Petition for Writ of Certiorari — Zachary S. Keeter, Petitioner v. United States

Supreme Court briefMay 31, 2022

Ask Donna

What actually matters in this document.

Text

8087

No.

IN THE

MAY 3'! 2022

SUPREME COURT OF THE UNITED STATES

Zachary S. Keeter

- PETITIONER

(Your Name)

vs.

United States of America

- RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court of Appeals for the Eighth Circuit

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Zachary S. Keeter #31701-045

(Your Name)

FCI Forrest City-Low P.0. Box 9000

(Address)

Forrest City, AR 72336-9000

(City, State, Zip Code)

N/A

(Phone Number)

~1'

.»I

QUESTION(S) PRESENTED

1. Should a person whose addiction is the result of improperly prescribed

medication be allowed an involuntary intoxication defense?

2. Petitioner developed an addiction to improperly prescribed medication.

Did the district court err by characterizing his subsequent drug use as

voluntary and abuse its discretion by ignoring expert opinions regarding

petitioner's psychosis?

LIST OF PARTIES

jig] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

Keeter v. United States of America No. 20-00978-CV-W-GAF-P

United States District Court for the Western District of Missouri

Judgment entered July 21. 2021.

Keeter v. United. States of America Mo. 21-2838

United'States Court of Appeals for the Eighth Circuit

Judgment entered January 14. 2022 Rehearing denied March 15, 2022

United States of America v. Keeter No. 16-0240-01-CR-W-GAF

United States District Court for the Western District of Missouri •

Sentencing December 19, 2019

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION............ ................................................. ....................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE..........................................................

REASONS FOR GRANTING THE WRIT........................................

CONCLUSION

INDEX TO APPENDICES

APPENDIX A United States Court of Appeals for the Eighth Circuit

Judgment January 14, 2022

APPENDIX B United States District Court for the Western District of

Missouri - Order issued July 21, 2021

APPENDIX CUnited States Court of Appeals for the Eighth Circuit

-Order March 16, 2022

APPENDIX D

APPENDIX E

APPENDIX F

iii

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Caro v. Calderon 165 F.3d 1223 (9th Cir., 1998)

Ford v. Wainwright 477 US 399, 91 LEd 2d 335, 106 SCT 2595

Hampton v. Mow Sun Wong 426 US 88, 48 LEd 2d 1495, 96 SCT 1895..10

Jenkins v. United States 307 F.2d 637 (DC Cir., 1962)...........

Kidd v. Lemke 734 F.3d 696 (7th Cir., 2013).......... ......................

Linder v. United States 69 LEd 819, 268 US 5................ ..

Lynne v. Saul Civil Action No. 18-2709-JWL (D. Kan, 2019)...

Robinson v. California 370 US 660, 8 LEd 2d 758, 82 SCT 1417

United States v. Bindley 157 F.3d 1235 (10th Cir., 1995)....

United States v. Dixon 185 F.3d 393 (5th Cir., 1999)..............

United States v. F.D.L 836 F.2d 1113 (8th Cir., 1988)............

United States v. Gilliss 645 F. 2d 1269 (8th Cir., 1981)....

United States v. Henderson 680 F.2d 659 (9th Cir., 1982)....

United States v. Jain No. 14-cr-1261 RB (D. New Mexico, 2019)...10

United States v. Knott 894 F.2d 1119 (9th Cir., 1990)...

United States v. Long Crow 37 F.3d 1319 (8th Cir., 1994)

United States v. Marshall 891 F.3d 716 (8th Cir., 2018).

United States v. Taylor F.Supp 3d 1262 (N.D. Ala., 2016)

8,9

STATUTES AND RULES

United States Code, Title 18 §17 Insanity Defense

Federal Rules of Evidence Rule 702.. •*- V ••

•

•••

■«

:»

••

.14

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment V. . .

United States Constitution, Amendment VIII

11,12

OTHER AUTHORITIES

Presidential Memorandum of October 26, 2017 82 Fed Reg. 50305...11

Facing Addiction in America: The Surgeon General's Report on

Alcohol, Drugs, and Health, Executive Summary (Nov. 2016)

E. Hassman, When Intoxication Deemed Involuntary So as to

Constitute a Defense to Criminal Charge, 73 A.L.R 3d 1.95 ( 1997).. 8

REFERENCE MATERIALS

Merriam-Webster's Collegiate Dictionary, 11th Edition.

Diagnostic and Statistical Manual of Mental Disorders,

Fourth Edition (DSM IV)........................ ............... ....................

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

Cx] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix A

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[x] is unpublished.

„ The opinion of the United States district court appears at Appendix B

the petition and is

[ ] reported at

5 or,

[ ] has been designated for publication but is not yet reported; or,

[X] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix--------to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the _

court

appears at Appendix

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

JURISDICTION

[X] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was January 14. 2022

[ ] No petition for rehearing was timely filed in my case.

[x] A timely petition for rehearing was denied by the United States Court of

, and a copy of the

Appeals on the following date: March 16, 2022

;j-C

order denying rehearing appears at Appendix.

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date)

(date) on

to and including--------in Application No. —A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix---------[ ] A timely petition for rehearing was thereafter denied on the following date:

____________________ _ and a copy of the order denying rehearing

appears at Appendix--------[ ] An extension of time to file the petition for a writ of certiorari was granted

(date) in

(date) on

to and including-----Application No. —A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

United States Constitution, Amendment V:

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on presentment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shall any person be

subject for the same offense to be put twice in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness against ;

himself, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public use,

without just Compensation.

United Stattes Constitution, AmendmentinVIII:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments be inflicted.

United States Code, Title 18 §17. Insanity Defense:

•

’*•:

’

(a) Affirmative defense. It is an affirmative defense to a prosecution

under any Federal statute that, at the time of the commission of the

; acts constituting the offense, the defendant, as a result of a severe ^

mental disease'or defect, was unable to appreciate the nature and

quality or the wrongfulness of his acts- Mental disease or defect does

not otherwise constitute a defense.

STATEMENT OF THE CASE

In early 2014, Zachary Keeter returned to Dr. Gordon Risk, psychiatrist,

who had briefly treated him., two years earlier, for symptoms he diagnosed as

Attention Deficit Hyperactivity Disorder (ADHD) symptoms. Dr. Risk also felt

that, in 2014, in addition to the ADHD symptoms, Keeter was suffering from

depression, and prescribed him Adderall, an amphetamine mixture, to "kick start"

him out of his depression. Keeter was given 90 days worth of prescriptions for

Adderall and told to return in three months. Keeter had no reason to question

Dr. Risk's judgement or diagnosis-at'.'that:time-;. Keeter would hot learn that

this'diagnosis, and subsequent treatment with amphetamines, were in error until

late 2015.

Tragically, this misdiagnosis resulted in Keeter developing an addiction

to amphetamines. Lacking the means to pay for drug treatment (as he was a

full time pre-medical student), he reached out to his family for help in

finding a way out of addiction. Due to misunderstandings and a lack of

financial resources, they were unable to help him with his request. Soon,

Keeter turned to methamphetamine to quell the suicidal thoughts and mental

distress of his unaided and unsupervised amphetamine withdrawal.

Once his methamphetamine use started, his behavior and mental condition

deteriorated into a cycle of drug usd and sleep deprivation that would lead

to psychosis. During these periods of psychosis, Keeter began viewing,

downloading, and, eventually, distributing material depicting the sexual

abuse of children, commonly known as "child pornography"- behavior that

(confirmed by forensic computer exams) Keeter had not previously engaged in.

This conduct led to the FBI executing a search warrant at his residence

on May 12, 2015. Keeter fully cooperated with authorities, giving a full

statement and permission to assume his online identity.

Keeter began attending therapy and 12 step meetings immediately

following the FBI raid. In approximately November of 2015, Keeter returned

to the clinic from which Dr. Risk had retired. The physician who had taken

over the care of Dr. Risk's patients, Dr. Ala Elhaj, informed Keeter that he

had been misdiagnosed and subsequently changed his primary diagnosis to Post

Traumatic Stress Disorder (PTSD), due to Keeter's history of childhood trauma.

Keeter was arrested and arraigned on August 8, 2016. He engaged attorney

Tom Bath, Jr. to represent him. Keeter informed Bath of his misdiagnosis and

provided him with medical records from Drs. Risk and Elhaj on his own initiative.

Bath refused to contact either Dr. Risk or Dr. Elhaj, or to investigate Keeter's

mental condition.

Only after plea negotiations broke down, 16 months into his representation

of Keeter, did Bath send Keeter for a cursory mental evaluation, to be

abbreviated at his specific instruction. Upon receipt of the forensic

psychiatrist's report, containing more than 40 major inaccuracies in the

, biographical information, Keeter objected to the assessment. He inmediately

informed Bath of these errors and inaccuracies.

Bath then instructed Keeter to find his own forensic psychiatrist. After

providing him with the contact information for Dr. Brian Holoyda in early

February, 2018, Bath instead sent Keeter to Dr. Bruce Cappo for the limited

purpose of determining whether Keeter had been misdiagnosed, a finding that

Dr. Cappo supported.

The government, in response to Dr. Cappo's report, filed a Motion in

Limine to prevent a voluntary intoxication defense. Keeter's attorney never

filed or discussed filing a response to this motion with Keeter, nor did the

district court ever rule on the motion.

In early June, 2018, Bath filed a notice to pursue an insanity defense.

At Keeter's insistence, he also retained Dr. Brian Holoyda for an opinion on

■*

Keeter's mental state at the time of the offense. Holoyda requested that Bath

provide him several documents to complete his work. Keeter discovered that Bath

had not provided Holoyda with all of the materials he had requested and insisted

that Bath send them to Holoyda before he saw Keeter in person. Bath urged Keeter

to not postpone his interview with Holoyda, and stated that he would provide the

missing documents prior to the interview.

After the interview, Dr. Holoyda was not able to support an insanity defense.

Keeter negotiated a plea agreement, and a change of plea hearing was held on

October 25, 2018. Because he needed to undergo surgery, Keeter was allowed to

remain free on bond pending sentencing.

In April, 2019, Keeter retained Dr. George Savarese to conduct a

mitigation assessment. While gathering documents for Savarese's assessment,

Keeter discovered that Bath failed to provide Holoyda with the documents he

requested, even after Bath assured Keeter that they would be sent.

Ultimately, Dr. Savarese, in conjunction with the findings of Dr. William

Blessing, found that Keeter was unable to appreciate the nature and wrongfulness

of his acts due to methamphetamine psychosis. After receiving this report,

Keeter attempted to fire Bath, but the district court refused to allow his

v termination. Keeter filed a Motion to Terminate-Counsel on October 10, 2019.

Shortly thereafter, Attorney Joseph Borich III entered his appearance

as'-.Keeter's attorney. At a hearing‘on October 24, 2019, the court revoked

Keeter's bond and allowed the substitution of counsel.

Borich, armed with Savarese's report, tried to negotiate a better plea

agreement, but the prosecutor refused to negotiate. The prosecutor persuaded

attorney Borich to not present evidence of Keeter's psychosis at the sentencing

hearing.

On December 19, 2019, Keeter was sentenced to 72 months incarceration,

followed by 15 years supervised release. Keeter had some lingering objections

to a supervised release condition (that has since become moot) that Borich.

advised to handle outside of a direct appeal. Keeter took his advice and

declined the direct appeal.

On December 14, 2020, Keeter filed a §2255 Motion, in which he alleged

many errorsl,1 including claims of ineffective assistance of counsel against'

Bath and Borich for failing to promptly and adequately investigate a mental

health defense, including involuntary intoxication, and present retained

expert, opinions at sentencing.

On July 21, 2021, the district court denied Keeter's ineffective

assistance of counsel claims, primarily due to the claim that voluntary

intoxication would not provide a defense in Keeter's case. The district

court also refused to issue a Certificate of Appealability (Appendix B).

Keeter timely filed a Motion for Issuance of a Certificate of

Appealability in the United States Court of Appeal for the Eighth Circuit

on August 24, 2021. The three judge panel declined his Motion on January 14.

2022 (Appendix A).

Keeter filed a Motion for Reconsideration or En Banc hearing on

February 22, 2022, which was denied on March 16, 2022 (Appendix C).

.Keeter now files this timely Petition for Writ of Certiorari.

REASONS FOR GRANTING THE PETITjON

1. Defendants that develop iatrogenic addictions due to their physicians

errors should be allowed, an involuntary intoxication defense.

A. Federal case law does not forbid an involuntary intoxication defense

in cases of iatrogenic addiction.

The most comprehensive definition of the involuntary intoxication

defense is derived from the Hassman article quoted in Bindley;

■b

"Generally speaking, the defense has been recognized in four types

of situations: 1) where the intoxication was caused by the fault of

another (i.e. through force, duress, fraud, or contrivance); 2)>

where the intoxication was caused by an innocent mistake on the part

of the defendant; 3) where a defendant unknowingly suffers from a

physiological condition that renders them abnormally susceptible

to a legal intoxicant i.(sometimes referred to as "pathological

intoxication"); and 4) where unexpected intoxication results from

a medically prescribed drug.. .Although these widely varying

circumstances make it difficult to formulate a comprehensive

‘definition of the defense, it is apparent that a key component is

' lack of culpability on the part of the defendant in causing the

intoxication"(Supra @ 1242).

While Bindley does not explicitly articulate the scenario of addiction

that results from misprescribed Schedule II (carrying a high potentialufor

addiction and abuse) drugs, it does not foreclose the availability of the

defense in such circumstances.

B. Federal case law has long recognized the involuntary nature

of addiction.

In Taylor, the court (drawing from Facing Addiction) states: "severe

substance use disorders, commonly called addictions, were once viewed as a

moral failing or a character flaw, but are now understood to be chronic

illnesses characterized by clinically significant impairments in health,

social function, and voluntary control (emphasis added.) over substance use",_J

(Supra @ 1266). The Taylor count further finds "Because of the' scientific

consensus,; aided largely by the development and ever increasing abilities of

brain imaging, that treats [addictions] as a disease and recognizes that the

disease includes "compulsive substance abuse", perhaps courts need to rethink

whether involuntary (i.e. compulsive-), intoxication may be an available defense

in soipe cases for defendants....with severe [substance] use disorder"

(Supra @1268)

In Robinson, the Court, in 1962, recognized that "...addiction is an

illness. Indeed, it is apparently an illness which may be contracted innocently

or involuntarily" (Supra @667). In a footnote to this finding, the Court quotes

Linder, from 1927, which states "addicts...are diseased and proper subjects for

treatment"(268 US 18).

Advances in medical science have brought increasing l.clarity and support to

the lengthy and consistent history of legal findings that addiction is a chronic

disease.characterized by compulsive, involuntary drug use. These findings,

spanning two centuries of American jurisprudence, support the position that a

defense of involuntary intoxication should be potentially available to any

addict but especially to those with an addiction induced by medical negligence.

'V.

C. Addiction due to a physician's mistake is beyond the control

of the patient.

In Caro, the majority found that "People commonly rely on their own

physicians to guide them...in matters of life and death. It is the doctor's

fault, not the patient's, if the physician does not offer the appropriate

guidance" (Supra @ 1231).

The Henderson panel found that "in order to constitute a defense, insanity

must be the result of circumstances beyond the control of the actor" (Supra @ 664).

A mental health patient in distress is in a uniquely vulnerable position

as compared to patients with physical ailments. He lacks, or has severely

compromised, the ability to view his situation and behavior objectively.

His situation is comparable to a ship at sea being tossed by a storm. The

captain depends on a competent and vigilant lighthouse keeper to raise a

beacon and guide him to safe harbor, instead of one whose lackadaisical

indifference leads to a shipwreck upon the rocks. A patient in the midst of

such a squall has not the-wherewithal to question their physician's

judgement, instructions, and guidance.

D. In light of the opiate crisis, denying an involuntary intoxication

defense to iatrogenically addicted defendants violates the Equal

Protection guarantees of the Fifth Amendment.

"The federal sovereign, like the States, must govern impartially. The

concept of equal justice under law is served by the Fifth Amendment's

guarantee of due process" found the majority in Hampton (@100).

The Presidential Memorandum of October 26, 2017, "Combatting the National

drug demand and opioid crisis" states:

"It shall be the policy of the United States to use all lawful

means to combat the drug demand and opioid crisis currently affecting

. our country. Individuals, families, and communities across the

■ United States continue to be devastated by an unprecedented

. epidemic of drug abuse and overdose, including of prescription opioids

;heroin, and illicit synthetic opioids." and "Three factors are

driving the opioid aspect of this crisis in particular. First, since

the 1990's, there has been a dramatic rise in opioid pain medication

prescriptions.Second, heroin from Mexico has flooded the country."

Substitute "amphetamine" for "opioid pain medication" and "ice" (high

purity -methamphetamine) for "heroin" and you have an analogous situation- a

prescription drug blitz paving the way for an unquenchable demand for illicit

drugs.

As a result of this policy, the federal government has begun to pursue

doctors (such as the defendant in Jain) that inappropriately prescribe

medications in volume for profit, also known as running a "pill mill",

because of the needless addictions and deaths caused by a physician's failure

10.

to exercise caution and care when diagnosing and prescribing and failing to

appropriately monitor and supervise patients at risk of addiction.

Victims of addiction stemming from a physician's negligence are denied the

equal protection of the laws when they are prosecuted by the same government

that pursues the negligent physicians that injure them, but grants them no mercy

for their negligently inflicted injuries. Prosecuting both perpretrators and

victims is not consistent with justice, but tyranny. To not allow the involuntary

intoxication defense in these circumstances compounds this inhumanity.

E. Punishing patients for physician's mistakes has a chilling effect

on mental health treatment.

As a result of the COVID-19 pandemic lockdown and resulting social isolation

mental illness and addiction rates have risen to unprecedented levels. Our fellow

citizens will require skillful diagnosis, careful treatment, and vigilant

monitoring to help them recover so they may return to their roles as

contributory citizens, skilled workers, and beloved friends and family members.

In many cases, doctors and patients will be able to quickly and accurately

uncover pathologies and improve their mood and behavior with therapies, both

m- --»$•

cognitive and pharmaceutical. In other cases, , a patient's treatment may not

improve, and may even worsen their conditions. Like any imperfect science,

undesirable outcomes are inevitable. Sadly, some of these circumstances will

involve behavior that deteriorates into legal transgression due to mistakes,

whether honest or careless, on the part of the physician. When this is the case,

neither the community, health care system, or justice benefits when patients are

made to pay for the mistakes of another.

F. Forbidding the involuntary intoxication defense in these

circumstances runs afoul of the Eighth Amendment's prohibition

of Cruel and Unusual Punishment

11.

In Ford, this Court found that "[insane persons] are not chargeable for

their own acts, if committed under their incapacities: no, not even for

treason itself" (Supra @406)..."it provides no example to others and thus

contributes nothing to whatever deterrence value is intended to be served...

because madness is its own punishment" (Supra @ 407) and "[T]he [Eighth]

Amendment recognizes the "evolving standards of decency that mark the progress

of a maturing society"... therefore. this Court takes into account objective

evidence of contemporary values before determining whether a particular

punishment comports with the fundamental human dignity that the Amendment

protects" (Supra @ 406).

A patient that suffers an injury due to their physician's unskillfulness,

in this case addiction, did nothing to deserve the unjust "punishment" inflicted.

iW:

Many similarly situated patients went for help because they expressly did not

want their behavior to deteriorate to the point that they might hurt themselves

or others.

Punishing behavior that is the result of another's mistake adds insult to

injury. Thhionly behavior deterred in this circumstance is that of vulnerable

people in distress seeking life-saving mental health care, which is

unquestionably against public policy and common sense.

Because defendants with addictions resulting from medical errors are

compelled to use drugs due to circumstances beyond their control, this Court

should find that such defendants are entitled to an involuntary intoxication

defense.

12.

2. The district court abused its discretion in characterizing Petitioner's

intoxication as voluntary and ignoring expert reports diagnosing psychosis

at the time of the offenses.

A. Abuse of discretion defined.

Marshall lays out the abuse of discretion standard: "An abuse of

discretion occurs when a district court (1) fails to consider a relevant factor

that should have received significant weight; (2) gives significant weight to

an improper or irrelevant factor; or (3) considers only the appropriate factors,

but in weighing those factors commits a clear error of judgement" (Supra @ 719)

B. Insanity Defense

United States Code, Title 18, Section 17 reads:

"(a) Affirmative Defense. It is an affirmative defense to a

.prosecution under any Federal statute that, at the time of the

'commission of the acts constituting the offense, the defendant,

as a result of a severe mental disease or defect, was unable to f *v.v

appreciate the nature and quality or the wrongfuiness of his acts.

. Mental disease does not otherwise constitute a defense."

C. Psychosis, regardless of the cause, satisfies the "severe mental

disease prong of the Insanity Defense statute.

Psychosis

is defined as "fundamental derangement of the mind

characterized by defective or lost contact with reality especially as evidenced

by delusions~\ hallucinations., and disorganized behavior" (Merriam-Webster's

Page 1004).

Methamphetamine Psychosis is recognized as a mental disease by the

American Psychiatric Association in the Diagnostic and Statistical Manual of

Mental Disorders (DSM) IV (pg. 389-390)

Federal courts have found that psychotic behavior fits the definition of

a "severe mental disease" referenced in the statute (Dixon @ 399). Nothing in

the statutory language precludes this defense in cases of substance induced

psychosis.

13.

D. Drs. Blessing and Savarese's reports are-'admissible under Rule 702.

Federal Rule of Evidence 702, Testimony by Expert Witness states:

"A witness who is qualified as an expert by knowledge, skill

experience, training, or education may testify in the form of

an opinion or otherwise if:

(a) the expert's scientific, technical or other specialized

knowledge will help the trier of fact to understand the evidence

or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(d)the expert has reliably applied the principles and methods to the

facts of the case.

Dr. Savarese based his opinion and report on over 100 hours of

interviews and records review. Dr. Blessing based his opinion on a personal

interview and a battery of neuropsychological tests. Both expert's reports

and opinions satisfy all the criteria requuired by the rule.

E., Savarese and Blessing both have experience that qualifies them as

expert witnesses.

In Qilliss, the court found that "If the subject matter falls within a

person's experience... this is sufficient to qualify the witness as an

expert (Supra @ 1278).

Savarese has over 30 years experience in forensic-,-, clinical; and \r

medical social work, and possesses a PhD in Clinical Social Work/Social Policy,

-while Dr. Blessing has a PhD in Neuropsychology. Experientially and j

educationally, both are qualified to render an opinion on Keeter's behavior.

Additionally, Dr. Savarese has been qualified as an expert in federal

cases (Kidd), as has Dr. Blessing (Lynne).

E. Federal- courts have recognized Psychologists as expert witnesses

for over 60 years.

In 1962, the court in Jenkins found: "...a psychologist's competence

to render an expert opinion...must depend on the nature and extent of his

14.

knowledge.. .When...training is followed by actual experience in the treatment

and diagnosis of disease-.'... the Opinion of the psychologist may be properly

received into evidence." (Supra @ 645).

Precedentially, there is no foundation for disallowing Dr..: Blessing and IT~f

Dr. Savarese to be qualified as experts, since they have been previously

qualified as such.

F. The precedents cited by the court do not involve misdiagnosed

defendants.

The precedents cited, by the district court that apparently preclude an

involuntary intoxication defense are simply not equivalent situations.

To make clear, the court states in its Order of July 21, 2021 (Appendix B)

that the.Petitioner was misdiagnosed and misprescribed amphetamines.

In,-F.D.L., the defendant illegally consumed laced (with POP) marijuana,

but was still '.'able to appreciate the nature and quality of wrongfulness of

their acts!'. (Supra @ 1117).

Long Crow "consumed large amounts of alcohol" v(Supra('!@ 1321) but was not

til

addicted-nor had he ever been prescribed alcohol as part of a psychiatric

treatment regimen, and "was not insane at the time of the offense" (Supra @ 1322).

In Knott, the defendant "drank and [consumed] a..."white powder" (Supra @

1120)., Again, the defendant had never been prescribed alcohol or anything

analogous to the "white ponder" to treat his schizophrenia.

None of these defendants had been prescribed a Schedule II controlled

substance as a result of a physican's: .error prior to their offenses.

6. The district court gave improper weight to Dr. Brady's report.

Keeter underwent treatment for PTSD (the proper diagnosis for his ['

15.

]

symptoms) with Dr. Don Brady, PhD.

Dr, Brady is not trained in forensic evaluations., nor was he ever asked

to conduct one in this case. His report was issued to show-that Keeter

successfully completed voluntary treatment and to provide the court

some background information on brain functioning during addiction. As such,

his report only concerns his experience as Keeter's treating clinician and

in no way reflects his thoughts or opinions about Keeter's state of mind at

the time of the offense.

Because Dr. Brady's report does not serve as a forensic exam, and is

therefore irrelevant, the district court abused its discretion by giving it

improper weight while also disregarding and ignoring the relevant forensic

reports of Dr, Savarese and Dr. BlessingO

16.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

17.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.