Amicus Curiae Brief — Ake v. Oklahoma

No. 83-5424

IN THE

Supreme Court of the United States

OCTOBER TERM. 1983

GLEN BURTON AKE.

Petitioner

STATE OF OKLAHOMA.

Respondent

ON WRIT OF CERTIORARI TO THE

OKLAHOMA COURT OF CRIMINAL APPEALS

MOTION FOR LEAVE TO FILE AND

BRIEF FOR THE NEW JERSEY DEPARTMENT

OF THE PUBLIC ADVOCATE AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

LAURA M. LE WINN* JOSEPH H. RODRIGUEZ

Acting Director Public Advocate

Division of Mental Department of the

Health Advocacy Public Advocate

MICHAEL L. PERLIN Richard J. Hughes

Special Counsel to the Justice Complex

Public Advocate CN 850

Trenton. New Jersey 08625

(609) 292-7087

* Counsel of Record

THE COPY CENTER, INC., 615 Chestnut Street, Philadeiphia, PA 19106 215-928-1900

BEST AVAILABLE COPY §

ole

NO. 83-5424

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

GLEN BURTON AKE,

Petitioner,

Vv.

STATE OF OKLAHOMA,

Respondent,

MOTION FOR LEAVE TO FILE

A BRIEF AS AMICUS CURIAE

The New Jersey Department of the

Public Advocate! (Department) respect-

fully moves this Court for leave to file

4 The Department is specifically

empowered to "represent the public

interest in such administrative and court

proceedings .... as the Public Advocate

(Footnote continued on next page)

-2-

the attached brief amicus curiae in this

case. The consent of the attorney for

the petitioner has been obtained; the

attorney for the respondent has neither

consented to nor opposed the Department's

request. ?

The Department, an independent and

unigue executive agency of New Jersey

state government, N.J.S.A. 52:27E-2, has,

for almost ten years, litigated exten-

sively in major areas affecting “the

public interest." During this period,

(Footnote 1 continued)

deems shall best serve the public

interest.” N.J.S.A. 52:27E-29. “Public

interest" is defined as "an interest aris-

ing from the Constitution, decisions of

the court, common laws or other laws of the

United States or of this State inhering in

the citizens of this State or in a broad

class cf such citizens." N.J.S.A.

52:27E-30. Within the Department, the

Division of Mental Health Advocacy

(Division) was established to represent

“indigent mental hospital admittees” in

individual matters involving their admis-

sion to, retention in, or release from

“mental hospitals,” N.J.S.A. 52:27E-24, and

to represent such persons in class actions

on “an issue of general application to

them," N.J.S.A. 52:27E-25.

=3-

the Department has participated in a

wide variety of proceedings involving

issues relating to housing, utility

regulation, employment, the environment

and the rights of the mentally handi-

capped. ”

2

The Division has litigated one case

to this Court, see Rennie v. Klein 653

F. 2d 836 (3 Cir. 1981), vacated -- U.S.

--, 102 S. Ct. 3506 (1982), on remand

720 F. 2d 266 (3 Cir. 1983), and has

filed amicus briefs in three other cases

involving mental health issues within

its relevant experience and expertise.

Kremens v. Bartley, 431 U.S. 119 (1977);

farken v.75. at amv. J.R., 442 U.S. 584 (1979),

Jones v. United States, -- U.S. --,

103 S. Ct. 3043 (1983). ath

The Office of the Public Defender

(Office), see N.J.S.A. 2A:158A-1 et seq.,

which is administratively housed in the

Department and provides criminal defense

services to all indigent persons in the

State charged with indictable offenses,

provided representation in this Court of

respondent in Stickland v. Washington,

-- U.S. --, 52 U.S.L.W. 4565 (1984).

-4-

The interest of the Department in

this case arises from its long-term

representation of persons charged with

crime whose mental state is at issue,°

of institutionalized persons who wish to

refuse the involuntary imposition of

certain forms of powerful psychotropic

medications, * and of persons facing

5

involuntary civil commitment. The

3

See, e.g., State v. Fields, 77 N.J.

282, 390 A. 2d 574 (1978) (right of in-

sanity acquittees to periodic review of

commitments); State v. Khan, 175 N.J.

Super. 72, 417 A. 2d 585 (App. Div. 1980)

(right to contemporaneous competency

determination prior to imposition of in-

sanity defense over defendant's objections) ;

In re A.L.U., 192 N.J. Super 480, 471 A.

24 63 (App. Div. 1984) (further articula-

tion of periodic review rights of in-

sanity acquittees).

See Rennie, supra. This Court has

recently acknowledged that the liberty

interests of involuntarily committed

mental patients “are implicated by the

involuntary administration of antipsychotic

drugs." Mills v. Rogers, 457 U.S. 291, 299

n. 16 (1982).

5 See, $4: In re Geraghty, 68 N.J. 209,

343 A. 24 737 (1975) (promulgation of court

rule mandating appointment of counsel at

(Footnote continued on next page)

~~ =

Court's decision in the instant case will

directly affect this Department's

clientele on a wide range of issues in-

volving insanity defense determinations,

the right to effective counsel, and the

right to be free from the unwanted im-

position of powerful medical treatment.

The Department seeks leave to file

its brief in order to augment the views

presented by the parties on the central

issues in this case, namely: (1) the

right of an indigent criminal defendant to

independent medical expertise in further-

ance of an asserted defense of insanity;

and (2) the prejudicial effect to

petitioner of the administration of psycho-

(Footnote 5 continued)

all commitment hearings); In re Alfred,

137 N.J. Super. 20, 347 A. 2d 537 (App.

Div. 1975) (scope of right of person facing

commitment to appointment of independen-

psychiatric evaluation at county expense).

-6-

tropic medication through the course of ole

his trial, to an extent which affected : r>. 83-5424

his demeanor and ability to communicate

during his trial. IN THE

To the best of our knowledge, no SUPREME COURT OF THE UNITED STATES

other amicus or party in this case will OCTOBER TERM, 1983

deal with these matters from the same

GLEN BURTON AKE,

perspective as this Department has.

PETITIONER

For the above reasons, the Depart-

Vv.

ment respectfully requests leave to file

, STATE OF OKLAHOMA,

the attached brief amicus curiae in this

RESPONDENT

case.

Respectfully submitted,

ON WRIT OF CERTIORARI TO THE

JOSPEH H. RODRIGUEZ OKLAHOMA COURT OF CRIMINAL APPEALS

BRIEF FOR THE NEW JERSEY DEPARTMENT

OF THE PUBLIC ADVOCATE AS AMICUS CURIAE

Acting Director,

Division of Mental

Health Advocacy

MICHAEL L. PERLIN

Special Counsel to the

Public Advocate

*Counsel of Record

-i-

TABLE OF CONTENTS

STATEMENT OF INTEREST OF

AMICUS CURIAE eeeeeeeeeeeeeeeee

SUMMARY OF ARGUMENT eeeeesenteeees

ARGUMENT

I.

If.

ACCESS TO THE ASSISTANCE

OF INDEPENDENT PSYCHIATRIC

EXPERTISE IS INDISPENSABLE

TO A MEANINGFUL ASSERTION

OF AN INSANITY DEFENSE ....

A. The Role Of Independent

Medical Experts On

Behalf Of Criminal

Defendants Asserting

An Insanity Defense At

Trial, Is Of Historical

GRADERS cccccecccsscsoce

B. Failure to Afford A

Criminal Defendant An

Independent Expert In

Furtherance Of A Prof-

fered Insanity Defense

Vitiates The Adversarial

Process Which Is The

Hallmark Of A Full And

Fair Trial eeenseeeeseeeeeee

THE INVOLUNTARY MEDICATION

OF PETITIONER WITH THORAZINE,

AFFECTING HIS DEMEANOR AND

ABILITY TO COMMUNICATE

DURING TRIAL, VIOLATED DUE

PROCESS AND EQUAL PROTEC-

TION RIGHTS .....ccceccecees

Page

19

47

- Page

A. The Known Properties

Of Thorazine And Its

Probable Effects On

ee SS here

B. The Relevant Caselaw

And Other Authorities

Support Petitioner's

Arguments Against

His Drugging ...... coos 86

CONCLUSION ..-ceeccccecccccvccs e- 65

-iv-

-iii-

TABLE OF AUTHORITIES TABLE OF AUTHORITIES--Continued

CASES Page

Page

Adams v. United States ex rel

McCann, 317 U.S. 265 (1942) ... 21 Estelle v. Smith, 451 U.S. '

*“enereenrtr #e#ee#kie##eee#ee#e# 23 2

Addington v. Texas, 441 U.S. eatin

4 6 { 79) eee eee e eee eee eee eens 41 Estelle Vv. Williams, 425 U.S. a

Ake v. Oklahoma, 663 P. 24 1 Bc SORASEPS <9. 59508

(Okla. Ct. Crim. App. (1983)..28, 48, G.D. Searle & Co. Vv.

63 ~ Institutional Drug Dis-

Anderson v. State of Arizona, tributors, 141 f:_EUPP. 838

663 P. 2d 570 (Ariz. Ct. Geses Ges BOOED cecccccges 49

App. Mn eth £6 bEEEBE Ebb 0 0 53

Gideon v. Wainwright, 372 U.S.

Barefoot v. Estelle, -- U.S. --, Sr uk ..... 19

103 S. Ct. 3 pf

Brinks v. Alabama, 465 F. 2d Hadfield's Case, 27 Howell St.

446 (5 Cir. 1982), cert. den. Tr. 1281 (K.B. 1800) ...... 11

409 U.S. 1130 (1983), reh. Hansford v. United States, 365

den. 410 U.S. 960 (1983).... 24, 27 F. 2d 920 (D.C. Cir. 1966 .. 56

Chesney v. Adams, 377 F. Supp.

8 7 (D. Conn. 1974) oeeeeeeeee 50 Illinois .- Allen, 397 U.S.

Commonwealth v. Louraine, 390 scccccccecccces Sh, 63

Mass. -E.

437 (S.J. Ct. eS In re Alfred, 137 avs Super.

20, 347 A. 2a 53 App. Div.

Davis V- Hubbard, 506 F. Supp. 1975) en EGA TE, ph 1 a 3

915 (N.D. Ohio 1980) ........ 53 |

Davis v. United States, 160 U.S. In re A.L.U., 192 Be eeeer

Gee Cl seutndd do dansiccss: 386, 19 + Me A. 2d 63 (App. Div. .

Eddi s v. Ol Ok1l , -- U.S. --, *“e fefeeneneeee et @eeeeeertee#eete#*

102 Ss. Ct ee 869 (1982) .. eee eeeene 28 In aT era 8 N.J. 209,

Ee ee Pceceesos &

Ellis v. United States, 484 F. Supp. -

In re K.K.B., 609 P, 2d

a. Sp. Ct. 1980)..... 53

-V—-

TABLE OF AUTHORITIES --Continued

Page

In re Pray, 133 Vt. 253, 336

A. 4 (1975) ee eeneneee 57, 58

Jamison v. Farabee, No. C-78-

N.D. Calif. (Consent

Order filed April 26, 1983).. 53

Johnson v. Zerbst, 304 U.S. 458

eseeeereensteneeeneneeeeneneeneteee 19

Jones v. -- --, 103

S$. Ct. 03 ‘assay OS NOM

Lockett v. Ohio, 438 U.S. 586

*enereeneeneeeneneteneneeneeeeee 28

Loe v. United States, 545

~ Fe Supp. 662 (E.D. Va. 1982).. 24

Matlock v. Rose, -- F. 2d --

Cir. April 9, 1984) ...... 37

McMann v. Richardson, 397 U.S.

e*oenereseeneeensneneneeeene eee 19

Mills v. Rogers, 457 U.S. 291

eee eee ee eewneeeeneneeee 2, 50,

58

“Waghten's Case, 10 Cl. & F.

g. Rep. 718 (H.L.

1843) eee eevee e ee eee eeeneeneee 14, 16

Morissette v. United States, 342

—t.s (1952) ;

=a” eee ee eee ee een ee 7

-vi-

TABLE OF AUTHORITIES--Continued

Page

Noggle v. Marshall, 706 F. 2d

(6 Cir. 1983), cert.

den. -- U.S. --, 104

we YS - =eviounw-r 40

People v. Ackles, 304 P. 2d

UEP! (C.A. 3rd Dis. Calif.

1956) eeeeeeee eee eeeeneeeeereee 49

Peters v. State, 516 P. 2d 1373

B. CE. 1973) wcccccccees 63

Porter v. Estelle, 709 F. 2d 94¢

“(5 Cir. 1983), cert. den.

sub nom. Porter v. McKaskle,

— -- U. ne —~* 52 U. Ss. L.W. 3825

(AGED Zi dcadacceac? Vecdis cc 26

Powell v. Alabama, 287 U.S. 45

D cvccccccccccccccccces

19, 21,

42

ect Release v. Prevost, 722

2 Cir. re 53

Requna v. Oxford, 9 Car. & P. 525 13

ale ee eweee#ensenee#e#ee#e#ee#ee##ee#e#e®

Rennie v. Klein, 462 F. Supp.

D. . . 1979) Jovandecoceeut 54

Rennie v. Klein, 476 F. Supp.

“1204 (DIN.J. 1979) -.s.....-. ©3533

Rennie v. Klein, 653 F. 2d 836

r. ,» vacated, --

U.S. =~ 4 102 Ss. Ct. 3506

(1982), on remand 720 F. 24

266 (3 Cir. 1983) ...eeeeees 2

-vii-

TABLE OF AUTHORITIES--Continued

Page

Rennie v. Klein, 720 F. 2d 266

(3 Cir. 1983) oeeeeeeeeeeeeeeee 2, 62

Rivera v. Franzen, 33 Crim. L.

tr. 2276 (N.D. Ill.

May 27, 1983) e*eeeeeeeeeeeeeeeee 24

Mass. 489,

458 N.E. 2d 308 (S.J. Ct.

1983) . *eeneeeeeeeeneeneeneeeneeeee 53, 57

Rogers v. Okin, 478 F. Supp.

D. Mass. 197 *eeieneweeee#es 53

Ruiz v. Estelle, 503 F. Supp.

~ 1265 (S.D. Tex. 1980) 650 F.

24 555 (5 Cir. 1982), 666

F. 24 854 (5 Cir. 1982),

679 F. 24 1115 (5 Cir. 1982),

688 F. 24 266 (5 Cir. 1982),

cert. den. oo U. Ss. =~. 103

S. Ct. 1438 (1983) .........----+ 50

Sanders v. U.S., 373 U.S. 1

) cccccccccccsccesccessseses 96

Scott v. Plante, 532 F. 2d 939

(3 Cir. 1976), 641 F. 2a 119

(3 Cir. 1981), vac. and rem.

458 U.S. 1101 (1982), on remand

691 F. 24 634 (3 Cir. 1982) ..... 55

State v. Fields, 77 N.J. 282, 390

=e 78) ee eeeeeeeeeeee#ee#e« 2

State v. Hamilton, 441 So. 2d 1192

(La. Ss. ct. 1983) eee eeeeeeeee 28, 40

-viii-

TABLE OF AUTHORITIES~--Continued

Page

State v. Khan, 175 N

Super. 72, 417 A. or 585

— BOWs BOGE Sicccccccce 2

State v. Kociolek, 23 N

400, 129 A. 2a 417 (1387) we 40

State Vv. = flaryott Wash.

6, 4 50 3d 239 TIS, 57, 58,

State v. hy, 56 Wash. 2d tay,

‘3 ae 57, 58

State v. Noel, 102 N.J.L. 659,

A. 274 (E.&A. Se éeée 27

State v. Spencer, 21 N.J.L.

-&.T. 46) “eee eee eevee 17

Stone v. Smith, Kline & French,

= , Slip Opinion, (1l

Cir. May 14, 1984) .......... 52

Strickland v. ma shi Daron, -- U.S.

—"s * * * . 1984). 20, 22,

40

Suzuki v. Quisenberry, 411

. FER - - Haw.

ee fe eeeeeneneeeeneeeeee#e 61

United States v. Alvarez, 519

i" r. BP cece 38

United States v. Bass, 477 F.

r. ) *e eee ee 34, 36

Brawner, 471

972).. 7

-ix-

TABLE OF AUTHORITIES--Continued

Page

United States v. Caldwell,

543 F. 2d 1333 (D.C. Cir.

1975), cert. den. 423

U.S. 1087 (1976) ........-.2+. 34, 37

United States v. Chavis, 476

F. 24 1137 (D.C. Cir. 1973) .. 34

United States v. Currens, 290

F. 2a 751 ) Cir. 1961) ee ee ee 16

United States v. Durant, 545 F.

2 (2 Cc r. 6) *eeeeneenenee 35

United States v. Schultz, 431

F. 24 907 (8 Cir. 1970) ..... 30, 31,

35, 36

United States v. Taylor, 437

F. 2d 371 (a Cir. 1971) escecccee 37

United States v. Theriault, 440

F. 2 7 3 { = r. 7 ),

cert. den. 411 U.S. 984

(1983) see ee eee eee ee eee ee ee eee 32, 33

36

United States v. Tucker, 716

F. 2d 576 rt) Cir. 1983) “eee ee © 23

United States v. Wilson, 471

F. 24 1072 (D.C. Cir. 1982)

cert. den. 410 U.S. 957

{ 3) eee eee eee ee ee eee ee eeee 51

Vitek v. Jones, 445 U.S. 4°0

( ) eee e ee eee eee eee eee eee eee 50

Washington v. Texas, 388 U.S. 14

(1967) *e @eeeee eeeeee eeeeees * « * 29

Washington v. United States,

Ze . . r. 1967) ** 18

-xX-

TABLE OF AUTHORITIES--Continued

Page

Whitehead v. Wainwright, 447

F. S . 898 (M.D. Fla.

Taya) vac. and rem.

609 F. 2d 223 (5 Cir.

Do sededdedeescecoe eres 56

Wood v. Zahradnick, 430

F. S . 107 (E.D. Va.

177) aff'd 578 F. 2d

980 (4 Cir. 1978), further

proceedings at 611 F. 2d

1383 (4 Cir. 1980) .......- 24

STATUTES

18 U.S.C. 83006A(e) ....... ve Me P

33, 36, 39

18 U.S.C. 84244 ..........-.. 33, 39

P.L. 91-447, 81, Oct. 14,

1970 eeeeveeveev eevee ee eee eneeee 30

CONSTITUTIONAL PROVISIONS

United States Constitution,

tt th 6 bb ae 6 THEL 22

United States Constitution,

Amendment VI i 2m a Re @ 20, 21,

22, 24, 26, 38

United States Constitution,

t XIV e*eneeesee#e?¢ eeee#es 19

OTHER AUTHORITIES

Ayd, "A Survey of Drug Induced

Extrapyramidal Reactions,"

175 J.A.M.A 1054 (1961) ..... 48

-xi-

TABLE OF AUTHORITIES--Continued

Page

Biggs, The Guilty Mind

(2955S) cccceccese Se ceedccoes 9

Birley, Marcus Aurelius

(1966) ......00- TUTTI TTL 4

Block, “The Semantics of

Insanity," 36 Okla L. Rev.

SEL (AGBS) -ccedéeosedeese Sone < 16

2H. Bracton, De Legibus Et

Consuetudinibus Angliae

(S. Thorne Trans. 4363) seve 8

Broom, A Selection of Legal

Maxims (London 1845) ....... 9

Burt and Morris, "A Proposal

for Abolition of the In-

competency Plea," 40

U. Chi. L. Rev. 66 (1972) .. 61

Bushman and Reed, "“Tranquilizers

and Competency to Stand Trial,"

54 A.B.A.J. 284 (1968) eee 58, 59

Cameron and Wimer, "An Anti-

cholinergic Toxicity Reaction

to Chlorpromazine Activated

by tat sigs saggy Stress,"

167. ._Nerv. & Ment. Dis.

508 (978 eoceccsccccececoes 52

Coke, The First Part of the

Institutes of the Laws of

England, or a Commenta

Upon Littleton (17th ~'s

*eesereeneteeneteneteensteeseee#nee@ee#eesteee 9

TABLE OF AUTHORITIES--Continued

Page

Diamond, “Isaac Ray and the

Trial of Daniel M'Naghten,"

112 Am. J. Psych. 651 (1956) ... 15

Deniker, “Impact of Neuroleptic

Chemotherapies on Schizophrenic

Psychoses," 135 Am. J. Psych.

923 (1978) ccccccccccccccccscccs

Detre and Jarecki, Modern

Psychiatric Treatment

ispinsett, ieaieeneeee oe

"Developments in the Law: Civil

Commitment of the Mentally

Ill," 87 Harv. L. Rev.

1190 (1974) *eeeeesee#ee2eete#e#ee#ee#e¢

Ennis and Litwack, "Psychiatry

and the Presumption of Ex-

pertise: Flipping Coins in

the Courtroom," 62 Calif.

L. Rev. 693 (1974) wwceeecees 44,

Ferleger, “Loosing the Chains:

In-Hospital Civil Liberties

of Mental Patients,” 13

Santa Clara Law. 447 (1973) ..

Goldberg and Breznitz, eds.,

Handbook of Stress: Theoretical

and Clinical Aspects

(1983) oc cccee covcccccccccvcscees

Golten, "Role of Defense Counsel

in the Criminal Commitment

Process," 10 Am. Crim. L.

Rev. 385 (1972) ..ceeeeeeeeeee 43,

Group for the Advancement of

Psychiatry, Misuse of Psychiatry

In the Criminal Courts:

Competency to Stand Trial

February, 1974) ...eececceseees

$2

50

61

45

61

53

44

59

-xiii-

TABLE OF AUTHORITIES--Continued

Page

Guttmacher, The Mind of the

Murderer (1960) ...ccccccecess 10

Haddox, Gross and Pollack,

"Mental Competency to Stand

Trial While Under the

Influence of Drugs,"

7 Loyola L.A.L.R. 425 (1974) .. 60

Haddox and Pollack,

"Psychopharmaceutical Re-

storation to Present Sanity

(Mental Competency to Stand

Trial), 17 J. Por. Sci.

SEE (1972) cccccccccccccccceses 60

l Hale, The Histo of the

Pleas of the Crown (London 1736).. 9

Halleck, “American Psychiatry

and the Criminal: A

Historical Review," 1 Rieber

and Vetter (eds.), The

Psychological Foundations

of Criminal Justice (1978) ....... 11

Halleck, "The Role of the

Psychiatrist in the Criminal

Justice System, " Psychiatry

1982 Annual Review, (1982) ... 17

Hartley and Couper-Smartt,

"Paradoxical Effects in

Sleep and Performance of Two

Doses of Chlorpromazine," 58 (2)

Psychopharmacology 201 (1978) .... 55

-xiv-

TABLE OF AUTHORITIES--Continued

Page

Hartley, Couper-Smartt and

Henry, “Behavioral Anta-

gonism Between Chlorpromazine

and Noise in Man," 55

Psychopharmacology 97 (1977)..

Hawkins, A Treatise of the

Pleas of the Crown (London

BUSSE cccccvcccoscesescccocces

Hermann and Sor, "Convicting

of Confining? Alternative

Directions in Insanity Law

Reform: Guilty But Mentally

Ill Versus New Rules for

Release of Insanity

Acquittees," [1983] Brig.

Young L. Rev. 499 ....seeeeees

Hollister, “Adverse Reactions

to Phenothiazines" 189

J.A.M.A. 311 (1964) ..........

sasanity racense and Related

Cr na rocedure Matters,

H. Rep. No. _ 77,

Cong. lst Sess. (1983) ......

Kinross-Wright, "The Current

Status of Phenothiazines,"

200 J.A.M.A. 461 (1967) .....

Kolb and Brodie, Modern

Clinical Psychiatry,

(10 BG. L982) wcccccccccces

52

10

48

48

52

-xV-

TABLE OF AUTHORITIES--Continued

Page

McBain, “The Insanity Defense:

Conceptual Confusion and

the Erosion of Fairness,"

67 Marguette L. Rev. 1 (1983).. 3

National Commission on the

Insanity Defense, Myths .

and rie (1982) “rrTrTTTTT

Perlin and Sadoff, “Ethical

Issues in the Representation

of Individuals in the Commit-

ment Process,” 45 L. & Contemp.

Prob. 161 (1983) aeeereeneenee eee 43

Physicians' Desk Reference

48

(1984 Cd.) ccc ceecccceceecccees

Plucknett, A Concise Histo

of the Common Law (5th ed.

1956) eeeeoeeeeeeeeeeeeeeneneeeneeeeeee 8

Poythress, “Mental Expert

Testimony," 5 J. Psychiatry

& L. 201 (1977) epeeeeee eee 44, 45

Poythress, "Psychiatric

Expertise in Civil Commitment:

Training Attorneys to Cope

With Expert Testimony,"

2 L.& Hum. Behav. 1 (1978) ... 42

Quen, “An Historical View of

the M'Naghten Trial," 1 Rieber

and Vetter (eds.), The

Psychological Foundations of

Srteinsl Justice (1978) ...... 15

-xvi-

TABLE OF AUTHORITIES--Continued

Page

Ray, A Treatise on the Medical

Juris ence of Insanit

( 9838) eeereeeeeeeeeeeeeeee

Rodriguez, LeWinn and Perlin,

"The Insanity Defense Under

Seige: Legislative Assaults

and Legal Rejoinders,” 14

Rutgers L. J. 397 (1983) .... 3

Scrignar, "Tranguilizers and

the Psychhotic Defendant,"

53 A.B.A.J. 43 (1967) ....... 58

Simon, “The Defense of Insanity,"

ll J. Psychia & L. 183

(198 lime eeeeeeeabheoeeeece se eee 10

Simon, The J and the Defense

Of Insanity (1967) ....... — es 10

2 The Civil Law (S. Scott ed.

ck ) ee 9

2 U.S. Cong. & Admin. News

64) eseeeere eeeeeeseseeee 31

Van Putten and May, “'Akinetic

Depression’ in Schizophrenia,"

35 Arch. Gen. Psych. 1101

(1978) eeeeeeeeeneeeeneeeneeee#eee#ee#es 55

Weihofen, Mental Disorder As A

Criminal Defense (1954) ........ 9

Winick, “Psychotropic Drugs And

Competence to Stand Trial,"

1979 Am. Bar Fndtn. Res.

J. 769 | SOSecececeocece cS, 39

15, 54

-2-

-xvii- STATEMENT OF INTEREST

TABLE OF AUTHORITIES--Continued The interest of the New Jersey

Page Department of the Public Advocate in this

Winsberg and Yepes, “Anti- case arises from its long-term representa-

psychotics (Major Tranquilizers,

Neuroleptis)” in Werry ed., tion of persons charged with crime whose

Pediatric Psychopharmacol : 1

The Use of patos Hodi fying mentiil state is at issue, of

en ef

Drugs in Chi , (1978) 62

institutionalized persons who wish to

Ziskin, Coping With Psychiatric refuse the involuntary imposition of

and Ps dical Testimony 45, 46 certain forms of powerful psychotropic

medications, *

and of persons facing

1

See, e.g., State v. Fields, 77 N.J.

282, 390 A. 24 574 (1978) (right of

insanity acquittees to a p+ review

of commitments) ; Bee , 178

N.J. S - 72, 417 A. App. Div.

Tsao) (right to contemporaneous competen-

cy determination prior to imposition of

insanity defense over defendant's

a an z A.L.U., 192 N.J.

i re wee Be (App. Div.

further articulation of periodic

review of rights of insanity acquittees).

2

See, Rennie v. Klein, 653 F. 2d

102 S. Ct. 3506 (1982) , onr "720

F. 24 266 (3 Cir. 1983). This Court

has recently acknowledged that the

liberty interests of involuntarily

committed mental patients “are implicat-

ed by the involuntary administration of

anti hotic drugs. lls v. Rogers,

457 us. 291, 299 n. ERR Rae

=3-

involuntary civil commitment. : The

Court's decision in the instant case

will directly affect this Department's

clientele on a wide range of issues in-

volving insanity defense determinations, *

the right to effective counsel, and the

right to be free from the unwanted

imposition of powerful medical treatment.

3 See, e.g., In re Geraghty, 68 N.J.

209, 343 A. 24 737 11378) loromulgation of

court rule appointment of counsel at all

commitment hearings); In re Alfred, 137

N.J. Super. 20, 347 A. 2d 537 ies: Div.

scope of right of person facing

commitment to appointment of independent

psychiatric evaluation at county expense).

. The Department's concern for -- and

advocacy on behalf of -- various issues

generated by the ongoing public debate

on the very concept of the insanity de-

fense, has been reflected on a national

scale. See, e.g., National Cc ssion on

the Insanit fense, Myth 7. alities

; anit . ins ele atec

Criminal Procedure Matte N

, =e Pp- °°

an ’ : ong. ss., 5-6 n. 7-8,

10-11 (1933). See also Rodriguez, LeWinn,

and Perlin, “The Insanity Defense Under

Seige: Legislative Assaults and Legal

Rejoinders," 14 Rutgers 7 J.. 397 (1983);

McBain, "The Insanity ense: Conceptual

Confusion and the Erosion of Fairness,"

67 Mar tte L. Rev. 1, 4 n. 15, 7-9

n. ie

-4-

SUMMARY OF ARGUMENT

In criminal trials at which the

question of defendant's mental capacity

at the time of commission of the alleged

offense is raised in defense, access by

such defendant to independent psychiatric

experts is essential both to aid in

presentation of the defense and to re-

but evidence which may be offered in

Opposition by the prosecution. The

critical role played by such experts in

these proceedings is well-established and

has long-standing historical roots.

A defendant's right to access to

independent experts in insanity trials

inheres in his very ability to obtain

effective assistance of counsel and a

fair trial. An indigent defendant,

therefore, is entitled to appointment of

such an independent expert on his be-

half, by authorization of the court.

=

The very nature of psychiatric

expertise itself requires that parties

to the proceedings be adequately

equipped to subject such evidence to

rigorous adversarial testing.

With respect to the issue of the

administration of psychotropic medication

during his trial, amicus contends that

such a practice was inherently

prejudicial to petitioner. The medication

in question, Thorazine, affected his

demeanor and capacity to communicate.

As such it deprived him of his ability

to participate in his trial and to con-

trol his appearance before the jury. In

light of these severe consequences,

petitioner should at least be afforded

the protection of a pre-trial hearing at

which the need for such medication would

be the core inquiry.

I.

ACCESS TO THE ASSISTANCE OF

INDEPENDENT PSYCHIATRIC

EXPERTISE IS INDISPENSABLE TO

A MEANINGFUL ASSERTION OF

AN INSANITY DEFENSE

A. The Role Of Independent

Medical Experts On Behalf Of

Criminal Defendants Asserting

An Insanity Defense At Trial

Is Of Historical Origins

The questions of criminal intent and

blameworthiness form the core inquiry

into the susceptibility to punishment of

an individual charged with the commission

of a crime. Consideration of criminal

intent is based on the assumption that a

person has the capacity to choose between

right and wrong, that he has a sense of

wrongdoing. "The concept of ‘belief in

freedom of the human will and of con-

sequent ability and duty of the normal

individual to choose between good and

evil’ is a core concept that is ‘universal

and persistent in mature systems of law.'"

-7-

United States v. Brawner, 471 F. 2a 969,

985 (D.C. Cir. 1972), quoting Morissette

v. United States, 342 U.S. 246, 250

(1952).

In this regard, the insanity defense

has been a major component of Anglo-

American jurisprudence for over 700

years.” Concomitantly, the role of expert

; The insanity defense has been in

existence since at least the twelfth

cent :

put what shall we say of a mad-

man bereft of reason? And of

the deranged, the delirious and

mentally retarded? Or if one

labouring under a high fever

drowns himself or kills himself?

e whether such a one commits

elony de se. It is submitted

that he does not,nor do such

persons forfeit their inheritance

or their chattels, since they

are without sense and reason and

can no more — an injures nal

or a felo t a cr

since chew ane not far removed

from brutes as is evident in

the case of a minor, for if he

should kill another while under

age he would not suffer judgment.

[That a madman is not liable is

true, unless he acts under pre-

tense of madness while enjoying

(Footnote continued on next page)

-8-

medical witnesses in insanity trials has

long-standing historical roots.

(Footnote 5 continued)

lucid intervals].

2H. Bracton, De Legibus Et Consuetudinibus

Mgitse 424 (c. 0) (S. Thorne Trans.

Before Bracton, the sources of the

insanity defense at common law can be

traced at least to the Roman legal

authorities that influenced Bracton. See

generally, Plucknett, A Concise Histo

of the Common Law 261-62 (5th ed. 1956} .

For example, in the Digests (or Pandects)

of Justinian first published in A.D. 533,

the following commentary on the insanity

defense appears in an imperial "“rescript"

issued by the brother emperors Marcus

Aurelius (A.D. 120-180) and Commodus

(A.D. 161-192) during the period of their

joint reign (A.D. 177-180);

If it is positively ascertained

by you that Aelius Perscus is to

such a degree insane that, through

his constant alienation of mind,

he is void of all understanding,

and no suspicion exists that he

was pretending insanity when he

killed his mother, you can disregard

the manner of his punishment,

since he has already been

sufficiently punished by his in-

sanity; still, he should be placed

under careful restraint, and, if

you think proper, even be placed

in chains; as this has reference

not so much to his punishment as

to his own protection and the

safety of his neighbors.

(Footnote continued on next page)

-9-

Like the insanity defense,

the practice whereby the

courts call in experts to

advise them on matters not

(Footnote 5 continued)

If, however, as often happens

he has intervals of sounder

mind, you must diligently in-

quire whether he did not

commit the crime during one

of these periods, so that no

indulgence should be given to

his affliction; and, if you

find that this is the case,

notify Us, that We may deter-

mine whether he should be

punished in proportion to the

enormity of his offense, if he

committed it at a time when

he seemed to know what he was

doing. _

2 The Civil Law 259 (S. Scott ed.

1973) For another translation, see

Birley, Marcus Aurelius 272-73 (1966).

The max eriv rom this Roman

commentary -- furiosus solo furore

unitur (a madman is punished by his

madness alone) -- appears in numerous

English cases and treatises on the

insanity defense. See, e.g. Broom,

A

Selection of Legal Maxims (London 1845);

Coke, The First Part of the Institutes

of the Laws of England, or a Commentary

Upon Littleton s496 (17th ed. 1817).

See also, 1 Hale, The Histo of the

Pleas of the Crown - Lo n 36);

Hawkins, A Treatise of the Pleas of the

Crown, 1-3 (Londo n 1739); Biggs, The

47-56, 81-88 (1955); Weihofen,

Mental Disorder as a Criminal Defense

Footnote continu on next page

-10-

generally known to the average

person goes back a long time:

in Engligh courts, over four

centuries. Initially, the

experts were used as technical

assistants to the court, rather

than as witnesses. The judge

summoned experts to inform him

about technical matters; he

then determined whether the

information should be passed on

to the jury. By the middle of

the seventeenth century, when

the finding of the facts had

become the exclusive province

of the jury, the practice of

court-appointed experts re-

porting to the judge was abandon-

ed; instead, the experts were

called as witnesses by the parties

involved in the dispute. Simon,

"The Defense of Insanity" 11

J. Psychiatry & L. 183, 193 (1983)

(Footnote 5 continued)

52-59 (1954); Simon, The Jury and

The Defense of Insanity, 16-20

); see generally Hermann and

Sor, “Convicting or Confining?

Alternative Directions in Insanity

Law Reform: Guilty But Mentally

Ill Versus New Rules for Release

of Insanity Acquittees," [1983]

Brig. Young L. Rev. 499, 506-515:

For an overview of the evolution of

expert testimony in trials generally,

see Guttmacher, The Mind of the Murderer

109-117 (1960) (hereinafter "“Guttmacher").

("By the last quarter of the seventeenth

century the practice of employing partisan

rg st] had become well established," id.

at .

-ll-

Since at least the beginning of the

nineteenth century, “the search for

biological explanations of deviant

behavior has been unremitting. This is

particularly true of that deviant be-

havior which is labelled as criminal."

Halleck, “American Psychiatry and the

Criminal: A Historical Review," in l

Rieber and Vetter (eds...) , The Psychological

Foundations of Criminal Justice, 8 (1978)

(hereinafter Psychological Foundations).

This development of medical involve-

ment in issues of criminal responsibility

is reflected in early nineteenth century

cases such as Hadfield's Case, 27 Howell

St. Tr. 1281 (K.B. 1800). The defendant,

charged with high treason by virtue of

his attempt to assassinate King George III,

interposed a defense of insanity. Among

the witnesses called on his behalf were:

(1) Henry Cline, esq. [sic], described

-12-

by defense counsel, Lord Erskine, as

“known to be one of the first anatomists

in the world," id. at 1320; (2) Doctor

Creighton, "a physician . .. [who had]

applied particular attention to the

disease of madness,” id. at 1334; and

(3) Mr. Lidderdale, described as "a

surgeon,” id. at 1335. Mr. Cline, the

anatomist, testified to the possibility

of brain damage sustained by the defend-

ant from head wounds received in battle,

as a result of which, "[i]t frequently

happens .. . there is some derangement

of the understanding." Id. at 1334. Dr.

Creighton stated: "I have not the

smallest doubt that he [defendant] is

insane .. . . He is not amaniac, but

he labours under mental derangement of a

very common but particular kind." Id.

at 132.. And the surgeon, Lidderdale,

testified to having examined defendant

-13-

some four years earlier, "[iln the

spring of 1796, [when defendant was]

brought in, in a state of insanity,” and

treating him with “bleeding, blistering,

and cathartics." Id. at 1335-36. The

jury returned a verdict of "Not Guilty:

he being under the influence of Insanity

at the time the act was committed.” Id.

at 1356.

Likewise, in Regina v. Oxford, 9

Car. & P. 525 (N.P. 1840) -- again

involving a charge of high treason stem-

ming from defendant's attempt to assassin-

ate Queen Victoria -- "[sleveral eminent

medical men were also called for the

prisoner . .. . They all gave it as their

decided opinion that he was of unsound

mina." ’ Id. at 541. Here, too, the

, A footnote to the opinion at the end

of the above-quoted passage, states “no

medical men were examined on the part of

the prosecution, though it appeared that

Mr. Maule, the solicitor to the Treasury

(Footnote continued on next page)

-14-

jury found the prisoner “not guilty, he

being insane at the time." Id. at 55l.

In the landmark trial in M'Naghten's

Case, 10 Cl. & F. 200, 8 Eng. Rep. 718

(H.L. 1843), the medical evidence --

adduced by witnesses "called on the part

of the prisoner” 10 Cl. & F., supra, at

201 -- established that the defendant

was “affected by morbid delusions" which

carried him away beyond the power of his

own control and left him no... [moral]

perception [of right and wrong].”" Id.

No less than eight medical experts

testified as to defendant's insanity; four

specifically testified that his disease

deprived him of control over his actions,

and one, Dr. E.T. Monro, described the

“type of thinking [which] is common in

(Footnote 7 continued)

was present at an interview which those

who were examined for [i.e., called by]

the prisoner, had with him in Newgate.”

Id. at 541, n. (a).

-15-

paranoid schizophrenia." Quen, “An

Historical View of the M'Naghten Trial,”

in Psychological Foundations, supra, at

93-94. Defense counsel made “extensive

and almost exclusive reference to the

work of the American physician, Isaac

Ray,® in his [counsel's] attempt to

demonstrate that legally exculpable

insanity should include more than disease

of the intellect." Id.at 93.7

. Ray is referred to as “the leader of

forensic psychiatry in [the United Sates] ,"

in Guttmacher, supra at 121. Writing

nearly 150 years ago, Ray stressed the

“utmost importance” of medical testimony

at au insanity defense trial, Ray,

A Treatise on the Medical Jurisprudence

of Insanity (1838), 027 at 48, eetisleer

ed. 1962), noting it was essential that

such testimony be "founded on extra-

ordinary knowledge and skill relative to

the particular disease, insanity," *d.,

828 at 50. M'Naghten's lawyer focused

on Ray's writings on insanity in his

summation to the jury. See Diamond,

“Isaac Ray and the Trial of Daniel

M'Naghten,” 112 Am. J. Psych. 651, 652-

654 (1956).

9

This attempt was apparently rejected by

(Footnote continued on next page)

-16-

The M'Naghten trial had a gal-

vanizing effect on the medico-legal

concept of insanity:

Earlier, there was only a de-

sultory interest in the medical

jurisprudence of insanity among

British physicians. The legal

and Parliamentary reaction to the

trial focused their attention and

concern on this subject.

. * *

In America, the M'Naghten Rules

are still being debated. One

result ... {has been] the

increased attention to the neuro-

psychiatric aspects of criminality([.)"

Id. at 96 [footnotes omitted).

While the rule of M'Naghten -- with

respect to the proper legal definition

of, or test for, insanity -- may have

sparked debate, see, e.g., Davis v.

United States, 160 U.S. 469, 479-80 (1895),

United States v. Currens, 290 F. 2d 751

(Footnote 9 con-cinued)

Chief Justice Tindal, who charged the jury

essentially in terms of defendant's cog-

nitive snag comm 4 Quen, Psychological

poungations. 8 at 94. See also,

discussion of this point,

Block, “The Semantics of Insanity,” 36

wes -18-

As will be discussed further in

(3 Cir. 1961), the crucial role of

Point IB, infra, in cases where an

medical experts in insanity trials has

insanity defense is interposed to

long been recognized. As at least one

criminal charges, a defendant's access

commentator has noted:

to independent medical expertise is, by

Psychiatric testimony in insanity

cases serves three purposes: now, inextricably intertwined with his

first, it supplies the court with

facts concerning the offender's very ability to obtain a fundamentally

illness; second, it presents in-

formed opinion concerning the

nature of that illness; and third,

fair trial.

it furnishes a basis for deciding .

whether the illness made the (Peotncte <0 continued)

patient legally insane at the time subject of insanity; and I

of the crime under that juris- believe those judges who care-

diction's standards of insanity. fully study the medical writers

Halleck,”"The Role of the Psychiatrist and pay the most respectful

in the Criminal Justice System," but discriminating attention

in Psychiat 1982 Annual Review to their scientific researches

386~ 451 (1882) 10 — ts ”0)dhUS on the subject, will seldom, if

ever, submit a case to a jury

7 in such a way as to hazard the

See, e.g., State v. r, 21 conviction of a deranged man.

N.J.L. 196, 208 (0. & T. Tet6) (cited in See also, Washington, v. vouted States,

Davis v. United States, 160 U.S. SUpre 390 F. 2d oe. Gale or a

Dee hich chiet Justice Ho ower thoughtful analysis by Chief Judge

acknowledged the debt owed to medical Bazelon of the need “in future cases to

experts by “the administrators of criminal ensure that the issue of responsibility

law" in insanity defense trials, to wit: is decided upon sufficient information,"

I mean no disrespect to the id. at 451, and a discussion of how to

learned writers on medical juris- render medical expert testimony more

prudence, or other distinguished comprehensible to juries in criminal

men of the medical profession. trials, id. at 454.

On the contrary, I consider the

administrators of criminal law

greatly indebted to them for the

results of their valuable experience,

and professional discussions on the

(Footnote continued on next page)

-19-

B. Failure To Afford A Criminal

Defendant An Independent Expert

In Furtherance Of A Proftered

Insanity Defense Vitiates

The Adversarial Process Which

Is The Hallmark Of A Full And

Fair Trial

This Court has long recognized that

the right to counsel guaranteed by the

Sixth Amendment to the Constitution is

essential in order to protect a criminal

defendant's fundamental right to a fair

trial, Powell v. Alabama, 287 U.S. 45, 71

(1932); Johnson v. Zerbst, 304 U.S. 458,

462 (1938); Gideon v. Wainwright, 372 U.S.

335, 342-45 (1963), and that this

fundamental right is applicable to the

several states through the Fourteenth

Amendment, Gideon, 372 U.S., supra at 341.

Specifically, “(i]t has long been

recognized that the right to counsel is the

right to effective assistance of counsel."

McMann v. Richardson, 397 U.S. 759, 771

n. 14 (1970).

-20-

Most recently, the standards by

which the constitutionally adequate

effectuation of this right should be

measured were articulated by this Court

in Strickland v. Washington, -- U.S. --,

52 U.S.L.W. 4565 (1984). There, in

weighing a criminal defendant's claim

of ineffective assistance of counsel in

a capital case, the “benchmark” for

judging such a claim was described by

the Court as “whether .. . the trial

cannot be relied uponas having produced

a just result.” Id. at 4570. The purpose

of the Sixth Amendment guarantee was

identified as “simply to ensure that

criminal defendants receive a fair trial,"

and “to ensure that a defendant has the

assistance necessary to justify reliance

on the outcome of the proceedings,”

id. at 4571. In assessing the inter-

relationship between the various components

-2l-

which comprise a "fair trial,” the Court

stated:

Thus, a fair trial is one in which

evidence subject to adversarial

testing is presented to an im-

partial tribunal for resolution

of issues defined in advance of

the proceeding. The right to

counsel plays a crucial role in

the adversarial system embodied

in the Sixth Amendment, since

access to counsel's skill and

knowledge is necessary to accord

defendants the “ample opportunity

to meet the case of the prosecution”

to which they are entitled.

[citing

ex rel

287 U.S., supra at

Referring specifically to the question of

prejudice to a defendant from counsel's

errors in the context of a capital case,

the Court stated:

When a defendant challenges a

death sentence such as the one

at issue in this case, the

question is whether there is a

reasonable probability that,

absent the errors, the sentencer

-- including an appellate

court, to the extent it

that the balance of aggravating

-22-

and mitigating circumstances

did not warrant death.

Id. at 4572

The Court then concluded that:

In every case the court should

be concerned with whether,

despite the strong presumption

of reliability, the result

of the particular proceeding

is umreliable because of a

breakdown in the adversarial

process that our system counts

on to produce just results.

Id. at 4573.11

ii

It is acknowledged that the "break-

down in the adversarial process" which

concerned this Court in Strickland,

s a, was bottomed on a claim of errors

or deficiencies in trial counsel's

performance wh’ch prejudiced the defense,

52 U.S.L.W. supra at 4570-71, whereas,

in the instant case, the "breakdown" and

"prejudice" claimed by defendant stem

from actions or decisions of the trial

judge. Notwithstanding this distinction,

the Strickland concepts of a fair trial

and “the adversarial system embodied in

the Sixth Amendment," id. at 4570, are

directly pertinent to a consideration of

the claims here.

-23-

In short, the inguiry on appeal should

focus broadly on whether the trial

below constituted a “reliable adversarial

testing process." Id. at 4570.

Application of these principles to

the instant case leads directly to the

conclusion that the trial proceedings at

issue fell far short of the "reliable

adversarial testing process" envisioned

by this Court. By refusing to appoint an

independent psychiatric expert to examine

defendant with respect to his mental

‘state at the time of the offense, the

trial court effectively precluded him

from adducing evidence of his one

ostensibly viable defense, at both the

guilt - and penalty °° phases of trial.

12 cf. united States v. Tucker, 716 F. 2d

576, 580 Cir. efense counsel was

ineffective in failing to pursue and pre-

pare adequately defendant's “only plausible

theory of defense [which was] readily

apparent.")

13 See, e.g., Estelle v. Smith, 451 U.S.

(Footnote continued on next page)

-24-

Criminal convictions stemming from

trial proceedings similar to those in the

instant case, have consistently been

overturned on appear. ‘4 See, for

example, Brinks v. Alabama, 465 F. 2d

(Footnote 13 continued)

454, 472 (1981) ("A defendant may request

or consent to a psychiatric examination

concerning future dangerousness in the hope

of escaping the death penalty.")

ae Inycases where a similar result

ensued from error or inaction on the part

of the defense attorney, criminal con-

victions have been reversed, on the

grounds of ineffective assistance of

counsel. For example, in Wood v.

Zahradnick, 430 F. Supp. 107 (E.D. Va.

1977), atft'd 378 ¥- oe 2d 980 (4 Cir. 1978),

further proceedings at 611 F. 2d 1383

(4 Cir. 1980), the trial lawyer's failure

to obtain a mental examination of the

defendant in aid of a viable insanity

defense, was characterized by the court

as "so below the standard of reasonable

competence that it amounted to a

deprivation of [defendant's] Sixth Amend-

ment right to counsel." 578 F. 2d supra

at 982. See also, Loe v. United States,

545 F. SUPR 662 (E.D. Va. 1982); and

Rivera v. Franzen, 33 Crim. L. tr. 2276

(N.D. Ill. May 27, 1983), ng that a

defendant who claims ineffective assistance

of counsel due to his attorney's failure

to investigate an insanity defense, does

not have to show prejudice stemming from

(Footnote continued on next page)

-25-

446 (5 Cir. 1972), cert. den. 409 U.S.

1130 (1973), reh. den. 410 U.S. 960

(1973), a case closely analogous to the

instant matter on the issue of a state

judge's refusal to order a pre-trial

sanity investigation pursuant to state

law. The court found, based on the facts

before it, that the trial court "exceeded

the allowable range of its discretion"

under Alabama law in denying a motion

for a pre-trial sanity hearing brought by

defendant's attorney based on evidence

consisting of letters from lay witnesses

and the attorney's personal opinion

that his client “appeared to be insane.”

Id. at 447. The appellate court stated:

(Footnote 14 continued)

such failure in order to prevail on

appeal. The court stated: "This Court

would be awash in a sea of culation

were it to make a determination that a

colorable insanity defense . . . could not

have persuaded a jury that the petitioner

was insane and therefore not legally

responsible for his actions." Id. at 2277.

-26-

[A]part from his claim that

the state arbitrarily denied him

a sanity investigation, Brinks

advances a second argument which

necessitates reversing his

conviction. Under the due process

and equal protection provisions

of the Fourteenth Amendment and

the Sixth Amendment's guarantee

of effective legal counsel,

Brinks contends that, because

of his indigency, he was unable

to secure expert testimony to

present to the state court before

it considered whether there was

enough evidence to order a sarity

investigation. Had he been

affluent, or had the state provided

him with funds, Brinks claims

he could have introduced evidence

which would have compelled a

sanity investigatica.

w * * &

Under these circumstances, we fail

to see how Brinks could have

received adequate representation

from his appointed attorney.

Moreover, the main thrust of the

argument of petitioner's counsel

in this court is that he could not

adequately represent petitioner

because of the lack of an available

expert witness. Id, at 448

[footnote omitted]. +>

15

Cf. Porter v. Estelle, 709 F. 2d 944

(S Cir. 1983), cert. den. sub nom.

Porter v. McKaskle, -- U.S. --, 52 U.S.L.W.

), where Justice Marshall,

dissenting from the denial of certiorari

in a capital case in which the trial court

(Footnote continued on next page)

-27-

As noted above, Brinks is strikingly

similar to the instant case with respect

(Footnote 15 continued)

refused to order a psychiatric examination

to determine defendant's competency to

stand trial, stated:

[A] substantial body of both

medical evidence and evidence

pertaining to petitioner's behavior

cast doubt upon petitioner's

ability to comprehend the proceedings

against him. Surely the Court

of Appeals erred in concluding that

the cumulation of data was in-

sufficient to entitle petitioner

to a competency exam. 52 U.S.L.W.

supra, at 3826.

The dissent would grant certiorari

"“le]specially because the correct answer

to that question [i.e., what is the

standard for det ing when a trial judge

has a constitutional obligation to order

a psychiatric examination to determine

defendant's competency to stand trial)

determines whether petitioner lives or

dies[{.]" Id. at 3835 (emphasis added) .

See, in this regard, State v. Noel, 102

N.J.L. 659, 680, 133 A. 274, 283 (EB. & A.

("The law has always been zealous

in the protection of one who has lost

his reason... ~. Toexecute one bereft of

reason would afford no example to others.

It would be cruel and inhuman.”

(Footnote continued on next page)

-28-

to the pre-trial insanity investigation

request on the part of the defendant.

The constitutional infirmities found by

the Brinks court as inherent in the

factual setting before it, likewise

should be found by this Court to inhere

in the situation under review here. Cf.

Ake v. Oklahoma, 663 P. 24 1, 8 (Okla.

Ct. Crim. App. 1983). See also, State

v. Hamilton, 441 So. 2d 1192 (La. Sup.

Ct. 1983), holding that defendant's

“constitutional right to present a

(Footnote 15 continued)

See also, Eddings v. Oklahoma,

--U.S. --, 102 S. Ct. (1982), revers-

ing a death sentence because of limita-

tions placed by the trial court upon

mitigating evidence, at the sentencing

phase, which was directed at demonstra-

ting defendant's background and family

history. The Court held this action

violated the rule in Lockett v. Ohio,

438 U.S. 586 (1978), that, in capital

cases, the sentencer not be precluded

from considering “as a mitigating factor,

any aspect of a defendant's acter or

record," 438 U.S., supra at 604 (emphasis

in original), quot Eddings, 102

S. Ct., supra at 874.

-29-

defense [citing Washington v. Texas, 388

U.S. 14 (1967)]," id. at 1194, was

violated by the trial judge's exclusion

of “the unquestionably relevant testimony,”

id., of a psychiatrist offered by the

defense, in a case where “(d)jefendant's

only viable defense was insanity,” id.

Decisions by various federal courts

concerning applications for appointment

of independent experts under provisions

of the Criminal Justice Act of 1964, 18

U.S.C. 83006a(e) *° are instructive here;

in construing the scope and intent of

that statute, these courts have articula-

ted principles and considerations which

support petitioner's contentions

18 U.S.C. §3006A(e) currently pro-

vides, in pertinent part:

Counsel for a person who is

financially unable to obtain

investigative, expert, or other

services necessary for an ade-

guste defense may request them

mh an ex parte application.

Upon finding, after appropriate

(Footnote continued on next page)

-30-

here regarding access to independent

psychiatric expertise in aid of his

proffered insanity defense. See, for

example, United States v. Schultz, 431

F. 24 907 (8 Cir. 1970) (the purpose of

the statute is “to provide the accused

with a fair opportunity to prepare and

present his case,” id. at 911,’ and

noting further that “the adversary system

(Pootnote 16 continued)

inguiry in an ex parte pro-

ceeding, that the services

are necessary and that the

person is financially unable

to obtain them, the court, or

the United States magistrate

if the services are required

in connection with a matter

over which he has jurisdic-

tion, shall authorize counsel

to obtain the services. P.L.

- 91-447, 81, Oct. 14, 1970.

In the course of its analysis of this

issue, the court alluded to a portion of

the legislative history of the statute

as follows:

President John F. Kennedy, in

transmitting pues’ for this

type of iegislation to Congress

wrote House Speaker John McCormack

of the great need for such enactment:

(Footnote continued on next page)

-3l-

cannot work successfully unless each

party may fairly utilize the tool of

expert medical knowledge to assist in

the presentation of this issue [mental

competency] to the jury.” ta.) +

(Footnote 17 continued)

18

In the typical criminal

case the resources of

government are pitted

against those of the

individual. To guarantee

a fair trial under such

circumstances requires that

each accused person have

ample opportunity to gather

evidence, and prepare and

present his cause. Whenever

the lack of money prevents

a defendant from securing

an experienced lawyer,

trained investigator or

technical e t, an un-

just conviction may follow.

2 U.S. Cong. & Admin. News

p. 2993 (1964). Id. at 909,

n. 2

A further observation made by the

schultz court is os pertinent

facts of t instant case, to

wit:

Schultz, in fact, never

had the benefit of any

psychiatric examination or

evaluation directly related

to his defense of insanity.

True, the Federal Medical

(Footnote continued on next page)

-32-

Both the result and the rationale

of the Schultz decision were subsequently

endorsed by other courts. See, e.g.,

United States v. Theriault, 440 F. 2d

713 (5 Cir. 1971), cert den. 411 U.S.

984 (1973) (trial judge could not properly

deny appointment of an expert under

(Footnote 18 continued)

Center physicians examined

him to determine his com-

petency to stand trial, but a

substantial difference may

exist between the mental

state which permits an

accused to be tried and

that which permits him to te

held responsible for a

crime. United States v.

Driscoll, 399 F. 2d 135

(24 Cir. 1968). Examination

for the purpose of

competency to stand trial

may require less exactness

than those examinations

designed to determine san-

ity for the purpose of

£4. "at 912 teitations

omitted).

-33-

18 U.S.C. 83006A(e) on the basis that an

earlier appointment had been made under

18 u.s.c. $4244 19 on the igsue of

defendant's competency to stand trial).

In his opinion concurring in the result,

Judge Wisdom stated:

I would read the statute ..

as requiring authorization for

defense services when the

attorney makes a reasonable

request in circumstances in

which he would independently

engage such services if his

Client had the financial means to

support his defenses. The

trial judge should tend to rely

on the judgment of the attorney

who has the primary duty of

providing an ‘etoquate defense.

440 F. 2d supra at 717.

19

18 U-8-C- $4244 authorizes a court,

under certain circumstances, to compel a

defendant to submit to psychiatric

examination for the purpose of determining

competency to stand trial; the results of

such examination are reported to the court.

-34-

See also, United States v. Chavis, 476

F. 24 1137 (D.C. Cir. 1973) (18 U.S.C.

§3006A(e) “comprehends within its

definition of ‘expert witness’ the

assistance of a psychiatric expert in

preparing and presenting an insanity

defense,” id. at 1141, and such expert

“is intended to serve the interests of

the defendant," id. at 1142);°" and

United States v. Bass, 477 F. 2¢ 723, 725

20

Cf. United § ldwell, 543

F. 24 1333 (D.C. a OLE cert. den

423 U.S. 1087 (1976), finding no error in

a trial judge's denial of defendant's pre-

trial “enkias for examination by a

particular psychiatrist, which examination

would have been in addition to those given

earlier by court-appointed experts to

assess defendant's competency to stand

trial. At the time of the motion, the

only issue before the trial court was

defendant's competency, leading the

appellate court to conclude: “When the

trial court is satisfied that it can re-

sOlve the issue of competence without

additional intments, we cannot con-

strue the failure to do so as a denial of

expert assistance for a substantive

defense of insanity." Id. at 1350.

However, the court underscored “the

distinction between appointment of

(Footnote continued on next page)

-35-

(9 Cir. 1975) (an independent expert

should be appointed, pursuant to the

statute, “when the defense attorney makes

a timely request in circumstances in

which a reasonable attorney would engage

such services for a client having

independent financial means to pay for

them. ")

(Footnote 20 continued)

psychiatrists to aid the presentation of

an insanity defense and such an appoint-

ment to assist the court in determining

competence to stand trial.” Id.

For an application of

v. Schultz in another context, see

a Vv. , 545 F. 24 823

. ’ revers error

in the trial judge's refusal -- in a

case where fingerprint evidence was

“pivotal” -- to coronene an independent

expert in that field on behalf of an

indigent defendant. The Court stated:

[T]he of the [Criminal

Justice] Act, confirmed its

legislative history, is c ly

to redress the imbalance in the

criminal process when the

resources of the United States

Government are pitted against an

indigent defendant ... .

[T]he Act must not be emasculated

by niggardly or iate

construction. Id. at 827

-36-

As noted above, although decided in

the context of claims under 18 U.S.C.

§3006A(e), cases such as these articulate

fundamental equitable principles which

should serve to guide this Court in its

disposition of defendant's constitutional

claims in the instant case. The “opportun-

ity to present a meaningful defense

based on lack of criminal responsibility,"

Schultz, 431 F. 2d, supra at 912, was

clearly lacking here. The request for

an independent expert was, under the

circumstances, eminently reasonable and

appropriate. See, Therisult, 440 F. 2d

supra at 717 (Wisdom, J., concurring), and

Bass, 477 F. 2d, supra at 725. In short,

the equitable considerations which have

led courts to a liberal construction of

18 U.S.C. $3006A(e) -- particularly in

insanity defense cases -- should lead to

a similarly favorable construction of

-37-

the constitutional claims of a criminal

defendant, under sentence of death, who

had no such statutory protection avail-

able to him under the law of the State

in which he was wie

Furthermore, the distinction between

examinations by court-appointed experts

to determine competency to stand trial,

and examinations by independent experts

appointed by the court at the government's

expense to aid in a defendant's presenta-

tion of the insanity defense, as clearly

outlined in cases such as Schultz and

Caldwell, both supra,is pertinent here.

Further articulation of the distinction

21

See also, Mar lore y PaaS: ~

F. 2a -- (6 Cir., Apr ’ which

notes that “(t]he case law is still

developing on the scope of the

constitutional duty to supply experts,”

slip op. at 13, but states unequivocally:

"The need for psychiatric experts in a

case in which insanity is the only defense

is obvious [citing United States v. Taylor,

437 F. 2d 371 (4 Cir. 1971)) * id. at 13,

a. 3

-38-

can be found in United States v. Alvarez,

519 F. 2d 1036 (3 Cir. 1975), in which

the court took great pains to delineate

the difference between the two types of

examination with particular regard to

the self-incrimination implications for

22

defendants subject to such procedures.

22

Cf., Estelle v. Smith, 451 U.S

supra, finding violations of both.

Fifth and Sixth Amendment privileges in

the State's use -- at the penalty phase

of a capital trial -- of the contents

of defendant's disclosures made in the

course of a court-ordered psychiatric

examination to determine competency to

stand trial; defendant had introduced no

psychiatric evidence on his own behalf at

trial. The Fifth Amendment violation

inhered in the State's effort to meet its

burden of proof of defendant's future

dangerousness by using defendant's

statements “unwittingly made without an

awareness that he was assisting the

State's efforts to obtain the death

penalty.” Id. at 466. The Sixth Amend-

ment violation was found to exist in the

denial to defendant of counsel's

assistance in "making the significant

decision of whether to submit to the

examination and to what end the

psychiatrist's findings could be employed."

Id at 471. In reaching these conclusions,

Court noted, without elaboration,

that “a different situation arises where

(Footnote continued on next page)

-39-

The court found no violation of the

privilege against self-incrimination in

the government's use at trial of the

report and testimony of the psychiatrist

appointed pursuant to defendant's

application under 18 U.S.C. 8§3006A(e),

since -- unlike examinations ordered under

18 U.S.C. 84244 -- defendant's disclosures

to the 83006A(e) expert were "entirely

voluntary." Id. at 1045. However, the

court did find an inherent Sixth Amend-

ment violation in such a situation, inso-

far as an expert retained to assist a

defendant may be forced to be an in-

voluntary government witness. The court

concluded: “The effect of such a rule

would, we think, have the inevitable effect

of depriving defendants of the effective

(Footnote 22 continued)

a defendant intends to introduce psychia-

tric evidence at the penalty phase.”

Id. at 472, 465-66, n. 10.

-40-

assistance of counsel in such cases.”

Id. at 1046. This conclusion was pre-

mised, in turn, upon the court's earlier

pronouncement that "(t]he effective

assistance of counsel with respect to

the preparation of an insanity defense

demands recognition that a defendant be

as free to communicate with a psychiatric

expert as with the attorney he is

assisting ." Id. (emphasis added).

Accord, Noggle v. Marshall, 706 F. 2d

1408, 1413 (6 Cir. 1983), cert. den.

-- U.S. --, 104 §. Ct. 530 (1983).7>

Finally, it is submitted that the

very nature of psychiatric expertise it-

self necessitates subjecting such evidence

to rigorous “adversarial testing" before

the factfinder. Strickland v. Washington,

0 See also, State v. Kociolek, 23 N.J.

400, 129 A. 24 417 (1957); State v.

Hamilton, 441 So. 2d, supra.

-4l-

52 U.S.L.W., supra at 4570. See, in

this regard, Barefoot v. Estelle,

-- U.S. --, 103 S. Ct. 3383 (1983), in

which this Court endorsed the validity

of psychiatric expert testimony on

questions of future dangerousness of

defendants in capital cases, specifically

relying on “the rules of evidence” and

“the adversary system,” 103 S. Ct.

supra at 3397, to enable the factfinder

to accord such evidence its appropriate

weight. 24

Rigorous “adversarial testing,” in

turn, requires that the adversaries

themselves be equipped to handle

effectively both the direct presentation

24

See, Addington v. Texas, 441 U.S. 418,

430 (1999) dar ekich the Cou urt alludes

to the “subtleties and nuances of

psychiatric diagnosis” which “render

certainties virtually meaningless" in the

context of civil commitment hearings at

which the issue is “whether the individual

is mentally ill and dangerous... and

. « « in need of confined therapy.[.)

-42-

of psychiatric evidence as well as

cross-examination of any experts

offered in opposition. Thus, “the

guiding hand of counsel,” Powell v.

Alabama, 287 U.S. supra at 69, itself

requires guidance from the very experts

whose testimony is elicited -- or

challenged -- by counsel. In other words,

the blame for a suspect expert

Opinion must be borne together

by the mental health professional

who presents it and the legal

professionals who wittingly allow

its uncontested presentation.

Poythress, "Psychiatric

Expertise in Civil Commitment:

Training Attorneys to Cope With

Expert Testimony,” 2.L. & Hum.

Behav. 1, 18 (1978).

2

. It has been suggested, furthermore,

that as a general rule:

many lawyers possess scant

know.edge about psychiatric

decision-making, diagnoses,

and evaluation tools. This

shortcoming can seriously

impede their cross-examina-

tion of expert witnesses.

Once psychiatric testimony

is elicited few lawyers

have the special skills to

evaluate such testimony.

(Footnote continued on next page)

-43-

A defense attorney, in a criminal

trial involving the insanity defense,

who is realistically expected to fulfill

his proper role of adducing probative

evidence in support of his client's

claim and in challenging the State's

evidence, must acquire the requisite

psychiatric expertise to accomplish that

task. At least one commentator has

highlighted this imperative in insanity

trials:

Insofar as the psychiatrist's

decision to take one side or

the other on the responsibility

issue is based on pragmatic

considerations or expediencies

and not on the objective facts

about the illness, this raises

serious questions about expert

testimony on the issue of sanity/

(Pootnote 25 continued)

Perlin and Sadoff, "Ethical

Issues in the Representation

Of Individuals in the

Commitment Process,” 45

Ls Contemp. Prob. 161, 166

See also, Golten, “Role of Defense

(Footnote continued on next page)

-44-

insanity. For though it is his

special skill and training

which entitles him to testify

as an expert witness, the

psychiatrist's expert opinion

on the issue of insanity may

be a function of his personal

values and his own pragmatic

judgments, not a function of the

defendant's mental illness in

any objective sense. Poythress,

"Mental Health Expert Testimony:

Current Problems,” 5 J. Psychiatry

& L. 201, 204 (1977)

Thus, defense counsel in insanity trials

must be prepared both to thrust and to

parry with psychiatric expert testimony.

"Cross-examination may suggest the

fallibility of the opposing psychiatrist

and the shortcomings of the psychiatric

profession. But calling to the stand a

psychiatrist who disagrees with the

opposing psychiatrist is an even better

way of forcing judges and juries to use

their common sense.“ Ennis and Litwack,

(Footnote 25 continued)

Counsel in the Criminal Commitment

Process,” 10 Am. Crim. L. Rev. 385

(1972).

-45-

"Psychiatry and the Presumption of

Expertise: Flipping Coins in the Court-

room," 62 Calif. L. Rev. 693, 746

(1974). 7°

Advocacy, alone. does not suffice.

Effective advocacy requires obtaining

7s

Without some knowledge of how

to effectively cross-examine

psychiatric expert testimony

or some appreciation of the

testimony of an independent

mental health examiner [an)

attorney .. .could offer only

a token defense for his client.

Poythress, 5 ze Peychiatry

oe a .

See, gentttiiy” in, Copir as

Psychiatric anc ycholc c

a ed. , for an in-depth survey

and analysis of deficiencies -- and

resultant lack of reliability -- inherent

in a vast array of psychological and

psychiatric methodo ies. In the

author's own words:

It is the aim of this book

to demonstrate that despite

the ever-increasing utiliza-

tion of psychiatric and

psychological evidence in

the legal process such evidence

frequently does not meet

reasonable criteria of

admissibility and should not

be admitted in a court of law,

(Footnote continued on next page)

-46-

meaningful assistance in asserting a

vigorous defense. Without access to

independent psychiatric expertise in aid

of such a defense in insanity trials,

the constitutionally mandated level of

adequate representation by counsel cannot

be met.

(Footnote 26 continued)

and if admitted, should be

given little or no weight.

ad. at vii, quoting "(t]he

rst sentence of the first

issue of this book published

in 1970," id.

-47-

it.

THE INVOLUNTARY MEDICATION OF

PETITIONER WITH THORAZINE,

AFFECTING HIS ci; eae AND ABILITY

TO COMMUNICATE DURING TRIAL, VIOLATED

DUE PROCESS AND EQUAL PROTECTION RIGHTS

A. The Known Properties Of

Thorazine And Its P: sbable

Effects On Petitioner

It is a matter of record in this

case that petitioner was regularly med-

icated against his will with 600 mg. of

Thorazine daily during his trial. See,

Transcript of Trial, June 23-26, 1980, at

469, 560-561, 574-75, 585 and 591. The

question before the Court is the extent

to which defendant was affected by this

forced “drugging,” and.the degree to

which his reaction to the Thorazine

affected both the course and the outcome

of his trial.

The position of amicus curiae is

that a hearing was required on petitioner's

mental status during the trial because

of the well-known properties of

Thorazine, ” its predictable side

effects?® and its as yet unknown, but

very likely, causal relationship to

what the Oklahoma Court of Criminal

Appeals referred to as the *'‘abnormal'

behavior” of petitioner throughout his

capital trial. ?9

27 gee, e.g-., Kinross-Wright, “The

Current Status of Phenothiazines,” 200

J. -A. 461 (1967); see also physicians’

1896 (1984 ed.

28

See . "A Survey of Dr

Induced Ex ; apyramidal Reactions,” 17

J. . 1054 4 11961): see also Hollister,

se Reactions to Phenothiazines,*

189 J.A.M.A. 311 (1964).

a In its opinion, the Oklahoma court

acknowledged the and described

Ake's behavior at trial these specific

terms:

The appellant remained mute through-

out his trial. He refused a con-

verse with his coy ae

stared straight ahead during both

stages of the

proceedings

Ake v. Ohlahoms, 663 P. 24 supra,

a

The Court speculated that “(i)t is quite

possible that the defense of insanity

(Pootnote continued on next page)

-49- -50-

Par from being a new development eventually, this Court. 73 It is un-

in psychopharmacology, Thorazine --

chemically named chlorpromazine --

disputed that, inter alia, Thorazine is

a powerful sedative.°* The caselaw

was the first of the major psychotropic description of this drug's properties

drugs to be developed and has been widely have covered a range from "mild

434 ‘. » 36

used to treat mental illness since its tranquilizer to a “powerful,

- o oF

Gevelopment in the early 1950's. 30 potentially dangerous, and, most

In a very

hort time, Theresine became 33 Vitek v. Jones, 445 U.S. 480 (1980),

widel Transcript of Oral Argument, April 24,

Y GS8h, ORR She SEEpee Gerry 1978, p. 29; Mills v. Rogers, 457 U.S.

came to the attention of many courts, Wage Boag oe One Ose is

both state’! and federal, ** including, and 3060-61

34 Phenothiazines can also be

(Footnote 29 Classified in terms of the drowsiness

continuses that they produce in the first week or

interposed by appellant fostered such two of administration. Given in thera-

behavior on his part.” Id., at 7, n. 4. peutic doses, drugs such as chlorproma-

. zine and thioridazine tend to produce

Winick, “Psychotropic Drugs and | the most drowsiness (and are for this

Competence to Stand Trial,” 1979 reason sometimes called sedative

Am. Bar Fndtn Res. Journal 769, 780. phenothiazines). Detre and Jarecki,

Modern Psychiatric Treatment 536

31 See, ¢.9-; People v. Ackles. 304 P. (Lippincott, 1971) {emphasis in original)

24 1032 (C.A. 3 s. — iia 35

, Ellis v. U.S., 484 F. Supp, 4,6

D.Ss. .

36 Chesney v. Adams, 377 F. Supp. 887,

839 (D. Conn.

ad Ruiz v. Estee 503 F. S . 1265,

1326 oie Tex. )e 650 F. 555 (5

Cir. 1982), 666 FE, 2d 854 (S Cir. 1982), 679 F. 2d 1115

(5 1 Cir. 1982), (Footnote continued on next page)

-5l-

recently “unavoidably unsafe", °°

‘major tranquilizer." ;

An additional factor which this

Court must consider -- and which should

have been considered by the courts below--

is that, in addition to its well known,

predictable and intended effects

(and its equally well known if still un-

intended side effects), Thorazine can

(Footnote 37 continued)

688 F. 24 266 (5 Cir. 1982), cert den.

-- U.S. --, 103 §.C. 1438 (1983).

38

Stone v. Smith, Kline & French,

No. 82-7232, Slip op. t r., May

14, 1984). In that recent case, the

manufacturer of Thorazine successfully

defended a tort claim arising out of a

patient's exposure to the drug by arguing

that Thorazine was an “unavoidably un-

safe" product within the terms of Comment

k to Section 402A of the Restatement

(Second) of Torts.

39 us. vy. Wilson, 471 F. 24 1072, 1074

(D.C. Cir. 1972), cert, den. 410.U.S. 957 (1973).

39 See, n. 28 supra.

-52-

also cause still other effects which vary

widely by dosgage and from individual to

individual, its so-called “idiosyncratic”

responses .*° It is also now well-documen-

ted that the effects of Thorazine, like

those of Other psychotropic drugs, can

even be further affected by the milieu or

context in which it is given, including

whether or not the drugs are taken

voluntarily or -- as in this case -- in-

4

voluntarily. Thus, virtually every case

40

See, $-d-. Deniker, “Impact of

Neuroleptic Chemotherapies on Schizo-

phrenic Psychoses,"” 135 Am. J. Psych.

923 (1978)% see also Kolb and Srotie,

Modern Clinical Psychia 395 (10th ed.

41

See, e.g., Rennie v. Klein, 462

Fy SUE 1 » i -N.J. 9) ("E.

e Efficacy of Forced Medication);" see

also, Cameron and Wimer, “An Anti-

cholinergic Toxicity Reaction to Chlor-

promazine Activated by Psychological

Stress," 167 J. of Nerv. and Ment. Dis. 508

(1979); Hartley, uper- tt a enry,

"Behavioral Antagonism Between Chlor-

promazine and Noise in Man," 55

Paychopharmacolody 97 (1977). See also,

as to the very high degrees of stress

(Footnote continued on next page).

involving the “right a refuse” medica-

tion has specifically included Thorazine

in the list of drugs subject to its

wnt.

As noted above, it is in the very

nature of Thorazine to produce drowsiness,

(Footnote 41 continued)

associated with being charged with,

convicted of and/or sentenced for a crime,

Goldberg and Breznitz,eds., Handbook of

eoretical and Giinical Aspects

F. putt’ $F 1306 ‘SoH N.J. T3795);

ore; States of we ULE 663 P. 2d

3); Davis

yn 506 F.Supp. 915, 92 -D.

D. *, nsent

0445-WHO N. Order ogy

April 26, i983), reported at 7 . D

L._Reptr. 436 (1983); P v.

revost, 722 F. zd 960, n.

. 83) ; Vv. ; 478 . .

1342, 1360 (D. s. ; and s

v. Comm. of Mental Health, 390 Mass. 489, 458

310 n. 3 (S.J.Ct. 1983).

In addition, the Oklahoma “right to

refuse" case, eh sina 609 P. 2d 747

(Okla. Sp. Ct. , clearly includes

Thorazine within its term “major

tranquilizers” although no specific drugs

are named. 609 P..at 748.

-54-

apathy and even resistance to speaking.

Despite the state court's dismissal of

petitioner's “abnormal” behavior as

possibly “fostered by his insanity de-

43

ferise, his demeanor and attitude

could actually have just as likely been

either the result of the forced adminis-

tration of Thorazine or the product of

4

. Allegations of “faking” have been

a standard institutional response to

patients’ complaints about the severe

side effects of psychotropic medications.

See, @.g., Rennie Vv. Klein: 462 F. Supp.

supra at ll s is hardly a new

problem. In 1838, Dr. Issac Ray, the

father of American forensic psychiatry,

noted that:

{T]he supposed insurmountable

difficulty of distinguishing

between fei and real insanity

has conduced, probably more than

all other causes together, to

bind the legal profession to

the most rigid construction and

lication of the common law

elative to this disease, and is

alee put forward in objection

to the more human doctrines.

Ray, A Treati cal Juris-

rudence of Insanity, supra, , at

-55-

his mental illness. “ Only a hearing

on petitioner's mental status while under

medication at the trial could even begin

to answer the question of what factors

were actually responsible for his

admittedly “abnormal” behavior at trizl.

TT

Schizophrenic patients with post-

psychotic depression have been

described as “wooden” in appear-

ance, motorially “inactive or

retarded,” lacking initiative

to perform routine tasks, ex-

periencing overwhelming fatique

and neurasthenic symptoms,

"hypersomnic” and “emotionally

withdrawn." Nearly all reports

comment on the patient's dis-

inclination to speak. All of

these symptoms, however, be

manifestations of anti tic

drug-induced akinesia.

Van Putten and May, “'Akinetic Depression’

in Schizophronia," 35 Aceh. gen Pays

1101 (1978). See also, ey

Couper-Smartt, “Paradoxical Effects in

Sleep and Performance of Two Doses of

Chlorpromazine,” 58 (2) 1

201 (1978); Scott v. pranks. " 9,

945, n. 8 (3 " " 1 F. 117

(3 Cir. 1981), vac. and rem. 458 U.S.1101,

So: bch. dase 41908). on cone tel F. 24

634 r. 1982).

-56-

B. The Relevant Caselaw And

Other Authorities Support

Petitioner's Arguments

Against His Drugging

In a number of well-reasoned cases

and articles, courts and other authorit-

ies have considered the impropriety of

administering medication to defendants

in a manner which primarily affects

their demeanor and ability to communicate

at trial.45

45 Initially, courts have considered

the drugging of defendants, particularly

with narcotics, in the context of effects on

intellectual and cognitive functioning

rather than the issues of demeanor and

communication involved here. See, @-g-,

s v. U.S., 373 U.S. 1 (1963);

Hansford v0.8. 365 F. 24 920, 922-23

oGe r. ). Thus, for example, in

whateness Vv. masoeeegh , 447 F. S .

-D. a. , aff'd on s issue,

vac. and rem. on other grounds, 609 F. 24

223 (5 Cir. 1980), the issue was the

effects of tranquilizers and other drugs

on the defendant's cognitive ability.

-57-

Two of the leading cases --

State v. Murphy, 56 Wash. 2d 761, 355

P. 2d 323 (1960) and State v. Maryott,

6 Wash. App. 96, 492 P. 2d 239 (1971)

have already been extensively dis-

cussed by the parties and the court

bie. The most recent important case

considering the issue of the effects of

drugging on demeanor is Commonwealth v.

Louraine, 390 Mass. 28, 453 N.E. 2d 437

(S. J. Ct. 1983) decided in August, 1983

by the Supreme Judicial Court of

Massachusetts, the same court which in

November, 1983 decided Rogers v.

Commissioner of Mental Health, 390 Mass.

489, 458 N.E. 2d 308 (S.J. Ct. 1983), on

the certification of questions from the

46

See also, In re Pray, 133Vt. 253,

336 A. 24 174 (1975) (jury should have

been informed that defendant was heavily

medicated, thereby affecting his be-

havior at trial.

-58-

First Circuit after the remand from this

Court in Mills v. Rogers, supra. In

Louraine, the Court summarized its views

on the state of the law on the issue now

before this Court, see 453 N.E. 2d supra

at 442-3, and concluded, relying on

Murphy, Maryott and In re Pray, all supra,

that defendant had the right to be tried

in an unmedicated condition; on this

basis the conviction below was reversed.

Thus, it is clear from the earlier

decisions in Murphy, Maryott, Pray and now

Louraine, that such courts are considering

and criticizing the administration of

psychotropic medication which affects de-

meanor and communication as a concern

distinct from the issues of drugging of

defendants vel non and competency

at trial. 47

47

Compare Scrignar, "“Tranquilizers and

the Psychotic Defendant," 53 A.B.A.J. 43

(1967); Bushman and Reed, "Tranquilizers

(Footnote continued on next page)

-59-

Similarly, other well-respected

commentators on the general subject of

drugging defendants have repeatedly

addressed the demeanor issue in terms

consistent with the holdings in Murphy,

Maryott and Louraine and with petitioner's

position hese.” In particular, the

typical side-effects of Thorazine and

other psychotropic drugs have been

specifically noted as factors requiring

regular psychiatric and judicial monitor-

ing of a medicated defendant's mental

(Footnote 47 continued)

and Competency to Stand Trial," 54

A.B.A.J. 284 (1968).

48

See, e.g., Winick, supra at 782:

"The fact that the defendant's com-

petence is drug induced should not dis-

qualify him from trial unless the drug

causee Side effects that materially im-

ruir his ability to understand and

articipate in the proceedings."

aaiaaie added). See also, Group for

the Advancement of Psychiatry: Misuse of

Psychiatry in the Criminal Courts:

Competency to Stand Trial, 963-4

Wealeeary" 1974).

-60-

status during trial.*? It is worth

noting that even earlier comments on

the use of these drugs in trial

specifically highlighted the problems

that the drugs could cause by sub-

stantially altering the demeanor of the

defendant.-?

49

Specific psychiatric-legal

inquiries on the patient-

defendant's mental com-

petency to stand trial

should be conducted

regularly during the entire

period of the patient's

drug treatment ...:- -

Haddox and Pollack, “Psychopharmaceutical

Restoration to Present Sanity (Mental

Competency to Stand Trial)," 17 J. For.

Sci. 568, 575 (1972). See also, Haddox

Gross and Pollack, “Mental Competency

to Stand Trial While Under the Influence

of Drugs," 7 Loyola L.A.L.R. 424, 446-7

(1974).

30 Use of drugs, could, of course,

interfere with a defendant's

competency to stand trial,

if, for example, the drug's

effect were to give him an

odd appearance that might

lead a jury to misinterpret

his courtroom demeanor: an

unperturbed "wooden face"

might give a jury the im-

pression that the defendant is

(Footnote continued on next page)

=i.

To some extent this newly emerging

issue of altered demeanor and restricted

communication ability at trial under

forced medication 51 can be analogized

to the historical practices of binding,

gagging or shackling defendants -

or even to the display before the court

of defendants in prison clothes. >?

To be sure, there are obvious similarit-

ies, in terms of jury prejudice and inter-

(Footnote continued)

a calculating merciless

Criminal ..<« «

Burt and Morris, "A Proposal For Abolition

of the Incompetency Plea,” 40 U. Chi. L.

Rev. 66, 85-6 (1972).

51 The issue of drug-altered demeanor

had also surfaced earlier in the context of

state commitment hearings. See, e.g.,

Suzuki v. Quisenberry, 411 F. Supp. 1114

(D. Haw. 1976). See also, “Developments in

the Law: Civil Commitment of the Mentally

Ill," 87 Harv. L.R. 1190, 1282-3, n. 11 (1974).

" See, e.g., Illinois v. Allen, 397 U.S.

337 (1970). The analogy between drugs and

chains is not original to any one source. See,

e.g., State v. Maryott, supra at 241; see

also Ferleger, "Loosing e Chains: In-

Hospital Civil Liberties of Mental Patients,"

re Santa Clara Law. 447 (1973).

501 (2996) O° 9° Estelle v. Williams, 425 U.S.

-62-

ference with right to counsel, between

the "zombie" or “mask face" drugged

defendant and the bound, gagged and

shackled accused. Yet, even the most

extensive physical restraints can be

removed in a few moments to permit free

movement and communication, whereas

drugging with Thorazine has long-lasting

effects on both demeanor and attitude. >4

A fortiori then, apart from a jury's con-

tinued memoryof any physical restraints

once they are removed, the die is cast

once a defendant has been drugged for

any appreciable period before or during

trial as petitioner was in this case.

In the shackling situation, this

- See, e.g., Winsberg and Yepes,

"Antipsychotics (Major Tranquilizers,

Neuroleptics)" in Werry ed. Pediatric

Psychopharmacology: The Use of Behavior

Modifying Drugs in Children, at 237-38

1978). See also, as to shackles and other

physical restraints compared to psycho-

tropic medication, Rennie v. Klein, 720

F. 2d supra at 274 (concurring opinion of

Weis, 7

-63-

Court has required the application of a

careful set of increasingly restrictive

measures before permitting the final

step of binding, gagging and shackling.>>

Here, there was no determination at

trial of what caused petitioner's behavior

or whether, in effect, he was actually

being chemically bound, gagged and

shackled or being forceably maintained

in a demeanor over which he could ex-

56

ercise no control. Again, as with the

55

See Illinois v. Allen, supra.

56

In Ake v. Oklahoma, 663 P. 2d supra

at 7, the Court sought to distinguis

Peters v. State, 516 P. 2d 1373 (Okla.

Cr. 1973) on the basis that Ake's medica-

ted condition was not for the sole purpose

of facilitating his trial. Given that the

result was the same in the eyes of the

jury, whatever the alleged purpose of the

medication, this seems to be a distinc-

tion without a difference.

-64-

issue of the effects of Thorazine

generally, it is submitted that an

appropriate solution would be to

require a hearing on the demeanor-

altering and communication-restricting

effects of defendant's drugging at time

5

of trial. ’

57

The need for such an inquiry in

turn underscores the imperative of

affording defendants in this

situation access to independent

psychiatric expertise in furtherance

of a proffered insanity defense.

See, pp- 40-46.

-65-

CONCLUSION

Based on the foregoing, amicus

respectfully submits that the convic-

tion and sentence of death should be

reversed and the matter remanded for

re-trial in a manner consistent with

the principles articulated herein.

Respectfully submitted,

JOSEPH H. RODRIGUEZ

PUBLIC ADVOCATE

LAURA M. LE WINN

Acting Director

Division of Mental

Health Advocacy

MICHAEL L. PERLIN

Special Counsel to the

Public Advocate

The assistance of J. Benedict Centifanti,

Law Clerk, and Patrick D. Reilly in

preparation of this brief is gratefully

acknowledged.

*Counsel of Record