# Petitioners Brief — Perry v. Louisiana

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1451%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 38

## Text

No. 89-5120~

In The

Supreme Court of the United States
October Term, 1989
=a

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.

ii

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

iv

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......

A.

c.

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

44

45

49

49

52

Vv

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

vi

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

1

2

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

3

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

4-
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.

5

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.

6

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.

7

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

8

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

9

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.

10

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,

11

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

12

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.

13

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

16

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?

17

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,

18
rational. I’ve always felt in him there’s areas of
psychotic thinking there.
Q. Even on his best days?

A. *
&
-90C-LI FLALLLSANS
‘Das sv aasn
vSsoO aa L.NVO
iGALLIWd
NOLLYOIGIN

NOLLVLID ‘“TWLNSWINadxS

(8861 ddS)LOI-Z

(S86l
NIMC TV @)

161 W707

‘aS ‘NNVY
IVLS ASWAM

(ER61 6767-65
Jas VSy

(SR6DET ZZ
‘Jas ‘VO!

(PR6D)L-9'l-F1-91

‘OTY S.LSIM

sed
‘UI 164 “E861
4IVLS ANTI

(8861 dds)
Cit-99 “Oas

(S861) I-arte
‘HO “61 (LLL

(SR6D1CDEVE6E

Jas
‘VSd4 S.LSIM

(1861)
$961-°9 “—OaS

(R861 dd/S)I9IS

Jas
‘OLLLL “"NNV
g00) Tada

(RRGLIPVOT-LI
Jas VSOO

NOLLVLIO

FAISSAOXS
“JENN WO
3aead 34 OLLA

‘Caw
FAISSAOXS
“IENND WOU
aaud 3a OLA

‘Caw

‘TVW XOOHS
“ouns

wOd LNASNOO

Ada ONNS
‘VA Gadg4aN
LNUISNOO ON

NOLLY OIGAW
asndaa
OL LHO

AMNOOLLNAM

SVSNV

YMOI!

YNVIOGNI

SIONITH

OHVAI

IIVWMAWH
viIodosad

varo ld

Jd

JaVMV 1d

LAOLLOANNOO

aLVLS

TbT-F-0E

Caqga4N

CAaW SSIOXa

meee C Po" -0g ‘OFINNN
VSITN LNISNOD WSN
WOU Faw A ASSUME MIN
TYIHSdINVH MAAN
INIWLIVISL
PRP eth SWN -
LN3ISNOO A VOVAAN
(8861 dds)
aa ‘Das ANTONIN
= r6l “Sway Vn ‘k
A .
ri (est) VNSVUGIN
= Lrl-O7-¢¢
as (L861 )9P1-O7-€S ha
— Z 1: p 3a a
ee G3d34N JaS NNY 4O avasann
OW LINISNOD 3009 LNOW LNASNOD
wou A YNVLNOW
AdVUGHL
ANOOOWLIITS
( 1) F : 3Snagay
ce Custer > OL
non SWVYA = SnoauvzvH
en. G3q034N (RL6USTIOE9 4O4 GIGIIAN
SWYA INISNOOD SV WWA LN3SNOD
A IMNOSSIW
Idd ISSISSIW
/
‘Gan
IdOULOHIASA (6861 dd/N$) SSINTI
€O'REST 4O4 GIGIAN COREST TVLNAW Os
‘22S W'S W INISNOO ‘DSS WSW NVHL WIHLOA A VLOSANNIIW
MOOHS
(O861) SILT OEE ¥ AWTONNS
‘aS WTOW asnaau A N¥ DIHOUN
‘O801
(9861) EZ “99s ¥ NOOHS
€719 1D WIV aSnaay A SLLASNHOVSSVYW
(TR6D)TO9-L “OAS
- “N3O HLIV3H FIEVSIAGYNI
a ‘gqdO0O NNV'GW VINA A GONV IAN
ZVH TVNSONN
Jas 404 LNASNOO

OOL-LPSS = ‘GAW SSIOKA
‘ue LS AIO NNV ‘JANN

(7861)
iraeats
‘as
iwraeals Iva
‘DaS) “NNV snoduvZvH
qGOD Aa ATIVASANN
OIHO =—- HO LNASNOO

10-1 €0-SZ aa0a4N

20s INAISNOD
9861 dds
AANNIXOW)
cO-te
Das MV
ANSIDAH
TVLNAIW g30qFg4N
AN LINAISNOOD
LOALLIW Ad

NOLLYOIGAW
NOLIVLID 9 ‘TVLNSIWIdadxX4S

S.NONUSA =»- WOM Fa A SVX
LNISNOD
roles DAS = FAID OL A FASSANNAL
(6L60)Z-8-ALZ
TULL as SHA A VLOG HLNOS
LWFALNVLS
Sv
(S86D010I-E7-rr GAZINDOOaY YNITOUVD
‘Das 3G0I°9's LON dil ‘A A H.LNOS
(8861ddN'S) 3YVD AN
Ga0gaaN I-£'S-1'0r “Das EINE RT
INISNOD = SMV TNAOTY OL14 = GNV'ISI 3GOHY
VINVATASNNGd
Waal
‘ZVH ¥O'SANN
sse9tr DIS == WOM Faw A NOOIAO
VIWOHY TNO
LT7ZIS ‘aa
‘Ja ‘NNY AAISSIOXS
aGOD ATA ¥O OANNN
OHO WOUd aaa A OIHO
aa aNNN
lor'eost “8S —i«sWWOM A Y¥LONVG HLMOr
VNITOUYD
HLYON
(9861'dd NS
AANNIXOW)
€0'EE “DAS “‘LWaadXS
MV INSIDAH |= “XOOHS “OUNS
IVINAWA'N Od LNFSNOD A NEDA Aan
LOaLOUd
AMVSSAOAN di
‘GaW DdO8L 3
SI-1-€p “398 “OHDASA A —s OODIXSIN. MN
NOLLY DIGS
asnaay aWSHOS
NOLLVLID OL LHOE = ANOLALLVLS aLVLS

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1451%3A5. Public record. Not legal advice.