3 investigation. In making such appeals to authority—appeals that are profoundly misleading because they refer to investigations that either did not occur or failed to examine institutional governance of human subjects research—the general counsel functions as an apologist for the University. Mr. Donohue’s function as lead apologist for the University is nowhere more evident than in his account of Dan Markingson’s capacity to provide informed consent to participate in the CAFÉ study. Mr. Donohue insists that Dan Markingson was competent to consent to participation in the CAFÉ study. But the evidence strongly suggests that this is untrue. For example, on November 14, 2003, an Examiner’s Statement in Support of Petition for Commitment prepared by Dr. Stephen Olson, Dan Markingson’s treating psychiatrist, documented that Markingson lacked insight, did not believe he had a mental illness, and “lacks the capacity to make decisions regarding such treatment.” Olson’s statement also noted that Markingson was delusional, had threatened to kill his mother, and believed he was supposed to attend a Satanic cult gathering at which he would be asked to kill others “for the greater good.” Also that same day, the Director of Behavioral Services at Fairview-University Medical Center petitioned to have Markingson committed to a treatment facility. On November 17, 2003 a Pre-Petition Screening Program Report stated that Markingson “is believed not to have the capacity to make decisions regarding Neuroleptic medications.” It noted that Markingson did not acknowledge a mental illness as the cause of his “bizarre beliefs.” The report also stated, “He has had delusional thinking and beliefs. He allegedly made threats to slit his mother’s throat and he stated he may be asked to kill people as part of a satanic ritual and he stated that he was prepared to do so. He lacks insight to attribute these delusions to a mental illness and receive treatment.” Two days later, on November 19, 2003, James L. Jacobson, PhD, completed an Examiner’s Report. He reported that Markingson suffered from “a substantial Disorder of Thought, Mood, Perception, Orientation, Memory.” In response to the question, “Is there a Gross Impairment of Judgment, Behavior, Capacity to Recognize Reality, Capacity to Reason or Understand?”, Jacobson wrote, “Yes”. On November 20, 2003, the Dakota County District Court determined that Dan Markingson was mentally ill and in need of treatment. The court had him committed to the Anoka Metro Regional Treatment Center. While the commitment was stayed under a series of conditions, there is no indication that the Dakota County District Court understood that the following day Markingson would be asked to consent to participate in a research study instead of being entered into the treatment plan mentioned in the order for stayed commitment. Given repeated findings that Markingson lacked capacity to make informed decisions about his illness and the medications best-suited for his psychiatric condition, combined with the failure of Markingson’s treating physician to inform the court that he sought to enroll him as a consenting subject in a clinical study, there is good reason to argue that an independent investigation of Dan Markingson’s death must include careful scrutiny of his capacity to make health-related decisions both before and while he was a research subject in the CAFÉ study.