Petitioners Brief — Perry v. Louisiana

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No. 89-5120~

In The

Supreme Court of the United States

October Term, 1989

MICHAEL OWEN PERRY,

Petitioner,

VERSUS

STATE OF LOUISIANA,

Respondent.

On \Virit Of Certiorari To The

Supreme Court Of Louisiana

PETITIONER’S BRIEF ON THE MERITS

KeitH B. Norpyke*

June E. DeNvINGER

NorpyYkE AND DENLINGER

P.O. Box 237

Baton Rouge, Louisiana 70821

Telephone: (504) 383-1601

Joe Gtarrusso, Jr.

McGuIincuey, STAFFORD,

Cevuni & Lanc

643 Magazine St.

New Orleans, Louisiana 70130

Telephone: (504) 586-1200

Counsel for Petitioner

* Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225.6964

OR CALL COLLECT (402) 342-2831

II.

III.

QUESTIONS PRESENTED FOR REVIEW

ISSUES PRESENTED

Does the Eighth Amendment prohibit a State from

forcibly injecting an insane death row inmate with

mind-altering drugs when:

A. Such drugs are not being used for treatment

but are administered solely in an attempt to

make him competent to be executed;

B. The medication order does not permit the exer-

cise of medical judgment;

C. The medication order gives no consideration to

side effects or to the inmate’s treatment needs;

D. The medication order permits no abatement of

the medication even if it does not succeed in

making the inmate competent; and

E. The inmate’s medical history shows that, even

with medication, he continually decompensates

and his competency is at best transitory?

Does the use of medication to achieve competency

for execution violate the Eighth Amendment when

no state permits the use of medication for this pur-

pose and when the majority of states place limits on

the use of medication for non-treatment purposes?

Is this order a violation of the Fourteenth Amend-

ment in light of Louisiana’s law which prohibits the

execution of the insane, requires that insane in-

mates be treated and prohibits the use of medication

for non-treatment purposes?

IV.

VI.

VII.

QUESTIONS PRESENTED FOR REVIEW

ISSUES PRESENTED (Continued)

Is this order a violation of the Fourteenth Amend-

ment in that it considers only the State’s interest in

carrying out its sentence and fails to consider the

inmate’s interest in avoiding the forcible adminis-

tration of psychotropic drugs?

Is this order a violation of the Fourteenth Amend-

ment in that the trial court relied on hearsay and

opinion evidence, provided to the court ex parte,

without being subject to cross-examination?

Does Justice Powell’s concurrence in Ford v. Wain-

right, 477 U.S. 399 (1986) create an adequate stan-

dard for measuring competency to be executed?

Should the test of competency to be executed also

require that the record demonstrate some measure

of stable and predictable competency? Should the

test also require that the inmate be able to assist

counsel when the inmate has post-conviction re-

medies available to him?

Is an inmate competent to be executed when he

suffers from an incurable, major psychotic illness

and his comprehension is at best relative and fleet-

ing even while under medication?

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

Ne eee cece ccccscccees iii

ee vi

CITATION TO OPINIONS BELOW................. 1

JURISDICTIONAL STATEMENT ................... 1

CONSTITUTIONAL AND STATUTORY

ee cdccecécccscceccesccces 2

ee eee recs cccascovcesce ce 2

I, Ws sco cccccceseccecccsce 2

U. S. Const. Amend. XIV, Section 1.............. 2

EE 2

SUMMARY OF ARGUMENT......................- 24

ARGUMENT

I. THE ORDER TO FORCIBLY INJECT MIC-

HAEL PERRY WITH PSYCHOTROPIC

DRUGS, SOLELY IN AN EFFORT TO MAKE

HIM SANE ENOUGH TO BE EXECUTED, VI-

OLATES THE EIGHTH AMENDMENT...... 27

A. THE ORDER TO FORCIBLY MEDICATE

MICHAEL WAS NOT ENTERED TO

PROVIDE TREATMENT FOR MICHAEL

AND IT TAKES NO ACCOUNT OF MI-

CHAEL’S MEDICAL NEEDS............ 27

B. THE ORDER TO FORCIBLY MEDICATE

MICHAEL VIOLATES THE FUNDAMEN-

TAL RESPECT FOR HUMANITY UNDER-

LYING THE EIGHTH AMENDMENT.... 36

Il. THE MEDICATION ORDER ALSO VIOLATES

MICHAEL’S FOURTEENTH AMENDMENT

Rishts TO DUB PROCESS.............-005- 40

TABLE OF CONTENTS - Continued

Ill. THE

Page

TRIAL COURT’S ORDER FAILS TO

MEET MINIMAL DUE PROCESS REQUIRE-

REGED oc cnecccncvccecsecccceccscesssenenyes

IV. THE TRIAL COURT’S FINDING OF MI-

CHAEL’S COMPETENCY WAS MADE

THROUGH PROCEDURES THAT FILED TO

AFFORD THE SAFEGUARDS REQUIRED BY

THE EIGHTH AMENDMENT AND DUE

PRE: fa vc cccencessestecvecsctesovevens

V. THE TRIAL COURT’S FINDING OF MI-

CHAEL’S COMPETENCY DOES NOT MEET

EIGHTH AMENDMENT STANDARDS......

THE FINDING OF COMPETENCY DOES

NOT MEET THE STANDARDS OF FORD

V. WAINWRIGHT BECAUSE IT DOES NOT

ASSURE THAT MICHAEL WILL ACTU-

ALLY BE COMPETENT AT THE TIME OF

SEED So veedcckcnccccndasvvesces:

THE PROPER EIGHTH AMENDMENT

STANDARD REQUIRES CONSIDER-

ATION OF A CONDEMNED INMATE’S

CAPACITY TO CONSULT AND COOPER-

ATE WITH COUNSEL IN PURSUING

SUCH POST-CONVICTION PROCEED-

INGS AS ARE NOT YET EXHAUSTED...

UNDER ANY STANDARD, MICHAEL

PERRY IS INCOMPETENT TO BE EXE-

CONCLUSION AND RELIEF REQUESTED.........

APPENDIX

TABLE OF CONTENTS - Continued

Page

CHART 1 - Survey of State Statutes on Disposi-

tion of Inmates Found Incompetent

OF WR i a ccncsccccccccss App. 1

CHART 2 - Survey of State Statutes on Forcible

Medication and Experimental Medi-

GE ss cnvevccsctsecsececcoccss App. 7

La. Rev. Stat. Ann. 15:830 (1980)........... App. 15

La. Rev. Stat. Ann. 15:830.1 (1987)......... App. 16

La. Rev. Stat. Ann. 28:171 (1978)........... App. 17

La. Code Crim. Proc. Ann. art. 641 (1966).... App. 22

La. Code Crim. Proc. Ann. art. 642 (1966).... App. 22

La. Code Crim. Proc. Ann. art. 647 (1966).... App. 23

La. Code Crim. Proc. Ann. art. 648 (1988).... App. 23

TABLE OF AUTHORITIES

Page

CONSTITUTIONAL PROVISIONS

U. S. Const. Amend. VI........................... 2, 25

U. S. Const. Amend. VIII....................... passim

U. S. Const. Amend. XIV, Section 1............. passim

La. Const. Art. I Section 20 (1974) .................. 57

Cases

Coker v. Georgia, 433 U.S. 582 (1977)................. 38

Davis v. Hubbard, 506 F.Supp. 815 (N.D.Ohio, 1980) .... 31

Enmund v. Florida, 458 U.S. 782 (1983)............... 38

Ford v. Wainwright, 477 U.S. 399 (1986).......... passim

Furman v. Georgia, 408 U.S. 238 (1972)............... 52

Gardner v. Florida, 430 U.S. 349 (1977)............... 50

Godfrey v. Georgia, 446 U.S. 420 (1980)............... 38

Gregg v. Georgia, 428 U.S. 153 (1976) ............. 38, 39

Guardianship of Roe, 421 N.E. 2d 40 (Mass. 1981) .... 40

Hicks v. Oklahoma, 447 U.S. 343 (1980)............... 57

Johnson v. Mississippi, 486 U.S. 578 (1986)............ 50

Large v. Superior Court, 714 P.2d 399 (Ariz. 1986) .... 35

Meachum v. Fano, 427 U.S. 215 (1976)................ 43

Medley, Petitioner, 134 U.S. 160 (1890) ............... 35

Mills v. Rogers, 457 U.S. 291 (1982)................. 43

eee

vii

TABLE OF AUTHORITIES - Continued

Page

Penry v. Lynaugh, __ U.S. __, 109 S.Ct. 2934

BN oi ae se cdeeneesiabaeheeeseraseeneenenees 49

Rennie v. Klein, 653 F.2d 836 (3rd Cir. 1981)......... 31

Schmerber v. California, 384 U.S. 757 (1966).......-.-. 31

Specht v. Patterson, 386 U.S. 605 (1967) .......-.-++-: 48

State v. Allen, 15 So.2d 870 (La. 1943).....--. 12, 53, 56

State v. Bennett, 345 So.2d 1129 (La. 1977)....54, 55, 56

State v. Henson, 351 So.2d 1169 (La. 1977)......-..-- 41

State v. Perry, 502 So.2d 543 (La. 1986) cert. denied,

484 U.S. 872 (1987) ............-005: 13, 41, 44, 53, 59

State v. Sepulvado, 367 So.2d 762 (La. 1979).......--- 57

Trop v. Dulles, 356 U.S. 86 (1958)..... ST nvateens 36, 38

Vitek v. Jones, 445 U.S. 480 (1980) ......---- +. ee ee ees 48

Washington v. Harper, __ U.S. __ 110 S.Ct. 1028

SR cs cucucdbedeuedsacnceneceavdeuun 31, 42, 43, 44

Weems v. United States, 217 U.S. 349 (1910).........- 38

Winston v. Lee, 470 U.S. 753 (1985) .......- 2-2 e eee 31

Wolff v. McDonnell, 418 U.S. 539 (1974).......--. —

Woodson v. North Carolina, 428 U.S. 280 (1976) 36, 50, 52

STATUTES

La. Rev. Stat. Ann. 15:830 (1980)............-.555- 49

La. Rev. Stat. Ann. 15:830.1 (1987) ......... 41, 42, 49

viii

TABLE OF AUTHORITIES - Continued

Page

La. Rev. Stat. Ann. 28:171 (1978) ..............05.. 42

La. Code Crim. Proc. Ann. art. 641 (1966)...... 52, 54

La. Code Crim. Proc. Ann. art. 642 (1966)..52, 53, 59

La. Code Crim. Proc. Ann. art. 647 (1966)......... 48

La. Code Crim. Proc. Ann. art. 648 (1988)......... 41

OrtrHeR AUTHORITIES

American Bar Association’s Criminal Justice Men-

tal Health Standards on Competence and Capi-

Be Pa AENKaSkdhednucewebecededsceascsc. 55

Note, Medical Ethics and Competency to be Executed,

ee es es ee ce encdnwawa 40

Note, 47 La. L.Rev. 1351 (1987) .................. 40, 57

Rubin, You Don’t Have to be a Bleeding Heart: A Call

For Tough Minded Lawyers Who Believe in Due

Process, 35 La. B.J. 240 (1987)..........0.......0.. 54

Criminal Law and Procedure, 35 Loy. L.Rev. 833

SRP 4in'0 osu cunedeu Gee eeaus kh tevessccancessecnve 54

CITATIONS TO OPINIONS BELOW

The opinion of the Louisiana Supreme Court affirm-

ing, on direct appeal, Petitioner’s conviction and sentence

of death is reported at 502 So.2d 543 (La. 1986), cert.

denied, 484 U.S. 872 (1987) and is reproduced in the Joint

Appendix (J. A.) at 1-44.

The denial of petitioner’s application for appeal or in

the alternative writ of certiorari to the Louisiana Supreme

Court on the question of forcible medication is reported

at 543 So.2d 487 (La. 1989) and is reproduced at J.A. 150.

The denial of petitioner’s application for rehearing to the

Louisiana Supreme Court is reported at 545 So.2d 1049

(La. 1989) and is reproduced at J.A. 151.

The remaining orders and rulings raising the ques-

tions presented for review are not published but are

reproduced in the Joint Appendix. These include:

1. August 26, 1988 ruling, overruling defen-

dant’s objection to the use of ex parte materials

submitted to the Court by the Louisiana Depart-

ment of Corrections and ordering that such ma-

terials be entered as evidence. (J.A. 111-12).

2. October 21, 1988 reasons for judgment or-

dering forcible medication to achieve compe-

tence (J.A. 126-47).

3. Court’s October 21, 1988 judgment ordering

forcible medication (J.A. 148-49).

JURISDICTIONAL STATEMENT

This application seeks review of a judgment of the

Louisiana Supreme Court, entered May 12, 1989, denying

petitioner’s appeal and alternative application for writ of

certiorari. Petitioner’s timely application for rehearing

was denied June 16, 1989. Petitioner’s Application for

Writ of Certiorari to this Honorable Court was granted on

March 5, 1990.

The statutory ground for jurisdiction of this Court is

invoked under 28 U.S.C. 1257 (a).

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the Eighth Amendment which pro-

vides in relevant part:

Excessive bail shall not be required, nor exces-

sive fines imposed, nor cruel and unusual pun-

ishments inflicted;

the Sixth Amendment which provides in relevant part:

In all criminal prosecutions, the accused shall

enjoy the right .. . to be confronted with the

witnesses against him; .. . and have the assis-

tance of counsel for his defence.

the Fourteenth Amendment which provides in relevant

part:

.. . [NJor shall any State deprive any person of

life, liberty, or property, without due process of

the law; nor deny to any person within its juris-

diction the equal protection of the laws.

This case also involves Louisiana statutes and por-

tions of the Louisiana Code of Criminal Procedure. These

are set out in the Appendix to this brief.

STATEMENT OF THE CASE

Michael Perry suffers from schizoaffective disorder, a

major psychotic illness. He has hallucinations and delu-

sions. His thinking is disordered and tangential. His

speech is rambling and incoherent. His behavior is bi-

zarre and at t'mes he is disoriented and does not know

where he is. His emotional swings range from acute

depression and crying to manic hyperactivity and para-

noia.

Perry’s history of mental illness begins long before

this crime. The first record of a diagnosis of schizo-

phrenia was made during the process of a civil judicial

commitment on March 23, 1981. The examining physi-

cians found that he suffered from schizophrenia, had no

insight into his illness, and may not know right from

wrong. (Def.Ex.4 at 10,11; R. 543,544). That same day,

Michael was civilly committed to Central Louisiana State

Hospital. Id. at 11. Michael eloped from the hospital on

April 13, 1981 and was returned shortly thereafter. Id. at

21. During this admission he showed delusional thinking

and paranoid ideation. See generally ef.Ex.4 at 25-60; R.

543,544. He was discharged on May 22, 1981, with the

diagnosis of paranoid schizophrenia. /d. at 5, 15 and 16.

On September 10, 1981, Michael was again judicially

committed to Central State Hospital. Id. at 101. He was

diagnosed again as paranoid schizophrenic. This admis-

sion was prompted by Michael’s mother who gave a

history of Michael’s bizarre behavior such as burning his

clothes and living in his automobile. Id. at 117. He again

eloped on the day of admission. Id. at 108.

In 1983, Michael was arrested for murdering his

mother, father, two cousins, and a nephew. After indict-

ment, Michael’s competence to stand trial was ques-

tioned. In October 1983, he was committed to Feliciana

Forensic Facility (hereinafter “FFF”) based upon an order

of the trial court finding him incompetent to stand trial.

See Judgment of October 5, 1983. Def.Ex.3, R. 542,543.

Michael was delusional upon admission. “(He felt he]

doesn’t have enough blood” and was hearing voices.

Robots, the President and the CIA were telling him what

to do. The robots told him to kill his family. He exhibited

manic behavior and pressured speech. He complained of

being fed body parts and stated that if shot in the head, it

would not kill him. Id. at admission interview.

( Jusional thinking continued throughout his hospi-

talizdtion. He believed his parents were still alive, that

other patients wished to kill him and that a patient bit

Michael's tongue. (Def.Ex.3 at progress note, December

22, 1983; progress note, December 8, 1983; progress note,

November 17, 1983; R. 542,543). He explained the mur-

ders as a need to break all Ten Commandments and that

this was the last commandment that “he had to break”.

ld. at progress note, November 10, 1983; psychiatric

exam, October 28, 1983; progress note, October 11, 1983.

Two days later Michael denied even being in Louisiana at

the time of the murders. /d. at progress note, October 13,

1983.

The shifting nature of Michael's disease is illustrated

by comparing the progress notes of November 16 and

November 17, 1983. On the 16th, the note indicates no

hallucinations and that he was not psychotic. The next

day, Michael was seen by Dr. Jiminez and found to have

shaved his eyebrows to increase the oxygen to his brain.

Id. at progress notes, November 16, 17, 1983. On Novem-

ber 18th, Dr. Jiminez found him delusional and paranoid.

On November 23rd, the notes indicate that his behavior

was “unpredictable”.

In November 1983 a psychological evaluation was

completed. Dr. Curtis Vincent concluded that Perry was

not malingering and that a true psychotic defect existed.

His diagnosis was schizoaffective disorder. Dr. Jiminez

confirmed the diagnosis of schizoaffective disorder in a

January 5, 1984 progress note.

His delusional thinking does not cease even upon

discharge from FFF. Dr. Jiminez noted in the final pro-

gress note that “this patient is delusional and has to be

placed on medication”. She further notes that because of

side effects, Michael had been taken off psychotropic

medications. (Def.Ex. 3 at progress note, March 16, 1984

R. 542,543).

On March 16, 1984, Dr. Jiminez found Michael still

delusional but “able to give his rights as a defendant and

the nature of the charges against him.” Id. at Dr. Jiminez

progress note, March 16, 1984. Michael was returned to

court and found to be competent in March, 1984 (R. 8). He

was tried and convicted in October, 1984. After convic-

tion and upon being sentenced to death, he was sent to

Louisiana State Penitentiary on December 20, 1985.’

From the first day, the prison physicians were aware

of his mental condition. He was placed on extreme watch

to rule out psychosis and Haldol 5 mg was ordered three

times daily. (Def.Ex.5 at inpatient medical chart; progress

note December 20, 1985; R. 544,545). He was discharged

from the hospital on December 24 on a dosage of Haldol

10 mg three times daily. Id. at Discharge summary De-

cember 24, 1985.

By December 31 he “presentled] a picture of reactive

psychosis, characterized by confused thinking, grandiose

delusions of being God, . . . [and] acting out behavior. His

affect was disproportionately euphoric. .. . He doesn't

1 Michael’s records from LSP are found at Def.Ex. 5, R.

544, 545. These records were introduced in the same order in

which they were provided to counsel by LSP. Although the

order is generally chronological (with the latest records at the

beginning of the second volume), numerous pages are out of

order.

seem to present a danger to himself or others.” Id. at

doctor’s progress note December 31, 1985. He was admit-

ted to the hospital on January 11 and Haldol 10 mg was

continued three times daily. Jd. at Doctor’s progress

notes, January 25, 1986.

The medication charts show that he was given Haldol

5 mg three times daily from January 29 to March 11. By

February 24, he was completely silent or talked only in

monosyllables. He slept in excess of twenty hours per

day. Id. at mental health progress notes, February 24,

1986.

By April 14 he was “disoriented . . . he didn’t know

both his specific or general location (Camp J and [LSP)).

Affect was flat . . . disclaimed hallucinations and no

systematic delusions noted. Doesn’t appear overtly psy-

chotic”. Id. at progress note April 14, 1986. However, by

April 22 he was admitted to the hospital for forced medi-

cation. He showed “psychotic symptoms . . . clearly man-

ic, marginally oriented”. Id. at hospital summary, April

22, 1986. Haldol 10 mg twice daily was ordered. Id. at

Doctor’s order, April 24, 1986. This continued until May 1

when the dosage was changed to 10 mg three times daily.

Id. at inpatient medical chart. He was discharged on May

6 and continued on 10 mg three times daily until June 9

when the dosage was changed to 5 mg three times daily.

Id. at inmate medical chart. He remained on this dosage

throughout June and July. Id. at inmate medical chart.

On July 29 the staff began monitoring him for consid-

eration of forced medication. Id. at progress note, July 29,

1986. On August 12, mental health found that he “may be

decompensating”. Id. at progress notes, August 12, 1986.

On September 9-10, he was “disordered” and decompen-

sating but “was not as yet a danger”. Id. at progress

notes, September 9, 10, 1986.

By September 11 he had decompensated: “This in-

mate was brought to the ER as a culmination of several

weeks of decompensation. He was placed on Mild Watch

last night in anticipation of a total break which appears to

have now occurred. He is in my opinion presently unable

to function outside a hospital setting.” Id. at progress

note, September 11, 1986. Haldol was increased to 10 mg

three times daily. Id. at doctor’s order, September 11,

1986. Although he refused medication from September

15-23, on September 20, the psychiatrist found that the

“psychosis had cleared”. Id. at progress note, September

15, 1986; doctor’s notes, September 20, 1986. He was

discharged on September 26 with a prescription for 10 mg

Haldol three times daily for a month. Id. at doctor's

order, September 26, 1986.

On October 4 when the mental health team attempted

to interview, he “went berserk, an uncontrollable, psycho-

tic rage state... . At times he was .. . disoriented as to

place and person.” Id. at progress notes, October 4, 1986.

During this admission to the hospital he was “howling,

laughing inappropriately. His behavior was bizarre”. The

doctor ordered 30 mg of long-lasting Haldol D. Id. at

doctor’s order, October 7, 1986. On October 17 he was

“alert, oriented, no . . . gross mental impairment.” (/d. at

progress report, October 17, 1986 R. 544,545). He was

discharged on October 20 as “stable” with a prescription

of 10 mg of Haldol three times daily.

By October 27, he was hearing voices and his affect

was inappropriate. Haldol 10 mg three times daily was

ordered. Id. at psychiatric/ psychological evaluation, Oc-

tober 27, 1986. On October 31, he was having rapid mood

swings and stated that he was facing “1000 years of real

life’. Id. at progress notes, October 31, 1986.

In January 1987 Michael was seen by the mental

health team because security had reported that he was

“disruptive... yelling and screaming”. The social worker

concluded that he was not actively psychotic at that time.

Id. at progress note January 2, 1987. But on February 5,

1987 he was hospitalized as “gravely disabled”. Id. at

physician’s emergency certificate February 6, 1987. He

was disoriented, manic, and suicidal. He exhibited bi-

zarre behavior, hallucinations, poor insight, and poor

judgment. Id. at physician’s emergency certificate Febru-

ary 6, 1987; progress notes, February 5, 1987. On February

5-6, 1987, Michael was given 300 mg of Thorazine and 50

mg of long-lasting Haldol D. Id. at inpatient medication

record, February, 1987. Dr. Guiterrez ordered 50 mg of

Haldol D to be repeated in four weeks. Id. at doctor’s

notes, February 5, 1987; management order, February 5,

1987.

On February 9 he was still decompensated but was

not considered a danger. Id. at progress note February 9,

1987. But on February 10 he was again observed to exhib-

it bizarre behavior and he was talking to himself. Id. at

progress note February 10, 1987. He remained in the

hospital until February 13. In a follow-up on February 16,

he was described as “apparently in good remission” with

“no overt pathology”. Id. at progress note, February 16,

1987.

This “remission” did not last. On March 4, 1987, he

was “decompensating” with “manic-like behavior”, “yell-

ing, raving, incoherent... .”. Id. at progress notes, March

4, 1987. Although Dr. Guiterrez had ordered 50 mg of

Haldol, when the next injection was due, the dosage was

increased to 100 mg to be repeated monthly for four

months. Id. at emergency room note, March 11, 1987. On

April 10, 1987, he was found to have delusions centering

on Olivia Newton-John. He also “gave a very delusional

story about how his parents. . . had left him $200,000.00”.

Id. at progress note, April 10, 1987.

Haldol D was given on April 13 and the oral Haldol

was continued at 10 mg three times per day. /d. at inpa-

tient medication record April, 1987; emergency room

note. By April 15, he was “actively psychotic” and was

hospitalized. Id. at progress notes, April 13, 1987. Haldol

D was increased to 200 mg and on April 19 the oral

Haldol was increased to 20 mg three times per day. /d.

inpatient medication record, April, 1987; progress notes,

April 19, 1987. During this stay he was hallucinatory and

delusional, had inappropriate affect and exhibited bizarre

behavior. Id. at progress notes, April 15-20, 1987. For

example, on April 21, he “said the toilet told him it was

hungry so he threw soap in it”. Id. at management order,

April 21, 1987.

April 24 he was discharged from the hospital. A

follow-up on April 28 described him as hyperactive but

“basically intact”. Id. at progress notes, April 28, 1987.

Michael refused medication on May 9 and 13 but he was

“still basically oriented”. Jd. at progress notes, May 13,

1987. Yet on May 14 he was hospitalized with “manic-like

behavior, rapid speech, elevated mood, some tangential

thinking”. Id. at progress notes, May 14, 1987. He was

placed under extreme watch and in restraints until his

discharge on May 18. Id. at management orders May

15-18, 1987.

Medication was continued through May and the or-

der for Haldol D 100 mg was renewed for four months on

June 6. Id. at emergency room note, June 6, 1987. By July 2

he was again exhibiting bizarre behavior, hallucinations,

and heightened affect but “no . . . intervention [was] seen

as needed”. Id. at consultation, July 2, 1987. On July 2, 100

mg of Haldol D was given, along with 10 mg of Haldol

twice daily. Id. at emergency room note, July 2, 1987.

However, when Dr. Cox saw Michael on August 7 he

“conclude[d] this man is psychotic and exhibits signs and

symptoms of chronic schizophrenia. Believes he is God

and cannot be killed by electrocution”. Id. at consultation,

August 7, 1987.

In September, Michael believed he was God, that he

had killed Adam and Eve, and that he makes $20,000.00

per year. Id. at progress note, September 5, 1987. On

September 15, Dr. Cox found he is “still psychotic... . |

continue to doubt his competency to assist in appeals

process”. Id. at consultation, September 15, 1987. Dr. Cox

renewed the July order for 100 mg Haldol D. Id. at

consultation, September 15, 1987.

In October, he was “on Haldol 10 mg B.I.D. but he

remained psychotic. Is loose, disorganized, delusional

and hallucinating. Still believes he cannot be killed, stat-

ed he is a CIA agent and believes he is supernatural.” /d.

at consultation, Dr. Cox, October 28, 1987. He demanded

that his foot be cut off. This demand was prompted by

instructions from a worm which he swallowed as a child.

Id. at sick call, November 5, 1987.

By November 12, he had decompensated and was

hospitalized again. “[H]e appears to have been taking

medication but is floridly psychotic”. Id. at admit note,

November 12, 1987. His symptoms were manic behavior,

flight of ideas, hyperactivity, and sleeplessness. /d. at

admission report, November 12, 1987; progress notes,

November 12, 1987. On November 16 he was “quiet,

cooperative, alert and well oriented”. He was discharged

that day. Id. at discharge summary, November 16, 1987.

On November 20 Dr. Cox reported that “Michael is in

good remission and is better than I have seen him” and

removed him from medication. Id. at progress consulta-

tion, November 20, 1987.

By November 30, he had again decompensated and

was hospitalized. Id. at consultation, Dr. Cox, November

20, 1987. Medication was renewed on November 30 with

an immediate dosage of 10 mg and continuing dosage of

10 mg twice daily. Id. at doctor’s order, November 30,

1987. The dosage was increased to 20 mg twice daily on

December 2. Id. at doctor’s order December 2, 1987. Mic-

hael was delusional, disoriented, hallucinating, hyperac-

tive, yelling, paranoid and impaired in memory. /d. at

progress notes, November 30, 1987; physician's notes,

November 30, 1987. He had the delusion of being

haunted, the Mafia was pouring water on him, threatened

to kill with thunderbolts, and repeated the familiar re-

frain that he is God. Id. at progress notes, December 3-6,

1987.

On December 23 he was reported as improved and he

was discharged on December 28 on 20 mg twice daily. Id.

at progress note, December 23, 1987; discharge summary

December 28, 1987. On December 30 “security offi-

cers ... report Perry is functioning well”. Id. at progress

report, December 30, 1987. However, the next day, he was

readmitted to the hospital as “decompensated . . . delu-

sional, confused, not oriented. Id. at progress note, Janu-

ary 1, 1988. He was walking into walls, crying, and

complaining that the devil was stabbing him with a fork.

Id. at emergency room note December 31, 1987; progress

notes January 2, 1988. Haldol 10 mg STAT and 10 mg

twice daily was ordered. Id. at doctor’s orders, December

31, 1987. This was increased to 30 mg twice daily on

January 6. Id. at nurse’s notes January 6, 1988.

He was released on this dosage on January 27 and a

follow-up reported that he was aware of his execution

and that death is fatal. Id. at consultation, Dr. Cox, Janu-

ary 27, 1988. Yet two days later he was hollering, delusio-

nal, and was convinced that Dr. Cox was trying to kill

him. Id. at mental health notes January, 29, 1988.2

In 1987, the Louisiana Supreme Court heard Mic-

hael’s case on direct appeal. While affirming the convic-

tion and sentence, the Court encouraged the state, court,

or defense counsel to inquire into Michael’s current men-

tal state and competency to be executed:

The State of Louisiana will not execute one

who has become insane subsequent to his con-

viction of a capital crime. State v. Allen, 15 So.2d

870 (La. 1943). No state imposes the death pen-

alty on the insane. Ford v. Wainwright, U.S.

__, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). The

State will not impose the death penalty on Mic-

hael Owen Perry if a court determines he has

become insane subsequent to his conviction for

first degree murder and lacks the capacity to

understand the death penalty. Counsel for the

defendant may apply to the trial court for an

appointment of a sanity commission to make

such determination. Indeed, the allegations of

* The medical records from LSP end in January, 1988 as

this was the point at which the prison delivered the records to

the trial court for the upcoming hearing.

mental capacity may be raised by the court or

the prosecutor. La.C.Cr.P. art. 642.

(J.A. 43) (State v. Perry, 502 So.2d 543, 563-64 (La. 1986)).

On January 14, 1988, the trial court ordered such a

hearing. The court appointed three psychiatrists® and a

psychologist* to examine Michael (J.A. 46). Each expert

interviewed Michael between January and April, 1988.

On April 20, 1988, the experts testified on their find-

ings (R. 498-659). At the outset, the court stated the

purpose of the hearing:

[T]he purpose of this hearing today is that un-

der the Supreme Court decision in this case...,

the Louisiana Supreme Court . . . said that the

State of Louisiana will not execute one who has

become insane subsequent to his conviction of a

capital crime . . ... The Supreme Court then

steered defense counsel to apply to the trial

court for appointment of a sanity commission to

make such a determination. (R. 500).

The court also found:

[T]he Louisiana Supreme Court further indi-

cated that the defendant bears the burden of

proving and providing the trial court with rea-

sonable grounds to believe he is presently in-

sane. In order for the Court to even commence

these proceedings, I am satisfied that the defen-

dant has gone forward with that . . . (J.A. 70).

3 Dr. Aris Cox, a board certified forensic psychiatrist and

consulting psychiatrist at LSP (R. 546-549); Dr. Theresita Jim-

inez (R. 596-98); and Dr. Glenn Estes, a Board Certified psychi-

atrist in private practice (R. 636).

4 Dr. Curtis Vincent, a clinical psychologist and former

acting Chief Psychologist at FFF (R. 580-84).

14 15 =

i de-

He also talked about his lawyer had not

fended him very well because he was a member

of the mafia. (R. 511)

The experts unanimously agreed on the diagnosis of

schizoaffective disorder (R. 511, 550, 592, 639), an illness

which Dr. Jiminez defined as:

[AJn illness wherein the patient has a problem

with thinking disorder and at the same time

with his feeling tone or the defective [sic, affec-

tive} component. When they are in the state of

acute illness they are usually very manic if they

are in a manic phase and very paranoid. Now if

they are also in the depressed state they could

be very withdrawn and would [be] manifesting

symptoms like not wanting to sleep, not want-

ing to talk or having crying adversity. The prob-

lem is also that they would have some distortion

in their thinking and that would be the schizo-

phrenic component of the illness. (J.A. 70-71).

(He has] delusion of thinking. Sometimes, also,

he rambles. His thinking is not cohesive. He

would go from one topic to the other and there

is very loose association. (R. 515)

indicated that at the time I examined Mr. Perry

~~ not competent, and I felt that he would

not be able to assist his lawyer in his own de-

fense. I also indicated that I feel that Mr. Perry

will become competent with the proper medica-

tion adjustment. He does understand that he is

convicted and also expressed that he does not

want to die. (J.A. 70)

Dr. Jiminez also testified about Haldol, the drug

Schizoaffective disorder is a major mental illness

which is incurable. Although the symptoms may get bet-

ter, the illness is still there. (R. 513). This condition direct-

ly affects the patient’s judgment and thinking:

(I]f you have problems with thinking disorder

there are times wherein you would not be in

touch with reality when you are acutely ill, and

which Michael had been given at LSP: “{Haldol is] a

psychotropic medication. It’s supposed to get the —

ing process more delusiveness [sic], more cohesive, less

paranoia, and get him to be able to concentrate one

participate in the interviews, make him less paranoid.

(R. 519). As to the effectiveness of Haldol in stabilizing

Michael’s thinking, Dr. Jiminez testified that she was

esp ty dyeenydenyead aed apnghenry an open concerned about Michael’s ambivalence or inconsistency

are out to get you or people are out against you. : ' beep

And that woyld be the paranoid component of in his thinking: | | —_ .

recchee nner My apprehension with him is he does get am

Sometimes you would think that you are some-

body that you are really not. And that’s like

when you think you are God. (R. 514)

When Dr. Jiminez evaluated Michael on February 4,

1988, she found that:

[H]e indicated at the first part of the interview

that he didn’t kill the people that were killed,

that somebody else did it. At a later part of the

interview he accepted that he did it because he

had a lot of anger towards his mother. So the

information he was giving at that point was

rather inconsistent. (R. 511, 516)

bivalent and he knows - he’s aware that he is on

death row because he’s going to die. He’s aware

that he killed his family and he will tell you he

did. But he does get very ambivalent and gets

very paranoid and that’s a part of his illness.

Q (by the State): Is there a medication that

you’re aware of that can eliminate ambivalence

in personality?

A: No. It’s the extent of the ambivalence that we

are concerned about. And that is a part of the

illness in Schizophrenia so I thought that maybe

if he could become more stabilized then maybe

there will be less ambivalence on his part.

Q: How are we to stabilize him when there are

no medications that eliminate ambivalence?

A: Well, that’s the problem. (J.A. 75-76)

The second psychiatrist to testify was Dr. Aris Cox, a

forensic psychiatrist who consults at LSP and who has

seen Michael on numerous occasions (R. 550). Based on

his visit with Michael on March 3, 1988, Dr. Cox conclud-

ed:

Q. Have you formulated an opinion as to wheth-

er or not Mr. Perry is competent to be executed?

A. Weil, as you and I have discussed, that is a

relative thing. It has to do with the treatment

Mr. Perry is receiving. | have seen him at times

when I did not feel he was competent to be

executed. I have seen him also at times when |

thought he was competent to be executed.

Q. Is there any way to predict when he is com-

petent?

A. When I saw him the last time which was on

the 3rd of March he was on neuroleptic medica-

tion. He was about as - he was functioning

about as well then as I’ve ever seen him func-

tion. At that time I went through the whole

matter with him and he was aware of why he -

of where he was, what his sentence was, what

he would be executed for and was aware of the

fact that he could be executed.

Q. Are there other times where you've seen him

when he was not competent to be executed?

A. I have. The first time I saw him I didn’t think

he was competent, back in July.

Q. Any other times since then?

A. Yes, sir. (J.A. 78-79).

Q. . . . [I]t appears to me that Mr. Perry is

hospitalized quite frequently. Why is that?

A. He becomes psychotic and is hospitalized by

the staff there so he can be given medication

and treatment.

Q. When he becomes psychotic is he in contact

with reality?

A. In my opinion, no, sir.

Q. Is he competent to be executed during those

periods?

A. No, sir. J.A. 80)

Q. Doctor, out in the hall you indicated that

Michael was, quote, at best a moving target.

Would you explain to the court what you meant

by that?

A. I have seen him on and off medication sever-

al times now and I have seen him respond to

medication. . . . He deteriorates quickly when

off medication. So his competency status tends

to change, it’s very labile, it moves about. What

I meant by this perhaps offhand remark was

that his competency changes frequently and he’s

not in the same place all the time. And some-

times he’s competent and sometimes he’s not.

(J.A. 81-82).

Q. Doctor, you've also, | believe, seen him when

he’s undergone this forced treatment, have you

not?

A. Yes, sir.

Q. And even after the forced treatment and mas-

sive doses of Haldol and he’s still floridly psy-

chotic?

A. He gets better. . . . He does respond to

medication when he’s given it and he gets bet-

ter. How good he gets probably does leave

something to be desired but he gets better.

I don’t think I’ve seen Michael, even on medica-

tion, be completely coherent, well integrated,

rational. I’ve always felt in him there’s areas of

psychotic thinking there.

Q. Even on his best days?

A. *<s, sir, even when I have seen him on his

best days.

Q. With massive doses of medication?

A. Yes, sir. (J.A. 83-84)

Two days after Dr. Cox saw Michael, Dr. Vincent

interviewed him. His conclusion was that Michael was

psychotic and not competent to be executed (J.A. 89). Dr.

Vincent found Michael “[VJery tangential with me, that

is, that I asked him questions he would initially typically

respond to that question very quickly, slight off the sub-

ject, and talked about something completely irrelevant.”

(R. 590-91). He was delusional, said he was God and had

problems with his contact with reality and his consisten-

cy. (R. 619). “[H]e was very inconsistent in a number of

areas but in particular regarding his actions at the time of

the murders. .. . And that was very inconsistent. He was

also very tangential, he had some difficulty paying atten-

tion... .” (R. 629). Dr. Vincent agreed that Michael is a

“moving target”. (R. 594).

Regarding Michael’s understanding of his sentence:

Q: (By the court): In March when you inter-

viewed him did you have occasion to discuss

with him the death sentence, the electric

chair? ... What is - or was his underst

anding of

that at tha® time? las

A. ... 1 avked hirn directly what happens if a

the doctors gv to court to the whew 04 and bn

judge finds him competent to proceed, and he

indicated at that point that he would be exe-

cuted. So there was some understanding that if

he’s found competent to proceed that he would

be executed.

Q. And he knows what that means? He knows

what execution is? .. .

A. Yes, he expressed some fear of dying in rela-

tionship to that.

Q. Now in your discussions did he appear to

understand the reason that he was going to be

executed?

A. That’s a much more difficult issue. I think he

has the understanding that if an individual mur-

ders somebody and they can be found guilty

and then could be executed legally. .. . I'm not

really convinced that he understands that he did

the murders. I think that varies tremendously.

Q. Did he acknowledge that he committed these

murders to you or did he deny it?

A. He did both. At one point he admitted that

he committed the murders. . . . Two minutes

later I was asking another question and he said

that he felt that he could be found innocent

because he was in Washington D.C. at the time.

(R. 623)

The final expert, Dr. Estes, interviewed Michael on

March 9, 1988 and described him as:

His symptoms included disruptive behavior,

physical activity, restlessness, interrupting and

ignoring questions, indirectness and irrelevancy

in his answers, inconsistency in his explana-

tions, tendency to be disorganized when he pre-

sented facts, difficulties in presenting facts in

chronological order, variations in the pace of his

speech, jumping from one topic to another in his

ideas, inappropriate moods, indication of hav-

ing his thoughts broadcast out loud, indication

of hallucination of voices, saying that he was

God, failure to consistently recognize whether

or not he was mentally ill, tendency not to ac-

knowledge responsibility or his role in deter-

mining the actions of others toward him. (J.A.

95).

From these observations, Dr. Estes concluded:

It’s my opinion that he vas not completely

aware of the nature of the proceedings against

him even though he was able to acknowledge

that he was on death row when I saw him, and

at that time he was able to say that they want

me dead, but I did not conclude that he under-

stcod his sentence, his punishment for what he

d' was wrong.

Q. What about the finality of a death sen-

tence... ?

A. ... [H]e failed to acknowledge that because

on some occasions when | was talking to him

when I saw him he referred to his eventual

release from prison. I’m not sure of what the

basis of that was but he referred to it as a future

event. (J.A. 93)

In addition to the experts’ testimony, Michael testi-

fied (R. 962-88) and a videotape of his testimony is in

evidence (attached as an exhibit to petitioner’s applica-

tion for writ of certiorari filed July 13, 1989). After this

evidence and the introduction of Michael’s medical re-

cords, the defense rested. The State also rested after pre-

senting no evidence or witnesses (J.A. 97). The court set

the ruling for May 26, 1988 (R. 692). This date was later

changed to August 26, 1988 (J.A. 48)

Between April and August, 1988, the State began

supplying the trial court with reports about Michael. The

impetus for these reports is not clear. However, defense

counsel was not informed of or copied on these transmit-

tals. These reports consist of a page from Michael’s medi-

cal records (J.A. 104-05), a handwritten note (J.A. 106),

and opinions from state employees who had not been

called as witnesses in April 1988 (J.A. 100-02).

On August 26, 1988, the Trial Court introduced these

ex parte reports into the record over objection of defense

counsel, stating:

Those reports were filed at my request, or sent

to this Court by my request. The defense coun-

sels’ objection to the Court reviewing these doc-

uments is overruled and the Court will file those

documents into the records. And the Court has

considered those reports. .. .

[Based on the weekly reports that I have re-

ceived, I feel that there has probably been a

change in the mental condition of the defendant,

I am ordering Drs. Cox and Jiminez to re-exam-

ine the defendant relative to his competency as

set by the Louisiana Supreme Court in the origi-

nal Michael Owen Perry decision. (R. 698-700)

The court then set a hearing fur September 30, 1988

and “Pending that hearing, pursuant to R.S. 15:830.1, the

Court is ordering that the Department of Public Safety

and Corrections provide treatment and medication to the

defendant as to be determined by the medical staff of the

Dgpartment of Public Safety and Corrections.” (R. 701). “I

want it [forcible medication] done until at least Septem-

ber the 30th . . . when I will make a final determination

on the issues.” (R. 702). The court also prohibited the

filing of any further briefs except to cite new cases that

might be published between August and the September

hearing. (R. 702).

Defense counsel objected to introduction of the week-

ly reports, to the order to forcibly medicate Michael, and

to the lack of a hearing on the issue of medication.

Counsel also sought a stay of the medication order. All of

these were denied. (R. 703).

Michael sought writs of certiorari to the Louisiana

Supreme Court. The Supreme Court stayed the medica-

tion order (R. 305). However, Michael was medicated on

September 3, 1988 (R. 741).

On September 30, 1988, the trial court called as its

witness Dr. Kay Kovac, a family practitioner who is the

Medical Director of LSP. Dr. Kovac had talked to Michael

for about ten to fifteen minutes on September 26, 1988.

(R. 741). She described him as appropriate and not delu-

sional (R. 718) although he did say that he occasionally

heard voices. (R. 717). Because her job is primarily an

administrative one, Dr. Kovac has not seen Michael fre-

quently (R. 723). She was aware of the existence of antip-

sychotic medication but, because she is not a psychiatrist,

had no in-depth knowledge of whether these would work

for Michael (R. 718).

Dr. Cox also testified about an interview he had with

Michael on September 7, 1988. Michael had been in the

hospital on the weekend prior to that interview and had

received an injection of Haldol (R. 737). Even with this

injection, Dr. Cox found:

Basically, | found that Mr. Perry was worse than

he had been the last time I saw him. He indi-

cated to me that he had been having hallucina-

tions, voices, as he described it, over the

weekend which had bothered him and that

caused him to create outbursts that led him to

go into the hospital. . . .His thought processes

were disorganized. He indicated to me that he

was still hallucinating. My conclusion was that he

was getting worse, even on the medication. And |

suggested to the staff that the dosage of medica-

tion would have to be increased. It was my

impression, however, that he was aware of the

fact that he was under a sentence of death, that

the process of electrocution could kill him and

that he was aware of why he was on death row.

As far as the issue of being able to participate

meaningfully in legal proceedings, testify, help

an attorney, make rational decisions, basically

the Bennett criteria as outlined in the Louisiana

Supreme Court decision, I did not feel he was

competent under those standards for legal par-

ticipation. (J.A. 115-16) (Emphasis added)

Dr. Cox believed that his “moving target” description

of Michael’s competence was still viable (J.A. 116).

Dr. Jiminez was not available to testify in September

but she was called on October 21, 1988. She saw Michael

on September 13 and 26. (R. 752). She found him “pretty

stable” (R. 753-54). He stated that he was aware of the

crime and the death penalty (R. 754). However, Dr. Jim-

inez acknowledged that this stability was solely the result

of the Haldol (R. 761).

Immediately following Dr. Jiminez’s testimony, the

court rendered its order:

[I]t is obvious to this Court that the defendant is

competent for execution. It is further obvious

from the testimony that he is competent only

when maintained on psychotropic medication in

the form of Haldol. (J.A. 145)

[M]ichael Owen Perry[] is mentally competent

for purposes of execution, and that he is aware

of the punishment he is about to suffer and is

aware of the reason that he is to suffer said

punishment. Since the defendant’s competency

is achieved through the use of antitropic [sic] or

antipsychotic drugs, it is further ordered that

the Louisiana Department of Public Safety and

Corrections is to maintain the defendant on this

medication as to be prescribed by the medical

staff of said Department, and, if necessary, to

administer said medication forcibly to defen-

dant and over his objection. (J.A. 147)

Michael Perry then sought writs of certiorari and

alternatively, an appeal to the Louisiana Supreme Court.

Review was denied on May 12, 1989 (J.A. 150). Rehearing

was denied on June 16, 1989 (J.A. 151). Michael Perry

then sought writs of certiorari to this Honorable Court.

His application was granted on March 5, 1990 and is

reported at 110 S.Ct. 1317 (1990).

SUMMARY OF ARGUMENT

1. The medication which the trial court ordered for Mic-

hael Perry is not treatment; it is a step toward his execu-

tion and part of his punishment.

2. The doctors at Louisiana State Penitentiary have been

treating Michael Perry for years. This order to forcibly

medicate Michael goes beyond the treatment that has

been administered in the past and permits no exercise of

professional medical judgment.

3. Michael Perry has a history ef developing side effects

as a reaction to psychotropic medication. This order does

not consider potercial side effects or permit termination

of the medication if side effects develop.

‘. Michael Perry has received psychotropic medication

in the past. This medication has not been successful in

achieving sustained or predictable competency. Yet the

order does not permit termination of the medication even

if it does not work.

5. The Eighth Amendment and contemporary standards

of human decency prohibit the use of forced medication

solely to create competency to be executed.

6. Louisiana has no statute, case law or policy permit-

ting the use of forced medication to create competency to

be executed. Neither the Legislature nor the Supreme

Court of Louisiana has authorized the type of order

which the trial court has entered for Michael.

7. No state executes the insane. The majority of states

commit an insane inmate for treatment. The majority of

states place limits on the use of forcible medication and

meflication for non-treatment purpose. This consensus

shows that the trial court’s order to forcibly medicate to

create competency for execution violates the Eighth

Amendment.

8. Louisiana law prohibits the execution of the insane

and requires that insane inmates be treated. Louisiana law

also defines the conditions under which an inmate can be

forcibly medicated. These laws create expectations which

are protected by the Due Process Clause of the ‘Four-

teenth Amendment. By ordering Michael Perry medicated

for non-treatment purposes, te irial court has violated

Michael Perry’s rights under the Due Process Clause.

9. The trial court’s order to forcibly medicate Michael

considered only the State’s interest in carrying out its

sentence. It did not balance this interest against Michael

Perry’s interest in avoiding the non-consensual adminis-

tration of psychotropic drugs. This order, therefore, fails

to accord Michael Perry the minimal protections guaran-

teed by the Fourteenth Amendment.

10. The process by which the trial court reached its

decision violates the Sixth and Fourteenth Amendments.

Louisiana law requires that competency must be deter-

mined by a contradictory hearing. Since the court re-

ceived and relied upon ex parte opinion and hearsay

evidence which lacks any indicia of reliability, Michael's

right to confrontation and cross-examination was denied.

11. Justice Powell’s concurrence in Ford v. Wainwright,

477 U.S. 399 (1986) suggested two factors to be consid-

ered in determining competency for execution: awareness

of the punishment and awareness of the reasons why

punishment is to be suffered. These factors are necessary

but do not provide a sufficient test. The test of competen-

cy to be executed should also include a requirement that

the record demonstrate stable and predictable competen-

cy, not merely fleeting glimpses of comprehension. The

trial court did not consider this factor nor does the record

in this case reflect any stable and predictable competency.

12. A standard for competency should also consider the

inmate’s ability to assist counsel when the inmate has

post-conviction remedies still available to him. Louisiana

law recognizes the ability to assist counsel as a factor in

determining competency. Although there was evidence

that Michael is not able to assist counsel, the trial court

failed to consider this element in evaluating Michael Per-

ry’s current condition.

13. Under any standard of competency, Michael Perry is

incompetent. He suffers from schizoaffective disorder, a

major mental illness that affects his judgment and think-

ing abilities. Even on medication, he frequently decom-

pensates into psychosis that is so severe that he must be

hospitalized. He is a “moving target” who has never had

a sustained period of stable competence. His appreciation

of the crime of which he is accused, of the fact that he has

been convicted and sentenced, and of his punishment is

fleeting and unpredictable. The Eighth Amendment pro-

hibits the execution of an inmate with this limited, transi-

tory comprehension.

ARGUMENT

I. THE ORDER TO FORCIBLY INJECT MICHAEL

PERRY WITH PSYCHOTROPIC DRUGS, SOLELY

IN AN EFFORT TO MAKE HIM SANE ENOUGH

TO BE EXECUTED, VIOLATES THE EIGHTH

AMENDMENT.

A. THE ORDER WAS NOT ENTERED TO

PROVIDE TREATMENT FOR MICHAEL

AND IT TAKES NO ACCOUNT OF MIC-

HAEL’S MEDICAL NEEDS.

The testimony and medical records are quoted at

length in the Statement of the Case in order to put the

trial court’s order in context. Treatment was not the issue

before the court. The issue was whether Michael is cur-

rently sane enough to be executed (J.A. 46). The physi-

cians were not appointed to develop a treatment plan for

Michael and they did not testify about what they would

do to treat himS The Department of Public Safety and

Corrections was not seeking an order, under La. Rev. Stat.

Ann. 15:830 and 830.1, to treat or forcibly medicate Mic-

hael to protect him or others from harm or to provide for

his medical welfare. The prison doctors had been treating

him and the treatment included psychotropic drugs when

these were medically indicated.

Yet what resulted from this hearing was an order that

places Michael on medication and keeps him on medica-

tion, forcibly if necessary, solely to create competency to

be executed. The order makes no pretense that it is for

treatment; it gives no consideration to Michael’s treat-

ment needs or his interests in avoiding forcible medica-

tion.

5 See for example, testimony of Dr. Estes - “I don’t feel

prepared to recommend a course of treatment” (J.A. 94).

The purely legal, non-medical basis for this order is

apparent when it is viewed against the background of

what the physicians at LSP had been doing for Michael.

The doctors-at LSP have not been “deliberaiciy indif-

ferent” to Michael’s medical needs. What they have been

doing since 1985 is treating Michael and dealing with his

mental problems in a way that they believe is medically

appropriate. Michael has been receiving long lasting

Haldol with supplemental oral or injectable doses. The

medication ordered for Michael prior to the emergence of

the present competency issue was to minimize decom-

pensation and to provide some symptomatic relief, in

accordance with professional medical judgment.

The order does not direct the doctors to simply con-

tinue treating Michael as they see fit. The judge has

overridden the doctors’ judgment, has substituted his

own “prescription” and has relegated the doctors to the

status of technicians whose purpose is to do whatever is

necessary to groom Michael for execution. The order does

not permit or even acknowledge the exercise of profes-

sional judgment. Although the order says that the drugs

are to be “prescribed” by a doctor, the doctors are not

given any latitude to design treatment goals or programs.

They must medicate. They are not authorized to change

the order or terminate medication even if professional

judgment advises that they do so. An additional sign that

this order is punishment, not treatment, comes from the

testimony of Dr. Cox and Dr. Vincent. Both of these

experts testified that they have ethical reservations about

medicating a patient to create competency for execution.

Q: [to Dr. Cox]: . .. [Do you-have an opinion

on the medication of a person who suffers from

a mental illness in order to make him competent

to be executed ultimately?

A: Do I have an opinion as to whether it’s

appropriate?

Q: [Sleeing that you’re in both fields of medi-

cine and law, do you perceive dilemma from

either standpoint ethically, morally or other-

wise?

A.: Icertainly do... Ethically, I certainly have

problems with giving somebody a medication so

they will get better and can be executed. That, to

me, presents kind of a catch twenty-two prob-

lem. So I think certainly that, yes, there are real

problems to me. (R. 569-70).

Q. [to Dr. Vincent]: Do you have any ethical

dilemmas or moral dilemmas presented by

treating such a person to make him competent

to sit in the electric chair?

A. Very, very touchy issue, it’s a very difficult

issue.

I have no problems in determining if I found

him to be competent to proceed in finding him

competent to proceed or if I found him not

competent to say that he’s not competent. (R.

616)

I have some discomfort if I were to treat Mr.

Perry to become competent to proceed. . .

[H]elping an individual so that he would be-

come mentally healthy or healthier just so that

he would be executed, I have a little bit of

uneasiness about that. (R. 617)

In spite of this testimony, the order gives no consider-

ation to medical ethics, to the Hippocratic Oath or to the

physicians’ guiding principle of “first do no harm’.

Because the order is not keyed to Michael's well-

being, it contains no limiting principle to take account ot

the painful, debilitating, and humiliating side effects that

may accompany psychotropic medication. It permits no

abatement of the medication even if Michael develops

side effects, as he has in the past. There are no time limits;

there is no further review. The order is simply to medi-

cate often enough, strongly enough, using whatever com-

bination of drugs is necessary to attempt to achieve

competence for execution and to keep doing so indefi-

nitely.

The trial court made no finding as to how these

drugs might harm Michael, how Michael might tolerate

these drugs or how he might respond. When the State

attempted to question the experts on this point, the court

emphatically halted that line of questioning:

Q. (By the State to Dr. Estes)... Can you treat

a man to make him sane so he can be executed?

(By the court) That’s not the issue before me

today, Mr. Salomon. I’m not going to make him

answer the question. The inquiry today is com-

petency to be executed. (R. 644).

Medication was never placed at issue until the trial

court decided to force medication. No opportunity to

litigate the propriety of the proposed medication was

given. No chance to be heard or to assert countervailing

interests was allowed. At the August 21 hearing when

forced medication was first ordered, the court prohibited

further briefing (R. 702).

The distinction between treatment and the nature of

the order in this case can be summed up in one phrase:

“the patient’s best interests”. Medicine has at its very

roots the relief of human suffering and the desire to effect

a cure. Even if the trial court’s order were to achieve its

objective, Michael would nevertheless go to his death

with his underlying mental illness. All that this order does

is to attempt to eliminate the bar erected against Mic-

hael’s execution by Ford and thereby permit the State to

have “ ... [its] judgment [of death] made executory” (J.A.

146). Truly, this reason for medication makes the use of

medicine an adjunct to electrocution, not part of the

traditional pharmacopeia of the practice of medicine.

The court’s order simply declares that “Louisiana’s

interest in the execution of that jury’s verdict override

[sic] . . . [the] rights of Mr. Perry.” (J.A. 146). It undertakes

no inquiry as to whether significant side effects are to be

expected or the nature of the harm that could be caused

by those side effects. Surely, if Michael is to retain any

residue of his status as a human being, the types and

extent of the side effects caused by this “judicial prescrip-

tion” require some sort of inquiry.

Psychotropic drugs affect a patient’s thinking pro-

cesses and ability to communicate. Injection of psycho-

tropic medication represents a “substantial interference

with that person’s liberty. Cf. Winston v. Lee, 470 U.S. 753

(1985); Schmerber v. California, 384 U.S. 757, 772 (1966).”

Washington v: Harper, 110 S.Ct. 1028 at 1041 (1990). The

decision to take such drugs implicates a person’s consti-

tutional right to make intimate decisions which funda-

mentally affect his interests. Rennie v. Klein, 653 F.2d 836,

844-45 (3d Cir. 1981); Davis v. Hubbard, 506 F. Supp 915,

92$-30 (N.D. Ohio 1980).

Psychotropic drugs also have a significant potential

for causing side effects. Harper, 110 S.Ct. 1028 at 1041

(1990) described these effects as “serious, even fatal”. The

Physicians’ Desk Reference lists the recognized side ef-

fects of Haldol as including extrapyramidal syndrome

(“EPS”),6 tardive dyskinesia,” tardive dystonia, insomnia,

restlessness, anxiety, euphoria, agitation, drowsiness, de-

pression, lethargy, headache, confusion, vertigo, grand

mal seizures, neuroleptic malignant syndrome,* impaired

liver function, anorexia, dry mouth, blurred vision, and

cataracts. Dr. Cox testified that these side effects are

believed to be the result of neurological or brain damage

(R. 574) and, with continued administration of the drugs,

a patient has a twenty to twenty-five percent chance of

developing such symptoms (R. 574-75).

For Michael the possibility of experiencing these side

effects is very real because he has actually suffered such

side effects in the past (R. 527, 552-3). As Dr. Jiminez

testified:

At one time he was also tried on lithium carbo-

nate but he did not do too well and he devel-

oped too many side effect

discontinued. (R519) Oe

* “Including Parkinson-like symptoms which . . . were

usually mild to moderately severe and usually reversible Oth-

er types of neuromuscular reactions . . . have been reported far

less frequently, but were often more severe. Severe extra-

” “A syndrome consisting of potentially irreversible, invol-

untary, dyskinetic movements may appear in some patients on

long-term therapy. .. . The symptoms are persistent and in

some patients appear irreversible. The syndrome is charac-

terized dy rhythmical involuntary movements of tongue face

mouth or jaw... . There is no known effective treatment for

tardive dyskinesia. . . . it is suggested that all antipsychotic

agents be discontinued if these symptoms appear.”

, . “A potentially fatal symptom complex . . . [with] mani-

negra a hyperpyrexia, muscle rigidity, altered mental sta-

- + . and autonomic instability (irregular pulse or blood

pressure, tachycardia, diaphoresis and cardiac dysrhythmia).”

[On Lithium carbonate he] developed some gas-

trointestinal problems which is usually common

in people taking lithium so it was discontinued.

(R. 519)

{On Haldol at FFF] he had a very poor tolerance

for medication, he ——_- a lot of side ef-

fects. He became very stiff and he would also

have some drooling, some of which he exagge-

rated himself. (J.A. 72)

Illustrative of Michael’s poor tolerance for psycho-

tropic medications is the EPS suffered while awaiting

trial. The progress notes of November 26, 1983 indicate:

“{Michael] does appear slightly stiff - possible EPS. Takes

short shuffling steps...” (Def.Ex.3; R. 542,543). Serious

symptoms appeared on December 15, 1983. He had prob-

lems getting out of bed, appeared stiff and “unable to do

anything for himself.” Id. at progress note of December

15, 1983. By January 7, 1984, the diagnosis of EPS was

made. Id. at progress note of January 7, 1984. On January

9, 1983, Michael’s symptoms became more pronounced:

“(He] was walking down the hallway, staggering and

drooling at the mouth. [He] has a look and walk like he is

in a zombie state.” Id. at progress note of January 9, 1983.

Dr. Vargas examined Michael for possible EPS and found

shuffling gait, stiffness, increased muscle tone and in-

creased “DTR’s”. On January 14, Michael was again walk-

ing with a shuffling gait. The excessive drooling had

resumed. Id. at progress note of January 14, 1954

The next morning Michael fell down the stairway. He

was found to have urinated on himself, was almost un-

able to walk, was still drooling, had a shuffling gait and

some movements of his tongue. The doctor noted that

although Michael might be exaggerating EPS, “! believe

that he does have objective signs of EPS.” Id. When he

was brought to sick bay the next morning, he had muscu-

lar rigidity, was drooling and he had to be held to prevent

his falling. His speech was slurred. Dr. Vargas found

dehydration, malnourishment, neuromuscular and car-

diovascular abnormalities.

Michael was evaluated by Dr. Franklin, a neuro-

psychiatrist, on January 27, 1984. Examination findings

were “underlying psychosis” with Michael's mental sta-

tus having markedly deteriorated over the previous

month. Rigidity and mental confusion were also found.

Michael had marked weight loss, difficulties with gait

and an urinary tract infection. Gait was described as

having a narrow base with an atypical shuffling gait. The

diagnosis was “organic encephalopathy of unknown eti-

ology with evidence of extrapyramidal side effects proba-

bly secondary to Prolixin.” Dr. Franklin began a course of

medication to “try to reverse what appears to be extra-

pyramidal side effects” and felt that Michael should be

sent to a general hospital for full evaluation. Id. at consul-

tant examination of January 27, 1984. Michael was hospi-

talized at Charity Hospital in New Orleans from February

3 through February 8, 1984. On his return to FFF, Dr.

jiminez stated that “This patient had been taken off psy-

chotropic medication because he developed side effects.”

ld. at Dr. Jiminez progress note of March 16, 1984.

Side effects are not speculation with Michael Perry.

The question then posed is: Can medication, which is

known to cause severe side effects in this patient, be given

without crossing the Eighth Amendment line? What is

being ordered for Michael is not wellness, but exposure

to severe, debilitating and humiliating side effects. The

specter of dragging an insane inmate to his death was

raised in Ford an? found to be unacceptable to a civilized

society. Can it be any more “civilized” to take a drooling,

incontinent, tremulous Michael to the execution cham-

ber?

Furthermore, the medication simply does not achieve

the result that the trial court desires. In the years that

Michael has been at LSP, he has been medicated exten-

sively. Yet the records, as well as the testimony at the

April and September hearings, show that even with mas-

sive doses, Michael’s competency remains ephemeral.

Under these circumstances, this order is not for treat-

ment. It cannot even be pretended that an order which

has no limits, which is not governed by any consideration

of the patient’s well-being, which allows no exercise of

professional judgment and which permits no variance

based on the efficacy of the medication is in the remotest

sense medical treatment. The order is nothing other than

a step toward Michael’s execution and thus a part of his

punishment (See, Medley, Petitioner, 134 U.S. 160, 170-71

(1890)).

The order in effect turns Ford v. Wainwright, 477 U.S

399 (1986) and the Eighth Amendment against Michael!

Rather than being protected from execution because he is

insane, Michael’s insanity has become the justification

through which new punishments have become permiss-

ible. Because Michael is insane, the State is now able to

inject him with unlimited dosages of drugs, for an unlim-

ited time, with uncertain outcome.

The use of psychotropic drugs for purposes inimical

to treatment has been described as “Orwellian.” See, Large

v. Superior Court, 714 P.2d 399 at 409 (Ariz., 1986). “Or-

wellian” is indeed an apt adjective to describe what has

happened to Michael and what will continue to happen

under this judicial prescription. What the court has or-

dered here is a prescription which the Eighth Amend-

ment forbids.

B. THE ORDER TO FORCIBLY MEDICATE Mi-

CHAEL VIOLATES THE FUNDAMENTAL RE-

SPECT FOR HUMANITY UNDERLYING THE

EIGHTH AMENDMENT.

The justification given by the trial court for this order

of forcible medication is that:

The citizens of the State of Louisiana through

their Legislature have enacted the death penalty

for certain crimes. The citizens of Louisiana

heard this case through the jury. Mr. Perry is no

longer a person surrounded with the veil of the

presumption of innocence. He has been found

guilty by a jury of his peers and has been sen-

tenced by them accordingly to suffer the ulti-

mate punishment.

And it is felt by this Court that Louisiana’s

interest in the execution of that jury’s verdict

override those rights of Mr. Perry. The State is

entitled to have that judgment made executory.

To allow Mr. Perry to have the authority to make

this decision and to refuse treatment and there-

by become incompetent would allow total

usurpation of the criminal laws in this area,

which were enacted by the State of Louisiana.

(J.A. 146).

What the court fails to acknowledge is that, even

when a death sentence has been imposed, there are still

limits on the state’s power to carry out that sentence. A

state’s power must “be exercised within the limits of

civilized standards” Woodson v. North Carolina, 428 US.

280, 302 (1976) citing Trop v. Dulles, 356 U.S. 86 at 101

(1958).

In deciding whether those standards have been vio-

lated in Michael's case, it is important to note that this

order is the product of penological policy-making by a

single trial judge. The only official organ of the State

which has decided that “Louisiana’s interest in the execu-

tion of that jury’s verdict override [sic] those rights of Mr.

Perry” (J.A. 146) is this trial court. The Louisiana Legisla-

ture has conspicuously not adopted the policy favored by

Michael's trial judge: forced medication to produce syn-

thetic competence to be executed. To the contrary, as

shown in Part Il, the order arbitrarily disregards the

whole fabric of pertinent state statutory law which pro-

hibits the use of medication for non-treatment purposes.

Nor has the Louisiana Supreme Court approved this

choice. It merely declined to review the order, 4 votes to

3, without opinion. Thus, the ruling that the “State is

entitled to have . . . [a death sentence} made executory”

and to use forcible medication to achieve that end is not a

position that has commended itself to any authoritative

lawmaking agency of the State of Louisiana. These points

are constitutionally significant for two reasons.

First, Michael is not being drugged and executed

pursuant to a consistent, identifiable state policy. Michael

is to be medicated solely on the basis of a ruling that is

the law of no case but his own. Because this order lacks

an authoritative basis in statutory law and lacks the im-

primatur of a considered judgment from the Louisiana

Supreme Court, Louisiana trial judges in similar cases

might or might not subscribe to the same policy judg-

ment. Thus in the administration of | ouisiana’s death

penalty, there is now “a substantial risk that the punish-

ment [of death] will be inflicted in om arbitrary and

capricious manner.” Godfrey v. Georgia, 446 U.S. 420, 427

(1980).

Second, the order to medicate Michael to groom him

for execution does not come before this Court armored

with the kind of credentials that entitle it to deference as

an expression of policy from the Legislature or the State's

highest court. Rather, it is the type of isolated judicial

decision, unsupported by legislative authorization, that

the Eighth Amendment was written principally to con-

trol.

The “limits of civilized standards” that mark the

boundaries of allowable punishment under the Eighth

Amendment are gauged by a familiar methodology. The

Court has recognized that the meaning of the Eighth

Amendment “is not fastened to the obsolete,” Weems v.

United States, 217 U.S. 349, 378 (1910), but “ ‘must [be]

drawn{n] .. . from the evolving standards of decency that

mark the progress of a maturing society,’ ” Gregg v. Geor-

gia, 428 U.S. 153, 173 (1976) (quoting Trop v. Dulles, 356

US. 86, 101 (1958)). The analysis of a particular punish-

ment in light of “evolving standards of decency” involves

two inquiries. First, the Court examines contemporary

standards of decency by focusing upon “objective indicia

that reflect the public attitude toward a given sanction,”

Gregg v. Georgia, 428 U.S. at 173, including “the historical

development of the punishment at issue, legislative judg-

ments, and the sentencing decisions juries have made.”

Enmund v. Florida, 458 U.S. 782, 788 (1983). Second, “in-

formed by [these] objective factors,” Coker v. Georgia, 433

U.S. 582, 592 (1977), the Court “bring|{s] its own judgment

to bear on the matter,” Enmund v. Florida, 458 US. at

788-89, to determine whether the sanction “comports

with the basic concept of human dignity at the core of the

Amendment.” Gregg v. Georgia, 428 U.S. 182. The addi-

tional punishment inflicted upon Michael under the trial

court’s order flouts the evolving standards of decency

under both of these measures.

In Ford v. Wainwright, 477 U.S. 410 (1986), the Court

examined the States’ legislative enactments concerning

the execution of incompetent prisoners. Finding that the

States unanimously rejected execution of the insane, the

Court concluded that this consensus established that con-

temporary standards of decency were offended by such a

punishment.

[T]he intuition that such an execution simply

offends humanity is evidently shared across this

Nation. Faced with such widespread evidence of

a restriction upon sovereign power, this Court is

compelled to conclude that the Eighth Amend-

ment prohibits a State from carrying out a sen-

tence of death upon a prisoner who is insane.

Ford, 477 U.S. at 409-10. This same analysis mandates the

conclusion that using medication solely for purposes of

grooming an inmate for execution is prohibited by the

Eighth Amendment.

The Appendix to this brief contains a survey of state

statutes providing for involuntary medication of prison-

ers, the procedures for dealing with insane inmates, and

the limitations imposed on forcible medication. As the

Ford Court observed, all states which have the death

penalty prohibit execution when the condemned prisoner

is incompetent. Of these States, thirty (30) commit the

defendant civilly for treatment. One automatically com-

mutes the sentence to life imprisonment.

At least twenty-five (25) States prohibit forcible treat-

ment of incompetent persons absent a medical emergency {

or prohibit the use of medication for nonmedical pur-

poses. Thirteen (13) other States prohibit the use of ex-

treme treatments such as lobotomies.? '°

No state has passed legislation authorizing the use of

medication to establish competency for execution nor ts counsel

aware of any case in which medication hes been ommnerhe for

this purpose. Except for the order in Michael's case, Loui-

siana has never authorized medication to achieve compe-

tency for execution. Ford certainly brought to the —

question of executing the insane. Yet in the wake of For

neither Louisiana nor any other state has found it appro-

priate to use drugs to circumvent the prohibition against

executing the insane or to carve out condemned sata

tent prisoners from the general prohibition against ~ .

untary medication for nonmedical purposes. This

consensus shows that “contemporary standards of human

decency” prohibit what the trial court has ordered for

Michael.

LSO VIOLATES

Il. THE MEDICATION ORDER A

MICHAEL’S FOURTEENTH AMENDMENT

RIGHT TO DUE PROCESS.

How did the trial court conclude that Louisiana ap-

proves the use of drugs to create competency to be exe-

cuted? There is no Louisiana statute which condones this

practice. There is no decision from the Louisiana Supreme

® Psychotropic drugs have been classified as intrusive and

extreme as lobotomies and electroshock surgery (Guardianship

of Roe, 421 N.E.2d 40 at 53 (Mass. 1981)).

10 The issue of forced medication has been poignantly _

eloquently articulated in a note entitled Medical Ethics =

Competency to be Executed, 96 Yale L.j. 167 (1986), and pny

observed in a casenote, at 47 La. L. Rev. 1351, 1361

Court authorizing it. There is not even an administrative

regulation which contemplates it.

To the contrary, Louisiana’s statutes on treatment of

insane inmates, on forcible medication, and on the use of

medication clearly forbid what the trial court has or-

dered. The Code of Criminal Procedure articles on incom-

petency provide:

If the court determines that the defendant lacks

mental capacity to proceed, the proceedings

shall be suspended and the court shall commit

the defendant to the custody of the Department

of Health and Human Resources or a private

institution approved by the court for custody,

care, and treatment as long as the lack of capaci-

ty continues.

(3) If . . . the court determines the mentally

defective defendant incapable of standing trial,

is a danger to himself or others, and is unlike!

in the foreseeable future to be capable of stand-

ing trial, the court shall order commitment to a

designated and medically suitable treatment fa-

cility. Such a judgment shall constitute an order

of civil commitment. La. Code Crim. Proc. Ann.

art. 648 (1988)

Although these articles are phrased in terms of pre-trial

incompetency, they have been applied to post-conviction

proceedings (see State v. Henson, 351 So.2d 1169 (La.

1977)). They were specifically cited by the Louisiana Su-

preme Court in Michael’s direct appeal as the framework

through which to determine his competency to be exe-

cuted (State v. Perry, 502 So.2d 543, 563-4 (La. 1987); |.°

43-44).

Louisiana’s law on forcible medication of inmates is

La. Rev. Stat. Ann. 15:830.1. That statute permits forcible

medication for no longer than fifteen days and then only

when (1) the inmate is mentally ill or retarded and (2) a

42 -

ician certifies that medication is necessary to prevent

among the inmate or others. Id. 15:830.1 (A). Medication

beyond fifteen days is permitted only if (1) a petition has

been filed with the court; (2) the petition sets forth rea-

sons for the treatment; (3) there is a hearing at which the

inmate has a right to counsel; and (4) the court deter-

mines that the inmate is incompetent. /d. If these condi-

tions are met, the inmate is to be given “appropriate

treatment” at a treatment facility. Id. 15:830.1 (B) in accor-

dance with all procedures required by law for civil com-

mitments. Id. 15:830.1 (C).

Louisiana law on the use of medication c= La. Rev.

‘ . 28:171. Section P of that statute states:

ae canes may be administered to a patient

except upon the order of a physician. The wd

cian is responsible for all medications which he

has ordered and which are administered to a

patient. . . .Medication shall not be used for non-

medical reasons such as punishment or for conve-

nience of the staff. (Emphasis added).

The theme throughout these statutes is “treatment”.

Treatment is the exclusive justification for sorced medica-

tion. Nowhere in Louisiana law is there authorization for

forcible medication for any reason other than treatment.

All of these statutes are written in mandatory lan-

guage - petition shall be filed”, “Court shall determine

whether the inmate is competent”, and if the inmate is

not competent, the court “shall order that appropriate

treatment be provided.” In Harper, __ US. __, 110 S.Ct.

1028 at 1036, this Court recognized that an order for

forced medication, written in mandatory language, Cre-

ates a liberty interest protected by the Due Process

Clause:

In Hewitt v. Helms, 459 U.S. 460 (1983), we held

that Pennsylvania had created a protected wart

ty interest on the part of prison inmates to avol

administrative segregation by enacting regula-

tions that “used language of an unmistakably

mandatory character, requiring that certain pro-

cedures “shall”, “will”, or “must” be employed

. . + + Policy 600.30 is similarly mandatory in

character. By permitting a psychiatrist to treat

an inmate with psychotropic drugs against his

wishes only if he is found to be (1) mentally ill

and (2) gravely disabled or dangerous, the Poli-

cy creates a justifiable expectation that drugs

will not be administered unless those conditions

occur.

When a regulation or statute creates such expecta-

tions, the Due Process Clause “insure[s] that the state-

created right is not arbitrarily abrogated.” Meachum v.

Fano, 427 U.S. 215, 227 (1976) (quoting Wolff v. McDonnell,

418 U.S. 539, 557 (1974)). This Court need not decide

whether the Fourteenth Amendment requires exactly the

same statutory scheme that Louisiana has adopted. A

state, by its enactments or decisional law, may create an

expectation which is broader than the substantive protec-

tion provided by the United States Constitution. F. rd, 477

U.S. at 421 n.3, (Powell, J., concurring); Mills v. Rogers,

457 U.S. 291, at 300 (1982).

Louisiana’s statutory law and jurisprudence on medi-

cation has created expectations cognizable under the Due

Process Clause. Like the policy in Harper, these statutes

“undoubtedly confer[] upon respondent a right to be free

from the arbitrary administration of antipsychotic medi-

cation.” Harper, 110 S.Ct. at 1036. The trial court’s order

denies Michael the expectation that he will be medicated

only in accordance with Louisiana statutory law and,

thus, is a violation of Due Process.

O MEET

. THE TRIAL COURT’S ORDER FAILS T

" MINIMAL DUE PROCESS REQUIREMENTS.

Harper, U.S. __, 110 S.Ct. 1036-37 recognizes that

an order of forced medication must be evaluated not only

in light of the state’s statutory scheme but also in light of —

the Due Process Clause:

no doubt that, in addition to the liberty

pedo the State’s policy, ~~ peers

a significant liberty interest in avoid-

ing the unwanted administration of —- (~

tic drugs under the Due Process Clause of t

Fourteenth Amendment... .

Harper, 110 S.Ct. at 1036-37,

Harper permitted this interest to be curtailed ~e

upon a finding “that a mental disorder exists that is likely

to cause harm if not treated” and “the treatment is in the

inmate’s medical interest” and “the drugs may be admin-

istered for no purpose other than treatment and only

under the direction of a licensed psychiatrist.” Harper, 110

S.Ct. at 1039-40. In ruling in Michael's case that the state's

interest in carrying out its sentence overrides any inter-

ests that Michael has, the court failed to undertake this

balancing of interests required by the Fourteenth Amend-

ment. Obviously, a state has an interest im seeing its

criminal penalties carried out. But the court's conclusion

that the death penalty justifies anything and everything

that happens to Michael, with no limits whatsoever, goes

too far.

Louisiana has said that it will not execute Michael

when he is insane (State v. Perry, 502 So.2d at 563-64, J.A.

43). Using forced medication solely as a means to groom

Michael for execution, without in any way limiting that

order or considering Michael's interests and medical

needs, violates the limits set in Harper.

IV. THE TRIAL COURT’S FINDING OF MICHAEL’S

COMPETENCY WAS MADE THROUGH PRO-

CEDURES THAT FAILED TO AFFORD THE SAFE-

GUARDS REQUIRED BY THE EIGHTH

AMENDMENT AND DUE PROCESS.

At the April 20, 1988 hearing, each of the experts

found Michael incompetent (J.A. 63, 69, 70, 89). At that

hearing the defense and the state both rested (J.A. 97-98).

The court asked for briefs and set the ruling for May 26,

1988 (R. 692).

After the April 20, 1988 hearing the trial court began

ex parte communication with the State. The information

provided to the trial court was not made available to

counsel for Michael. Nor were they even made aware of

the existence of these communications. Counsel first be-

came aware of these materials when the State cited a

“weekly report” in its brief to the trial court after the

April, 1988 hearing (R. 122).

Defense counsel filed a written motion (R. 194) objec-

ting to the Court receiving or relying on any such com-

munications, citing Michael's right » cross-examination,

confrontation, basic due process and Sixth Amendment

concerns. Counsel also asked for a hearing on whether

this communication should be considered.

No hearing was granted and on August 26, 1988 the

Court denied the written motion (J.A. 110). The court

stated that it would rely upon and was considering these

materials (J.A. 111). The result of the court’s reliance on

the uncross-examined, unsworn hearsay and opinion was

a “new” hearing set by the Court on September 30, 1988.

No express ruling on Michael's competency has been

made from the “old” hearing.

This ex parte communication consists of communica-

tions with Department of Corrections’ counsel and com-

mentary on Michael’s condition by Department of

Corrections personnel (J.A. 99-106). These individuals

were never called to testify, were never subjected to

cross-examination or to the basic rule of competency - the

oath. Their reports offer opinions even though the au-

thors were never qualified as experts; the factual founda-

tion justifying hese opinions is not given."

These materials lack any indicia of reliability. For

example, one of the documents is a note from a social

worker who writes that she “saw [Michael] while . . . on

the tier to see another inmate. He appears to be in fair

remission”. (J.A. 106). “Fair” as compared to what? What

had she seen the day before, or week before - a decom-

pensated, insane Michael? On what facts was this opinion

based - did she interview him, do diagnostic testing, or

did the author just catch a glimpse of Michael as she

walked down the hall? We will never know.

A second report (J.A. 101-02) is a response by a social

worker to three questions, namely Michael's condition on

medication, his condition immediately after being re-

moved from medication, and his condition after being off

medication for an extended period. Unlike medical re-

cords or charts which are maintained by medical profes-

sionals in the ordinary course of diagnosis or treating a

patient, this document was specially prepared for sub-

mission to the court (J.A. 101). The answers are not a

factual synopsis from the chart; they are opinions and

impressions.

1! The materials included in the record may not be all -

the ex parte communications given to the court. One item «

99) refers to “prior conversation” with the court and states that

there will be more weekly reports submitted in the future.

Another excerpt consists of one day's nursing notes

from Michael's hospital record at LSP (J.A. 104-05). Mic-

hael is constantly being hospitalized. Why pick this one

day? The answer is obvious - this was an attempt to

convey the impression that Michael is rational. However,

the testimony from the April and September 1988 hear-

ings shows that Michael's contact with reality varies on a

daily (or less) basis. Selecting one day as a measur®é of

Michael's condition is not a fair attempt to keep the Judge

updated on Michael’s condition - it is a blatant attempt to

pick and choose “evidence” most beneficial to the State.

outside of the ability of defense counsel to challenge the

evidence and demonstrate that this is not representative

of Michael’s condition. :

The purpose of cross-examination is to explore ques-

tions so the trier of fact can determine what weight, if

any, to give to the witness’ testimony. Michael was denied

this opportunity because of the ex parte nature of these

communications. As stated in Ford, 477 US. at 416:

[C]ross-examination . . . is beyond any doubt the

greatest legal engine ever invented for the dis-

covery of the truth. . . .Cross-examination of the

ychiatrists, or perhaps a less formal equiva-

ent, would contribute markedly to the process

of seeking truth in sanity disputes by bringing

to light the basis for each expert's beliefs, the

precise factors underlying those beliefs, any his-

tory of error or caprice of the examiner, any

personal bias with respect to the issue of capital

punishment, the expert’s degree of certainty

about his or her own conclusions, and the pre-

cise meaning of ambiguous words used in the

report. Without some questioning of the experts

concerning their technical conclusions, a fact-

finder simply cannot be expected to evaluate the

various opinions, particularly when they are

themselves inconsistent... The failure of the

Florida procedure to afford the prisoner's repre-

sentative any opportunity to clarify or challenge

the state experts nions or methods creates a

significant ibility that the ultimate decision

made in ieaae on those experts will be dis-

torted.

The procedural defect in Michael's case is as

egregious as the defect which led this Court to find

Florida’s procedure inadequate. In Ford, defense counsel!

was not given an opportunity to present evidence and

cross-examine the experts. In Michael's case, there was a

hearing at which the State and defense questioned the

members of the sanity commission. The problem is that

the record was “supplemented” with ex parte reports and

those reports obviously influenced the court's decision.

The court so stated. (R. 700).

This Court has said on at least three occasions that

determinations of competence must comply with minimal

due process, cross-examination and confrontation. In ad-

dition to Ford, the Court in Vitek v. Jones, 445 U.S. 480

(1980) held that the transfer of an inmate for psychiatric

treatment without adequate hearing and confrontation

was unconstitutional. In Specht v. Patterson, 386 U.S. 605

(1967), the Court reversed when the trial judge relied on a

psychiatrist’s report, without a hearing, in determining

that a defendant should be transferred to a mental hospi-

tal. The Court found that a procedure which considered

hearsay evidence and denied cross-examination and con-

frontation violated due process.

In addition to constitutional requirements, Louisiana

has statutes which guarantee an adversarial proceeding

when competence is at issue. Notice, hearing, confronta-

tion and cross-examination are expressly a part of the

Code of Criminal Procedure Articles on sanity commis-

sions (La. Code Crim. Proc. Ann. art. 647). A hearing with

notice and representation by counsel is required by the

Statute on commitment of insane inmates (La. Rev. Stat.

Ann. 15:830) and the statute on medication of inmates

(La. Rev. Stat. Ann. 15:830.1). The statutes are couched in

“language of an unmistakably mandatory character”.

What is at issue is that the integrity of the factfinding

process broke down. The procedure used by the trial

court is contrary to Louisiana law and fails to provide the

rudiments of Due Process. These deficiencies warrant the

reversal of the trial court’s decision.

Vv. THE TRIAL COURT’S FINDING OF MICHAEL'S

COMPETENCY DOES NOT MEET EIGHTH

AMENDMENT STANDARDS.

A. THE FINDING OF COMPETENCY DOES NOT

MEET THE STANDARDS OF FORD BECAUSE

IT DOES NOT ASSURE THAT MICHAEL

WILL ACTUALLY BE COMPETENT AT THE

TIME OF EXECUTION.

While concluding in Ford that executions of the in-

sane are unconstitutional, this Court has not stated how

competency to be executed should be defined. Justice

Powell addressed this question in an often quoted con-

currence:

If the defendant perceives the connection be-

tween his crime and his punishment, the re-

tributive goal of the criminal law is satisfied.

And only if the defendant is aware that his

death is approaching can he prepare himself for

his passing. Accordingly, | would hold that the

Eighth Amendment forbids the execution only

of those who are unaware of the punishment

they are about to suffer and why they are to

suffer it.

Ford, 477 U.S. at 422. see also Penry v. Lynaugh, — US.

109 S.Ct. 2934 (1989).

Michael Perry’s case demonstrates that, while the

factors listed by Justice Powell are necessary consider-

ations, they do not provide a sufficient basis for defining,

competence under the Eighth Amendment. Therefore,

when the trial court adopted Justice Powell's concurrence

as the test for Michael’s competency (J.A. 141, 145), it

omitted key factors which must be considered if Mic-

hael’s sentence is to be constitutionally carried out.

The first factor which was omitted is reliability. This

Court has stated that the Eighth Amendment's prohibi-

tion against cruel and unusual punishment creates a spe-

cial need for certainty and reliability when the death

penalty is to be imposed (Johnson v. Mississippi, 486 US.

578 at 584 (1988) citing Gardner v. Florida, 430 U.S. 349, at

363-64 (1977), Woodson v. North Carolina, 428 U.S. 280, at

305 (1976). The definition of competency should thus

include a requirement that the inmates competency be

stable and predictable. Otherwise, there can be no cer-

tainty that, at the time of his execution, the inmate is in fact

competent. ;

Michael lacks this predictability, reliability, and sta-

bility. Dr. Cox described him as a “moving target” (J.A.

81); there is no way to predict whether any particular day

will be good or bad (J.A. 79). For example, Dr. Jiminez

found Michael incompetent on February 4, 1988 (J.A. 70).

When Dr. Cox saw Michael on March 3, 1988, he felt that

Michael was “functioning as well as [Dr. Cox] had seen

him function” (J.A. 79) and that he was aware that he was

to be executed. When Dr. Vincent saw him two days later,

he was “floridly psychotic’ and not competent to be

executed (J.A. 90). The LSP records show numerous occa-

sions when Michael was released from the hospital as

“stable” or “improved” only to be readmitted within a

matter of days as decompensated and psychotic.

With this instability and unpredictability, how is Mi-

chael’s execution to be carried out? Can the state wait

until a “good day” and execute Michael? Can Michael be

executed if his “good days” outnumber his “bad days” by

some amount? What amount? And what happens if the

date set in the death warrant is a “bad day”?

When Dr. Cox says that Michael was doing better in

March 1988, the inevitable question is “better than

what”? For Michael, “better” may mean that he no longer

thinks he is a CIA agent or that he has stopped feeding

soap to the toilet. His competency is only “a relative

thing” (J.A. 78). Even with his medication and even on his

best days, Michael has never been completely coherent,

rational and well-integrated (J.A. 83-84). When Dr. Cox

saw Michael in September, 1988, he concluded that he

was getting worse even on medication (J.A. 115-16). Dr.

Jiminez described him as “ambivalent” and inconsistent

in his comprehension. It is this symptom which caused

her concern about his competence and this symptom

cannot be cured by medication (J.A. 75-76).

A standard which defines competency as simply “do-

ing better” is arbitrary. A standard which permits compe-

tency to de based on fleeting glimpses of insight or the

ability to “mouth the right words” does not ensure the

reliability that the Eighth Amendment requires. When

competency lasts for only a day or two and there is no

way to predict when the inmate will or will not be com-

petent, the death penalty becomes capricious and arbi-

trary. It is literally a question of the executioner catching

the inmate on a “good day” or else subjecting him to an

execution that is unconstitutional.

A standard which permits competency to be based on

fleeting glimpses of insight also encourages repetitious.

last minute pleas for stays of execution. Under such a

standard a record presented to a District Court, even if it

adequately reflects the prisoner’s condition at a point in

time, becomes inaccurate by the time the same case

reaches the Court of Appeal and even more inaccurate by

the time it reaches this Court. The choice then becomes

either executing someone who cannot understand his

punishment or inviting additional evidentiary hearings.

While Michael's condition is obviously peculiar to

him, his facts show why Justice Powell's standard should

be expanded. Adopting a standard which requires dem-

onstrated stable, predictable competence allows some as-

surance that the record being reviewed truly reflects the

inmate’s condition. Such a standard would provide the

degree of reliability that Furman v. Georgia, 408 U.S. 238

(1972) and Woodson, 428 U.S. 280 (1976) require.

B. THE PROPER EIGHTH AND FOURTEENTH

AMENDMENT STANDARD REQUIRES CON-

SIDERATION OF A CONDEMNED INMATE’S

CAPACITY TO CONSULT AND COOPERATE

WITH COUNSEL IN PURSUING SUCH POST-

CONVICTION PROCEEDINGS AS ARE NOT

YET EXHAUSTED.

The second factor omitted by the trial court was a

consideration of Michael's ability to assist counsel in his

remaining post-conviction proceedings. The ability to ass-

ist counsel is part of Louisiana’s definition of competency

in Code Crim. Proc. art. 641:

Mental incapacity to proceed exists when, as a

result of mental disease or defect, a defendant

presently lacks the capacity to understand the

roceedings against him or to assist in his de-

ense.

Per La. Code Crim. Proc. Ann. art. 642, a aefendant’s

mental capacity to proceed may be ruised at any time.

Once a defendant’s mental capacity to proceed is raised,

ail proceedings cease until the defendant is found to have

the mental capacity to go forward.

Since State v. Allen, 15 So.2d 870 (La. 1943), the Loui-

siana Supreme Court has applied this statutory scheme in

the context of post-trial competence to be executed. Allen

extends the competency-to-stand trial articles tc post-

conviction situations. In Allen, the Louisiana Supreme

Court found that before a defendant will be executed,

competency must be demonstrated, “[Flor the same rea-

son that a person is entitled to a hearing before a convic-

tion on the question of his sanity, he is entitled to a

hearing after conviction; and the same rules of procedure

_ govern.” Allen at 871; A defendant, then, must be able to

undersitand the nature of the proceedings, or be able to

assist iin his) defense before Louisiana will execute him

since the same rules govern.

In State v. Perry, 502 So.2d 543 (La. 1986), the Louisi-

ana Supreme Court approved the application of Allen to

post-conviction determinations of competency to be exe-

cuted:

Counsel for the defendant may apply to the trial

court for appointment o. a sanity commission to

make such a determination. | , the allega-

tion of mental incapacity may be raised by the

Court or the prosecutor. La.C.CrP. art. 642.

If the defendant seeks a sanity commission prior

to execution, he bears the burden of providing

the trial court with a reasonable ground to be-

lieve he is presently insane. State v. Ailen, supra;

La.C.Cr.P. art. 642; State v. Lowenfield, supra. De-

fendant’s burden is to show by a preponderance

of evidency that he lacks the present capacity to

undergo execution.

Perry, 502 So.2d at 564.

Perry's “present capacity to undergo execution” in-

corporates the standards for competency set forth in

La.Code Crim. Proc. Ann. art. 641 and elaborated upon in

State v. Bennett, 345 So.2d 1129, 1138 (La. 1977). Since

Allen requires a hearing on the question of competency to

be executed “for the same reason” that a person is enti-

tled to a hearing before conviction, the same factors

which Bennett requires a Court to consider in determining

competency before trial, are applicable to the post-convic-

tion context.!?

"2 To divorce competency to be executed from competency

to assist counsel creates more . If a defendant is

entitled to seek post-conviction relief, then he must be able to

sufficiently review the case with his counsel so that counsel

can prepare a comple’ and sufficient post-conviction petition.

In fact, in order to ensure fairness in post-conviction capital

cases, many states, Louisiana included, have sought the assis-

tance of large civil law firms to provide representation in post-

conviction death cases. Judge Rubin of the United States Court

of Appeals for the Fifth Circuit stated the matter succinctly:

“Why are the courts involved in this project? Because we

believe that no person should be executed until he has had a

fair opportunity with the benefit of competent counsel! to

have the constitutionality of his conviction and sentence re-

viewed.” Rubin, You Don't Have to be a Bleeding Heart: A Call For

Tough Minded Lawyers Who Believe in Due Process, 35 La. B.J. 240,

241 (1987). See also, Criminal Law and Procedure, 35 Loy. L. Rev.

833, 856-57 (1989). That is what happened in Michael's case. By

written order of the Louisiana Supreme Court, counsel was

appointed to represent him in post-conviction proceedings.

The import is clear: the judiciary is seeking competent counsel

to represent death row inmates in post-conviction proceedings.

Notwithstanding the fact that death row inmates might under-

stand the punishment they are to suffer and why they are to

suffer it, if they are unable to assist counsel in the preparation

and presentation of petitions for post-conviction relief, then a

defendant's right to seek post-conviction relief in both the state

and federal court systems is meaningless and violates due

process since counsel was appointed by court order to assist

the inmate.

Under Bennett the condemned person must under-

stand the nature of the proceedings agains! him, ie.,

understand he has been sentenced to death for his having

committed the crime; and he must participate with in-

formed appreciation in the execution of that sentence, i.e.,

understand the nature and finality of the death penalty.

Lastly, he must be able to assist in his defense, ie., he

must be able to provide meaningful assistance in the

defense of his life by understanding the proceedings.

The Bennett criteria are similar to Standard 7-5.6(b) of

the American Bar Association’s Criminal Justice Mental

Health Standards on Competence and Capital Punish-

ment which states:

A convict is incompetent to be executed if, as a

result of mental nese or mental retardation,

the convict cannot understand the nature of the

oa proceedings, what he or she was tried

or, the reason for the punishment, or the nature

of the punishment. The convict is also incompetent

if, as a result of mental illness or mental retardation,

the convict lacks sufficieat capacity to recognize or

understand any fact which might exist which would

make the punishment unjust or unlawful, or lacks

the ability to convey such information to counsel or

to the Court. (emphasis added).

The ABA Task Force was concerned that “the integri-

ty of the criminal justice system is eroded by the execu-

tion of a defendant who is incapable of understanding the

penalty that is about to be imposed or who is unable to

communicate exculpatory or mitigating information that

might effect the decision regarding capital punishment.”

(Commentary on Rule, 7-5.6). The Task Force found “{t}he

possibility that a defendant could be executed because of

inability to communicate information that could be rele-

vant to the decision whether to carry out the death sen-

tence is equally unacceptable as executing someone who

could not understand the penalty.” (Commentary on

Rule, 7-5.6(b), footnote 7). Recognizing that Justice Pow-

ell’s concurrence is limited, the Task Force stated that the

ABA standard addresses “both ability to understand the

proceedings and ability to assist counsel.”

The trial court in Michael's case acknowledged Allen

and the Code of Criminal Procedure articles (J.A. 130-31)

but then ignored the very “set of statutes [it had] to work

with.” The trial court failed to apply that statutory

scheme and its jurisprudence to the post-conviction set-

ting as required by Allen and failed to inquire whether

Michael has the ability to understand these proceedings.

The testimony shows that Michael does not under-

stand fully the nature of these proceedings and cannot

assist counsel in present or future representation regard-

ing the presentation of his case, including these very

proceedings. At the September hearing, Dr. Cox made

that fact abundantly clear’? as did Dr. Vincent in the April

hearing.'*

'S “As far as the issue of being able to participate mean-

ingtully in legal proceedings, testify, help an attorney, make

rational decisions, basice}ly the Bennett criteria as outlined in

the Louisiana Supreme Court decision, | did not feel he was

competent under those standards for legal participation.” ().A.

116)

4 “As of March 5th .. . he was also very tangential, he had

some difficulty paying attention and as a result | would see his

having some difficulty assisting in his defense today, for in-

stance. . . .To be able to sit in the courtroom, hear what the

witness is talking about here, hear what the members of the

court are talking about, critically evaluate these and give some

information to his attorney as to whether that’s accurate or

inaccurate or whether he has some additional information that

he would provide.” (R. 629)

By subjecting Michael Perry's competence solely to

Justice Powell's Ford analysis, the trial court derogated

rights Michael Perry has pursuant to Louisiana statutory

law. Because Louisiana law recognizes, as Ford said, “a

more expansive view of sanity in this context than the

one the Eighth Amendment imposes as a constitutional

minimum”'’ the trial court’s failure to recognize and

apply those standards violates Michael Perry’s Four-

teenth Amendment right to Due Process. As pointed out

by Justices O'Connor and White in their concurring opin-

ion in Ford, when a state clearly gives certain rights to a

defendant, the arbitrary failure to recognize those rights

deprives the individual of Due Process. See also Hicks v.

Oklahoma, 447 U.S. 343 (1980).

Accordingly, Michael’s case clearly demonstrates an

expansive view is needed and that standard of competen-

cy to be executed should encompass the ability of the

condemned inmate to assist his counsel. Adding this

requirement is essential because even if an inmate fleet-

ingly understands the reason he is to be executed and

that he will die, that fact does not mean that he is sane,

competent, in touch with reality or able to assist counsel.

C. UNDER ANY STANDARD, MICHAEL PERRY

IS INCOMPETENT TO BE EXECUTED.

Like Alvin Ford (Ford, 477 U.S. at 404), Michael is

confused about who killed his parents, whether or not

'S The Louisiana Constitution provides that [njo law shal!

subject any person to .. . cruel, excessive, or unusual punish-

ment.” La. Const. Art. I Section 20. See State v Sepulvado, 367

S0.2d 762, 764-766 (La. 1979). See also Note, 47 La. L. Rev 1351,

1359, 1364 and n. 62 (1987), supporting the position that Louisi-

ana provides greater substantive and procedural safeguards

than Ford.

they are even dead and why he is in prison. From day to

day, Michael's grasp of reality is mercurial. Dr. Cox testi-

fied that when Michael becomes psychotic he is not com-

petent to be executed. (R. 551). Michael has the delusion

that he is God and “that he could not be killed by electro-

cution, that it would take several hours for the staff to

figure this out and it would be a struggle but that he

would prevail and he would not be executed.” (R. 556A).

Also like Alvin Ford, Michael does not believe that

he is to die for the murders for which he has been

convicted. When the trial court asked Michael if he knew

he had been brought to trial for killing five members of

his family, Michael answered “I didn’t do it” (R. 671).

When asked if he understood that the jury had found him

guilty, Michael responded “I didn’t know that. They told

me innocent.” (R. 672).

Under Justice Powell's standard, Michael does not

comprehend the nature of his crime or his punishment in

any meaningful way. If the additional requirement of

reliability is added to Justice Powell's standard, Michael

certainly is incompetent. Michael's illness makes him a

“moving target” whose competency changes frequently.

What is presented in the Statement of the Case is a

picture of incurable insanity. The abhorrence that this

court expressed at the execution of the insane in Ford

should be felt no less here. The retributive value of Mic-

hael’s death is undermined by his fleeting understanding

of the murders, his role in them, and the penalty that has

been imposed for them. Michael Owen Perry is insane

and may not be executed.

CONCLUSION AND RELIEF REQUESTED

The trial court committed numerous errors of consti-

tutional proportions. The court ignored Louisiana’s statu-

tory scheme for treating mentally ill prisoners and

substituted in its place an order which finds no support

in Louisiana policy or law. Considering hearsay evidence

outside the record violates Michael's right to confronta-

tion and cross-examination. Proceeding with these hear-

ings, in the face of testimony that Michael is presently

incompetent to proceed, violated La. Code Crim. Proc.

Ann. art. 642, and his due process rights under the Four-

- teenth Amendment. Without reaching the incredibly diffi-

cult constitutional issues raised on the merits of this writ,

this Court can reverse for these defects alone.

Even if these proceedings were procedurally sound,

the trial court's ruling cannot stand constitutionally. Lou-

isiana has joined the majority of states in treating - not

executing - its insane inmates. The Eighth Amendment

prohibits executions of the insane based on demonstrated

standards of “human decency”. Those same standards, as

demonstrated in Louisiana and the rest of the states,

condemn what the trial court has done here. Using medi-

cation as an experiment to try to achieve synthetic Sanity

to be executed is constitutionally offensive and simply

wrong by any measure of humanity and respect for the

dignity of “even” a death row inmate.

Ironically, Michael's condition and history make this

case an easy one in one sense — there is no question that

Michael is insane under any meaningful standard of com-

petency. This Court need do no more than restate what

has already been said in State v. Perry - Louisiana does

not execute the insane. Then apply existing law which

says that all proceedings must stop until competence is

regained - not by an experiment — but by treatment

which is guided by the exercise of professional judgment

and sound medical ethics. If competence can be regained

by this method, then the State may be able to exact its

retribution on Michael. If competence is not regained by

treatment and Michael is not executed, that is the price

that the Eighth Amendment demands to maintain our

“standards of human decency”.

Petitioner, Michael Owen Perry, therefore prays that

the order of the trial court be reversed.

BY ATTORNEYS.

Nokpyer anp Dentincrs

Kerns BL Nornveer

June E. Denuincre

427 Mayflower

Baton Rouge, Louisiana 70802

(504) 383-1601

McGuinoinery, Starrorp, Crruins

AND LANG

Jor Giarrusse, Je.

643 Magazine Street

New Orleans, Louisiana 70130

(504) 586-1200

CHART |

Survey of State Statutes on Disposition of

Inmates Found Incompetent to be Exccuted

DISPOSITION OF

COMMITMENT

CITATION

INMATE FOUND

FOR EXECUTION

STATE

Y. STATE HOSP

ALA. CODE SEC.

18-16-23 (SUPP

EXECUTION

1988)

ALABAMA

App. 1

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ax »

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SEC. 12.47. 110Q( 1984)

STAY

PROCEEDINGS

SUSPEND

ALASKA

ARS. SEC. 13-4024

(1978)

EXECUTION

SUSPEND

ARIZONA

Y. STATE HOSP

SEC. $-2-3h) 1987)

PROCEEDING

SUSPEND

ARKANSAS

Y. MED. FACIL. OF DEPT OF

CORR.

370061.

ANN.CAL PENAL

WEST'S

CODE SEC.

EXECUTION

sey. (1982)

CALIFORNIA

COLO REV STAT

SEC

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VA.CODE

SEC.

37.1-84.1

(1983)

EXPERIMENTAL CITATION

MEDICATION

PRMITTED?

NEEDED

CITATION

IF NECESS. TO VA.CODE SEC. CONSENT

37.1-85( 1983)

PROTECT U/L

RIGHT TO

REFUSE

MEDICATION

CT. ISSUES

STAY

STATUTORY

SCHEME

VERMONT

VIRGINIA

STATE

UTAH

App. 14 App. 15

LOUISIANA STATUTORY PROVISIONS

Louisiana Revised Statutes, Title 15 section 830

TREATMENT OF MENTALLY ILL AND MENTALLY RE-

TARDED INMATES

A. The department may establish resources and

programs for the treatment of mentally ill and mentally

retarded inmates, either in a separate facility or as part of

other institutions or facilities of the department.

W.S.A. 51.61

CONSENT

NEEDED

B. On the recommendation of appropriate medical

personnel and with the consent of the Department of

Health and Human Resources or other appropriate de-

partment, the secretary of the Department of Corrections

may transfer an inmate for observation and diagnosis to

the Department of Health and Human Resources or other

appropriate department or instituiion for a period not to

exceed the length of his sentence. If the inmate is found

to be subject to civil commitment for psychosis or other

mental illness or retardation, the secretary of the Depart-

ment of Corrections shall appoint an attorney to repre-

> sent him. Reasonable attorney fees shall be fixed by the

judge and shall be paid by the state. While the inmate is

in such other institution his sentence shall continue to

run.

51.61

RCWA 71.05.370

WS.A.

TREATMENT

SHOCK &

SURG.

=“ a C. When, in the judgment of the administrator of

the institution to which an inmate has been transferred,

he has recovered from the condition which occasioned

the transfer, he shall be returned to the department, un-

less his sentence has expired.

Added by Acts 1968, No. 192, section 1. Amended by Acts

1980, No. 609, section 1, eff. July 23, 1980.

WEST VIRGINIA

WISCONSIN

WYOMING

WASHINGTON

App. 16

Louisiana Revised Statutes, Title 15, section 830.1

REFUSAL OF TREATMENT BY MENTALLY ILL OR

MENTALLY RETARDED INMATES.

A. Whenever a mentally ill or mentally retarded

inmate refuses treatment and any staff physician, staff

psychiatrist, or consulting psychiatrist of the institution

certifies that the treatment is necessary to prevent harm

or injury to the inmate or to others, such treatment will

be permitted for a period not to exceed fifteen days. If

treatment for a longer period is deemed necessary, a

petition shall be filed in a court of competent jurisdiction

setting forth the reasons for the treatment. Treatment

shall continue while the hegring is pending. After a hear-

ing at which the mentally ill or mentally retarded inmate

is represented by counsel, the court shall determine

whether the inmate is competent and, if not, he shall

order that appropriate treatment be provided. If the in-

mate does not have counsel, the court shall appoint an

attorney to represent him. Reasonable attorney fees shall

be fixed by the judge and paid by the state.

B. Treatment shall be administered at a treatment

facility as designated by law, or at a facility under the

control or supervision of the Department of Public Safety

and Corrections that has been designated by the Depart-

ment of Health and Human Resources and the Depart-

ment of Public Safety and Corrections as a treatment

facility.

C. Commitments pursuant to this Section shall be in

accord with all procedures required by law in the case of

judicial commitment. Nothing herein shall be construed

to preclude any person in the custody of the Department

App. 17

of Public Safety and Corrections from any commitment or

admission as may be otherwise provided by law.

Amended by Acts 1972, No. 154, section 1; Acts 1977, No.

714, section 1; Acts 1978, No. 680, section 1; Acts 1978,

No. 782, section 1, eff. July 17, 1978; Amended by Acts

1987, No. 96, section 1.

Louisiana Revised Statutes, Title 28 section 171

ENUMERATIONS OF RIGHTS; RESTRICTIONS

A. No patient in a treatment facility pursuant to this

Chapter shall be deprived of any rights, benefits, or privi-

leges guaranteed by law, the Constitution of the state of

Louisiana, or the Constitution of the United States solely

because of his status as a patient in a treatment facility.

These rights, benefits, and privileges include, but are not

limited to, civil service status; the right to vote; the right

to privacy; rights relating to the granting, renewal,

forfeiture, or denial of a license or permit for which the

patient is otherwise eligible; and the right to enter con-

tractual relationships and to manage property.

B. No patient in a treatment facility shall be pre-

sumed incompetent, nor shall such person be held incom-

petent except as determined by a court of competent

jurisdiction. This determination shall be separate from

the judicial determination of whether the person is a

proper subject for involuntary commitment.

C. The patient in a treatment facility shall be per-

mitted unimpeded, private and uncensored communica-

tion with persons of his choice by mail, telephone, and

visitation. These rights may be restricted by the director

App. 18

of the treatment facility if sufficient cause exists and is so

documented in the patient’s medical records. The pa-

tient’s legal counsel, as well as his next of kin or respon-

sible party must be notified in writing of any such

restrictions and the reasons therefor. When the cause for

any restriction ceases to exist, the patient’s full rights

shall be reinstated. A patient shall have the right to

communicate in any manner in private with his attorney

at all times.

The director of a treatment facility shall ensure that

correspondence can be conveniently received and mailed,

that telephones are reasonably accessible, and that space

for visits is available. Writing materials, postage, and

telephone usage funds shall be provided in reasonable

amounts to recipients who are unable to procure such

items.

Reasonable times and places for the use of telephones

and for visits may be established in writing by the direc-

tor of any treatment facility.

D. Restraint may be used only as a therapeutic

measure or to prevent a patient from causing physical or

mental harm to himself or others. In no event shall re-

straint be utilized solely to punish or discipline a patient,

nor is restraint to be used as a convenience for the staff of

the treatment facility. A person placed in restraints shall

have his status reviewed periodically.

E. Seclusion may be used only as a therapeutic

measure or to prevent a patient from causing physical or

mental harm to himself or others. In no event shall seclu-

sion be utilized solely to punish or discipline a patient,

nor is seclusion to be used as a convenience for the staff

App. 19

of the treatment facility. A person placed in seclusion

shall have his status reviewed periodically.

F No patient confined by emergency certificate, ju-

dicial commitment, or non contested status shall receive

major surgical procedures or electroshock therapy with-

out the written consent of a court of competent jurisdic-

tion after a hearing.

If the director of a treatment facility, in consultation

with two physicians, determines that the condition of

such a patient is of such a critical nature that it may be

life threatening unless major surgical procedures or elec-

troshock therapy are administered, such emergency mea-

sures may be performed without the consent otherwise

provided for in this Section. No physician shall be liable

for a good faith determination that a medical emergency

exists.

G. Every patient shall have the right to wear his

own clothes; to keep and use his personal possessions,

including toilet articles, unless determined by a physician

that these are medically inappropriate and the reasons

therefor are documented in this medical record. The pa-

tient shail also be allowed to spend a reasonable sum of

his own money for canteen expenses and small pur-

chases, and to have access to individual storage spaces

for his private use. If the patient is financially unable to

provide these articles for himself, the treatment facility

shall provide , reasonable supply of clothing and toile-

tries.

H. Every patient shall have the right to be

employed at a useful occupation depending upon his

condition and available facilities.

App. 20

1. Every patient shall have the right to sell the prod-

ucts of his personal skill and labor at the discretion of the

director of the treatment facility and to keep or spend the

proceeds thereof or to send them to his family.

J. Every patient shall have the right to be dis-

charged from a treatment facility when his condition has

changed or improved to the extent that confinement and

treatment at the treatment facility are no longer required.

The director of the treatment facility shall have the au-

thority to discharge a patient admitted by judicial com-

mitment without the approval of the court which

committed him to the treatment facility. The court shall

be advised of any such discharge. The director shall not

be legally responsible to any person for the subsequent

acts of behavior of a patient discharged by him in good

faith.

K. Every patient shall have the right to engage a

private attorney. If a patient is indigent, he shall be

provided an attorney by the mental health advocacy ser-

vice, if he so requests. The attorney provided by the

mental health advocacy service or appointed by a court

shall be interested in and qualified by training and/or

experience in the field of mental health statutes and

jurisprudence.

L. Every patient shall have the right to request an

informal court hearing to be held at the discretion of the

court within five days of the receipt of the request by the

court. If the court determines that a hearing is appropri-

ate and if the patient is not represented by an attorney of

his own or from the mental health advocacy service, the

court shall appoint an attorney to represent the patient.

App. 21

The purpose of the hearing shall be to determine whether

or not the patient should be discharged from the treat-

ment facility or transferred to a less restrictive and medi-

cally suitable treatment facility.

M. No provision hereof shall abridge or diminish

the right of any patient to avail himself of the right of

habeas corpus at any time.

N. Every patient shall have the right to be visited

and examined at his own expense by a physician desig-

nated by him or a member of his family or an interested

party. The physician may consult and confer with the

medical staff of the treatment facility and have the benefit

of all information contained in the patient’s medical rec-

ord.

O. Prefrontal lobotomy shall be prohibited as a

treatment solely for mental or emotional illness.

P. No medication may be administered to a patient

except upon the order of a physician. The physician is

responsible for all medication which he has ordered and

which are administered to a patient. A record of medica-

tions administered to each patient shal! be kept in his

medical record. Medication shall not be used for non-

medical reasons such as punishment or for convenience

of the staff.

Q. A person admitted to a treatment facility has the

right to ar. individualized treatment plan and periodic

review to determine his progress. The appropriate staff of

the facility shall review the person’s progress at least at

intervals of thirty, ninety, one hundred eighty days and

every one hundred eighty days thereafter. The staff shall

App. 22

enter into the person's record his response to medical

treatment, his current mental status and specific reasons

why continued treatment is necessary in the current set-

ting or whether a treatment facility is available which is

medically suitable and less restrictive of the patient's

liberty.

R. A person admitted to a treatment facility has the

right to have available such treatment as is medically

appropriate to his condition. Should the treatment facility

be unable to provide an active and appropriate medical

treatment program, the patient shall be discharged.

Louisiana Code of Criminal Procedure Art. 641

MENTAL INCAPACITY TO PROCEED DEFINED

Mental incapacity to proceed exists when, as a result

of mental disease or defect, a defendant presently lacks

the capacity to understand the proceedings against him

or to assist in his defense.

Louisiana Code of Criminal Procedure Art. 642

HOW MENTAL INCAPACITY IS RAISED; EFFECT

The defendant's mental incapacity to proceed may be

raised at any time by the defense, the district attorney, or

the court. When the question of the defendant's mental

incapacity to proceed is raised, there shall be no further

steps in the criminal prosecution, except the institution of

prosecution, until the defendant is found to have the

mental capacity to proceed.

App. 23

Louisiana Code of Criminal Procedure Art. 647

DETERMINATION OF MENTAL CAPACITY TO

PROCEED

The issue of the defendant's mental capacity to pro-

ceed shall be determined by the court in a contradictory

hearing. The report of the sanity commission is admis-

sible in evidence at the hearing, and members of the

sanity commission may be called as witnesses by the

court, the defense, or the district attorney. Regardless of

who calls them as witnesses, the members of the commis-

sion are subject to cross-examination by the defense, by

the district attorney, and by the court. Other evidence

pertaining to the defendant's menta! capacity to proceed

may be introduced at the hearing by the defense and by

the district attorney.

Source: New; cf. former R.S. 15:267; A.L.l. Model Penal

Code, section 4.06(1) (Tent. Draft No 4, 1955). Acts 1966,

No. 310, section 1.

Louisiana Code of Criminal Procedure Art. 648

PROCEDURE AFTER DETERMINATION OF MEN-

TAL CAPACITY OR INCAPACITY

A. The criminal prosecution shall be resumed if the

court determines that defendant has the mental capacity

to proceed. If the court determines that the defendant

lacks mental capacity to proceed, the proceedings shall be

suspended and the court shall commit the defendant to

the custody of the Department of Health and Human

Resources or a private institution approved by the court

for custody, care, and treatment as long as the lack of

App. 24

capacity continues. If the court determines that the defen-

dant’s mental capacity is likely to be restored within

ninety days by outpatient care and treatment at an insti-

tution as defined by R. S. 28:2 (28) while remaining in the

custody of the criminal authorities, and if the person is

not charged with a felony or a misdemeanor classified as

an offense against the person and is considered by the

court to be unlikely to commit crimes of violence, then

the court may order outpatient care and treatment at any

institution as defined by R.S. 28:2(28). Defendants com-

mitted to the custody of the Department of Health and

Human Resources shall be given inpatient care and treat-

ment at an institution as defined by RS. 28:2(28); how-

ever, a person charged with a felony or a misdemeanor

classified as an offense against the person and considered

by the court to be likely to commit crimes of violence

shall maintain in custody at a forensic unit at Feliciana

Forensic Facility.

B. (1) In no instance shall custody, care, and treat-

ment exceed the time of the maximum sentence the de-

fendant could have received if convicted of the crime

with which he is charged. At any time after commitment

and on the recommendation of the superintendent of the

institution that the defendant will not attain the capacity

to proceed with his trial in the foreseeable future, the

court shall, within a reasonable time and after at least ten

days notice to the district attorney and defendant's coun-

sel, conduct a contradictory hearing to determine wheth-

er the mentally defective defendant is, and will in the

foreseeable future be, incapable of standing trial and

whether he is a danger to himself or others.

App. 25

(2) If, after the hearing, the court determines the

defendant is, and will in the foreseeable future be, inca-

pable of standing trial and may be released without dan-

ger to himself or others, the court shall release the

defendant on probation. The probationer shall be under

the supervision of the Department of Public Safety and

Corrections, division of probation and parole, and subject

to such conditions as may be imposed by the court.

(3) If, after the hearing, the court determines the

mentally defective defendant incapable of standing trial,

is a danger to himsel‘ or others, and is unlikely in the

foreseeable future to be capable of standing trial, the

court shall order commitment to a designated and medi

cally suitable treatment facility. Such a judgment shall

constitute an order of civil commitment. However, the

director of the institution designated for the patient's

treatment shall, in writing, notify the court and the dis-

trict attorney when the patient is to be discharged or

conditionally discharged.

C. The superintendent of the forensic unit of the

Feliciana Forensic Facility shall admit only those persons

charged with a felony or a misdemeanor classified as an

offense against the person and committed on recommen:

dation of a sanity commission, persons charged with a

felony or a misdemeanor classified as an offense against

the person and found not guilty by reason of insanity,

and persons transferred to the forensic unit from the state

correctional institutions.

Amended by Acts 1982, No. 495, section 1; Acts 1983, No.

399, section 1; Acts 1987, No. 928, section 1, eff. July 20,

1987; Acts 1988, No. 383, section

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.