DENVER (CN) — A Colorado man charged with killing three people at a Planned Parenthood clinic in 2015 asked the 10th Circuit on Thursday to block a district judge’s order forcing him to take medication in hopes of restoring mental competency and allowing him to proceed to trial.
Robert Dear drove to the Colorado Springs Planned Parenthood on Nov. 27, 2015, armed with “four SKS rifles, five handguns, two additional rifles, a shotgun, more than 500 rounds of ammunition, and propane tanks,” according to a 13-page federal indictment.
“Intending to wage a war” against the fertility clinic which provides abortions, Dear fired 198 bullets at patients and staff both in the parking lot and inside the facility, according to prosecutors. Three people were killed, including a police officer.
Since his arrest, Dear has been held at the Colorado Mental Health Hospital in Pueblo.
In December 2015, Dr. Richard Martinez first declared Dear incompetent after Dear said he “believed President Barack Obama was Satan and asserted his food and water were being poisoned,” court documents indicate.
Dear told other doctors the FBI had been tracking him for 20 years, sending women to lure him into compromising situations and breaking into his home to cut holes in his clothes.
Dear was eventually diagnosed with delusional disorder.
In 2017, a judge ordered Dear to take olanzapine until he appealed. The court held two Sell hearings — named for the 2003 Supreme Court case Sell v. United States — during which Dear opposed taking the medication due to his heart condition.
Following the August 2022 Sell hearing, Senior U.S. District Judge Robert Blackburn found Dear could be forcibly medicated. Blackburn was appointed by George W. Bush.
Although Blackburn’s treatment plan remains under seal, court documents indicate the judge included precautions to alleviate the risk on Dear’s heart, including having medical staff monitor him with an EKG to detect adverse effects of the medication.
Dear appealed, claiming the judge failed to give adequate weight to the defense's experts in light of his age and advanced state of untreated mental illness.
“The district court didn’t look at the basis for the opinions or explain why it was rejecting the defense’s experts,” argued federal public defender Jacob Rasch-Chabot.
U.S. Circuit Judge Robert Bacharach, an Obama appointee, pushed back on the claim that the district court didn’t adequately explain its reasoning in its 20-page opinion.
“Your criticism is that the court didn’t explain these three factual components — the defendant’s age, the psychotropic medication to restore competency to someone with delusional disorder and the duration of the delusional disorder,” Bacharach said. “My question is, in light of what you’re saying on the scarcity of empirical evidence, didn’t all of these factual components go into the district court’s finding?”
In the underlying proceedings, the government presented its own medical experts, who did not see Dear as a lost cause for competency restoration.
Bacharach was quick to quiz U.S. attorney Marissa Miller, asking her: “How did the district court process and analyze the impact of Mr. Dear’s age on his susceptibility of being restored to competency?”
Miller argued that the district court did consider Dear’s age in ordering the medication.
“The dispute between us and the defense is not so high that this order, which contains 50 particularized findings, doesn’t reach the bar,” Miller said. “The district court did find a particularized finding of age, he just didn’t show the work behind it.”
Senior U.S. Circuit Judge Mary Beck Briscoe, a Bill Clinton appointee, criticized prosecutors’ use of the word “credibility” in describing the persuasiveness of the experts presented.
“Every time I read ‘credibility’ in your brief, I wanted to scream because it’s not a credibility determination," Briscoe said. "You’re not saying that person lied, are you?”
Instead, “you’re saying the district court looked at their backgrounds, the information they provided the court, and determined which of the two groups of experts it would rely on in its ruling," she continued. "It’s a weight thing."
Despite being found incompetent, Dear was indicted before the five-year statute of limitations expired. He faces 68 federal charges on top of 179 charges filed by Colorado’s Fourth Judicial District, including eight charges of first-degree murder.
Although Dear has tried to represent himself pro se, federal public defenders have taken the lead on his case.
Obama-appointed U.S. Circuit Judge Nancy Moritz rounded out the panel. The hearing was held over Zoom and broadcast on YouTube. The court did not indicate when it would decide the case.
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