS OF THE MENTAL
HEALTHCARE PROFESSIONALS
¶4 	In all, eight mental health care professionals were
involved in this case. 	All eight agree that Ms. Barzee suffers
from a psychotic disorder with the primary feature of nonbizarre
grandiose delusions. 2 	However, Ms. Barzee’s precise diagnosis is
in dispute, as is the question of whether antipsychotic
medication is likely to render Ms. Barzee competent. 	Initially,
two evaluators were appointed to determine if Ms. Barzee was
competent to stand trial. 	Each offered an opinion on Ms.
Barzee’s diagnosis.
¶5 	First, Dr. Jeffrey A. Kovnick, a psychiatrist and
court-appointed competency evaluator, diagnosed Ms. Barzee with
shared psychotic disorder 3 because of the development of her
delusions during her relationship with Mr. Mitchell, who
Dr. Kovnick believed was the dominant individual. 	He also opined
that she qualified for a diagnosis of delusional disorder. 4
According to Dr. Kovnick, Ms. Barzee suffers from nonbizarre
delusions, delusions of reference, no verbal or communication
symptoms apparent in schizophrenia, and no other psychotic
symptoms; thus, shared psychotic disorder or delusional disorder,
rather than schizophrenia, is the proper possible diagnosis. 	He

5 Schizophrenia “includes at least one month of active-phase
symptoms (i.e., two [or more] of the following: 	delusions,
hallucinations, disorganized speech, grossly disorganized or
catatonic behavior, negative symptoms).” 	Id.
No. 20060627 	4
found her incompetent to stand trial because of the impairment in
her capacity to engage in reasoned choice of legal strategies and
options. 	He suggested that Ms. Barzee’s treatment should include
medication and that antipsychotic drugs would increase the
likelihood that she would become competent.
¶6 	Second, Dr. Nancy B. Cohn, a psychologist and court-
appointed competency evaluator, diagnosed Ms. Barzee with
schizophrenia, 5 paranoid type, a conclusion not shared by any of
the seven other experts who were asked to give opinions regarding
Ms. Barzee’s mental health. 	Dr. Cohn reported symptoms including
cognitive disorganization symptomatic of thought disorder,
paranoid ideation, hallucinations, delusions, and referential
thinking. 	Dr. Cohn also noted that there was no evidence to
suggest that a head injury or substance abuse precipitated
Ms. Barzee’s current condition. 	She stated that Ms. Barzee was
incompetent to stand trial based on impairment in her ability to
testify relevantly, in her capacity to communicate with her
attorneys, and in her ability to make reasoned choices because
her decisions are driven by her religiously based delusions. 	She
noted that “[p]sychotropic medications have been minimally useful
in diminishing delusional thinking in certain kinds of psychotic
disorders, but it is not entirely clear that medication would be
helpful in addressing Ms. Barzee’s deeply entrenched, delusional
belief, as these are the symptoms that are most refractory to
pharmacological intervention.”
¶7 	After the initial evaluations, review hearings were
held, and the district court heard from two additional experts,
Dr. Gerald Berge, a psychologist, and Dr. Eric Nielsen, a social
worker. 	Each evaluator expressed an opinion on Ms. Barzee’s
progress toward competency and her diagnosis.
¶8 	In a report dated July 2004, and in testimony before
the court in August 2004, Dr. Berge stated that he agreed with
Dr. Kovnick’s diagnosis of shared psychotic disorder. 	He
disagreed with Dr. Cohn’s evaluation, stating that the symptoms
were not as severe as Dr. Cohn suggested in her report. 	For
example, Dr. Berge opined that Ms. Barzee does not suffer from
hallucinations or pronounced disorganization in thinking. 	Like
Dr. Kovnick, Dr. Berge’s diagnosis of shared psychotic disorder
was connected to Ms. Barzee’s relationship with Mr. Mitchell.
Dr. Berge stated, however, that he would shift the diagnosis to

6 Psychotic disorder not otherwise specified is a diagnosis
for “classifying psychotic presentations that do not meet the
criteria for any of the specific Psychotic Disorders defined in
this section [on psychotic disorders in the DSM-IV] or psychotic
symptomatology about which there is inadequate or contradictory
information.” 	Id. 	The diagnosis may be made “if insufficient
information is available to choose between Schizophrenia and
other Psychotic Disorders . . . or to determine whether the
presenting symptoms are substance induced or are the result of a
general medical condition. 	Such uncertainty is particularly
likely to occur early in the course of the disorder.” 	Id. at
311.
5 	No. 20060627
delusional disorder if the delusions continued despite lengthy
separation from Mr. Mitchell. 	In Dr. Berge’s opinion, Ms. Barzee
remained incompetent to stand trial because nonbizarre delusions,
the primary feature of her disorder, continued to impair her
capacity to make reasoned choices regarding her legal options.
Dr. Berge stated that the effect of medication on a patient like
Ms. Barzee is “controversial,” but noted that if the delusions
were eliminated, she would likely become competent.
¶9 	One year later, at another review hearing, Dr. Nielsen
diagnosed Ms. Barzee with psychotic disorder not otherwise
specified (PDNOS). 6 	Dr. Nielsen stated that the primary feature
of her illness is grandiose religious delusions and that she also
suffers from anosognosia, or a lack of insight into her mental
illness. 	He opined that Ms. Barzee’s disorder could not be
shared psychotic disorder because despite separation from Mr.
Mitchell and her decision, with God’s influence, to “leave him
behind,” her delusions continued. 	Dr. Nielsen further opined
that she does not suffer from schizophrenia because many of the
symptoms associated with that diagnosis are not present in
Ms. Barzee’s case. 	He stated that the delusions affect her
functioning generally and that, in his opinion, this was not
typical of delusional disorder. 	He reported that, due to her
psychosis, Ms. Barzee continued to be incompetent to stand trial.
¶10 	Dr. Nielsen expressed the opinion that if Ms. Barzee
has delusional disorder, the condition is refractory and rarely
treatable with medication but that schizophrenia generally has
some response to antipsychotic medication. 	He pointed out that
symptoms of a delusional nature do not respond favorably to
medication and that Ms. Barzee’s long duration of untreated
psychosis suggests a poorer prognosis but that the schizophrenic
symptoms of thought disorder--rambling and vagueness--may suggest
a more favorable response to the drugs.

7 At the time of the Medication Hearing, Ms. Barzee should
have met with her treatment team twenty-five times. 	She met with
them only thirteen times, declining twelve times.
8 According to Dr. Raphael Morris, one of the defense
experts at the Medication Hearing, referential thinking occurs
when “a stimuli outside is misinterpreted as pertaining to the
person themselves.” 	When this thinking is delusional, it is
sometimes referred to as “delusional ideas of reference.” 	See
DSM-IV 325-26. 	The only example of Ms. Barzee’s referential
thinking that was provided at the Medication Hearing was her
belief that she receives answers to her prayers through watching
movies.
No. 20060627 	6
¶11 	Because Ms. Barzee’s incompetence was not improving
without medication and because Ms. Barzee refused to be
medicated, the State moved to medicate her forcibly. 	The
Medication Hearing was held in February 2006. 	Four experts
testified as to Ms. Barzee’s condition and the likely effects of
medication.
¶12 	First, Dr. Kreg Jeppson, a psychiatrist at the Utah
State Hospital, Ms. Barzee’s treating physician, and the State’s
primary witness, based his opinions on his experience at the
state hospital where he treats many schizophrenic and bipolar
patients, some patients with PDNOS, and very few patients
suffering from delusional disorder. 	Dr. Jeppson stated that he
was a “clinician,” not an “expert witness,” researcher, or peer-
reviewer. 	As Ms. Barzee’s treating physician, he met with her
“weekly to monthly” over a twenty-two-month period and testified
that “a lot of times these aren’t 45-minute talks, I mean just a
few minutes here and there.” 	Ms. Barzee met weekly with her
social worker, but refused to meet with her “treatment team” for
the ten months prior to the Medication Hearing. 7
¶13 	Dr. Jeppson testified that Ms. Barzee’s symptoms
included grandiose delusions, some persecutory delusions, and
anosognosia. 	He originally diagnosed her with delusional
disorder, but in January 2005 he changed her diagnosis to PDNOS.
He testified that this change was a move from a more specific
diagnosis to a more general diagnosis because he had acquired
“more facts.” 	Specifically, Ms. Barzee exhibited “referential
thinking,” 8 which he did not consider a part of delusional
disorder. 	Even before Dr. Jeppson made his initial diagnosis of
delusional disorder, however, he was aware that Drs. Kovnick,
Cohn, and Berge had identified referential thinking as one of Ms.
Barzee’s symptoms, and Dr. Jeppson knew that Ms. Barzee discussed
receiving answers to prayers through movies “a long time ago.”

7 	No. 20060627
Moreover, the one (and only) episode of referential thinking that
Dr. Jeppson could point to when he testified happened months
before he changed her diagnosis.
¶14 	Dr. Jeppson concluded that restoration to competency
was likely within eight to twelve months of initiating
medication. 	He stated that “hopefully, [Ms. Barzee] would be
restored to competency” and suggested that she had a seventy to
eighty percent chance of restoration with medication.
¶15 	Second, Dr. Paul D. Whitehead, also a psychiatrist at
the state hospital, testified on behalf of the State. 	His
experience included restoring over 100 patients to competency.
However, with Ms. Barzee, Dr. Whitehead’s experience consisted of
one meeting in November 2004. 	He was consulted to determine if
she met the United States Supreme Court’s Harper standard for
forcible medication. 	See Washington v Harper, 494 U.S. 210
(1990). 	He determined that Ms. Barzee could not be medicated
under that standard because she was not dangerous or gravely
disabled. 	Dr. Whitehead also discussed the Sell factors, which
allow compelled medication for the sole purpose of rendering a
defendant competent to stand trial.
¶16 	Dr. Whitehead opined that delusional disorder was an
appropriate diagnosis. 	He also testified that, given
Ms. Barzee’s lack of cooperation and the inability to rule out
other causes, “which are extremely unlikely,” such as a brain
tumor and seizure disorder, PDNOS was also a reasonable
diagnosis. 	Dr. Whitehead stated that while Ms. Barzee meets the
definition of delusional disorder under the Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV), he thought she
had more symptoms than a typical patient with that diagnosis. 	He
indicated, however, that delusional disorder is “very rare,” and
that he had seen only four or five cases.
¶17 	Dr. Whitehead cautioned that he did not like placing a
number on the likelihood of restoration through medication, but
that “a very conservative, even skeptical number [would be] fifty
to sixty percent.” 	He continued, stating that the case is
nowhere “close to a one hundred percent case” for restoration,
but he thought “chances are better than not that she will be
restored.” 	A gross estimate in his opinion was seventy percent.
¶18 	Third, Dr. Raphael Morris, a psychiatrist, testified
for the defense. 	Dr. Morris has experience in restoring patients
to competency in his work at state hospitals and in private
practice. 	He successfully restored approximately thirty patients
to competency over a two-year period in the intensive management

No. 20060627 	8
unit of his hospital. 	His experience with Ms. Barzee included
one brief meeting and a review of her records.
¶19 	Dr. Morris did not offer his own opinion of
Ms. Barzee’s diagnosis, but he did explain the diagnosis of PDNOS
to the court. 	He testified that PDNOS is used when a patient
suffers from a psychotic disorder and the practitioner is unable
to rule out a medical condition or substance abuse as the cause
of the disorder. 	Thus, PDNOS is a “differential diagnosis,”
which means that the disorder is either substance-induced,
resulted from another medical condition, or is a primary
psychotic disorder. 	See DSM-IV 311. 	Because Ms. Barzee does not
have a history of substance abuse, and there was no evidence that
a medical condition was causing her symptoms, Dr. Morris
concluded that she suffers from either schizophrenia or
delusional disorder. 	Dr. Morris stated that he is a “stickler[]
at trying to pin down a diagnosis” and would accept PDNOS as the
diagnosis for only the first two weeks after a patient’s
admission.
¶20 	Dr. Morris opined that Ms. Barzee had a twenty to
thirty-five percent chance of being rendered competent with
medication--the lower end representing the likelihood of
restoration if she suffers from delusional disorder and the
higher end representing the rate if she suffers from
schizophrenia.
¶21 	Fourth, Dr. Xavier Amador testified on behalf of
Ms. Barzee. 	Dr. Amador is a clinical psychologist, a professor,
and a peer-reviewer for psychiatric journals. 	He has authored
books and articles on psychotic disorders and acted as the co-
chair in revising portions of the current edition of the DSM-IV
that define and explain psychotic disorders. 	In fact, Dr. Amador
co-wrote the first draft definitions for all of the psychotic
disorder terms in the DSM-IV, which is the authoritative tool for
diagnosis of mental disorders. 	He stated that the difference
between himself, a psychologist, and the other witnesses at the
Medication Hearing, all psychiatrists, is the foundation of his
training in research, along with the clinical aspects of
treatment. 	Dr. Amador noted the importance of anchoring opinions
in empirical evidence provided by research, rather than relying
only on personal clinical experience to determine the efficacy of
different treatments because all practitioners work with unique
groups, and the experience from those groups can skew a
practitioner’s view of treatment generally.
¶22 	Dr. Amador’s experience is not with restoring patients
to competency, but he does perform competency evaluations. 	His

9 	No. 20060627
specific experience with Ms. Barzee entailed visiting with her
multiple times over the past few years, spending over fifteen
total hours with her, and reviewing her medical records.
¶23 	Dr. Amador was perplexed by Dr. Jeppson’s diagnostic
change from delusional disorder to PDNOS, because PDNOS is a
diagnosis normally reserved for patients for whom there is a lack
of information, and not, in Dr. Amador’s opinion, for a patient
for whom there is a two-year period of observation. 	Dr. Amador
agreed with the original diagnosis of delusional disorder with
grandiose and persecutory delusions. 	He noted other important
factors to consider in assessing the efficacy of medication for
Ms. Barzee, such as the long duration of her untreated
psychosis--at least ten to thirteen years--her grandiose
delusions, and her lack of insight.
¶24 	Dr. Amador suggested a “low likelihood” of restoring
Ms. Barzee to competency through administration of antipsychotic
medication. 	He suggested that the likelihood of restoration was
twenty percent, increasing slightly to thirty or forty percent if
a diagnosis other than delusional disorder were considered.
¶25 	After hearing the foregoing testimony, the district
court granted the State’s motion to forcibly medicate Ms. Barzee.
ANALYSIS
¶26 	This case involves the State’s ability to involuntarily
medicate a criminal defendant for the sole purpose of rendering
her competent to stand trial. 	This is a case of first impression
for Utah courts and thus presents our first opportunity to apply
the analysis of the United States Supreme Court in Sell v. United
States, 539 U.S. 166 (2003). 	Before we begin our federal
constitutional analysis under Sell, we pause to discuss two
preliminary matters: 	Ms. Barzee’s state constitutional claim,
and the applicability of the Harper standard to Ms. Barzee’s
case. 	See Washington v. Harper, 494 U.S. 210 (1990).
I. 	MS. BARZEE FAILED TO PRESERVE HER
STATE CONSTITUTIONAL CLAIM
¶27 	Ms. Barzee’s state constitutional claim was not
preserved below. 	At no time prior to appellate briefing in this
case did she request that the district court decide this issue as
a matter of state law, see State v. Tiedemann, 2007 UT 49, ¶ 33,
162 P.3d 1106, nor did she elaborate on the separate state
constitutional issue at oral argument. 	We decline to address
whether the exceptional circumstances doctrine would warrant

No. 20060627 	10
consideration of the unpreserved State claims, and wait for
another day to determine whether Utah’s constitution forbids
forcibly medicating a mentally ill defendant for the sole purpose
of achieving competency to stand trial.
II. 	THE HARPER STANDARD IS INAPPLICABLE
TO MS. BARZEE’S CASE
¶28 	“[B]efore turning to the trial competence question,” we
must “determine whether forced administration of drugs can be
justified on . . . alternative grounds.” 	Sell v. United States,
539 U.S. 166, 182 (2003) (emphasis omitted). 	In Washington v.
Harper, the United States Supreme Court determined that
involuntarily medicating a mentally ill criminal defendant could
be constitutionally permissible if the inmate is a danger to
herself or others or if the inmate’s refusal to take drugs poses
grave risks to her health. 	494 U.S. 210, 225-26 (1990). 	Harper
does not apply to this case because the parties agree that
Ms. Barzee is not gravely disabled and she is not a danger to
herself or others while confined at the state hospital. 	Thus, we
proceed with an analysis under Sell.
III. 	SELL ANALYSIS DETERMINING WHETHER THE STATE DEMONSTRATED
THAT INTRUSION UPON MS. BARZEE’S LIBERTY INTEREST
IN FREEDOM FROM UNWANTED ADMINISTRATION
OF ANTIPSYCHOTIC MEDICATION IS PERMISSIBLE
¶29 	Defendants “possess[] a significant liberty interest in
avoiding the unwanted administration of antipsychotic drugs under
the Due Process Clause of the Fourteenth Amendment” of the United
States Constitution. 	Washington v. Harper, 494 U.S. 210, 221-22
(1990); see also Riggins v. Nevada, 504 U.S. 127, 133-34 (1992)
(recognizing an individual’s liberty interest in avoiding forced
administration of antipsychotic medication). 	In Sell v. United
States, the United States Supreme Court outlined “limited
circumstances” under which the government may “administer
antipsychotic drugs involuntarily to a mentally ill criminal
defendant[] in order to render that defendant competent to stand
trial.” 	539 U.S. 166, 169 (2003). 	The four-factor test created
by the Court is as follows:
First, a court must find that important
governmental interests are at stake. . . .
Second, the court must conclude that
involuntary medication will significantly
further those [] state interests [by finding]
that administration of the drugs is
substantially likely to render the defendant

11 	No. 20060627
competent to stand trial [and] . . . that
administration of the drugs is substantially
unlikely to have side effects that will
interfere significantly with the defendant’s
ability to assist counsel in conducting a
trial defense, thereby rendering the trial
unfair. 	Third, the court must conclude that
involuntary medication is necessary to
further those interests. . . . 	Fourth, . . .
the court must conclude that administration
of the drugs is medically appropriate.
Id. at 180-81 (citations omitted); see also Utah Code Ann. § 77-
15-6.5(4)(d)(i)-(iv) (Supp. 2006). 	The State is required to
prove each of these factors by clear and convincing evidence.
Id. § 77-15-6.5(6)(a); see also United States v. Bradley, 417
F.3d 1107, 1113-14 (10th Cir. 2005).
¶30 	With respect to the second factor, the majority
concludes that the administration of medication is substantially
likely to render Ms. Barzee competent to stand trial. 	The
separate opinion of Justice Durrant, joined by Associate Chief
Justice Wilkins and Justice Parrish, contains the analysis
supporting the majority conclusion. 	Section D.2 of this Part III
contains my dissenting view, concluding that the evidence does
not show that the administration of medication is substantially
likely to render Ms. Barzee competent. 	Justice Nehring concurs
in my dissenting view. 	We begin by addressing the standard of
review applicable to the different Sell factors. 	Then we discuss
the first, third, and fourth factors of the Sell analysis before
moving on to examine the second Sell factor.
A. 	Standard of Review
¶31 	While Sell established the test to determine whether
antipsychotic medication can be involuntarily administered to a
defendant solely to make her competent to stand trial, it did not
outline the standards of review for appellate courts considering
the matter. 	Other courts have considered the issue. 	For
example, according to the Court of Appeals for the Second
Circuit, “[w]hether the Government’s asserted interest is
important is a legal question that is subject to de novo review.”
United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004). 	We
agree that this is the appropriate standard for this issue. 	We
also agree with the Second Circuit’s conclusion that the third
and fourth factors--necessity and medical appropriateness--are
“factual in nature and . . . therefore subject to review for
clear error.” 	Id. 	Where the second factor is concerned,

No. 20060627 	12
however, there is disagreement among the members of this court.
For the majority view, refer to the separate opinion of Justice
Durrant.
¶32 	My disagreement with the majority stems in part from
the cursory review that they apply to the issue of whether
medication will ”significantly further” the State’s interest.
Sell, 539 U.S. at 180-81. 	In order for the State’s interest to
be “significantly furthered,” medication must be “substantially
likely” to render Ms. Barzee competent to stand trial, and it
must be “substantially unlikely” to interfere with her fair trial
rights. 	Id. at 181. 	The focus of my opinion is on the first
subissue, and I will limit my analysis accordingly.
¶33 	I disagree with the majority that the second Sell
factor is merely a question of fact. 	Instead, “[r]ecognizing the
vital constitutional liberty interest at stake,” Bradley, 417
F.3d at 1114, I believe that heightened appellate scrutiny should
be applied to the mixed question of law and fact encompassed in
the inquiry of whether “involuntary medication will significantly
further” the State’s interests because administration of the
drugs is substantially likely to render the defendant competent
to stand trial, Sell, 539 U.S. at 181 (emphasis omitted). 	This
second factor and its first subissue present a mixed question of
law and fact because, while the inquiry is highly dependent upon
diagnoses and factors influencing a particular patient’s likely
reaction to medication, the relevant standard by which to weigh
these facts is “competency.” 	Competency is necessarily a legal
concept. 	In Utah, many factors must be considered when analyzing
whether a defendant is competent to stand trial. 	In this case,
the most pertinent factor is whether Ms. Barzee is substantially
likely to be rendered capable of engaging in reasoned choice
regarding legal strategies and options. 	Expert testimony will
enlighten the court regarding her diagnosis and the types of
improvement that may result from administration of antipsychotic
medication, but it is up to this court to determine whether those
facts will place Ms. Barzee in a mental state adequate to render
her competent to stand trial--a legal concept.
¶34 	The appropriate standard of review for a mixed question
of law and fact is assessed under the test set forth in State v.
Levin, 2006 UT 50, 144 P.3d 1096. 	Applying this test, I conclude
that “more rigorous appellate scrutiny” is mandated to protect
defendants against constitutional deprivations of liberty.
Jensen v. Sawyers, 2005 UT 81, ¶ 95, 130 P.3d 325. 	Levin
requires us to consider three factors when determining the
appropriate standard of review for mixed questions of law and
fact:

9 The majority cites to the length of this opinion as
evidence that the issues involved are complex. 	See infra ¶ 83.
While the issues assuredly are complex, the length of this
opinion was necessary to explore in detail the lack of support
for the district court’s decision in ways that are evident from
the extensive record. 	In my opinion, in order for this court to
provide helpful guidance for use in future cases, this court
must carefully address the district court’s analysis.
13 	No. 20060627
(1) the degree of variety and complexity in
the facts to which the legal rule is to be
applied; (2) the degree to which a trial
court’s application of the legal rule relies
on “facts” observed by the trial judge, “such
as a witness’s appearance and demeanor,
relevant to the application of the law that
cannot be adequately reflected in the record
available to appellate courts;” and (3) other
“policy reasons that weigh for or against
granting discretion to the trial courts.”
2006 UT 50, ¶ 25 (citation omitted).
¶35 	In determining whether involuntary medication is
substantially likely to render a defendant competent, the
pertinent evidence will most likely be in the form of expert
opinion testimony by mental health professionals. 	This testimony
will likely encompass mental health diagnoses, the results of
research on the efficacy of medication, and factors specific to
the defendant’s condition. 	Certainly, this type of information
may be complex, 9 and the credibility of witnesses may
occasionally play a role in conclusions drawn by a judge as to
the weight of testimony. 	However, much of the necessary
information concerning the diagnoses and research “generally can
be adequately reflected in a cold record” and will be supported
by statistics and published research, unaffected by an
individual’s appearance and demeanor while testifying. 	Id. ¶ 40.
While determinations about credibility and complex evidence might
weigh in favor of granting some level of deference to the trier
of fact, the policy concerns that I address next clearly tip the
balance in favor of indepth appellate review.
¶36 	The issue of forcibly medicating a defendant for the
sole purpose of making her competent to stand trial implicates
constitutional liberty interests of the highest degree. 	Harper,
494 U.S. at 221. 	Thus, we should be concerned with “promoting
clarity and consistency in our state’s jurisprudence” and

10 In the past, this court has applied a less deferential
standard of review to questions that may be factual in nature but
are intermingled with law and have constitutional implications.
See, e.g., State v. Levin, 2006 UT 50, 144 P.3d 1096 (Fifth
Amendment Miranda issues); State v. Brake, 2004 UT 95, ¶¶ 14-15,
103 P.3d 699 (Fourth Amendment); Campbell v. State Farm Mut.
Auto. Ins. Co., 2004 UT 34, 98 P.3d 409 (applying heightened
scrutiny to punitive damage awards, which implicate due process
protections). 	Thus, the approach is grounded not only in United
States Supreme Court jurisprudence but also in our own. 	The
majority fails to afford the same scrutiny to the constitutional
liberty interest in freedom from unwanted antipsychotic
medication that it affords to other constitutional interests.
11 The constitutional right to be free from the government’s
forced administration of antipsychotic medication is an important
right implicating personal and bodily autonomy. 	The majority
finds this right inferior to others such as the constitutional
right to be free from unreasonable search and seizure. 	See infra
¶ 86-88. 	In my opinion, however, the right to be free from
unwanted administration of powerful mind-altering drugs is not
inferior and should be invaded only on “rare” occasions, should
be uniformly applied, and should be meaningfully protected.
Sell, 539 U.S. at 180. 	Allowing the district court to order
forced medication in this case undermines the ability of the Sell
(continued...)
No. 20060627 	14
“offering predictable constitutional protections.” 	Levin, 2006
UT 50, ¶ 41. 	When involuntary administration of antipsychotic
medication is involved, this court must “define the boundaries of
a substantial constitutional right.” 	Id. ¶ 44. 	With the weight
of the constitutional policy considerations foremost among my
concerns, I believe this court’s role must be to scrutinize the
entire record upon which such decisions are made. 10 	As the
Supreme Court has noted in the First Amendment context, “When the
standard governing the decision of a particular case is provided
by the Constitution,” the appellate court’s role is of “special
importance” and “the stakes . . . are too great to entrust them
finally to the judgment of the trier of fact.” 	Bose Corp. v.
Consumers Union of U.S., Inc., 466 U.S. 485, 499, 501 n.17, 503
(1984); cf. Turner v. Arkansas, 407 U.S. 366, 368 (1972)
(applying de novo standard of review to constitutional facts in
collateral estoppel claims that implicate the “Fifth Amendment’s
double jeopardy guarantee”). 	In my opinion, the “intermingling
of law and fact” that is implicated in this case compels this
court to review the district court’s decision de novo “in order
to preserve the precious liberties established and ordained by
the Constitution.” 	Bose, 466 U.S. at 509, 511. 11

11 (...continued)
test to continue to protect citizens from invasion of this right,
which implicates government intrusion into an individual’s life
in a serious and invasive manner.
12 In order to protect the “vital constitutional interest”
at stake, the Court of Appeals for the Tenth Circuit has also
recognized that de novo review should be applied to the second
Sell factor--whether involuntary medication will significantly
further the State’s interest. 	Bradley, 417 F.3d at 1113; see
also United States v. Valenzuela-Puentes, 479 F.3d 1220, 1224
(10th Cir. 2007). 	In Bradley, however, the Tenth Circuit allowed
the second factor to be swallowed by a deferential review of the
two subissues that inform that factor. 	417 F.3d at 1115. 	This
method appears to have been corrected in Valenzuela-Puentes where
the court applied the heightened standard of review to the second
factor and its first subissue. 	479 F.3d at 1224, 1228. 	In that
case, the court conducted a review of the record to determine if
the district court was correct in its conclusion to defer
completely to one expert whose testimony the court referred to as
“undisputed.” 	Id. at 1228. 	The Tenth Circuit’s review
recognized that the district court had disregarded the competing
testimony of two other experts who did not agree that medication
was substantially likely to render the defendant competent. 	Id.
at 1228-29. 	The court concluded that, based upon this competing
and ignored evidence garnered on review of the record, it could
not affirm, but remanded to allow the court to apply a clear and
convincing standard of proof to all the evidence. 	Id. at 1229.
Thus, the Tenth Circuit recognized that this element of the Sell
test requires heightened review. 	I agree that the second factor
should be reviewed de novo, and that its first subissue should as
well.
15 	No. 20060627
¶37 	Thus, the weight of the Levin test “dictate[s] that the
application of the legal concept should be strictly controlled by
the appellate courts.” 	Levin, 2006 UT 50, ¶ 23. 	Appellate
courts have “an obligation to make an independent examination of
the whole record in order to make sure that the judgment does not
constitute a forbidden intrusion on” an individual’s protected
liberty interest in freedom from unwanted administration of
antipsychotic medication. 	Bose, 466 U.S. at 499 (internal
quotation marks omitted). 	Thus, I believe that the question of
whether a defendant is substantially likely to be rendered
competent should be reviewed de novo. 12
¶38 	My conclusion is further bolstered by the Supreme
Court’s conclusion that instances where forcible medication is

13 Antipsychotic medication is, for all practical purposes,
an indispensable part of treatment for all psychotic disorders if
one hopes to see any marked improvement in a patient’s
functioning. 	Unless a defendant suffering from a psychotic
disorder has some other health problem that would weigh against
the administration of any of the numerous varieties of
antipsychotic medication available today, medication will almost
always be not only a medically appropriate treatment, but also
the only effective treatment. 	Similarly, the first factor is
generally met if the maximum possible sentence for the crime is
ten years. 	See, e.g., United States v. Evans, 404 F.3d 227, 238
(4th Cir. 2005).
No. 20060627 	16
administered solely to make a defendant competent to stand trial
should be “rare” and occur only in “limited circumstances.”
Sell, 539 U.S. at 169, 180. 	After review of the testimony and
record in this case and a review of all other cases applying the
Sell test, I believe that it is clear that instances when the
third and fourth factors of the Sell test--necessity and medical
appropriateness--will not be met are themselves likely to be rare
or even nonexistent. 13 	Because the Sell test should be used to
invade an individual’s liberty interest on only rare occasions,
if some factors of the test are in reality almost automatically
present, courts must consider the remaining portions of the test
with utmost care. 	In my opinion, this observation requires
courts to closely examine the question of whether medication will
significantly further the State’s interest in rendering the
defendant competent to stand trial.
B. 	The First Sell Factor: 	Important Governmental Interest
¶39 	The initial inquiry under the Sell analysis is whether
“important governmental interests are at stake.” 	Sell v. United
States, 539 U.S. 166, 180 (2003). 	When involuntary medication is
at issue, the governmental interest will be in bringing the
accused to trial. 	Id. (citing Riggins, 504 U.S. at 135-36 (1992)
(“Power to bring an accused to trial is fundamental to a scheme
of ‘ordered liberty’ and prerequisite to social justice and
peace.” (citations and internal quotation marks omitted))). 	In
order to do so, the defendant must be charged with a “serious
crime” and “special circumstances,” such as lengthy civil
commitment, must not diminish the government’s interest in
bringing the defendant to trial. 	Id. 	This standard recognizes
the State’s interest in protecting “the basic human need for
security” undeterred by lost evidence or faded memories that can
inhibit effective prosecution when a defendant regains competence
after years of commitment. 	Id.

17 	No. 20060627
¶40 	In Ms. Barzee’s case, she is charged with six first
degree felony offenses, each potentially punishable by life
sentences, and one second degree felony, punishable by up to
fifteen years in prison. 	In United States v. Gomes, the Court of
Appeals for the Second Circuit recognized that “‘evident from the
substantial sentence’” a defendant faces if convicted is the
“‘seriousness of the crime and [the] perceived dangerousness to
society.’” 	387 F.3d 157, 160 (2d Cir. 2004) (quoting United
States v. Gomes, 289 F.3d 71, 86 (2d Cir. 2002)). 	Other
jurisdictions have concluded that a maximum statutory term of
imprisonment of ten years is sufficiently serious to create an
important government interest in bringing an accused to trial.
See, e.g., United States v. Evans, 404 F.3d 227, 238 (4th Cir.
2005); United States v. Archuleta, 2006 U.S. Dist. LEXIS 63526,
at *6 (D. Utah 2006), aff’d 218 F. App’x 754 (10th Cir. 2007).
We are convinced that Ms. Barzee is charged with crimes
sufficiently serious to evidence an important state interest in
prosecution.
¶41 	Furthermore, we conclude that special circumstances do
not diminish this interest. 	It is unclear whether civil
commitment is an option for Ms. Barzee. 	As long as she is
confined in the state hospital, the parties agree that she is not
a danger to herself or others. 	We presume the State would argue
that, outside of that environment, she does pose a danger, but
there is no certainty that she will be subjected to lengthy
confinement through a civil proceeding. 	We cannot conclude that
potential and speculative civil commitment undermines the State’s
interest in bringing Ms. Barzee to trial for such serious
offenses. 	Nor can we conclude that the limited time Ms. Barzee
has already spent confined at the state hospital in any way
undermines the State’s interest. 	Even if the time already spent
in confinement were credited to a future sentence, it would
constitute only a fraction of the potential sentence she faces if
convicted. 	See, e.g., United States v. Bradley, 417 F.3d 1107,
1117 (10th Cir. 2005) (recognizing that nine months of
confinement “pales in comparison to the fifty years [of]
imprisonment [defendant] faces”); United States v. Rivera-
Guerrero, 426 F.3d 1130, 1143 (9th Cir. 2005) (stating that a
three-year credit toward a possible two-year sentence undermined
the government’s interest in prosecution). 	Thus, Ms. Barzee is
charged with serious crimes creating an important State interest
in timely prosecution that is not undermined by her past or
potential future confinement in the state hospital.

No. 20060627 	18
C. 	The Third Sell Factor: 	Whether Antipsychotic Medication Is
Necessary to Further the State’s Interest; and the Fourth
Sell Factor: 	Whether Administration of Antipsychotic
Medication Is Medically Appropriate
¶42 	Sell requires that the administration of antipsychotic
medication be “in the patient’s best medical interest in light of
[her] medical condition.” 	Sell v. United States, 539 U.S. 166,
181 (2003). 	Furthermore, involuntary medication must be
necessary to further the state’s interest in making a defendant
competent. 	In other words, a “court must find that any
alternative, less intrusive treatments are unlikely to achieve
substantially the same results.” 	Id. 	In Ms. Barzee’s case, all
of the experts at the Medication Hearing agreed that if she were
their patient, they would want to treat her with medication.
Dr. Morris stated that he would “absolutely” encourage Ms. Barzee
to take medication. 	Dr. Amador testified that he “would do
everything in [his] power to convince a patient to take
medication if they had never” before been medicated even if there
was only a five-percent chance of a successful outcome.
Dr. Jeppson believed medication was in Ms. Barzee’s best medical
interest because it might allow her to “have a more full life, a
more functional life, and be able to proceed with her case.”
Additionally, Dr. Jeppson testified that no less intrusive means
of treatment were likely to restore her to competency, and that
any progress toward restoration would require medication.
Dr. Whitehead testified that he believed medication would
increase her ability to function in general and would “help her
better relate to her family.” 	He reiterated Dr. Jeppson’s
testimony that less intrusive means of restoration had not and
would not be successful at restoring Ms. Barzee to competency.
¶43 	In Sell, the Court stated that the “specific kinds of
drugs at issue” should be considered. 	Id. 	The other witnesses
did not testify that they had any concerns with the drug regimen
suggested by Dr. Jeppson, although Dr. Whitehead preferred using
a different antipsychotic medication, and Dr. Morris would
possibly have used different dosages. 	However, Dr. Amador
testified that he would use “motivational enhancement therapy” to
encourage Ms. Barzee to take medication rather than simply
forcing it upon her through a “doctor knows best” approach.
While treatment with antipsychotic medication would be medically
appropriate for Ms. Barzee “in a vacuum,” the trauma associated
with “treat[ing] people against their will” could result in
harmful side effects including depression, stress reaction, and
posttraumatic stress disorder. 	Even in light of these cautionary
statements by Dr. Amador, we conclude that the district court did
not clearly err in its conclusions that treatment with

19 	No. 20060627
antipsychotic medication is medically appropriate in Ms. Barzee’s
case and that less intrusive means of treatment are unlikely to
accomplish restoration to competency.
D. 	The Second Sell Factor: 	Whether
Involuntary Medication Will Significantly
Further the State’s Interest
¶44 	The inquiry into whether the administration of
involuntary medication will significantly further the State’s
interests in rendering Ms. Barzee competent to stand trial
requires us to consider two issues: 	(1) whether medication is
“substantially unlikely to have side effects that will interfere
significantly with the defendant’s ability to assist counsel in
conducting a trial defense,” and (2) whether medication is
“substantially likely to render the defendant competent.” 	Sell
v. United States, 539 U.S. at 181 (emphasis added). Before we
address each of these issues, we pause to discuss the meaning of
the substantially likely or substantially unlikely standards in
this context.
¶45 	We read “substantially likely” within the context of
the greater question that it is designed to address: 	whether the
State’s interest in a competent defendant will be significantly
furthered through involuntary medication. 	This leads us to the
conclusion that “substantially likely” requires the likelihood of
restoration to be significant, rather than requiring merely
“some” likelihood of restoration. 	This conclusion is in keeping
with that reached by other courts that have considered the issue.
In United States v. Gomes, 387 F.3d 157, 161-62 (2d Cir. 2004), a
seventy-percent chance at restoration to competence was
considered substantially likely; in United States v. Ghane, 392
F.3d 317, 320 (8th Cir. 2004), a ten percent chance of
restoration, described as a “glimmer of hope,” was held to be
inadequate to meet this standard. 	Other courts have determined
that “a chance of success that is simply more than a 50% chance
of success does not suffice to meet this standard.” 	United
States v. Rivera-Morales, 365 F.Supp. 2d 1139, 1141 (S.D. Cal.
2005); see also People v. McDuffie, 50 Cal. Rptr. 3d 794, 798
(Cal. Ct. App. 2006) (holding that a fifty- to sixty-percent
chance of “improving” did not meet the substantially likely
standard). 	We agree; the substantially likely standard requires
that the chance for restoration to competency be great. 	To the
extent that such a likelihood can be quantified, it should
reflect a probability of more than seventy percent. 	Likewise, in
order for side effects to be considered substantially unlikely to
interfere with a defendant’s right to a fair trial, any side

No. 20060627 	20
effect that would impede a defendant’s ability to assist in her
defense must have a very low rate of occurrence.
1. 	Although Side Effects Exist, Administration of Antipsychotic
Medication Is Substantially Unlikely to Produce Side Effects that
Will Interfere with Ms. Barzee’s Right to a Fair Trial
¶46 	Many side effects can result from the administration of
antipsychotic medications, but those side effects that can be
quite severe and could impede Ms. Barzee’s right to a fair trial
are rare. 	Thus, we hold that the district court did not clearly
err in concluding that antipsychotic medication is substantially
unlikely to interfere with Ms. Barzee’s right to a fair trial.
¶47 	The side effects considered likely by Drs. Jeppson and
Whitehead include fatigue; dry mouth; blurry vision;
constipation; orthostatic hypotension; and metabolic syndrome,
which would require monitoring for weight gain, lipid profile,
cholesterol, and diabetes. 	According to Drs. Jeppson and
Whitehead, those side effects would not interfere with
Ms. Barzee’s ability to assist in her defense, nor would they
interfere with her abilities to consult with her attorneys,
engage in reasoned choice of legal options, recall memories, or
testify relevantly. 	Dr. Morris generally agreed with these
likely side effects but added cardiac problems to the list and
stated that weight gain is likely and could lead to other health
problems.
¶48 	The physicians also recognized other unlikely side
effects that can occur and that could have profound effects on
Ms. Barzee’s ability to assist with her defense. 	Tardive
dyskinesia creates tics, can be irreversible, and would impair
Ms. Barzee’s ability to assist defense counsel. 	According to
Dr. Jeppson, tardive dyskinesia occurs in only one patient out of
200, and according to Dr. Whitehead, it occurs in two to five
percent of patients with continuous exposure to antipsychotic
medications, more often in women than men. 	Another unlikely side
effect is increased risk of stroke, but this generally occurs
only in older patients, not patients within Ms. Barzee’s age
group. 	Even though these side effects could dramatically impair
Ms. Barzee’s ability to assist with her defense, because of the
low probabilities associated with them, the district court’s
conclusion that the side effects are substantially unlikely was
not clear error.
¶49 	Drs. Jeppson and Amador also recognized additional side
effects that are of concern. 	Due to the nature of Ms. Barzee’s
psychotic disorder and the connection her delusions have to her

21 	No. 20060627
identity, a medication that could possibly alter these fixed
beliefs and insult her identity may make Ms. Barzee vulnerable to
depression, suicidal ideation, stress reaction, or posttraumatic
stress disorder. 	These effects could significantly interfere
with Ms. Barzee’s ability to assist counsel. 	Because, as I will
discuss below, I am persuaded that the drugs are unlikely to
alter her fixed delusions, I consider these side effects
associated with a crisis in her identity substantially unlikely.
The majority does not agree with my conclusion that the drugs are
unlikely to alter Ms. Barzee’s fixed delusions, but similarly
concludes that these side effects identified by Drs. Jeppson and
Amador are substantially unlikely.
2. 	Administration of Antipsychotic Medication Is Not
Substantially Likely to Render Ms. Barzee Competent to Stand
Trial
¶50 	For clarity’s sake, I remind the reader that this
portion of my opinion does not represent the view of the majority
of the court. 	For the majority’s conclusion on whether
administration of antipsychotic medication is substantially
likely to render Ms. Barzee competent to stand trial, please
refer to Justice Durrant’s separate opinion.
¶51 	In order for the State to medicate Ms. Barzee, it is
required to prove that the medication is substantially likely to
make her competent based upon clear and convincing evidence.
Utah Code Ann. § 77-15-6.5(6)(a) (Supp. 2006); see also United
States v. Bradley, 417 F.3d 1107, 1113-14 (10th Cir. 2005).
Clear and convincing evidence requires that the evidence “place
in the ultimate factfinder an abiding conviction that the truth
of its factual contentions are highly probable. 	This would be
true . . . only if the material it offered instantly tilted the
evidentiary scales in the affirmative when weighed against the
evidence . . . offered in opposition.” 	Colorado v. New Mexico,
467 U.S. 310, 316 (1984) (internal quotation marks and citations
omitted). 	I do not believe the State’s evidence in this case
rises to this standard. 	Further, I believe that the district
court did not properly weigh all of the evidence presented within
the framework of this high burden. 	Instead, the court ignored
the testimony of the defense experts and relied exclusively on
the testimony of Drs. Jeppson and Whitehead. 	It did not consider
the evidence presented by the defense, but found the State
witnesses to be in the “best position” to determine the
likelihood of Ms. Barzee’s restoration to competency and afforded
complete deference to their opinions in abrogation of the court’s

14 The majority states that the testimony of the defense
experts was not ignored. 	See infra ¶ 90. 	While the district
court mentioned the positions of all witnesses, it did not engage
in a weighing of all the evidence. 	It discounted the statistics
and published research that the defense witnesses cited to at
length in their testimony and relied exclusively on the State
witnesses’ opinions, which the court deemed more persuasive based
on the familiarity and expertise of the State witnesses. 	This
presumed familiarity and expertise does not withstand scrutiny
when the district court’s opinion is compared to the transcript
from the Medication Hearing. 	See infra ¶¶ 53, 61, 62, 69.
No. 20060627 	22
duty to actually consider and weigh all the evidence presented. 14
Proper balancing does not simply require a court to pick one
expert or one side to defer to, but instead requires that the
evidence presented by each side is thoughtfully considered and
weighed. 	See United States v. Valenzuela-Puentes, 479 F.3d 1220,
1228-29 (10th Cir. 2007) (refusing to affirm the district court
in a Sell hearing because competing testimony rebutted its
conclusion that the defendant was substantially likely to be
rendered competent with medication). 	The district court deferred
to the opinions of the State witnesses based upon the purported
familiarity that Drs. Jeppson and Whitehead had with Ms. Barzee.
This reasoning is not supported by the evidence. 	First,
Dr. Whitehead had only a single one-and-a-half-hour meeting with
Ms. Barzee. 	The fact that he works in the same hospital where
Ms. Barzee is committed does not establish that he is
particularly familiar with her case. 	Second, while Dr. Jeppson
is the psychiatrist assigned to Ms. Barzee’s case, the record
does not show that he in fact spent significantly more time with
her than Dr. Amador. 	The district court stated that he had
“weekly” meetings with Ms. Barzee; however, Dr. Jeppson testified
that his meetings with her were on a “weekly to monthly” basis
over a twenty-two-month period and that “a lot of times these
aren’t 45-minute talks, I mean just a few minutes here and
there.” 	In addition, Ms. Barzee had not met with her treatment
team for the ten months preceding the Medication Hearing.
Dr. Amador visited with Ms. Barzee multiple times over the past
few years, spending over fifteen total hours with her. 	Thus, the
amount of time Dr. Amador spent with Ms. Barzee rivals the time
she spent with Dr. Jeppson. 	My brief review of the record
reveals that Drs. Jeppson and Whitehead clearly did not have a
“quantity or quality of information” so superior to that of Drs.
Morris and Amador such that their opinions should not even have
been considered on the issue of Ms. Barzee’s likelihood of
restoration. 	However, that is what the district court did. 	I
reject the notion that a treating physician’s opinion can be
looked to for the sole source of information when competing

23 	No. 20060627
testimony, based on proper foundation, challenges the treating
physician’s conclusions. 	In this case, we should closely examine
all of the witnesses’ testimony and look to the foundation for
that testimony in weighing its impact. 	In examining that
testimony, I conclude that the defense experts, not the state
hospital physicians, most carefully considered and relied on Ms.
Barzee’s particular condition and history. 	I am persuaded that
the State witnesses lacked adequate foundation for their opinions
in many respects, including a reliance on general statistics
rather than statistics particular to the defendant, failure to
rely on the DSM-IV, failure to recognize the effect of a
particular diagnosis on restoration to competency, failure to
consider the presentation of Ms. Barzee’s particular symptoms,
and the inability of medication to alter Ms. Barzee’s fixed
delusions. 	I will address each of these issues below.
a. 	The State Experts’ Reliance on General Statistics
Failed to Account for Ms. Barzee’s Particular Condition
¶52 	Drs. Jeppson and Whitehead, the State experts, relied
on their clinical experience at the state hospital in assessing
the efficacy of medication on the restoration of Ms. Barzee’s
competence. 	Dr. Jeppson cited seventy- to eighty-percent
restoration rates at the state hospital and concluded that there
would be a seventy-five-percent chance of restoration “with
anybody.” 	He stated that “hopefully, [Ms. Barzee] would be
restored to competency.” 	Dr. Whitehead noted that the state
hospital has a restoration rate of eighty percent. 	He stated
that Ms. Barzee’s case was nowhere “close to a one hundred
percent case” for restoration, offering a gross estimate of
seventy percent. 	He stated that a seventy-five-percent
restoration rate exists for all psychotic disorders and opined
that psychotic disorder not otherwise specified (PDNOS) may
possibly have a higher rate. 	Dr. Amador’s testimony, by
contrast, cautioned against looking only to personal clinical
experience in drawing conclusions about the efficacy of treatment
because the types of patients in any particular treatment
population may skew a practitioner’s views on treatment
generally.
¶53 	I am not persuaded that the rates of restoration for
the general population at the state hospital would have any
bearing on Ms. Barzee’s particular case without any showing that
the population resembled Ms. Barzee. 	As the Court of Appeals for
the Fourth Circuit has recognized, the general population tells
us nothing of the response of a particular patient. 	United
States v. Evans, 404 F.3d 227, 240-41 (4th Cir. 2005) (refusing
to rely on the state’s evidence when there was no indication that

15 This assertion was flatly contradicted by Drs. Morris and
Amador and does not appear to be consistent with the empirical
research.
16 The federal statistics, cited extensively in the
testimony of the State witnesses, were apparently garnered from
information compiled in 2003 by the Federal Bureau of Prisons’
(continued...)
No. 20060627 	24
the federal hospital staff had considered the defendant’s
particular medical condition in reaching conclusions). 	While
Dr. Whitehead did opine that PDNOS patients may have higher rates
of restoration than those with other psychotic disorders, he also
stated that a particular diagnosis has “little, if any,
ramifications” for treatment and that diagnosis does not have
“much bearing” on restoration. 15 	The district court looked at
the success rate of the general population in the state hospital
and compared it with the statistical data presented by defense
experts, who identified a much lower rate of restoration for
patients with symptoms similar to Ms. Barzee’s--twenty percent
for patients with delusional disorder, increasing to thirty or
forty percent if other conditions, including schizophrenia, were
considered. 	The court attributed the discrepancy, however, not
to the individual symptoms and diagnoses of those similar
patients, but to what the district court considered to be the
“expertise” of the state hospital physicians. 	I find no basis
for the court’s conclusion that Utah’s state hospital physicians
are remarkably better than other psychiatrists at medicating and
restoring incompetent patients. 	The fact that the rates for the
general hospital population at the state hospital are identical
to the rates reported by the Federal Bureau of Prisons’ hospital
system clearly indicates no special expertise on the part of Drs.
Jeppson and Whitehead. 	Rather, the discrepancy between the
conclusions of the State witnesses and those of the defense
witnesses is explained by the fact that the State’s witnesses
based their opinions on the rates for general populations and saw
little need to look at the particular symptomology of the
defendant, while the defense experts refined their opinions to
consider Ms. Barzee’s particular characteristics. 	Thus, in my
opinion, to the extent that the testimony of the State witnesses
relied on the restoration rates for the general population at the
state hospital, it should be given little, if any, weight.
¶54 	Likewise, I reject the State witnesses’ reliance on
similar general statistics from the federal hospital system, but
I am even more troubled by the State witnesses’ use of those
particular statistics. 	Citing a report issued by the Federal
Bureau of Prisons, 16 Drs. Jeppson and Whitehead testified that

16 (...continued)
United States Medical Center in Springfield, Missouri.
Dr. Whitehead learned of these “success rates” at an American
Academy of Psychiatry and the Law meeting. 	The defense experts
also became familiar with the information by contacting the
physician in charge of the study who provided them with the
results. 	Many other courts have considered these statistics in
Sell hearings. 	See, e.g., United States v. Gomes, 387 F.3d 157
(2d Cir. 2004); United States v. Milliken, 2006 U.S. Dist. LEXIS
82413 (M.D. Fla. 2006); United States v. Algere, 396 F. Supp. 2d
734 (E.D. La. 2005).
25 	No. 20060627
the restoration rate for the general population at federal
hospitals was seventy to eighty percent. 	As noted above, I have
serious concerns with relying on statistics of the general
population of a hospital. 	I also have concerns with the basic
reliability of the federal statistics. 	Dr. Amador explained that
the federal study was not peer reviewed; it was an unpublished,
internal hospital report, and the patients were not broken down
by diagnoses or symptoms. 	In fact, the physician who conducted
the study did not even know the diagnoses of the patients
involved in the study, nor did he know if any of the patients
suffered from delusions similar to those suffered by Ms. Barzee.
Those facts led Dr. Amador to conclude that the federal hospital
data was “completely useless” in predicting whether medication
would be successful in restoring Ms. Barzee to competency.
Dr. Morris also testified that Ms. Barzee’s poor prognostic
factors must be taken into account because each case is
individual and statistics for general populations are not
predictive of Ms. Barzee’s response. 	The rates identified for
general populations were inconsistent with the rates found in
studies cited by the defense experts, which were more focused and
examine restoration of patients with symptoms mirroring those of
Ms. Barzee. 	Thus, in my opinion, the statistics relied on by the
State witnesses are entitled to little weight because the
statistics do not account for the individual history and
symptomology of Ms. Barzee. 	See United States v. Cruz-Martinez,
436 F. Supp. 2d 1157, 1162 (S.D. Cal. 2006) (noting that the
court had “serious doubts about the predictive value and
applicability of the government’s statistic regarding the
likelihood of success” when “[i]t [was] not even clear that the
statistic applie[d] to individuals in defendant’s condition”).
¶55 	Today, the majority permits forcible medication of
patients at the state hospital based primarily on the statistic
that seventy to eighty percent of the general population at the
state and federal hospitals were restored without regard to
individual diagnosis and prognosis. 	Thus, every patient

No. 20060627 	26
committed to the state hospital is substantially likely to be
restored. 	Allowing this analytical charade renders the second
part of the Sell test meaningless; such flawed logic does not, in
my view, comport with common sense. 	The decision today allows
courts to order forced administration of antipsychotic medication
without regard to the individual symptoms and history of a
particular patient. 	It allows courts to do so based on general
statistics even when a multitude of evidence suggests that a
particular patient with unique characteristics is not likely to
be restored. 	The majority is not the first court to rely on
general statistics, but I believe it is the first court to do so
when the defense has presented evidence controverting the
reliability of those statistics. 	See United States v. Dallas,
461 F. Supp. 2d 1093, 1095, 1099-1100 (D. Neb. 2006) (refusing to
rely on general statistics cited by government witnesses who did
not take into account the symptoms and history of the particular
defendant); United States v. Cruz-Martinez, 436 at F. Supp. 2d
1161-62 (same); see also United States v. Gomes, 387 F.3d at 159,
161-62 (upholding the district court’s conclusion that defendant
was substantially likely to be restored based on the unchallenged
testimony of government doctors who cited the the Bureau of
Prisons’ seventy percent success rate); United States v.
Milliken, 2006 U.S. Dist. LEXIS 82413, at *29-31 (M.D. Fla. 2006)
(relying on unchallenged testimony citing the Bureau of Prisons’
seventy-six-percent success rate in restoring individuals to
competence); 	United States v. Leveck-Amirmokri, 2005 U.S. Dist.
LEXIS 7610, at *14 (W.D. Tex. 2005) (relying on physician’s
conclusion that medication fails to work only one time out of
twenty when defendant had provided “no reason to doubt” the
government witnesses). 	I am troubled by the district court’s
decision in light of the evidence, but I am even more troubled
that my colleagues are willing to undertake only highly
deferential review of that decision--one that I believe should be
recognized as clearly erroneous even under a deferential standard
of review. 	In my opinion, when the State relies on statistics
from the general population and competing testimony establishes
that those statistics are inapplicable to a defendant with a
particular history and particular symptoms, the general
statistics are inapposite. 	When faced with competing evidence,
general statistics cannot rise to the level of clear and
convincing evidence that a patient is substantially likely to be
restored. 	I believe this is the only reasonable conclusion that
can be reached if the Sell test is to have continued validity in
protecting the constitutional liberty interest in freedom from
unwanted antipsychotic medication.

17 Dr. Jeppson was aware that Drs. Kovnick, Cohn, and Berge
had identified referential thinking as one of Ms. Barzee’s
symptoms, and Dr. Jeppson knew that Ms. Barzee discussed
receiving answers to prayers through movies “a long time ago.”
27 	No. 20060627
b. 	The State Experts’ Failed to Rely on the DSM-IV
¶56 	The DSM-IV is the authoritative tool for diagnosis in
the field of mental health; however, Drs. Jeppson and Whitehead
stated that the manual was of little or no use to their analysis
of Ms. Barzee’s case. 	Dr. Jeppson stated, “I am not tied to DSM-
IV.” 	When asked about the characteristics of PDNOS, he responded
that he had not “reviewed that recently. 	I don’t pack [the DSM-
IV] around.” 	When Dr. Whitehead was asked about specific
diagnoses and their implications for treatment decisions, he
stated that diagnosis has “little, if any, ramifications” for
treatment, despite extensive research cited by the defense
experts suggesting that diagnosis and symptoms have significant
ramifications for a patient’s response to medication. 	Indeed,
Dr. Amador testified that the difference in diagnosis at “this
particular hearing” is relevant to “predicting response” to
antipsychotic medication. 	The state hospital physicians’
dismissal of the standard diagnostic system used in the field of
psychiatry is perplexing in light of the important questions they
were asked to address by the State in this case. 	While diagnosis
may not be critical to the question of whether medication is
medically appropriate--because for any form of psychosis, drugs
will almost undoubtedly be appropriate--diagnosis is of utmost
importance for predicting the effect of medication on a
particular patient. 	In this case, the court was not asked to
consider the likelihood of any psychotic patient being restored
to competency through medication; instead, the court was to
decide whether forcible medication was likely to restore
Ms. Barzee to competence. 	I am at a loss to comprehend the State
witnesses’ disregard of the DSM-IV, an important and integral
tool for diagnosis in the mental health arena.
¶57 	Not only did the State witnesses disregard a basic tool
of their trade, but Dr. Jeppson, without the aid of the DSM-IV,
made a puzzling change in Ms. Barzee’s diagnosis from delusional
disorder to PDNOS. 	Three of the four witnesses at the Medication
Hearing agreed that delusional disorder was a reasonable
diagnosis for Ms. Barzee. 	Dr. Jeppson knew that Ms. Barzee had
experienced referential thinking prior to his initial diagnosis
of delusional disorder, 17 yet he pointed to no other factor
explaining his subsequent change in diagnosis except her

18 The only example of Ms. Barzee’s referential thinking
provided at the Medication Hearing was her belief that she
received answers to prayers through watching movies. 	In fact,
this one episode of referential thinking happened months before
Dr. Jeppson changed the defendant’s diagnosis.
19 The change in Ms. Barzee’s diagnosis purportedly occurred
prior to November 2004 when Dr. Jeppson purports to have written
his affidavit for the Medication Hearing. 	However, his affidavit
is dated January 2005, and the hospital records were not changed
until January 2005. 	The Eighth Circuit issued United States v.
Ghane, 392 F.3d 317 (8th Cir. 2004), on December 20, 2004. 	In
that case, the court refused to order involuntary medication of a
(continued...)
No. 20060627 	28
continued reports of referential thinking. 18 	Although
Dr. Jeppson testified that referential thinking was “one of many
changes” influencing his decision, he failed to cite any other
factor, and the factor he did identify was not even a “change.”
He stated that he did not believe that referential thinking was
part of the symptomology of delusional disorder pursuant to the
DSM-IV--which he had not read recently--but “if it is, it is
certainly a small part.” 	While Dr. Jeppson eventually softened
his assertion that referential thinking removes one from the
diagnosis of delusional disorder, this assertion was flatly
rebutted by other witnesses. 	Dr. Morris testified that
delusional ideas of reference are simply one delusion of the
delusional disorder and that the symptom does not remove one from
a diagnosis of delusional disorder according to the DSM-IV.
Dr. Amador, the co-chair for revising the DSM-IV section on
psychotic disorders, stated that referential thinking as
exhibited by Ms. Barzee--receiving messages from movies--did not
remove her from the diagnosis of delusional disorder in the DSM-
IV. 	Not surprisingly, the DSM-IV section on delusional disorder
states, “Ideas of reference (e.g., that random events are of
special significance) are common in individuals with [delusional]
disorder. 	Their interpretation of these events is usually
consistent with the content of their delusional beliefs.” 	DSM-IV
325-26. 	Thus, I am skeptical of Dr. Jeppson’s change in
diagnosis based on factors that apparently do not withstand the
scrutiny of other mental health professionals and published
professional standards. 	I am further troubled because the DSM-
IV, the standard tool for diagnosing mental illness, appears to
have been given little, if any, weight by Drs. Jeppson and
Whitehead. 	Furthermore, in view of the DSM-IV’s flat rejection
of the notion that ideas of reference are not a symptom of
delusional disorder, I find Dr. Jeppson’s testimony
unpersuasive. 19

19 (...continued)
patient suffering from delusional disorder because the defendant
had only a five- to ten-percent chance of restoration to
competency. 	Id. at 319-20. 	The court stated that a “‘glimmer of
hope’ . . . cannot be considered substantially likely under any
circumstances.” 	Id. at 320.
20 Dr. Morris testified that he would accept PDNOS as a
diagnosis for only the first two weeks after a patient’s
admission.
21 No mental health professional suggested any diagnoses
other than schizophrenia, delusional disorder, or PDNOS for
Ms. Barzee. 	The practitioners who have worked on her case have
opined that she suffers no mood disorder symptoms that would open
the possible diagnosis to other psychotic disorders.
29 	No. 20060627
¶58 	Equally perplexing is the change after two years of
treatment from the more specific diagnosis of delusional disorder
to the more general one of PDNOS. 20 	Dr. Morris pointed out that
there is no evidence that Ms. Barzee’s condition is the product
of substance abuse or a medical condition, and Dr. Whitehead
noted that the chance that a medical condition was causing her
symptoms was “extremely unlikely.” 	Thus, the remaining diagnoses
beneath the umbrella definition of PDNOS, which are available to
this particular patient, are schizophrenia and delusional
disorder. 21 	Only one initial evaluator, Dr. Cohn, suggested that
schizophrenia was the appropriate diagnosis; all the other
practitioners doubted the existence of symptoms as severe as
Dr. Cohn’s report suggested. 	Neither of the State witnesses at
the Medication Hearing suggested that Ms. Barzee met the criteria
for schizophrenia or even opined that it might have been an
appropriate diagnosis. 	Thus, while the boundaries between
psychotic disorders may at times be “fuzzy,” according to
Dr. Whitehead, the opinions of all the mental health
professionals involved in this case persuade me that it is
extremely likely that Ms. Barzee suffers from delusional
disorder.
c. 	The Diagnosis of Delusional Disorder Suggests a Poor
Prognosis for Response to Medication
¶59 	If in fact Ms. Barzee suffers from delusional disorder,
the prognosis for restoration is poor. 	Dr. Nielsen, an initial
evaluator, opined that if Ms. Barzee suffered from delusional
disorder, her condition was refractory and rarely treatable with
medication. 	Dr. Jeppson explained that he had treated very few

22 In offering his conclusions about the efficacy of
medication for patients suffering from delusional disorder,
Dr. Amador did not ignore the studies cited by Dr. Whitehead.
Instead, Dr. Amador’s comprehensive review of the literature led
him to draw different conclusions than Dr. Whitehead.
No. 20060627 	30
patients with delusional disorder. 	He admitted that delusional
disorder is more refractory to treatment than schizophrenia, but
was unsure if it is the most refractory of psychotic disorders.
Dr. Amador considered the specific diagnosis of delusional
disorder when he opined that Ms. Barzee had a twenty-percent
chance of restoration, noting that delusional disorder is harder
to treat than other psychotic disorders. 	He based this opinion
on research and his clinical experience. 	Dr. Whitehead
discounted the literature and research upon which Dr. Amador
relied, calling it “traditional clinical lore” and claiming that
it “would be an error to say that a delusional disorder is
refractory to medication” because “the jury is out on that.” 	He
stated that very little research has been conducted on delusional
disordered patients because the diagnosis is “so rare.” 	He
admitted to seeing only four or five cases of delusional disorder
over the course of his career. 	Dr. Whitehead cited one study
that suggested an eighty percent response rate to medications for
people with delusional disorder. 	However, it is unclear how the
presence of a response to medication equates to restoration to
competency, especially when the experts agree that Ms. Barzee’s
delusions would persist even if medication was administered.
Moreover, Dr. Whitehead relied on the information reported by the
federal hospital study; he testified that eighty percent of the
delusional patients in that study were restored and that five to
ten delusional patients were involved in the study. 	That
information, however, was unequivocally rebutted by Dr. Amador,
who explained to the court that he spoke directly with the
physician who conducted the study and that that physician did not
know the diagnoses of the patients involved. 	Thus,
Dr. Whitehead’s testimony about the presence of delusional
patients in the federal study appears to be without foundation.
Despite Dr. Whitehead’s opposition to looking to “dogmatic
conclusions based on research on delusional disorders” because it
is rare, I am persuaded by Dr. Amador’s review of the relevant
scientific literature and his conclusions based on numerous
studies that find delusional disorder refractory to medication
even though “some therapeutic effect” may occur with medication
for any psychotic disorder. 22 	The State had the burden of
proving by clear and convincing evidence that Ms. Barzee was
substantially likely to become competent through the
administration of antipsychotic medication. 	In my opinion, the
high threshold of this burden has not been met. 	If delusional

23 The majority states that Dr. Whitehead restored fifteen
patients with Ms. Barzee’s diagnosis and symptoms. 	See infra
¶ 91. 	While the record supports the fact that Dr. Whitehead
restored fifteen PDNOS patients to competency, he never claims to
have restored a delusional disordered patient to competency, and
he admits that delusional disorder is a reasonable diagnosis for
Ms. Barzee. 	Similarly, he did not claim that he had restored a
patient with Ms. Barzee’s specific symptomology, including a
duration of untreated psychosis in excess of ten years.
31 	No. 20060627
disorder is the appropriate diagnosis, the evidence presented
fails to establish that medication is substantially likely to
render Ms. Barzee competent.
d. 	The Presentation of Ms. Barzee’s Particular Symptoms
and Her History Suggest a Poor Prognosis for Response to
Medication
¶60 	If Ms. Barzee suffers from PDNOS or another variety of
psychotic disorder, her specific symptoms also lead to the
conclusion that restoration to competency is unlikely. 	The Court
of Appeals for the Fourth Circuit recognized that in order to
determine whether a patient is substantially likely to be
restored to competence, a mental health professional must
consider the “particular mental and physical condition” of the
patient. 	Evans, 404 F.3d at 240-41; see also United States v.
Baldovinos, 434 F.3d 233, 240 n.5 (4th Cir. 2006) (recognizing
that Sell requires “an exacting focus on the personal
characteristics of the individual defendant”); United States v.
Valenzuela-Puentes, 479 F.3d 1220, 1229 (10th Cir. 2007)
(remanding the case to the trial court with instructions to
“specifically consider” the particular symptoms and
characteristics of the defendant). 	Thus, in analyzing the
opinions of the experts in this case, I believe we must look
closely at the factors each expert considered in reaching his
conclusion with regard to Ms. Barzee’s likely response to
antipsychotic medication. 	In doing so, it becomes clear that the
defense experts were the only witnesses in this case who gave due
consideration to Ms. Barzee’s history and symptoms. 	Although
Dr. Jeppson referred to Ms. Barzee’s gender as a positive factor
for restoration (without citing authority for his assertion), he
and Dr. Whitehead essentially dismissed all of the specific facts
apparent in Ms. Barzee’s illness. 23 	The most notable of the
features particular to Ms. Barzee is the duration of her
untreated psychosis, a period in excess of ten years and possibly
as much as thirteen years. 	She also exhibits grandiose delusions
and some persecutory delusions as well as delusional ideas of
reference or referential thinking. 	Further, Ms. Barzee does not

24 Dr. Nielsen, an initial evaluator, also asserted that
Ms. Barzee’s long duration of untreated psychosis suggested a
poorer prognosis.
25 Delusions and hallucinations are positive symptoms,
whereas flat affect and withdrawal are negative symptoms.
No. 20060627 	32
believe that she is mentally ill. 	In addition, no positive
prognostic factors, such as family history or past successful
treatment with medication, exist in Ms. Barzee’s case. 	See
United States v. Archuleta, 218 F. App’x 754, 756 (10th Cir.
2007) (relying on previous restoration with antipsychotic drugs
and “well-documented history of resolution of his psychotic
symptoms” as a result of medication in concluding that the
defendant was substantially likely to be restored (internal
quotation marks omitted)); United States v. Morris, 2005 U.S.
Dist. LEXIS 38785, at *13-14, 20 (D. Del. 2005) (holding that
defendant was substantially likely to be rendered competent based
on past history of positive response to antipsychotic
medication).
¶61 	First, Drs. Morris and Amador opined that a duration of
untreated psychosis in excess of one year significantly decreased
the likelihood that a patient will respond to medication. 24 	In
Ms. Barzee’s case, her psychosis has impacted her functioning and
behavior for at least ten years and possibly as much as thirteen
years. 	Dr. Morris stated that duration of untreated psychosis as
a predictor of response to medication was not a novel idea in
psychiatry. 	The longer a patient is ill--even more than six
months to a year--the chances of improvement with medication
significantly decrease over time. 	Dr. Morris cited his
experience and the current literature, referring to numerous
studies, for the “very well established” proposition that
duration of untreated psychosis is an “important factor” in
predicting response to medication. 	Dr. Amador similarly
identified Ms. Barzee’s lengthy duration of untreated psychosis
as a poor prognostic factor. 	Dr. Amador based this conclusion on
his experience and on the research reported in the relevant
scientific literature; in fact, he had personally participated in
peer review of approximately fifteen articles on this specific
subject. 	He stated that after one year of psychosis without
treatment, there is typically no response for the negative or
positive symptoms of a psychotic disorder, 25 nor is there a
response for social functioning. 	Dr. Amador opined that
Ms. Barzee’s lengthy duration of untreated psychosis was a
“significant factor . . . [that] reduce[d] her chances of
responding to antipsychotic medication” and also reduced the
chances that her delusions will cease. 	Contrary to the testimony

26 Once again, it should be noted that a response to
medication for treatment purposes may have no relationship to
restoration of legal competence.
27 Ironically, when the defense filed the petition for
(continued...)
33 	No. 20060627
of the defense experts, Dr. Whitehead stated that the duration of
untreated psychosis was an “important” variable, but that it
should not be “overstated.” 	He later said it was only a “small
to moderate” factor in predicting response to treatment. 	He did
not address the numerous studies cited by the defense, but
pointed to studies from the 1950s and one study from 2005 where
the duration of untreated psychosis impacted treatment of only
negative symptoms--not Ms. Barzee’s most prominent positive
symptom of grandiose delusions. 	Similarly, Dr. Jeppson, while
admitting that duration of untreated psychosis was “definitely a
factor” in predicting response, did not think that the duration
of Ms. Barzee’s disorder had implications for her response to
medication. 	He did admit, however, that patients experiencing
their first episode of psychosis would “probably respond better,”
but that he would “have to read” on whether duration of untreated
psychosis impacts the prognosis for response to medication. 	He
opined that just because a newly psychotic patient may respond
more favorably to medication, that does not mean that “someone
who has [suffered from psychosis] for ten or eleven years is not
going to respond.” 	Dr. Whitehead made a similar statement in his
testimony, suggesting that illness untreated for one day may not
respond to medication while illness untreated for decades may
respond. 	He also stated that the state hospital had had success
in treating patients with previously untreated illness in excess
of one year. 	However, he did not state that the hospital had
ever successfully treated anyone with untreated psychosis to the
extent of Ms. Barzee’s, and I find no support in the record for
the district court’s conclusion that the state hospital
physicians somehow have expertise in restoring delusional
patients with a “significant delay from the onset of psychosis to
initial treatment.” 	While I recognize that some patients with a
lengthy duration of untreated psychosis may in fact respond to
medication, 26 the overwhelming evidence from the empirical
research presented at the Medication Hearing identified duration
of untreated psychosis as a factor negatively impacting the
response to administration of antipsychotic medication. 	The
speculation that an individual patient with years of untreated
psychosis may respond favorably does not meet the clear and
convincing standard of the State’s burden to prove that this
particular patient is substantially likely to be restored to
competency by forced medication. 27 	The evidence presented at the

27 (...continued)
review in this case, the State used the effects of Ms. Barzee’s
lengthy and continued duration of untreated psychosis to contend
that the interlocutory appeal in this matter should not be
granted. 	While the State now claims that the ten- to thirteen-
year period of Ms. Barzee’s untreated psychosis is not relevant
to her chances of restoration, they argued that granting an
interlocutory appeal would cause irreparable harm because the
additional few months of untreated psychosis “may diminish . . .
the likelihood of achieving the beneficial results” of medication
and eliminate the State’s ability to try the defendant for her
crimes. 	This argument suggests that the State does recognize the
critical importance that duration of untreated psychosis plays in
predicting response to medication, despite its witnesses’
testimony to the contrary.
28 Positive symptoms include delusions and hallucinations.
Ms. Barzee does not suffer from hallucinations, but does suffer
from delusions, grandiose type.
No. 20060627 	34
hearing establishes that it is not substantially likely that
someone with ten to thirteen years of untreated psychosis will
respond to medication at all, much less be rendered competent.
¶62 	Second, the presence of grandiose delusions,
Ms. Barzee’s “primary competency impairing symptom,” was also
identified as a poor prognostic factor for psychotic patients’
response to medication. 	In his initial review, Dr. Nielsen
pointed out that symptoms of a delusional nature do not respond
favorably to medication. 	Dr. Morris stated that the prominent
delusion affecting Ms. Barzee’s competency is her “leave it to
the Lord” grandiose delusion. 	He stated that grandiose delusions
are more difficult to treat than other delusions, such as
persecutory delusions, which Ms. Barzee also exhibited to a
lesser extent. 	Dr. Amador explained that grandiose delusions
permeate an individual’s personality and self-esteem and impede
treatment of nonmood-related psychosis generally when compared to
other types of delusions. 	His conclusion that grandiose
delusions are refractory to treatment was informed by his
clinical experience and by the relevant scientific research.
Dr. Whitehead opined differently; he stated that grandiose
delusions were not particularly refractory and cautioned not to
look to the “dogmatic conclusions” of research with delusional
disordered patients. 	He stated that Ms. Barzee exhibited
positive symptoms, 28 and he then relied on research suggesting an
eighty-percent response rate to medication for psychotic patients
generally who suffer from positive symptoms. 	However,
Dr. Whitehead did not identify whether this research referred to

35 	No. 20060627
hallucinations or delusions or if it focused on grandiose
delusions specifically. 	Similarly, Dr. Jeppson (without citing
any authority) opined that positive symptoms and lack of negative
symptoms suggested a better prognosis. 	As noted above, the
research highlighted by defense experts concluded that the impact
of medication was less favorable for grandiose delusions than for
other types of delusions, hallucinations, and disorganized
thinking. 	Dr. Jeppson again attempted to rebut the testimony of
defense witnesses by focusing on the idea that an individual
patient with grandiose delusions may respond to medication,
stating that he had seen people who think they are Jesus respond
to medication. 	Again, I am unpersuaded by a single, particular
example that would appear to contradict the findings of a
substantial amount of research. 	I recognize, and all the
testimony supports, the fact that some individuals who suffer
from grandiose delusions will respond to medication, but this
does not inform the court as to Ms. Barzee. 	Even if only one
percent of patients responded to medication, examples would
exist, but the court should not extrapolate from the experience
of one patient, or a handful of patients, the notion that
Ms. Barzee will respond to medication.
¶63 	Third, Drs. Amador and Jeppson identified Ms. Barzee’s
lack of insight into her illness as a significant symptom of her
psychosis. 	Dr. Amador has specific experience with psychotic
patients who do not believe they are mentally ill. 	He has
conducted research on treatment response with these particular
individuals, and he has coauthored approximately fifty peer
reviewed articles on the topic of involuntary medication of
individuals who do not recognize that they are mentally ill.
Based on his experience and research, he identified this symptom
as a factor that would have a negative impact on Ms. Barzee’s
response to medication, stating that it “will take many years
[for a patient] to ever understand there is an illness.”
¶64 	Taking into account the poor prognostic factors and the
absence of positive factors, Dr. Morris concluded that medication
is unlikely to resolve Ms. Barzee’s delusions to the point of
restoration of competency. 	He stated, “I am of the opinion that
it is unlikely that she is going to make any kind of significant
response to medication. 	Based on that, it is even more unlikely
that she is going to be restored to competency.” 	Dr. Amador’s
conclusion was identical. 	Their reasoning is persuasive because
of the specificity with which they analyzed Ms. Barzee’s
condition and because of the foundations upon which they based
their opinions--not statistics derived from a general psychiatric
population, but rather from research tied to the specific
characteristics exhibited by Ms. Barzee. 	Accordingly, even

29 Some of the mental health professionals reported that
Ms. Barzee also showed impairment affecting competency in her
capacity to testify relevantly and her ability to disclose to
counsel pertinent facts, events, and states of mind. 	Drs. Cohn
and Nielsen believed that the overinclusive, overelaborated
quality of Ms. Barzee’s speech and her preoccupation with her
delusional religious beliefs would negatively impact her ability
to testify and to converse relevantly. 	Drs. Kovnick and Berge,
however, believed that, despite the rambling quality of her
speech, she could be redirected to testify relevantly.
No. 20060627 	36
setting aside the witnesses’ disputes about diagnosis, I am still
persuaded that medication is unlikely to restore Ms. Barzee to
competence.
e. 	Even With Medication, Ms. Barzee Will Remain Incompetent
to Stand Trial Because Medication Is Not Likely to Eliminate Her
Fixed Delusions
¶65 	It is important to understand why Ms. Barzee is
incompetent to stand trial in order to determine whether
restoration is substantially likely. 	Prior to the Medication
Hearing, Drs. Kovnick, Cohn, Berge, and Nielsen evaluated
Ms. Barzee for the sole purpose of determining whether she was
competent. 	Those professionals concluded that Ms. Barzee’s
primary area of incompetency was her inability to engage in
reasoned choice of legal strategies and options. 	Drs. Kovnick,
Cohn, Berge, and Nielsen all agreed that Ms. Barzee showed severe
impairment in this capacity because her religious delusions, and
not her best interests, drove her decision-making process.
Ms. Barzee told Dr. Kovnick that to “fight for her life during
this court process would be not allowing God to put her through
the suffering that he feels is required of her.” 	All of the
professionals agree that Ms. Barzee’s delusions currently make
her incompetent to stand trial, and the district court concluded
that she was incompetent on three separate occasions prior to the
Medication Hearing. 29 	Within the framework of Ms. Barzee’s
specific impairment, I cannot conclude that medication is likely
to render her competent to stand trial.
¶66 	Because they did not take into account the changes that
must occur for Ms. Barzee to be rendered competent, the State
witnesses’ conclusions that medication will actually restore her
to competency do not persuade me. 	The State focused on, and the
district court was persuaded by, the witnesses’ conclusion that,
with the aid of medication, Ms. Barzee would be less preoccupied
with her delusions and talk about them less. 	That conclusion
ignores the actual cause of Ms. Barzee’s incompetency: 	in order

30 A similar opinion was expressed by Dr. Berge who stated
that Ms. Barzee would become competent if the delusions were
eliminated.
37 	No. 20060627
for Ms. Barzee to be rendered competent, her delusions must be
eliminated. 	As long as she has the delusions, regardless of
whether they dominate her conversation, they will impact her
ability to engage in the reasoned choice of legal strategies and
options. 	If Ms. Barzee talks less often about God directing her
life, but continues to experience the delusion that she is
subject to God’s direction and that her participation in the
legal proceedings would go against God, she will lack the
capacity to engage in reasoned choice of legal strategies and
options. 	This will be true even if it is masked by a medication-
induced ability to talk less about the delusions. 	The delusions
will nonetheless continue to drive her decision-making process.
¶67 	My conclusion is derived directly from the generally
uncontroverted testimony presented at the Medication Hearing.
Dr. Morris stated that Ms. Barzee’s delusions influence her
competency because they inhibit her ability to weigh legal
strategies. 	He stressed that the “grandiose delusions become
predominant” when it comes to Ms. Barzee’s strategy in legal
proceedings. 	Dr. Jeppson stated that Ms. Barzee will continue to
have delusions even if medicated, but that with medication, she
will focus on them or talk about them less, and the medication
“[will] hopefully diminish the strength or maybe the intensity of
the delusion.” 	Dr. Morris agreed with Dr. Jeppson’s assessment,
testifying that there is a “poor prognosis for ending her
delusion” with medication and that she “might” talk less about
the delusion and not focus on it as much. 	Dr. Amador also agreed
with Dr. Jeppson on this point, stating that while medication may
make Ms. Barzee feel less pressure to discuss her delusions,
there is a “high likelihood that the fundamental delusional
beliefs aren’t going to change”; she may talk about her case, but
that will not change the fact that she believes God is directing
everything, and thus, the delusions will continue to influence
her decisions and behavior. 	According to Dr. Amador, in order to
render Ms. Barzee competent, medication would have to reduce the
certainty of Ms. Barzee’s beliefs, not merely her discussion of
those beliefs, and it was Dr. Amador’s opinion that medication
would not impact Ms. Barzee’s certainty. 30 	Even Dr. Cohn, who
believed Ms. Barzee suffered from schizophrenia, which generally
responds more favorably to medication than delusional disorder,
opined that it was unclear whether Ms. Barzee’s “deeply
entrenched, delusional belief” would be impacted by medication
because those symptoms “are most refractory to pharmacological
intervention.”

No. 20060627 	38
¶68 	At the Medication Hearing, the district court judge
stated that she was not concerned with eliminating Ms. Barzee’s
delusions; rather, she was concerned with restoring Ms. Barzee to
competency. 	I conclude that, in Ms. Barzee’s case, the continued
presence of delusions would constitute continued incompetence
because her inability to make reasoned choices about her legal
predicament, for example, her incompetence, is driven by fixed
delusions that, even Dr. Jeppson admits, will continue despite
the administration of antipsychotic medication.
f. 	Medication Is Not Substantially Likely to Render
Ms. Barzee Competent to Stand Trial
¶69 	The testimony of the defense experts, which is founded
on empirical research documented in the relevant scientific
literature, peer-reviewed studies, DSM-IV diagnoses, and clinical
experience, is highly persuasive. 	Unlike the physicians from the
state hospital, Drs. Amador and Morris focused on Ms. Barzee’s
particular symptoms when rendering their opinions. 	I conclude
that the district court’s deference to the State witnesses was
not justified by the evidence. 	The State witnesses’ clinical
experience and general statistical data do not outweigh the
focused analyses of the defense witnesses. 	The district court
was in error in its statement that “the statistical data . . . is
neither as authoritative or weighty as the testimony of [the]
actual treating physician.” 	The statistical data that was
particular to Ms. Barzee’s symptoms and history was the most
authoritative and weighty information that was provided to the
district court. 	Anecdotal evidence based on limited clinical
experience cannot be used to extrapolate information about
Ms. Barzee. 	Nor can statistics derived from psychotic patients
generally be applied to Ms. Barzee without a showing of
similarities in disorder, symptoms, and history. 	When numerous
studies rebut a particular practitioner’s limited and possibly
inapposite experience, the information grounded in empirical
research is the most authoritative and weighty evidence; it
should not have been disregarded here.
¶70 	I believe that Ms. Barzee is not substantially likely
to be rendered competent to stand trial through the forced
administration of antipsychotic medication. 	This conclusion is
based on the weight of the evidence presented at trial, which
persuades me that someone with Ms. Barzee’s particular symptoms
and history is unlikely to respond to medication, much less be
rendered competent. 	Thus, in my view, the State’s interest in
bringing Ms. Barzee to trial will not be significantly furthered
by involuntarily medicating her.

39 	No. 20060627
¶71 	In conclusion, I do not doubt that medication is the
appropriate medical treatment for Ms. Barzee. 	As Dr. Whitehead
pointed out, antipsychotic medication is the “cornerstone” of
treatment for all psychotic disorders and “has been for the past
fifty years.” 	I empathize with Dr. Morris’ statement that the
inability to treat psychotic patients is “very frustrating” when
treatment providers know there is “no way” patients are “going to
get better” without medication. 	I also recognize the concerns
expressed by Dr. Jeppson, that Ms. Barzee is unlikely to make any
progress without medication and that the state hospital is simply
“warehousing” her without treatment or care, which is not in her
best medical interest.
¶72 	However, this case involves the State’s ability to
involuntarily medicate a criminal defendant for the sole purpose
of rendering her competent to stand trial. 	This court is not
charged with determining what is best for Ms. Barzee from a
mental health standpoint--if that were the case, there would be
little need for the judicial branch to exercise any authority in
these matters. 	This court’s duty is to determine whether Ms.
Barzee’s constitutional liberty interest in freedom from unwanted
medication can be overcome by the State’s interest in rendering
her competent to stand trial. 	Unless the State’s interest is
highly likely to be furthered by the intrusion upon Ms. Barzee’s
liberty, this court cannot allow the State to forcibly medicate
her with antipsychotic drugs.
¶73 	I agree with Dr. Whitehead’s testimony that “predicting
the treatment effect is often difficult.” 	I feel that when this
court is faced with such a difficult task that implicates the
constitutional guarantee of liberty, we must carefully scrutinize
the evidence to ensure that the State has met its high
evidentiary burden. 	In this case, I cannot conclude that the
State proved by clear and convincing evidence that Ms. Barzee,
given her specific disorder, history, and symptoms, is
substantially likely to be rendered competent through the
involuntary administration of antipsychotic medication. 	The
district court overlooked a multitude of compelling evidence in
favor of the State witnesses’ presumed expertise and familiarity.
This purported expertise and familiarity does not hold up to a
review of the evidence presented. 	Reliance upon the evidence of
the State witnesses in this case--general statistics without
regard to the individual characteristics of a defendant’s
disorder–-undermines the constitutional right to freedom from
unwanted antipsychotic medication, a significant right that the
Supreme Court has recognized on numerous occasions.

1 Supra ¶ 46.
No. 20060627 	40
¶74 	I cannot conclude that the State may constitutionally
involuntarily medicate Ms. Barzee solely in an attempt to restore
her to competence for trial when it has failed to prove that
medication is substantially likely to accomplish that end.
Therefore, I conclude that the State has failed to meet its
burden in overcoming Ms. Barzee’s liberty interest in freedom
from unwanted antipsychotic medication. 	I would reverse the
order of the district court.
CONCLUSION
¶75 	Notwithstanding my analysis with respect to the second
Sell factor and my conclusion that it is impermissible for the
State to intrude upon Ms. Barzee’s federal constitutional liberty
interest in freedom from unwanted medication, the majority
concludes otherwise. 	As set forth in Justice Durrant’s separate
opinion, the majority affirms the district court’s order
providing that the State may medicate Ms. Barzee.
---
¶76 	Justice Nehring concurs in the entire result of Chief
Justice Durham’s opinion. 	Associate Chief Justice Wilkins,
Justice Durrant and Justice Parrish concur in all parts of this
opinion, save Part III.A and Part III.D.2.
---
DURRANT, Justice, writing for the majority:
¶77 	We concur in Chief Justice Durham’s opinion except her
analysis with respect to the second Sell factor. 	As to this
factor, we agree with Chief Justice Durham’s determination that
“the district court did not clearly err in concluding that
antipsychotic medication is substantially unlikely to interfere
with Ms. Barzee’s right to a fair trial,” 1 but we respectfully
disagree with the remainder of the analysis.
¶78 	We disagree with Chief Justice Durham’s analysis, set
forth in Part III.A, as to the appropriate standard of review for
the second Sell factor. 	Chief Justice Durham would apply a de
novo review to the question of whether the administration of
medication to Ms. Barzee is substantially likely to render her
competent to stand trial--the first inquiry under the second Sell
factor. 	Because this inquiry is essentially a factual one, we
apply a clear error standard of review.

2 539 U.S. 166 (2003).
3 Id. at 180-81.
4 United States v. Gomes, 387 F.3d 157, 160 (2d Cir. 2004)
(“The district court’s findings with respect to the [second,
third, and fourth] Sell factors are factual in nature and are
therefore subject to review for clear error.”); United States v.
Evans, 404 F.3d 227, 240 (4th Cir. 2005) (“We review the district
court’s resolution of Sell’s second and fourth parts for clear
error . . . .”). 	Contra United States v. Valenzuela-Puentes, 479
F.3d 1220, 1224 (10th Cir. 2007) (“Sell’s first factor . . . is
reviewed de novo, as is the second factor . . . .”).
41 	No. 20060627
¶79 	We also disagree with Chief Justice Durham’s
substantive analysis, set forth in Part III.D.2, as to the first
inquiry under the second Sell factor. 	Chief Justice Durham
concludes that the State’s experts wholly disregarded the
particular characteristics of Ms. Barzee’s psychosis and relied
exclusively on reports and statistics regarding general
populations. 	Our review of the record indicates that the State’s
expert witnesses did, in fact, consider the particular
characteristics of Ms. Barzee’s condition and based their
conclusions, in part, on their assessment of those
characteristics.
I. 	THE DISTRICT COURT’S FINDING THAT THE ADMINISTRATION OF
ANTIPSYCHOTIC MEDICATION TO MS. BARZEE IS SUBSTANTIALLY LIKELY
TO RENDER HER COMPETENT TO STAND TRIAL IS PRIMARILY A FACTUAL
FINDING THAT SHOULD BE REVIEWED FOR CLEAR ERROR
¶80 	As to the standard of review question, while the United
States Supreme Court in Sell v. United States 2 set forth four
criteria to be considered in determining whether a defendant may
be forcibly medicated to restore competency for the purpose of
standing trial, 3 it did not speak to the standard an appellate
court should apply in reviewing a lower court’s decision as to
these criteria. 	A number of federal circuit courts have,
however, considered the question of the appropriate standard of
review to be applied to a lower court’s determination regarding
competency under the first part of the second Sell factor. 	The
Second and Fourth Circuit Courts of Appeals have concluded that
the second Sell factor addresses factual questions that should be
reviewed for clear error. 4 	These courts have analyzed the second
Sell factor in a way consistent with our traditional approach to
review of lower court decisions. 	As to purely factual questions,

5 State v. Levin, 2006 UT 50, ¶ 20, 144 P.3d 1096.
6 Id.
7 Id. ¶ 21.
No. 20060627 	42
we review the fact finder’s determinations for clear error. 5 	As
to purely legal questions, we review the lower court’s
determination for correctness (de novo). 6 	Only mixed questions
of fact and law present a difficult challenge in determining the
appropriate standard of review. 7
¶81 	Chief Justice Durham concludes that the question of
competency under the second Sell factor is a mixed question and
that because of the important constitutional right involved--the
right to be free of forced medication--a de novo standard should
be applied. 	But we conclude that this issue presents a
predominantly factual question. 	Certainly, in a sense, even
traditionally factual inquiries can be viewed as mixed questions.
Issues such as reasonableness, knowledge, and proximate cause are
fact questions to be resolved by the fact finder, but the
definition of the terms themselves is a legal matter. 	For
example, in a jury trial a judge will instruct a jury as to the
legal definition of “reasonableness,” but the jury makes the
factual determination as to whether a defendant was reasonable.
So, too, in this case, the definition of “competency” requires a
legal analysis, but whether a particular defendant is competent
or is likely to be rendered so is a question of fact for the fact
finder to answer.
¶82 	In Utah, the Legislature has set forth various criteria
to be considered by a court in determining whether a defendant is
competent to stand trial:
(a) the defendant’s present capacity to:
(i) comprehend and appreciate the
charges or allegations against him;
(ii) disclose to counsel pertinent
facts, events, and states of mind;
(iii) comprehend and appreciate the
range and nature of possible penalties,
if applicable, that may be imposed in
the proceedings against him;
(iv) engage in reasoned choice of
legal strategies and options;
(v) understand the adversary
nature of the proceedings against him;

8 Utah Code Ann. § 77-15-5(4) (2003).
9 See State v. Pena, 869 P.2d 932, 935 (Utah 1994) (defining
factual questions as “entailing the empirical, such as things,
events, actions, or conditions happening, existing, or taking
place, as well as the subjective, such as state of mind”).
10 See Dusky v. United States, 362 U.S. 402, 402 (1960)
(explaining that the standard for whether a defendant is
competent to stand trial is whether the defendant “has sufficient
present ability to consult with his lawyer with a reasonable
degree of rational understanding--and whether he has a rational
as well as factual understanding of the proceedings against him”)
(internal quotation marks omitted).
43 	No. 20060627
(vi) manifest appropriate
courtroom behavior; and
(vii) testify relevantly, if
applicable;
(b) the impact of the mental disorder,
or mental retardation, if any, on the nature
and quality of the defendant’s relationship
with counsel;
(c) if psychoactive medication is
currently being administered:
(i) whether the medication is
necessary to maintain the defendant’s
competency; and
(ii) the effect of the medication,
if any, on the defendant’s demeanor and
affect and ability to participate in the
proceedings. 8
Each of these criteria presents the kind of question that we have
traditionally considered factual in nature. 9 	Essentially, in
assessing competency, a judge is required to consider whether the
defendant understands her circumstances well enough to understand
the crime with which she is charged, to assist her counsel in
defending against those charges, and to understand the potential
punishments. 10 	Thus, it is for the courts or the Legislature to
define “competency,” but whether a particular defendant is
competent as so defined is a factual determination that we review
for clear error.
¶83 	Although the question of competency involves
predominantly empirical inquiries and requires a clear error

11 2006 UT 50, 144 P.3d 1096.
12 Id. ¶ 25.
13 See id. ¶ 26 (“[T]he greater the complexity and variety
of the facts, the stronger the case for appellate deference.”).
14 Id. ¶ 25 (citing State v. Virgin, 2006 UT 29, ¶ 28, 137
P.3d 787).
15 Supra ¶ 35.
No. 20060627 	44
standard of review on appeal, defining competency is, as we have
noted, a legal matter. 	Even assuming that, therefore, the
question of whether Ms. Barzee would likely be rendered competent
by medication should be reviewed as a mixed question of fact and
law, as Chief Justice Durham views it, our application of the
three-part test under State v. Levin 11 leads us to a different
conclusion than that reached by Chief Justice Durham. 	Under the
Levin test, to the extent the question before us is a mixed one,
we would accord the trial court’s finding substantial deference.
¶84 	As to the first Levin factor--“the degree of variety
and complexity in the facts to which the legal rule is to be
applied” 12 --we agree with Chief Justice Durham that the issue
before us is complex. 	Indeed, this complexity is illustrated by
the fact that Chief Justice Durham devotes a substantial number
of pages to the issue of whether medicating Ms. Barzee is
substantially likely to render her competent to stand trial.
This factor, therefore, favors deferential review. 13 	We disagree
with Chief Justice Durham, however, as to her assessment of the
second and third Levin factors.
¶85 	With respect to the second Levin factor--“the degree to
which a trial court’s application of the legal rule relies on
‘facts’ observed by the trial judge, ‘such as a witness’s
appearance and demeanor, relevant to the application of the law
that cannot be adequately reflected in the record available to
appellate courts’” 14 --we disagree with Chief Justice Durham’s
conclusion that “much of the necessary information concerning the
diagnoses and research ‘generally can be adequately reflected in
a cold record’ and will be supported by statistics and published
research, unaffected by an individual’s appearance and demeanor
while testifying.” 15 	Rather, we conclude that the district
court’s assessment of the witnesses did involve some credibility
determinations. 	The issue of whether medication is substantially
likely to render Ms. Barzee competent to stand trial ultimately
involves a disagreement among experts. 	“Because a trial court is

16 Levin, 2006 UT 50, ¶ 20 (internal quotation marks and
alterations omitted).
17 See id. ¶ 26 (“[T]he greater the importance of a trial
court’s credibility assessments that cannot be adequately
reflected in the record, the stronger the case for appellate
deference.”).
18 Id. ¶ 25 (quoting Virgin, 2006 UT 29, ¶ 28).
19 See id. ¶ 26 (“Even where a case for appellate deference
is strong under the first two factors, policy considerations may
nevertheless lead us to limit that deference.”).
20 Supra ¶ 36.
45 	No. 20060627
in a better position to judge credibility and resolve evidentiary
conflicts,” we review a trial court’s findings of fact for clear
error. 16
¶86 	The district court carefully listened to evidence
presented by competing experts for several days. 	Each of the
experts was qualified and took defensible positions as to
Ms. Barzee’s potential competency. 	Thus, the district court
ultimately had to make credibility determinations and resolve
evidentiary conflicts. 	Although credibility assessment is not as
critical here as it would be in many cases, we should give weight
to the fact that the district court viewed the witnesses--and
Ms. Barzee--first hand. 	It may well be possible for us to make
an assessment as to the likelihood that Ms. Barzee will be
rendered competent based on the record alone, but we are not as
well positioned as the district court to make that assessment.
Thus, our analysis under the second Levin factor also favors
deferential review. 17
¶87 	Chief Justice Durham concludes that the third Levin
factor--“other ‘policy reasons that weigh for or against granting
discretion to trial courts’” 18 --tips the balance in favor of de
novo appellate review. 19 	Specifically, she explains that
“constitutional liberty interests of the highest degree” are
implicated when the state seeks to forcibly medicate a defendant
for the purpose of rendering the defendant competent to stand
trial. 20 	Although we have made a determination to grant less
deference to factual findings in certain areas of the law that
implicate constitutional interests, in our view we should do so
rarely. 	For example, we apply nondeferential review “to the
application of law to the underlying factual findings in search

21 State v. Brake, 2004 UT 95, ¶ 15, 103 P.3d 699.
22 State v. Pena, 869 P.2d 932, 939 (Utah 1994) (citing
State v. Thurman, 846 P.2d 1256, 1271 (Utah 1993)).
23 Id. (citing Thurman, 846 P.2d at 1271).
24 See State v. Warren, 2003 UT 36, ¶ 1, 78 P.3d 590.
No. 20060627 	46
and seizure cases.” 21 	We do so because of our “interest in
having uniform legal rules regarding consent to search, given the
substantial Fourth Amendment interests lost as a result of such
consents.” 22 	Furthermore, we have held that, although there may
be varying fact patterns that are relevant to the permissibility
of searches and seizures, they are “not so unmanageable in their
variety as to outweigh the interest in having uniform legal
rules.” 23 	For example, in reviewing the reasonableness of a
traffic stop and protective search, we often need look only to a
few objective facts, shared in many cases. 	As a result, we are
well positioned to make the ultimate determination of
reasonableness. 24
¶88 	But competency cases inherently involve case-by-case
evaluations, and the facts presented by such cases are less
manageable in their variety and less susceptible to
categorization into recurring objective fact patterns than is the
case in the Fourth Amendment context. 	Due to the different
individual histories, diagnoses, drugs, treatments, and expert
testimony that will likely be involved in every competency case,
we are in no better position than the lower court to arrive at
the ultimate determination of competency. 	Indeed, Chief Justice
Durham’s opinion shows how complex and fact sensitive a
competency evaluation can be with respect to a particular
individual such as Ms. Barzee.
¶89 	In the context of criminal trials, due process concerns
are always present, so unless there is an overriding policy that
would favor de novo review by an appellate court of a mixed
question, as is the case in the Fourth Amendment context, we
should defer to the fact finder. 	Such an overriding policy is
not present here. 	The mere fact that the factual inquiry into
whether Ms. Barzee is substantially likely to be rendered
competent to stand trial if forcibly medicated implicates an
important constitutional right does not warrant reviewing this
inquiry with less deference than we review other factual issues.
That is, the mere fact that this factual inquiry concerns a
constitutional right does not alter the nature of that inquiry or
the standard of review. 	Every criminal case involves important
constitutional rights, yet as to purely factual questions, we

25 See, e.g., Demosthenes v. Baal, 495 U.S. 731, 735 (1990)
(per curiam) (stating that “[a] state court’s determinations on
the merits of a factual issue are entitled to a presumption of
correctness on federal habeas review” and that “a state court’s
conclusion regarding a defendant’s competency is entitled to such
a presumption” in a case where the parents of an inmate filed a
“next friend” federal habeas petition questioning the inmate’s
competence to waive federal review of his claims); United States
v. Cook, 356 F.3d 913, 918 (8th Cir. 2004) (stating that a
“competency determination is a factual finding we affirm unless
clearly arbitrary or unwarranted, or clearly erroneous” (internal
quotation marks and citation omitted)); United States v.
Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998) (“Competency to
stand trial is a factual determination that can be set aside only
if it is clearly erroneous.”); United States v. Hogan, 986 F.2d
1364, 1372 (11th Cir. 1993) (“[A] district court’s determination
that a defendant is competent to stand trial is not reviewed de
novo, it is not reviewed with a hard look, it is not reviewed
under anything other than a clearly erroneous standard.”).
26 Supra ¶ 51.
47 	No. 20060627
review for clear error. 	Moreover, the question of competency is,
in other contexts, widely regarded as a factual issue. 25 	Thus,
even viewed as a mixed question subject to the Levin test, the
district court’s finding that it is substantially likely Ms.
Barzee will be rendered competent by medication should be given
substantial deference.
II. 	THE DISTRICT COURT’S FINDING THAT THE ADMINISTRATION OF
ANTIPSYCHOTIC MEDICATION TO MS. BARZEE IS SUBSTANTIALLY LIKELY TO
RENDER HER COMPETENT TO STAND TRIAL IS NOT CLEARLY ERRONEOUS
¶90 	Under the second Sell factor, the district court found
that the administration of antipsychotic medication is
“substantially likely” to render Ms. Barzee competent to stand
trial. 	Reviewing this finding de novo, Chief Justice Durham
concludes that administration of antipsychotic medication is not
“substantially likely” to render Ms. Barzee competent to stand
trial. 	And Chief Justice Durham further concludes that, even
under a deferential standard of review, the district court’s
factual findings were clearly erroneous. 	We respectfully
disagree.
¶91 	Chief Justice Durham states that the district court
“ignored the testimony of the defense experts and relied
exclusively on the testimony of Drs. Jeppson and Whitehead,”
thereby failing to properly weigh all of the evidence. 26
Furthermore, she asserts that “the defense experts were the only

27 Supra ¶ 60.
28 Supra ¶ 69.
29 Supra ¶ 69.
30 Chief Justice Durham asserts that, while Dr. Whitehead
has restored fifteen patients with PDNOS to competency, he does
not claim to have restored a patient with Ms. Barzee’s specific
(continued...)
No. 20060627 	48
witnesses in this case who gave due consideration to Ms. Barzee’s
history and symptoms.” 27 	She states that, “[u]nlike the
physicians from the state hospital, Drs. Amador and Morris
focused on Ms. Barzee’s particular symptoms when rendering their
opinions.” 28 	Chief Justice Durham further concludes that the
State’s experts relied almost exclusively on federal and state
reports from general hospital populations “without a showing of
similarities in disorder, symptoms, and history” to Ms. Barzee. 29
But our review of the record and the district court’s decision
convinces us that the district court did not “ignore” the
testimony of the defense experts and rely exclusively on the
State’s experts. 	The district court’s opinion discusses the
qualifications and conclusions of the key expert witnesses:
Drs. Amador and Morris for the defense, and Drs. Jeppson and
Whitehead for the State. 	The district court carefully noted the
crucial differences in their testimony and discussed the relevant
merit in each of their opinions.
¶92 	Furthermore, we conclude that the State’s experts did
not disregard Ms. Barzee’s particular case, although it is true
that they relied on federal and state statistics taken from
general hospital populations. 	Dr. Whitehead was the clinical
director of the forensic unit during much of the time Ms. Barzee
was a patient, and he had frequent discussions with Dr. Jeppson
concerning her diagnosis and symptoms. 	Dr. Jeppson was
Ms. Barzee’s treating physician for over two years and testified
that he met with her on a “weekly to monthly” basis. 	He was
familiar with her particular psychosis and her particular
symptoms, and his testimony reflected this experience. 	Moreover,
Dr. Jeppson’s and Dr. Whitehead’s opinions were based on their
own clinical experience, not only with patients suffering from
psychosis generally, but with those patients whose symptoms were
similar to those of Ms. Barzee. 	Indeed, Dr. Jeppson and
Dr. Whitehead each had treated and restored to competency well
over one hundred patients. 	And Dr. Whitehead testified that
fifteen patients at the state hospital who had the same diagnosis
as Ms. Barzee were all restored to competency through the
administration of antipsychotic medication. 30

30 (...continued)
symptoms. 	Because Ms. Barzee’s diagnosis is the matter of
disagreement among the expert witnesses, the fact that Dr.
Whitehead, who testified that PDNOS is “a very reasonable
diagnosis” for Ms. Barzee, has not restored a patient with
delusional disorder to competency does not render his experience
irrelevant. 	Moreover, no two patients will ever display
precisely the same symptoms, so the fact that Dr. Whitehead has
not restored a patient with Ms. Barzee’s specific symptoms to
competency likewise does not render his experience irrelevant.
31 Supra ¶ 53.
32 Supra ¶ 54.
49 	No. 20060627
¶93 	The State’s experts did rely on reports regarding
general populations in the federal hospital system and at the
state hospital, in addition to other statistical information.
These reports indicated that the success rate in restoring
patients suffering from some form of psychosis to competency
through the administration of antipsychotic medication was
seventy to eighty percent. 	Chief Justice Durham maintains that
the State’s experts’ reliance on these general statistics “should
be given little, if any, weight.” 31 	She also argues that these
restoration rates do not reflect Ms. Barzee’s particular symptoms
and that the State’s experts almost exclusively relied on these
restoration rates. 32 	But while the State’s experts used these
restoration rates to support their conclusions, it is clear from
the record that their opinions were formed by their own clinical
experience and, in the case of Dr. Jeppson, his first-hand
knowledge of Ms. Barzee as her treating physician.
¶94 	Further, even though all of the patients in the reports
relied on by the State’s experts did not share Ms. Barzee’s
precise diagnosis or symptoms, the restoration rates indicated in
the reports still have relevance. 	At the very least, the reports
show success in treating patients with various forms of psychosis
with antipsychotic medication. 	And the restoration rates are
further relevant in light of Dr. Jeppson’s own experience with
Ms. Barzee and restoring patients to competency in general, as
well as those with symptoms similar to those of Ms. Barzee.
¶95 	Ultimately, the district court was faced with
complicated and conflicting expert testimony. 	In finding “the
testimony of the State’s witnesses . . . more persuasive,” the
district court did not “ignore” the defense experts’ testimony,
but carefully weighed and reviewed all of the evidence.
Moreover, the district court’s decision is well reasoned and

No. 20060627 	50
supported by the record. 	Therefore, we cannot say that the
district court’s finding that the administration of antipsychotic
medication was “substantially likely” to render Ms. Barzee
competent to stand trial was “clearly erroneous.” 	We therefore
affirm the district court’s order providing that the State may
medicate Ms. Barzee.
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¶96 	Associate Chief Justice Wilkins and Justice Parrish
concur in Justice Durrant’s opinion.
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WILKINS, Associate Chief Justice, concurring in the majority:
¶97 	I concur in all respects with the majority opinion
authored by Justice Durrant.
¶98 	In March 2003, Defendant and her husband, Brian David
Mitchell, were arrested in the company of a child who had been
kidnaped and held for months. 	Both were charged with multiple
felonies in connection with their alleged abduction of the child.
Defendant was charged with aggravated burglary, aggravated sexual
assault, aggravated kidnaping and attempted aggravated kidnaping,
or in the alternative, conspiracy to commit aggravated kidnaping.
The State filed a petition to inquire into Defendant’s
competency. 	Two court-appointed evaluators determined that
Defendant was suffering from mental illness of a psychotic nature
and that her competency was “severely compromised.” 	Both
evaluators found that due to the nature of her psychosis,
Defendant had “severe impairments” in her ability to engage in
the reasoned choice of legal strategies and options, and thus
concluded that Defendant was “severely impaired with respect to
her present capacity to consult with her counsel and participate
in the proceedings against her with the reasonable degree of
rational understanding.” 	The district court concluded that
Defendant was not competent to proceed. 	Defendant was then
transferred to the Utah State Hospital, where she currently
remains.
¶99 	Since its initial ruling, the district court has
conducted two hearings to review Defendant’s competence. 	After
the first review hearing, in August 2004, the district court
determined that while Defendant was still incompetent to stand
trial, there was a “substantial probability that [she] may become
competent in the foreseeable future.” 	One year later, after the
second review hearing, the district court concluded that
Defendant remained incompetent. 	The State filed a motion to

51 	No. 20060627
compel medication. 	At the Medication Hearing, the district court
heard testimony from Drs. Kreg Jeppson, Paul Whitehead, Raphael
Morris, and Xavier Amador. 	Concluding that “the testimony of the
State’s witnesses is more persuasive,” the district court granted
the State’s motion to compel medication. 	In that process, the
district court made, and entered, a number of factual findings
based upon the persuasiveness, content, and import of the
testimony.
¶100 It is sufficient for my purpose here to simply note
that the mental health professionals presented by the State and
by the defendant did not agree on the need, danger, or outcome of
the proposed forced medication of Ms. Barzee. 	The district
court, to whom all of this evidence was presented, thoughtfully
considered the differences and, as all judges are required to do,
made a decision.
¶101 The Chief Justice is of the opinion that the factual
findings of the district court, since they obviously implicate
legal conclusions, deserve more careful examination on appellate
review. 	This is accomplished, in this case, by reviewing the
expert testimony presented to the trial court, considering it in
the abstract, and, essentially, reweighing it to reach a
different result.
¶102 I find no reason to reject the work of the district
court. 	I am distressed by the trend in our cases of late to
substitute our opinion of how the facts should be valued for that
of the trial courts. 	I do not see that as our role. 	Apparently,
some of my colleagues do.
¶103 As is always the case, the record on appeal and the
argument presented by counsel in briefs and orally are woefully
inadequate substitutes for the proceedings before the trial
court. 	Our role, in my opinion, is to give helpful, clear, and
usable direction on how the trial courts are to approach these
tasks, not to accept the invitation by the unsuccessful party at
trial to rejudge the matter in total. 	I believe this to be true
in all cases, not just cases deemed to be somehow less important.
I certainly agree that deprivation of essential and fundamental
rights protected by the federal and state constitutions are
important, and demand of us our best work. 	Such is the case of
Ms. Barzee, and of the victim of the crimes with which Ms. Barzee
is charged. 	However, to the parties, and the victims, all
matters that come before us are just as important. 	All matters
deserve the same care by us.
¶104 Exhaustive review of evidence in the record, and
additional commentary on mental health generally, do not justify

No. 20060627 	52
substitution of our judgment for that of the trial judge.
Evaluation of witnesses has traditionally been left in the able
hands of the trial courts. 	Assuming that role at the appellate
level furthers a new trend, one with which I do not agree.
Appellate courts should review, not redo. 	To do otherwise
cripples the adversary process and invites not only additional
appeals, but delay, inefficiency, and in my view, injustice.
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