Sunday, February 9, 2014

DoJ argues antidepressant improved journalist's rational faculties so he could waive Miranda rights

US gov't filing in Matthew Keys case cites National Institutes of Health (NIH) website, which actually warns that anti-insomnia drug Trazodone can "affect your judgment"

"Benjamin B. Wagner was appointed by President Barack Obama on November 6, 2009, to serve as the United States Attorney for the Eastern District of California," according to his profile, and he apparently believes that an antidepressant prescribed for insomnia can be beneficial to journalists who are interrogated by the FBI. In a January filing, US Attorney Benjamin Wagner also suggests that being high on heroin wouldn't prevent defendants from waiving their "Miranda rights validly."

Rachel Zarrell reported for BuzzFeed on December 14, 2013, "In a new defense filing, former Reuters deputy social media editor Matthew Keys claims statements he made to the FBI last year were unreliable due to sleeping pills he had taken about five hours earlier."

"Keys was indicted on federal charges last March for allegedly conspiring with the hacking group Anonymous to breach a Tribune Co. website, changing a story from the Los Angeles Times," Zarrell added. "The filing includes a previously unseen transcript in which FBI agents interrogate Keys at his home around 6 a.m. on Oct. 4, 2012, where he admitted to working with Anonymous to hack into the website and change a headline on a story. Filed in California yesterday, the filing by Keys seeks to suppress evidence collected by the FBI on the grounds the defendant was under the influence of Trazodone."

In a December 12, 2013 declaration, Matthew Keys claimed, "During the time of the interrogation, I was still under the influence of Trazodone and I felt drowsy, confused and forgetful."

"The questioning concluded with agents encouraging me to make a written statement, for which I initially refused citing concern over my state of mind," Keys complained. "Despite my concern, agents continued to encourage me to make a written statement."

According to the FBI transcript (pdf link), Keys told the FBI on October 4, 2012, "I can tell you I want to write whatever you want me to write in your presence," however, "I don't know that right now I'm in the state of mind where I can, and it's not because I don't want to, it's because I want to be cognizant of any event."

In a December 13, 2013 declaration in support of defendant's motion to suppress, osteopath Dr. Barry Cogen wrote, "Trazodone hydrochloride, also known as Desyrel, is prescribed for either depression or sleeplessness," and "[c]ommon side effects" are "confusion, dizziness, drowsiness, fatigue and nervousness." (pdf link)

"Because Mr. Keys was awoken during his Desyrel induced sleep, it is my opinion that his statements are unreliable," Dr. Cogen declared. The osteopath "listened to portions of the statements in question," and claims that "facts" show "that there was a very slight slurring of words at the beginning of the interrogation" and "Keys often trailed off when speaking."

Cogen further added, "Someone under the effects of Desyrel would be somewhat incoherent during the pendency of that entire interrogation. A statement given as the result of Desyrel under these circumstances is inherently unreliable and should not be used in a court proceeding where innocence or guilt is being determined."

In the January 3, 2014 opposition to motion to suppress (pdf link), US Attorney Benjamin B. Wagner, Assistant US Attorney Matthew D. Segal, Acting Assistant Attorney General Mythili Raman and Computer Crime and Intellectual Property Section Trial Attorney James Silver argued that "Keys' argument fails for multiple reasons."

"Trazodone Is Primarily An Anti-Depressant and May Have Benefited Keys," the government's response claimed in bold lettering.

It continues, "First, Trazodone may have actually improved Keys' mental functioning and rational faculties, and therefore his ability to waive his Miranda rights validly. In answer to the question "Why is this medication prescribed?" the National Institutes of Health (NIH) report that "Trazodone is used to treat depression. Trazodone is in a class of medications called serotonin modulators. It works by increasing the amount of serotonin, a natural substance in the brain that helps maintain mental balance."

The government also countered that defendants in Ninth Circuit cases cited in the response "who had ingested powerful drugs such as Demerol and heroin were still held to have made voluntary statements" and that "[i]n light of these cases involving stronger medications, Keys' ingestion of Trazodone could not have prevented him from waiving his Miranda rights validly."

On January 10, 2014, Keys' lawyers Jay Leiderman, Eric Lindgren and Tor Ekeland argued in a reply to opposition to motion to suppress that "[c]onsidering the side effects ["weakness or tiredness...nervousness [and] decreased ability to concentrate or remember things"] listed by the NIH, it does not follow that it could have improved his mental functioning and rational faculties."

Unmentioned by Keys' legal team is that in answer to the question "What special precautions should I follow?" the NIH website cited in the US government's filing states that "you should know that trazodone may make you drowsy and affect your judgment."

Eoin Reynolds reported for The Guardian on January 29, 2014, "The case against Keys has caused a stir in the online media community, where many are concerned he is the victim of over-stringent action by law enforcement."

"At the US district court in Sacramento on Wednesday, an attorney for Keys, Jay Leiderman, said federal agents carried out a trawl of files on Keys's computer in 2012 that was not allowed under their search warrant," Reynolds wrote. "He asked that information taken from the computer be suppressed by the court."

Reynolds noted, "Judge Kimberly Mueller is expected to give her decision on the legality of the search on 26 February."