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Judge rejects Sell's request for trial - 11/22/2004

By Carolyn Tuft
Of the Post-Dispatch
Monday, Nov. 22 2004

Dr. Charles "Tom" Sell begged a federal judge on Monday to put him on trial next week and end his seven years of waiting behind bars.

U.S. District Judge Donald J. Stohr rejected Sell's request and said he will decide later whether the once-successful Creve Coeur dentist is mentally capable of standing trial on charges of Medicaid fraud, mail fraud and murder conspiracy.

Sell stood in court in St. Louis, defying his lawyers and prosecutors who agreed that he is once again mentally unfit. That label has caused the delays and led prosecutors to demand all the way to the U.S. Supreme Court that he be forcibly medicated with anti-psychotic drugs.

In July, with Sell never having taken the drugs, Stohr ruled Sell fit for trial. Since then, federal prosecutor Dorothy McMurtry and Sell's lawyers - Lee Lawless and Barry Short - have tried to persuade Sell to plead guilty to one count each of murder conspiracy and mail fraud, Sell said in an interview. He faces 67 other charges.

After Sell countered with an offer to plead guilty of mail fraud and insisted he would never plead guilty of murder conspiracy, his lawyers sought Monday to get him ruled mentally incompetent. Lawless and Short said Sell keeps talking about "abuse" inside the federal prison instead of circumstances of his case.

The judge offered an opportunity for Sell to testify Monday and he indicated he wanted to, but his lawyers refused to put him on the witness stand. Instead, Sell raised his hand, stood up and began talking to the judge.

"I want to go to trial on Monday; I've been locked up for nearly eight years," he said. "The federal court has no evidence, they have no witnesses. I want my trial one week from today. I am not incompetent in any way, shape or form."

Before Monday's delay, the trial was scheduled for Nov. 29.

Sell told the judge that the lawyers have asked that he be ruled unfit because "no one is ready for my trial."

Stohr told Sell that there was "no way on Earth I can have a trial with this issue hanging." Stohr said he would consider the prosecution's request for a re-evaluation by government doctors and treatment at a North Carolina prison hospital.

At the center of the hearing Monday was a report from Dr. C. Robert Cloninger, a defense psychiatrist. Cloninger said that Sell suffers from a delusional disorder of the persecutory type. Cloninger said Sell is still delusional because he is too fixed on mistreatment at the Springfield, Mo., federal prison hospital to direct adequate attention to the issues of the trial.

On Nov. 9, Cloninger met with Sell for 3 1/2 hours and reviewed two videotapes made by the prison that neither officials nor defense lawyers would make public. Stohr later put them under seal.

The tapes were reviewed in private by Sell's lawyers last spring. They, prosecutors and the judge have refused comment about them.

Cloninger's resulting report was filed Nov. 12, also under seal. The Post-Dispatch obtained a copy, which supports Sell's story of abuses.

"Dr. Sell is currently preoccupied with the comparison between his treatment while in federal custody and the torture of prisoners in Iraq," Cloninger wrote. "All his thoughts and feelings are pervaded by his recollections of having been intimidated, humiliated and abused by the staff of the Springfield Medical Center, as is realistically demonstrated in the tapes and records and findings of the investigation of those events that the Bureau of Prisons now wants to suppress from public viewing."

The tapes, as recalled by Cloninger in his report, show:

On Nov. 9, 1999, a team of seven guards - some wearing riot gear of heavily padded vests and black helmets with tinted face shields - pulled Sell from his jail cell. Sell cooperated "fully and is peacefully" in the move to an isolation cell "where his clothes are cut from his body, he is injected seemingly unnecessarily with a sedative and he is handcuffed to an item referred to as a 'black box.'" Sell was left on the concrete slab for 19 hours, Cloninger noted.

On Feb. 19, 2000, a guard is seen preparing a shower and taking Sell into it. Sell is in the shower, while a female staff member is seen "peering into the shower cell." "Abruptly, Dr. Sell is seen forcibly falling forward out of the shower cell room." The guard then pulls Sell, who is handcuffed behind his back, forward and onto the floor, Cloninger said. "As Dr. Sell lies in the floor naked except for his scanty underpants," the guard continues to "push or pull" Sell by his handcuffed wrists down the hall and back to his cell.

An internal investigation, Cloninger wrote, shows that the guard had been spraying Sell with scalding hot water while calling the female staffer to watch. Sell suffered cuts on his left hand, marks from the dragging on his back and first-degree burns on his legs, chest and back, Cloninger wrote.

"The water was sprayed forcefully onto Dr. Sell by a hose that had been pre-arranged by the (guard) even before escorting Dr. Sell to the shower," Cloninger wrote, noting that the water temperature was 120 degrees Fahrenheit.

"Unfortunately, this treatment and the lack of appropriate recourse for Dr. Sell, including the government's continued refusal to make these videotapes and documents public, has only worsened Dr. Sell's condition," Cloninger wrote.

Cloninger added that the only way Sell could recover was for the government to treat him with "compassion and respect." He said Sell is not a danger to himself or others inside or outside of "the institutional setting."

The Post-Dispatch has been trying to obtain the prison videotapes since 2000 and has unsuccessfully sought their release in court. In addition, Sell's family and the Association of American Physicians and Surgeons have been seeking their release. The U.S. Justice Department has steadfastly refused.

Reporter Carolyn Tuft

Phone: 314-340-8105