Amicus Curiae Brief — Perry v. Louisiana

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NO. 89-5120

In The

Supreme Court of the Gnited States

October Term. 1989

MICHAEL OWEN PERRY,

Petitioner

STATE OF LOUISIANA,

Respondent

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF LOUISIANA

MOTION FOR LEAVE TO FILE AND

BRIEF AMICUS CURIAE OF THE COALITION FOR

THE FUNDAMENTAL RIGHTS AND EQUALITY OF

EX-PATIENTS IN SUPPORT OF PETITIONER

AND FOR REVERSAL OF THE JUDGMENT BELOW

Of Counsel PETER MARGULIES*

Visiting Professor

Disabilities Law Project City University of New York

Robin Resnick, Law School at Queens College

801 Arch Street 65-21 Main Street

Suite 610 Flushing, NY 11367

Philadelphia. PA 19107 (718) 575-4200

(215) 738-8070

*Counsel of Record

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

~ BEST AVAILABLE COPY Siam

STATE OF LOUISIANA,

Respondent

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF LOUISIANA

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE BY

THE COALITION FOR THE FUNDAMENTAL RIGHTS AND

EQUALITY OF EX-PATIENTS IN SUPPORT OF PETITIONER

AND FOR THE REVERSAL OF THE JUDGMENT BELOW

The Coalition for the Fundamental Rights and Equality of

Ex-Patients (herewithin “Coalition for the FREE” or the “Coal-

ition”) respectfully submits this motion to request permission

to file its proposed brief amicus curiae in support of petitioner

and for reversal of the judgment below in this case.

Consent to the filing of this brief has been requested from

counsel for both petitioner and respondent, but has not yet been

received. Therefore, this motion is being filed in lieu of any

such consents.

The Coalition for the FREE seeks this Court's permission to

file its brief amicus curiae in this case because of the particular

interest and experience of its members in the various issues

involved in this case. The organizational members of the Coal-

ition for the FREE! are all groups whose primary interest and

activities concern the promotion of public understanding of

mental health issues and the protection of the rights of the

mentally ill and of present and former mental patients. Indi-

vidual members and clients of these organizations include many

present and former patients, their families and friends, as well

as advocates for people with mental illness.

During the past decade, the Coalition and/or its individual

members have filed or proposed to file briefs amicus curiae in

cases involving issues similar to those in this case in this Court

and in leading state courts throughout the United States.’

' The participants in rhe Coalition for the FREE in this case are as follows:

the National Mental Health Association. the New Jersey Depariment of the

Public Advocate, Pennsylvania Protection and Advocacy. Inc.: the Mental

Health Consumers’ National Legal Defense and Education Proyect: the Menta!

Health Patients’ Association of New Jersey and the Mental Patients Assoc'-

ation of Philadelphia (a more complete description of each of the members

of the Coalition is included on page | of the proposed brief amicus curiae

attached hereto).

? See, e.g. the briefs of the Coalition in United States Department of the

Treasury, Bureau of Alcohol. Tobacco and Firearms v. Galioto, US. .

106 S$. Ct. 2683. (1986), Colorado v. Connelly, US. , 1075S. Ct. 515

(1986) and Washington v. Harper, U.S. .110S.Ct. 1028 (1990). See

also the Brief of the Office of the Capital Collateral Representative, et. al.

as amicus curiae in Ford v. Wainwright, 472 U.S. 399, 106 S. Ct. 2595, 91

L. Ed. 2d 355 (1986) and the proposed brief amicus curiae in Satterwhite v.

Texas. U.S. .108S. Ct. 1792(1988). See. also the brief amicus curiae

of the New Jersey Department of the Public Advocate. Division of Mental

Health Advocacy in Harper. 110 $. Ct. at p. 1052, 0. 22. The Coalition has

also filed or participated in amici briefs in state court cases across the United

States involving the “right to refuse” forced drugging: Riese v. St. Mary's

Hospital and Medical Center. 19 Cal. App. 3d 1388, 243 Cal. Rptr. 24)

(1987), Jones v. Gerhardstein, 141 Wis. 2d 710. 416 N.W. 2d 883, (1987)

and Application of Anonymous (“Billie Boggs”). N.Y. Court of Appeals.

No. 9$565/87.

In this case, the Court wiil hear arguments on a wide range

of issues on which the Coalition is knowledgeable including

the issues of access to the assistance of counsel regarding psy-

chiatric interviews and hospital reports, the right to refuse

psychotropic drugging and the standards for determining com-

petency to be executed. Many of the members of the Coalition

-- and/or clients of the Coalition members -- have themselves

been involved in court proceedings which emphasized these or

other closely related questions. Whatever this Court decides

here will undoubtedly affect the outcome of similar cases in

the future. Therefore, the Coalition members now wish to share

their specialized knowledge and ‘nsights with the Court and the

parties in this case.

The Coalition believes that no other party or amicus in this

case will make availabic to the Court the consumer oriented

arguments set forth in its Brief regarding the issues of right to

the assistance of counscl. the right to refuse and the competency

standards for execution, as well as current research and com-

mentary on these issues. Because of their demonstrated concern

and historic involvement in similar proceedings, the Coalition

velieves that it has a clear interest in these matters and can

offer a significant alternative viewpoint on these issues to this

Court. It therefore respectfully submits this proposed Brief

amicus curiae.

City University of New York

Law School at Queens College

65-21 Main Street

Flushing, NY 11367

(718) 575-4200 °*

*Counsel of Record

Se, fn tel) eee ed

(1)

(2)

(3)

(4)

(5)

(6)

QUESTIONS PRESENTED

Do the Eighth and Fourteenth Amemdments prohibit state

from forcibly injecting insane death row inmate with mind-

altering drugs when such drugs are not used for treatment

but are administered solely in attempt to make him compe-

tent to be executed?

Is it unconstitutionally cruel and unusual punishment to

circumvent prohibition of Ford v. Wainwright, 477 U.S.

399, 54 LW 4799 (1986), against executing insane person

by forcibly injecting insane inmate with mind-altering

drugs in attempt to make him sane, particularily when

court's order imposes no limits whatsoever on these injec-

tions?

What standard applies to determine whether Louisiana in-

mate is competent to be executed?

Do that standard, Eighth Amendment and Ford v. Wain-

wright prohibit execution of person who has been unani-

mously diagnosed as suffering from major psychotic ill-

ness, whose sanity, even on medication, varies from mo-

ment to moment and who varies “like moving target” in

his appreciation for crime for which he has been convicted

and punishment that he has been condemned to suffer?

Is Fourteenth Amendment violated when trial court re-

ceives ex parte communications from state department of

corrections and then relies upon them in reaching its deci-

sion to order forcible injections, without giving defense

notice or opportunity to be heard?

Is it denial of right to counsel for court to have inmate

interviewed without counsel being notified or being al-

lowed to be present?

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TABLE OF CONTENTS

. STATEMENT OF INTEREST OF AMICUS

REN, nadldebetctulnesssesedendeccoossscccccees :

) PTE Ene cei ncckie sa cvicedottbiveccees

. The Court’s Reliance On the Ex Parte Records

And Reports For Its Competency Determination

Viclated The Prisoner's Constitutional Rights

To Notice, Confrontation And Assistance Of

Ce) Eh iain hubbh cee de aikds Koc cne

. Forced Drugging With Dangerous Psychotropics

In Order To Prepare An Insane Inmate For The

Death Penalty Offends The Eighth and Fourteenth

SE Bitdi tans: tpnddurerieccccqscaco cscs se

The Known Dangerousness Of These Drugs

Even In The Short Term ......................

The Imbalance Between The State's Interest

In “Treatment” And The Prisoner's Rights In

hind ind nd. teresreacance ses

. This Court's Mandate in Ford v. Wainwright

Prohibits The Execution Of A Person Whose

Sanity Fluctuates From Moment To Moment.

Factual Underpinnings .........................

2. Ford And The Meaning Of Insanity .........

4. Problems With The Standard Of Insanity Put

Evolution Of The Ford Standard in Penry ..

Forward By Justice Powell ....................

Post-Ford interpretations: Guilty But Men-

Sc lececksecnshcsbepeceseessbocecesoesss

A Standard For Insanity To Stay Execution

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TABLE OF AUTHORITIES

CASES Page

Ake v. Oklahoma, 470 U.S. 92, 105 $.Ct., 1087

RII, sien tndabueninn ane Gibbesqumtedesgene shane 2,9,12

Bee v. Greaves, 744 F. 2d 1387 (1984), cert.

den. , 469 U.S. 1214, 10SS. Ct. 1187(1985) . passim

Bingham v. State, 82 Okla. Crim. 305, 169

P. 2d 311 (Okla. Crim. App. 1946) ......... 24

Cape v. Francis, 741 F. 24 1287 (11th Cir. 1984) 5

Charters v. United States, 863 F . 2d 302 (4th Cir.

1988), en banc, cert. den. March 5, 1990

($8 U.S.L.W. 3565, Mar. 6, 1990) (No. 88-

Si nidiatntiaddainsemeodinetos ¢sceapeenessccee passim

Colorado v. Connelly, 479 U.S. 157, 107 S. Ct.

$15, 93 L. Ed. 2d 473 (1986) ................ 3

Commonwealth v. Moon, 383 Pa. 18, 117 A. 2d

96 (Pa. Sup. Ct. 1955) ........ cece cece ecee ees 24

Cronic v. United States, U.S. , 104S.Ct.

ai ans cceinmepiepecteenesséng: 7

Dautremont v. Broadlawns Hospital, 827 F. 2d

291 (8th Cir. 1987) 2... cece cece cece eee. 15

Dusky v. United States, 362 U.S. 402 (1960) ..... 21

Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866,

68 L. Ed. 2d 359 (1981) ..................0008. 7.9

Ford v. Wainwright, 472 U.S. 399, 106 S. Ct.

2595, 91 L. Ed. 2d 355 (1986) ............... pessim

Gardner v. Florida, 430 U.S. 349 (1977) ..... 6,7

Gerchman v. Maroney, 355 F. 2d 302 (3rd Cir.

EN ae 6

Goedecke v. State Dept. of Inst. , 603 P. 2d 123

(Col. Sup. Ct. 1979) 22.0... cece ccc cceeeee ees 10

Harris v. State, 499 N.E. 2d 723 (Ind. Sup. Ct.

EES RL a 27

Jones v. United States, 463 U.S. 387, 103 S.Ct.

a aN a 17

—

Lappe v. Loeffelhoiz, 815 F. 2d 1173 (8th Cir.

SE MER tacks dubet ict ndisdncckscbsccviocdeses 16

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

DETEEED cdlnvcsbdedecictcctebcodsbescetoossetcecs 15

Lowenfeld v. Butler, 843 F. 2d 183 (Sth Cir.

SET ebeetdTE TL bascnccthtdsvcscstegehsoceeues 27

Mills v. Rogers, 457 U.S. 291, 102 S.Ct. 2442,

73 L. Ed. 2d 16 (1982) .............c cece 2,17,19

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

ES 22,23

People v. Crews, 122 Ill. 2d 266, 522 N.E. 2d

1167 (ind. Sup. Ct. 1988) .....0.... 2.0... 27

Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55,

AS SG |. reer 4,5

Rennie v. Klein, 462 F. Supp. 1131 (D.N.J.

1979), 476 F. Supp. 1294 (D.N.J. 1979) mod-

ified and rem'd 653 F. 2d 836 (3rd Cir. 1981)

(en banc), vac. and rem'd 458 U. S. 1119, 102

S.Ct. 3506 (1982), on remand 720 F. 2d 266

(3rd Cir. 1983) (en banc) ...........ccceeeee. 2.12.17

Riese v. St. Mary's Hospital and Medical Center.

196 Cal. App. 3d 1388, 243 Cal. Rptr. 241

SI TAME bhihca dn ovedbannnodeseconquseouness passim

Satterwhite v. Texas, U.S. ,108S.Ct. 1792

ents ae ee iat aie Ah 4.7.8

Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209

i iaetadudedbascodciscoscssaqeceveosse 6

Stanford v. Kentucky, U.S. , 109 S.Ct.

Rt ta te A Pe ld 22

State v. Martin, 515 S. 2d 189 (Fla. 1987) (per

ST itiatusomgenseseaseecacdsansccecooseccctee 22

State v. Rice, 110 Wash. 2d 577, 757 P. 2d 889

(Wash. Sup. Ct 1988) (en banc) ............. 27

Strickland v. Washington, U.S. . 104S.Ct.

ET nick ccadwccesucceosecsceses 8.9

Turner v. Safly, 483 U.S. 78, 107 S. Ct. 2254,

96 L. Ed. 2d 282 (1987)... 0... 13

United States Department of the Treasury,

Bureau of Alcohol. Tobacco and Firearms v.

Galioto, U.S. .106S. Ct. 2683, 91 L. Ed.

ET, “incase cubakecpaddbaeseuneoee 3

a De a eh Pa a te

we Bite To a

United States v. Wade, 388 U.S. 218, 87 S.Ct.

1926, 18 L. Ed. 2d 1149 (1967) .............

United States v. Watson, 893 F. 2d 870 (8th Cir.

sce idtcedcsvcagoecccensccecsoséoe

Washington v. Harper, US. ., 110 $.C.

_ Appelbaum, Psychiatrists’ Role in the Death

Penalty, 32 Hosp. and Comm. Psych. 76!

FE ice be sce liticioscrstacctlvbvestiicecess

L. Bellak and L. Loeb, THE SCHIZOPHRENIC

SYNDROME, (1969) ..........0.000ccccccccceeeeees

BLAKISTON'’S GOULD MEDICAL DICTION-

ARY (4th Ed. 1979) ooo... occ ccc ccc cece cece eee

Cameron and Wisner, An _ Anticholinergic

Activated by Psychological Stress, 167 J. of

Nerv. and Ment. Dis. 508 (1979) ..........0.000-.

CHURCHILL'S MEDICAL DICTIONARY

SN emsclaai ls. Aah eck cesiiisics.....

DIAGNOSTIC AND STATISTICAL MANUAL

OF MENTAL DISORDERS III (1980) ..........

DORLAND’S MEDICAL DICTIONARY, 27th

oe a Stel eT

4,5

17,18,19

passim

23,25

Analysis, 68 N.C.L.Rev. 39 (1987) ............. 21,26

PEED: . cocccesceccceccccccccssceccccsvescoceee: i

Antipsaychotic ’

EET SN SS a en 13

Health Professionals, 16 Bull. Am. Acad

Psych. amd Law (1988) ooo... o.oo 20.21.27

Lazarus, Neuroleptic Malignant Syndrome, 40

Hosp. and Comm. Psych. 1229 (1989) .......... 12

Crim. L. & Criminol. 844 (1986) ................. 24,28

— SSS = *s Song, 72 lowa L. Rev. 1461 (1987) ........ 26

° Note, Ford v. Wainwright, Statutory Changes

, and a New Test for Sanity: You Can't Execute

Me, I'm Crazy!, 35 Clev. St. L. Rev. S15

I ai iliieiaiinenithatininnensiietamectepeanesese 21

_Note,Medical Ethics and Competency to be

, 96 Yale L. J. 167 (1987) .............. 28

Perlin, Duiling the Ake in Barefoot’s Achilles

Heel, 3 N.Y.L.S. Human Rts. Ann. 91

SII i nletteatineeitddeminaiiebineteemendenenssesenens 4

PHYSICIAN'S DESK REFERENCE, (44th Ed

I edi aalietriidaemaidiensstneesooeseoss 10

neuroleptic malignant syndrome, 50 J. of Clin.

Psychiatry 18 (1989) ...........cccccceccceeeeeeeceeee 12

The Supreme Court, /985 Term-Leading Cases,

100 Harv. L. R. (19BG) oo. cceceeee 16

dards of Mental Health Professionals, 8 J. of

TT ET 27

Ward, Competency for Execution, Problems in

o= —>~ -

the Caw-and Psychiatry. 14 Fla. St. Univ. L.

LAE sretpaderecennhegesupeocanpepwecepscess 16

ae — vii —

I. STATEMENT OF INTEREST OF AMICUS CURIAE

This brief amicus curiae is being filed in support of petitioner

and his right to notice, confrontation and counsel with regard

to hospital reports on his competency, his “right to refuse”

unwanted and potentially dangerous psychotropic drugs and his

right not to be executed, while his sanity varies “like a moving

target.”

Amicus curiae, the organizational members of the Coalition

for the Fundamental Rights and Equality of Ex-Patients' (he-

rein-after “The Coalition for the FREE”) are all groups whose

primary interests and activities concern the promotion of public

understanding of mental health issues and the protection of the

rights of persons with mental iliness and of present and former

mental patients.

' The participants in the Coalition for the FREE are as follows:

NATIONAL MENTAL HEALTH ASSOCIATION

The National Mental Health Association (“NMHA”) is the nation's oldest

and largest non-governmental. citizens’ voluntary organization concerned

with mental illnesses and mental health. Founded in 1909 by Clifford Beers.

a man who suffered from a serious mental illness. the Association has histor-

ically led efforts on behalf of mentally ill people in institutions and the

community. The NM”. nas grown into a network of 650 chapters and state

divisions working across the United States. It is composed of volunteers who

are mostly non-mental health professionals. Some are family members whose

_ loved ones have been affected by mental illness; others are former patients.

All are committed to advocacy for the improved care and treatment of mentally

ill people, the promotion of mental health and the prevention of mental

illnesses.

PENNSYLVANIA PROTECTION AND ADVOCACY, INC.

Pennsylvania Protection and Advocacy. Inc. (“PPA”) is the federally man-

dated protection and advocacy sgency in Peansyivanis for persons diagnosed

as mentally ill pursuant to 42 U.S.C.A. 10301 ef. seg. PPA has been amici

im numerous cases before this and other courts including most recently Zebley

v. Sullivan, U.S. , 110 S. Ct. 885 (1990).

NEW JERSEY DEPARTMENT OF THE PUBLIC ADVOCATE

DIVISION OF MENTAL HEALTH ADVOCACY

The New Jersey Department of the Public Advocate (NJPA). through its

Division of Mental Health Advocacy (DMHA), is a cabinet-level state agency

that has represented psychiatric patients for 15 years in a wide range of

matters including civil commitment, civil commitment of prisoners and medi-

cation refusal, pursuant to enabling legisiation, N.J.S.A. $2:27E-21 through

27. In addition, the New Jersey Public Advocate is the federal Protection

Members and clients of these organizations include many

present and former patients, their families and friends, as well

as other advocates for persons with mental illness. The Coalition

for the FREE and its organizational members have appeared as

amicus before the courts in numerous cases related to the issues

and Advocacy Agency for Individuals with Mental liiness under 42 U.S.C.A.

10801 et. seq. In civil commitment cases alone, the Division of Mental

Health Advocacy has represented individuals at more than 95, 167 hearings

since its inception. Ten years ago, the New Jersey Public Advocate, Division

of Mental Health Advocacy, represented the plaintiff class in Rennie v. Klein,

462 F. Supp. 1131 (D.N.J. 1978), 476 F. Supp. 1294(D.N.J. 1979), modified

and rem'd 653 F. 2d 836 (3d. Cir. 1981) (en banc), vacated and rem'd 458

U.S. 1119, 102 S. Ct. 3506 (1982) on remand 720 F. 2d 266 (3d Cir. 1983)

(en banc) which was one of the first cases in the United States to determine

the right of psychiatric patients to refuse psychotropic medication. In addition,

the DMHA has filed numerous a.aici briefs in cases before this and other

courts on issues related to patients rights and mental health advocacy. See,

¢.g., brief amicus curiae in Ake v. Oklahoma, 470 U.S. 68 (1985) and the

proposed brief amicus curiae in Mills v. Rogers, 457 U.S. 291 (1982).

THE MENTAL HEALTH CONSUMERS’ NATIONAL

LEGAL DEFENSE AND EDUCATION PROJECT

The Mental Health Consumers’ National Legal Defense and Education

Project was organized by consumers in Philadelphia, Pennsylvania in 1988

to provide technical assistance, research and training to mental health consum-

ers and their advocates on legal and policy issues involving mental illness

and consumers’ rights and to assist consumers with access to the courts.

legislatures and agencies on matters affecting their lives as consumers of

mental health services.

THE MENTAL PATIENTS’ ASSOCIATION OF NEW JERSEY

The Mental Health Patients’ Association of New Jersey was establisheu

im May, 1984 in Asbury Park, New Jersey and is a statewide network of

individuals and self-help organizations devoted to the development of self-

help and advocacy groups and the protection of the interests and rights of

mental health consumers.

THF MENTAL PATIENTS’ ASSOCIATION OF PHILADELPHIA

The Association was formed in Philadelphia in | 985 in an effort to organize

meatal health consumers to oppose all efforts to erode the rights and freedoms

of those who have been hospitalized for psychiatric illness and to call for an

end to discrimination against the psychiatrically disabled in any form.

contrary to the “dignity of man” or outside “the limits of civilized

standards.” Trop, 356 U.S. at 100. Thus, unless the Eighth

Amendment is turned on its head, it cannot be construed as

prohibiting appropriate and beneficial psychiatric treatment.

Despite the recognized benefits to Perry of neuroleptic

medication, Perry seems to argue that nonconsensual administration

of such medication constitutes cruel and unusual punishment

because the State’s purpose is to induce competency for execution.

That argument is without merit. Medication of Perry is, of course,

intended to render him competent for execution. In fact, every aspect

of Perry’s confinement contemplates, and is intended to facilitate,

Perry’s eventual execution. Perry’s confinement itself is a precursor

to execution of the death penalty. Yet his mere imprisonment ts

certainly not cruel and unusual punishment. Because capital

punishment is an acceptable penalty under the Eighth Amendment,

the State must be allowed to employ the means necessary to carry

out the death penalty unless those means are themselves cruel and

unusual. In short, treatment of a prisoner which is not otherwise

violative of the Eighth Amendment does not become cruel and

unusual punishment merely because it facilitates execution.

In this case, involuntary treatment is not only permitted by the

Eighth Amendment, but it is mandated by the Amendment. This

Court held in Estelle v. Gamble, 429 U.S. 97, 104 (1976), that

“deliberate indifference to serious medical needs of prisoners”

constitutes cruel and unusual punishment. Hence, the Eighth

Amendment creates a State duty to provide prisoners with medical

treatment. In compliance with that duty, the State has been treating

Perry with psychotropic drugs since his conviction. Now, at the

instructions of his lawyers, Perry refuses to accept prescribed

medication. Nevertheless, the State cannot ignore its duty to care for

Perry's medical needs. Because Perry loses touch with reality when

he goes without his medication, he cannot be considered competent

to make his own treatment decisions. Indeed, Perry's counsel

conceded as much when he moved for appointment as Perry's

decision-maker: “the decision making processes of the defendant are

so impaired as to render them completely unreliable.” (R. 187). Thus,

notwithstanding Perry’s refusal of medication, the State, as Perry's

custodian, must ensure that he receives proper psychiatric treatment.

To honor Perry’s objections and allow him to languish in a continual

state of psychosis, tortured by hallucinations, delusions and paranoid

fantasies, would unquestionably constitute cruel and unusual

punishment. See Brief for the American Psychiatric Association et al.

at 20.

B. There is no national consensus against involuntary

medication of capital offenders to achieve competency

for execution.

Even assuming for the sake of argument that beneficial medical

treatment could constitute cruel and unusual punishment under some

circumstances, the Eighth Amendment does not forbid prescribed

medication of death row inmates which produces competency for

execution. Perry insists that there is a national consensus opposing

such medication. However, medication which induces competency for

execution is entirely consistent with contemporary American

standards regarding treatment of mentally ill prisoners.

This Court has held that the Eighth Amendment ban on cruel

and unusual punishment is not limited to those penalties forbidden at

the time the Bill of Rights was adopted."* Ford, 477 U.S. at 406; Gregg,

428 U.S. at 171 Goint opinion of Stewart, Powell and Stevens, JJ.).

Rather, the Eighth Amendment proscription extends to punishments

which are contrary to “the evolving standards of decency that mark

the progress of a maturing society.” Trop, 356 U.S. at 101. Thus,

where there is a national consensus against a particular punishment,

this Court will find imposition of that punishment to be crue! and

unusual in violation of the Eighth Amendment. Stanford v. Kentucky,

___ US. __, 109 S.Ct. 2969 (1989); Penry, US.__, 109 S.Ct.

2934. In determining whether a national consensus exists, this Court

looks to “objective indicia that reflect the public attitude toward a

given sanction.” Gregg, 428 U.S. at 173 Goint opinion of Stewart,

Powell and Stevens, JJ.). In particular, the Court considers legislation

“Perry does not argue that involuntary medication to restore sanity for

execution was prohibited at common law. Nor could he. Antipsychotic drugs

were not available as a treatment for mental illness until this century. Kessler

& Waletzky, supra, note 8, at 202; Haddox & Pollack, Psychopharmaceutical

Restoration to Present Sanity (Mental Competency to Stand Trial), 17 }.

Forensic Sci. 568, 570-71 (1972).

to be “the primary and most reliable indication of consensus.”

Stanford, __ US. at___, 109 S.Ct. at 2977.

A review of state legislation reveals no “objective evidence . . . of

an emerging national consensus,” Penry, __ U.S. at ___., 109 S.Ct.

at 2955, against medication of death row inmates to produce

competency for execution. No jurisdiction explicitly prohibits such

medication. On the other hand, contrary to Perry’s allegation that

“(n]o state has passed legislation authorizing the use of medication to

establish competency for execution,” Brief for Petitioner at 40

(emphasis omitted), Maryland expressly allows medication of

condemned prisoners to restore competency. See Appendix E.

Moreover, of the 37 states which have enacied capital punishment, 24

(including Maryland) contemplate the use of medication to produce

competency by specifically authorizing treatment of incompetent

death row inmates or by providing that the execution of such inmates

will be stayed or suspended until competency is regained.” See

Appendix F. The statutes of the remaining 13 death penalty states,

including Louisiana, are silent om the issue of restoration of

competency. However, these 13 states, as well as the 13 states and

the District of Columbia which de not allow capital punishment,

authorize involuntary treatmert of prisoners and criminal defendants

in other contexts."* See Appendixes "i and i. Thus, involuntary

medication of prisoners is not, in and of itself, contrary to

contemporary values.'’ Moreover, at least twenty states statutorily

provide that competency to stand trial may be achieved with

medication. See Appendix J.

‘In addition, three other states had similar provisions before outlawing

capital punishment. See Appendix G.

*As evidence of a national consensus against involuntary medication of

prisoners, Perry points this Court to a host of state statutes regarding the

rights of civilly committed patients. Appendix to Brief for Petitioner, Chart 2.

However, because prisoners do not necessarily possess the same rights

enjoyed by those who have not been convicted of crimes, statutes governing

treatment of civilly committed patients are for the most part irrelevant to the

issue of contemporary standards regarding treatment of prisoners.

"Indeed, 20 states authorize capital punishment by lethal injection. U.S.

Department of Justice, Bureau of Justice Statistics, Capital Punishment 1988,

5, Table 2 (1989).

Recently, in Stanford v. Kentucky, ___ U.S. , , 109 S.Ct.

2969, 2975-76 (1989), this Court held that a showing that 15 states

forbid the execution of 16-year-old offenders and that 12 states forbid

the execution of 17-year-old offenders did “not establish the degree of

national consensus this Court has previously thought sufficient to

label a particular punishment cruel and unusual.” Thus, in claiming

that involuntary medication of prisoners to achieve competency for

execution is prohibited by the Eighth Amendment, it is Perry’s

“heavy burden’ . . . to establish a national consensus against it.” Id. at

____, 109 S.Ct. at 2977 (citation omitted). As the above survey of state

legislation demonstrates, Perry has failed to carry that burden. Not a

single state has enacted legislation forbidding medication of prisoners

to restore competency for execution. Moreover, such medication is

authorized by the only state which has specifically addressed the

issue by statute. Hence, “the clearest and most reliable objective

evidence of contemporary values,” Penry,___ U.S. at__, 109 S.Ct.

at 2953, reveals absolutely no opposition to the use of medication to

achieve competency for execution, much less a national consensus

against such treatment. In short, medication of condemned prisoners

to produce competency is not contrary to “evolving standards of

decency.™

C. Nonconsensual treatment of death row inmates which

produces competency for execution does not violate

the Eighth Amendment prohibition of excessive

punishment.

“Perry places great emphasis on the fact that the state court’s order is

not specifically authorized by state statute or by a decision of the state

Supreme Court but rather is, as he phrases it, “the product of penological

policy-making by a single trial judge.” Brief for Petitioner at 37. That is

beside the point. A particular punishment need not be explicitly sanctioned

by statute or supreme court decision in order to be permissible under the

Eighth Amendment. For example, in Penry v. Lynaugh, .._ US. __., 109

S.Ct. 2934 (1989), a mentally retarded murderer was sentenced to death; the

sentence was not based on an explicit state authorization of capital

punishment of mentally retarded murderers. Yet this Court refused to hold

that execution of mentally retarded offenders violates the Eighth

Amendment. Likewise, in this case, Louisiana’s failure to expressly authorize

the treatment at issue does not render that treatment violative of the Eighth

Amendment.

In Gregg v. Georgia, 428 U.S. 153 (1976), Justices Stewart, Powell

and Stevens wrote that “public perceptions of standards of decency

with respect to criminal sanctions are not conclusive [of the Eighth

Amendment issue]. A penalty also must accord with ‘the dignity of

man,’ which is the ‘basic concept underlying the Lighth

Amendment.’ . . . This means, at least, that the punishmen’* not be

‘excessive.” Jd. at 173 Goint opinion of Stewart, Powell and Stevens,

JJ.) (citation omitted). “Under Gregg, a punishment is ‘excessive’ and

unconstitutional if it (1) makes no measurable contribution to

acceptable goals of punishment and hence is nothing more than the

purposeless and needless imposition of pain and suffering; or (2) is

grossly out of proportion to the severity of the crime.” Coker v.

Georgia, 433 U.S. 584, 592 (1977) (plurality opinion). See also

Stanford, __ US. ____, 109 S.Ct. 2969 (O’Connor, J., concurring in

part and concurring in the judgment); id. (Brennan, J., dissenting);

Penry, __ U.S. ___, 109 S.Ct. 2934 (opinion of O’Connor, J.); id.

(Brennan, J., concurring in part and dissenting in part). As explained

below, medication of incompetent death row inmates is not only

consistent with this nation’s “evolving standards of decency,” but it

survives the excessiveness inquiry suggested by Gregg."

There are two generally accepted purposes of the death penalty:

retribution and deterrence. Enmund v. Florida, 458 U.S. 782 (1982).

“In part, capital punishment is an expression of society’s moral

outrage at particularly offensive conduct. . . . [Certain crimes are

themselves so grievous an affront to humanity that the only adequate

response may be the penalty of death.” Gregg, 428 U.S. at 183-84 Goint

opinion of Stewart, Powell and Stevens, JJ.) (footnotes omitted). In

addition, the death penalty can be in some cases an effective

deterrent to potential capital offenders: “[t]here are carefully

contemplated murders, such as murder for hire, where the possible

penalty of death may well enter into the cold calculus that precedes

the decision to act. And there are some categories of murder, such as

murder by a life prisoner, where other sanctions may not be

adequate.” Jd. at 186 (footnotes omitted).

"Perry does not expressly claim that involuntary medication to achieve

competency for execution violates the Eighth Amendment proscription of

excessive punishment. Nevertheless, because the basis for Perry's Eighth

Amendment claim is not entirely clear, we address the excessiveness issue.

Medication of death row inmates which produces competency

for execution significantly contributes to both goals of the death

penalty. It is readily apparent that, if a condemned prisoner is

shielded from execution by virtue of incompetency, the State cannot

give effect to society’s moral outrage at the prisoner’s crime.

Medication which restores competency and thereby allows execution

of the death penalty thus satisfies the retributive goal of capital

punishment. In addition, medication which induces competency

enhances the deterrent effect of the death penalty by increasing the

likelihood of execution. As loopholes te execution are narrowed or

closed, the death penalty becomes a more certain punishment and

hence a better deterrent. Thus, by iimiting the effectiveness of mental

illness as an escape hatch from execution, medication of incompetent

death row inmates contributes to the penological goal of deterrence.

The second prong of the Eighth Amendment excessiveness

inquiry requires evaluation of the proportionality of the punishment

in relation to the seriousness of the offense. See Solem v. Helm, 463

U.S. 277 (1983). As Justices Stewart, Powell and Stevens explained in

Gregg, “(t}here is no question that death as a punishment is unique in

its severity and irrevocability.” Gregg, 428 U.S. at 187 Goint opinion of

Stewart, Powell and Stevens, JJ.). Yet capital punishment is not

invariably disproportionate punishment for the crime of deliberate

murder. Jd. Assuming for the sake of argument that involuntary

medication to achieve competency for execution increases the

severity of a capital offender’s punishment, such medication certainly

does not constitute punishment that is so severe as to be

disproportionate to the crime of premeditated murder, “the most

extreme of crimes.” Jd. Murders which are “so grievous an affront to

humanity,” id. at 184, ag, to justify the ultimate penalty of death must

likewise merit the relatively minor intrusion of nonconsensual

medication.

In this case in particular, the “penalty” of involuntary

medication is amply justified by Perry’s cold-blooded murders of five

members of his family. As described by the Louisiana Supreme Court,

Perry’s crimes were particularly egregious:

The offense was a shocking mass murder in a small town. Five

members of defendant’s family were killed on a Sunday

morning, two as they slept in their beds. After killing his

parents, his cousins and a nephew, the defendant took money

from his mother’s belongings and from his father’s pockets and

fled the state in his father’s car, taking refuse [sic] in a

Washington hotel. He killed the adult victims in their own homes

in a violent, bloody encounter which was deliberately planned.

He waited for his parents more than an hour following his

murder of his two cousins in a house just two doors away. A total

of three weapons were used. The death penalty in such a case is

proportionate to the offenses and to this particular defendant.

(j.A. 40-41). Obviously involuntary medication is not overly severe

treatment for the criminal responsible for these crimes. The brutal

slayings of five people, including a two-year-old child, merit the death

penalty, even if carrying out that penalty requires treating Perry with

medication to achieve his competency.

III. Perry has no Fourteenth Amendment right to refuse

prescribed medication which will render him

competent to be executed.

In addition to his Eighth Amendment argument, Perry contends

that he is protected from unwanted medication by the Fourteenth

Amendment. According to Perry, both the Due Process Clause and

Louisiana law grant state prisoners a liberty interest in refusing

antipsychotic medication. However, a sentence of death justifies

restrictions on a condemned inmate’s liberty which are necessary to

carry out the death penalty; thus, a death row inmate who requires

medication to be competent for execution is not entitled by the

Fourteenth Amendment to refuse such medication. Moreover,

Louisiana law does not create a constitutionally protected liberty

‘nterest in avoiding medication which is intended to produce

competency for execution. Finally, even assuming that Perry has a

liberty interest in refusing medication, that interest is overridden by

the State’s interest in effectuating the death penalty.

A. The imposition of a sentence of death extinguishes the

right created by the Due Process Clause to refuse

prescribed antipsychotic medication.

This Court has consistently recognized that prisoners do not

retain the full range of liberty interests enjoyed by others. It is self-

evident that a conviction and sentence of imprisonment necessarily

extinguish the right to be free from confinement. Likewise, a

’

conviction and sentence of imprisonment justify restrictions on an

inmate’s freedom which are “ordinarily contemplated by a prison

sentence.” Hewitt, 459 U.S. at 468 . “Lawful incarceration brings about

the necessary withdrawal or limitation of many privileges and rights,

a retraction justified by the considerations underlying our prison

system.” Price » Johnston, 334 U.S. 266, 285 (1948). Thus, this Court

has held that prisoners do not enjoy constitutionally created rights to

be free from administrative segregation, Hewitt, 459 U.S. 460,

restrictions on visitation, Thompson, US. __, 109 S.Ct. 1904,

interstate transfer from one prison to another, Meachum v. Fano, 427

U.S. 215 (1976), or transfer to an out-of-state prison, Olim v.

Wakinekona, 461 U.S. 238 (1983). “As long as the conditions or

degree of confinement to which the prisoner is subjected is within the

sentence imposed upon him and is not otherwise violative of the

Constitution, the Due Process Clause does not in itself subject an

inmate’s treatment by prison authorities to judicial oversight."

Montanye, 427 U.S. at 242. See also Vitek v Jones, 445 U.S. 480 (1980).

In Washington v Harper, __ US. __, 110 S.Ct. 1028 (1990),

this Court held that a Washington State prisoner had a liberty interest

under the Due Process Clause of the Fourteenth Amendment in

refusing medication with psychotropic drugs. The Court explicitly

recognized, however, that “[t]he extent of a prisoner's right under the

Clause te avoid the unwanted administration of antipsychotic drugs

must be defined in the context of the inmate’s confinement.” Jd. at

___, 110 S.Ct. at 1037.

In this case, Perry’s interest in refusing antipsychotic

medication must be viewed in light of his sentence of death. Just as a

sentence of imprisonment justifies conditions of confinement which

are “within the sentence imposed,” Montanye, 427 U.S. at 242, so does

a sentence of death justify restrictions on liberty which are required

to effectuate the death penalty. A sentence of death contemplates that

the liberty interests of the condemned inmate wi!) xc estricted to the

extent necessary to carry out that sentence. For exampile, a sentence

of death by electrocution requires that the condemned prisoner be

physically strapped to the electric chair; as a result, the constitutional

liberty interest in freedom from bodily restraint, see Youngberg v.

Romeo, 457 U.S. 307, 316 (1982), is superseded by imposition of the

death penalty.

The State cannot carry out Perry’s sentence of death

competence to be executed is maintained with the usé of — ——

antipsychotic drugs. Treatment of Perry with such medication is thus

a necessary precondition to execution of Perry’s sentence and is

therefore “within the sentence imposed upon him.” Montanye, 427

U.S. at 242. In short, the Harper right to be free from involuntary

medication was extinguished by Perry’s sentence of death.

B. Louisiana has not created a constitutionally protected

liberty interest in avoiding medication intended_ta—

achieve competency for execution.

As previously noted, the decisions of this Court estau..hthat =

“where a statute indicates with ‘language of an unmistakable

mandatory character,’ that state conduct injurious to an individual will

not occur ‘absent specified substantive predicates,’ the statute creates

an expectation protected by the Due Process Clause.” Ford, 477 U.S.

at 428 (O’Connor, J., concurring in the result in part and dissenting in

part), quoting Hewitt v. Helms, 459 U.S. at 471-72. Perry maintains

that Louisiana law creates a constitutionally protected right to refuse

psychiatric treatment intended to achieve competency for execution.

Specifically, Perry asserts that La. C.Cr.P. art.,648, La. R.S. 15:830.1,

and La. R.S. 28:171(P) grant him a constitutionally protected liberty

interest in avoiding the medication authorized by the state court.

However, none of those statutes creates such a liberty interest.

La. C.Cr.P. art. 648, which is reproduced in Appendix B, provides

that, when a criminal defendant is judicially determined to be

incapable of standing trial, he shall be committed “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 capacity continues.” La. C.Cr.P. art. 648A. The

statute further provides that if. after commitment, the court finds that

the defendant is not likely to become capable of standing trial, the

defendant shall be released on probation or, if he is a danger to

himself or others, civilly committed for treatment. La. C.Cr.P. art.

648B. Although Article 648 is addressed to determinations of capacity

to proceed to wial, Perry submits that the Code articles governing

claims of incompeteucy to stand trial, including Article 648, have been

applied by the Louisiana Supreme Court in the post-conviction

context. However, as explained supra at pages 18-19, only the

procedural requirements of La. C.Cr.P. arts. 641 et seg. have been

extended to the post-conviction setting. Thus, any substantive right

created by Article 648 is not available to Perry. More importantly,

though, Arti-!s-ft&plainly does not recognize a right to refuse

treatment~In fact, the Article explicitly requires treatment to achieve

for the sake of argument that Article 648 is

fully applicable to post-conviction competency proceedings, it

specifically authorizes the treatment ordered in this case.

La. R.S. 28:171(P) is likewise inapplicable here. Section 171,

which is reproduced in Appendix C, is a declaration of the rights of

patients in state treatment facilities for the mentally ill; it simply does

not apply to treatment of prisoners on death row.” Assuming

arguendo that the statute applies, it does not create a right to refuse

the medication at issue in this case. La. R.S. 28:171(P) provides that

“[n]o medication may be administered to a patient except upon the

order of a physician. . . . Medication shall not be used for nonmedical

reasons such as punishment or for convenience of the staff.” Perry

claims that this provision prohibits any medication which is not for

“treatment.” However, as explained supra at pages 29-30, the

medication authorized by the state court is to “treat” Perry. So, if

Section 171(P) establishes treatment as a “substantive

predicate” absent which medication will not be ordered, that

substantive predicate has been met.”

*La. R.S. 28:2(28)(C) specifically excludes prisons and jails from the

definition of “treatment facility.” See Appendix C. Moreover, a reading of

Section 171 in its entirety makes it crystal clear that it was not intended to

apply to state prisoners. The Section grants patients the rights to

“unimpeded, private and uncensored communication . . . by mail, telephone

and visitation,” La. RS. 28:171(C), to “be employed at a useful occupation,”

La. R.S. 28:171(H), and to “wear [their] own clothes,” La. R.S. 28:171(G).

Certainly, the legislature did not intend to grant those rights to death row

inmates.

"The mere fact that Perry's treatment also produces competency for

execution is of no consequence. Section 171(P) cannot be read as

prohibiting medically necessary treatment merely because the treatment

also serves another purpose. Indeed, as discussed above, La. C.Cr.P. art. 648

explicitly requires treatment to produce competency to stand trial. Thus,

Louisiana law does not categorically forbid the use of medically appropriate

treatment to produce competency.

Unlike Article 648 and Section 171, La. R.S. 15:830.1, reproduced

in Appendix D, does apply in the prison setting. That statute provides

for involuntary treatment of a mentally ill prisoner for up to fifteen

days when a prison physician or psychiatrist “certifies that the

treatment is necessary to prevent harm or injury to the inmate or to

others.” La. R.S. 15:830.1A. Section 830.1 further provides that, when

treatment for more than fifteen days “is deemed necessary,” judicial

proceedings shall be initiated to determine whether the inmate

should be cominitted to a treatment facility for continued treatment.

Id. The proceedings must “be in accord with all procedures required

by law in the case of judicial commitment.” La. R.S. 15:830.1C.

Treatment of the prisoner must continue during pendency of the

proceedings. La. R.S. 15:830.1A. Following a judicial hearing at which

the prisoner is represented by counsel, “the court shall determine

whether the inmate is competent and, if not, he shall order that

appropriate treatment be provided.” Jd.

Section 830.1 does not create a constitutionally protected liberty

interest because it does not contain “explicitly mandatory language”

that nonconsensual medication “will not occur absent specified

substantive predicates.” Hewitt, 459 U.S. at 472. Section 830.1

provides that involuntary medication of a prisoner “will be permitted”

if such treatment “is necessary to prevent harm or injury to the

inmate or to others,” La. R.S. 15:830.1A, but it does not mandate

treatment under those circumstances. Thus, the statute “stop[s]

short of requiring that a particular result is to be reached upon a

finding that the substantive predicates are met.” Thompson, __ U.S.

at__, 109 S.Ct. at 1910 (footnote omitted). Moreover, Section 830.1

does not specify that involuntary medication is permitted only if

necessary to prevent harm or injury. A finding that medication is

necessary to prevent harm or injury is a sufficient condition for

nonconsensual administration of neuroleptic medication, but it is not

a necessary ccendition for that treatment. Perry cannot therefore

“reasonably form an objective expectation” that he will not be

medicated absent a finding that he poses a risk of harm or injury to

himself or others. Jd. at__, 109 S Ct. at 1911. In other words, even if

Section 830.1 creates an expectation that an inmate will be medicated

if necessary to prevent harm or injury, the statute does not create “a

justifiable expectation on the part of the inmate that the drugs will not

be administered unless [that condition] exist[s].” Harper, _ US. at

, 110 S.Ct. at 1036 (emphasis added) .”

C. Even assuming that a death row inmate retains a

liberty interest in being free from involuntary

medication, such interest is outweighed by the State’s

interest in enforcing a validly imposed sentence of

In Turner v. Safley,_ _ US. _ , 107 S.Ct. 2254, 2261

(1987), this Court held that a prison regulation which interferes with

prisoners’ constitutional rights is valid as long as “it is reasonably

related to legitimate penological interests.” Although the Turner

standard of review is stated in terms of prison “regulations,” this

Court has noted that the standard “applies to all circumstances in

which the needs of prison administration implicate constitutional

rights.” Harper, ____ U.S. at __, 110 S.Ct. at 1038. Thus, even

assuming that Perry retains a right to refuse medication under either

the Due Process Clause or Louisiana law, the court order

™Perry contends that Section 830.1 creates a constitutionally protected

entitlement because it is “written in mandatory language.” Brief for

Petitioner at 42. Specifically, Perry points out the following language in

Section 830.1: “If treatment for a longer period is deemed necessary, a

petition shall be filed in a court of corapetent jurisdiction setting forth the

reasons for the treatment... . After a hearing .. . , the court shall determine

whether the inmate is competent and, if not, he shall order that appropriate

treatment be provided.” La. R.S. 15:830.1A (emphasis added). However, this

language is not relevant to the issue of whether Section 830.1 creates a

liberty interest in refusing medication. As explained by this Court in

Kentucky Department of Corrections v. Thompson, US, _— wi,

109 S.Ct. 1904, 1910 n.4 (1989), “the mandatory language requirement is not

an invitation to courts to search regulations for any imperative that might be

found. The search is for relevant mandatory language that expressly

requires the decisionmaker to apply certain substantive predicates in

determining whther [sic] an inmate may be deprived of the particular

interest in question.” The language relied on by Perry does not require that

medication be ordered if an inmate poses a danger to himself or others; the

quoted language comes into play only after an initial decision has been made

to medicate the inmate for fifteen days. In addition, the quoted language

does not prohibit medication under other circumstances. Thus, the language

is “irrelevant mandatory language.” /d at__n.4, 109 S.Ct. at 1910-11 n.4.

————

authorizing nonconsensual medication to achieve Perry’s competency

to be executed is valid because it is reasonably related to the State’s

interest in carrying out the death penalty.

In Harper, this Court considered a constitutional challenge to a

Washington prison regulation which provided for forcible treatment

of mentally ill prisoners with prescribed antipsychotic drugs if the

prisoners were found likely to harm themselves or others. While

recognizing a constitutional liberty interest in refusing unwanted

medication, the Court applied the Turner standard of review and

upheld the regulation as reasonably related to legitimate penological

interests. Id. In so holding, the Court considered three factors which

the Turner decision identified as relevant to the determination of the

reasonableness of a regulation:

First, there must be a “valid, rational connection” between the

prison regulation and the legitimate governmental interest put

forward to justify it.’ 482 U.S., at 89 (quoting Block v. Rutherford,

468 U.S. 576, 586 (1984)). Second, a court must consider ‘the

impact accommodation of the asserted constitutic~al right will

have on guards and other inmates, and on the allocation of

prison resources generally.’ 482 U.S., at 90. Third, ‘the absence

of ready alternatives is evidence of the reasonableness of a

prison regulation,’ but this does not mean that prison officials

‘have to set up and then shoot down every conceivable

alternative method of accommodating the claimant’s

constitutional complaint.’ Jd., at 90-91; see also Estate of Shabazz,

supra, at 350.

Id.

Consideration of the three Turner factors supports a conclusion

that nonconsensual medication of a death row inmate to achieve

competency for execution is constitutionally permissible. First, it is

manifest that the State has a substaritial interest in enforcing criminal

sentences. See Brief for Petitioner at 44. The fundamental purposes of

punishment, retribution and deterrence, cannot be served if criminal

sentences are not carried out. In addition, as in Harper, the State has

af interest in providing prisoners with treatment which is in their

nest medical interest. Harper, ____ U.S. at__, 110 S.Ct. at 1039. The

provision of medically prescribed treatment to a mentally ill prisoner

te achieve his competency to be executed serves both of these State

interests. The medication makes it possible for the State to enforce a

validly imposed death sentence. Moreover, “the fact that the

medication must first be prescribed by a psychiatrist . . . ensures that

the treatment in question will be ordered only if it is in the prisoner's

medical interests, given the legitimate needs of his institutiona!

confinement.” Jd. at__, 110 S.Ct. at 1037 (footnote omitted).

Second, under the circumstances, accommodation of the right to

refuse medication would impose a significant burden on the prison

system. Supervision ard care of untreated mentally ill prisoners is

considerably more difficult than supervision and care of mentally ill

prisoners who are properly treated. As explained by the American

Psychiatric Association and the Washington State Psychiatric

Asscciation, “[m]aintaining a significant number of unmedicated

patients may impose considerable burdens on the staff in caring for

the refusing prisoner and others whose treatment programs break

down. These burdens, in turn, carry unfortunate consequences for

recruiting and keeping staff of a consistently high quality.” Brief for

the American Psychiatric Association et al. at 21 n.17, Harper, ____

US. ___, 110 S.Ct. 1028. In addition, prohibition of involuntary

medication would make claims of incompetency more inviting by

granting incompetent prisoners an absolute reprieve from execution;

such an approach would likely encourage death row inmates to feign

incompetency. See Ferd, 477 U.S. at 435 (Rehnquist, J., dissenting).

Third, when an incompetent death row inmate refuses

treatment, there is no alternative to medication which will serve the

State’s interest in carrying out the inmate’s sentence. The right to

refuse medication is thus tantamount to the power to circumvent the

death penalty. In this case, the evidence is undisputed that Perry will

not remain competent for execution unless he is maintained on

Haldol. Consequently, without the right to treat Perry, the State

cannot enforce his sentence of death.

In sum, nonconsensual medication of Perry is reasonably

related to the State’s legitimate penological interest in enforcing the

death penalty. Such medication is also reasonably related to the

State’s interest in providing Perry with treatment which is in his

medical interest. As a result, the medication is permissible under the

Fourteenth Amendment.

IV. The state court’s conduct of adversarial hearings on the

issue of competency, accompanied by the full panoply of

attendant procedural protections, exceeded the

requirements of the Due Process Clause of the

Fourteenth Amendment.

Assuming arguendo that he has a protected interest in refusing

medication, Perry has two liberty interests which were at stake in the

post-conviction proceedings: the Eighth Amendment right to avoid

execution during incompetency and the right to refuse medication.

Both rights hinge on the determination of competency; if Perry is

competent, he may be executed, and, if Perry is incompetent, he may

be treated against his will with antipsychotic medication to achieve

competency. The Due Process Clause thus requires that Perry be

af. ded procedures adequate to ensure that the competency

determination is neither arbitrary nor erroneous.

This Court's decisions in Ford and Harper are instructive as to

the procedures due Perry under the Fourteenth Amendment. In

Ford, this Court held that the Florida procedure for determining

competency for execution did not provide for a full and fair hearing

under 28 U.S.C. §2254. Justice Marshall’s plurality opinion identified

three defects in the Florida scheme: “failure to include the prisoner in

the truth-seeking process,” 477 U.S. at 413, “denial of any opportunity

to challenge or impeach the state-appointed psychiatrists’ opinions,”

id. at 415, and “placement of the decision wholly within the executive

branch,” id. at 416. While Justice Marshall indicated that “a full trial

on the issue of sanity” is not necessary, he stressed that “the

adversary presentation of relevant information [should] be as

unrestricted as possible” and that “the manner of selecting and using

the experts responsible for producing that ‘evidence’ [should] be

conducive to the formation of neutral, sound, and professional

judgments.” Jd. at 416-417. In a concurring opinion, Justice Powell

noted that the issue of whether the state fact-finding procedure

amounted to a full and fair hearing under 28 U.S.C. §2254 was

identical to the procedural due process issue. /d. at 424 (Powell, J.,

concurring in part and concurring in the judgment). Although Justice

Powell did not determine “the precise limits that due process imposes

in this area,” he stated that “the requirements of due process are not

as elaborate as Justice Marshall suggests.” /d. at 425, 427. He

concluded that, in general, only an impartial decisionmaker and an

opportunity to be heard are constitutionally required. Jd. at 427.

Justice O’Connor, concurring in the result in part and dissenting in

part, reasoned that “the Due Process Clause imposes few

requirements on the States in this context.” Jd. at 429 (O’Connor, J.,

concurring in the result in part and dissenting in part). She

nevertheless found the Florida procedure invalid because it failed to

provide the prisoner with an opportunity to be heard. Jd. at 430.

In the Harper case, as noted above, this Court considered a due

process challenge to a Washington prison regulation providing for

forcible medication of mentally ill prisoners who pose a danger to

themselves or others. The challenged policy allowed nonconsensual

medication of an inmate only after an adversary hearing before a

special committee composed of a psychologist, a psychiatrist and the

associate superintendent of the treatment facility. = U.S. at___,

110 S.Ct. at 1033. The policy afforded the prisoner the rights to

notice, attendance at the hearing, presentation of evidence, cross-

examination of witnesses, assistance of a lay advisor and judicial

review. Id. at___, 110 S.Ct. at 1033-34. This Court upheld the policy's

procedures as adequate under the Fourteer*t, Amendment. /d. at

___.. 110 S.Ct. at 1040. Specifically, the Court reyected claims that due

process requires a judicial decisionmaker, right to counsel),

application of the rules of evidence, or proof by “clear, cogent and

convincing” evidence. Jd. at__, 110 S.Ct. at 1042, 1044.

The procedures used by the state court in determining Perry's

competency far exceeded the requirements of the Harper and Ford

decisions. The competency determination was made by a judicial

decisionmaker after adversary hearings and was subjected to

appellate review. Perry was allowed to recommend appointments to

the sanity commission, and his recommendations were honored. (R.

19; J.A. 46). Throughout the proceedings, Perry was represented by

counsel. J.A 45-51). He was afforded the rights to be present at the

hearings (.A. 47, 50), to testify in his behalf (J.A. 95-97), to cross-

examine witnesses (see, ¢.g., R. 722), to compel production of

documents (J.A. 46), to videotape the proceedings (J.A. 47), to

present evidence (J.A. 125; R. 539-40, 542-45), and to submit written

memoranda and oral argument (see, ¢.g., R. 691, 763, 766). In short,

the state court conducted a full-scale competency trial; it is

Perry nevertheless asserts that the competency proceedings

were constitutionally «ieficient in two respects. First, he complains

that the court admitted into evidence the documents submittea by the

Department of Publ c Safety and Corrections. (J.A. 99-106).

According to Perry, be -ause the documents were submitted ex parte

and contain hearsay, tl eir consideration by the court amounts to a

denial of due process. Second, Perry insists that his due process

rights were violated because the trial court failed to comply with

procedures required by Louisiana law. Both of these complaints are

meritless.

In-Harper, this Court rejected an argument that a pre-hearing

meeting between the special committee and the treatment facility

staff, conducted without the inmate’s presence, violated due process.

The Court explained that “|a|bsent evidence of resulting bias, or

evidence that the actual decision is made before the hearing, allowing

[the inmate] to contest the [state’s] position at the hearing satisfies

the requirement that the opportunity to be heard ‘must be granted at

a meaningful time and in a meaningful manner.” Harper, _ US. at

____, 110 S.Ct. at 1044 (citation omitted). Similarly, in this case, Perry

cannot show that he was prejudiced by the ex parte submission of the

challenged documents. The documents were submitted to the court

in early June of 1988. (J.A. 99). By the end of that month, at the latest,

Perry’s counsel was aware of the Department's submission of the

documents. (R. 194-97). In August of 1988, the court ordered the

documents: admitted into evidence. (JA. 48). Subsequently, the court

conducted two evidentiary hearings at which Perry had the

opportunity to contest the evidence. Indeed, at the conclusion of the

October hearing, the Court specifically offered Perry's counsel the

opportunity to present evidence. (J.A. 125). Under the circumstances,

Perry cannot claim that he was prejudiced, or even inconvenienced,

by the short delay in notifying him of the documents’ submission.

Perry simply cannot now complain because he neglected to refute

record evidence of which he was aware for several months.

Perry's objection to the hearsay nature of the evidence is

likewise unfounded. Perry points to no authority for the proposition

that the hearsay prohibition is constitutionally required in

competency proceedings. Neither Ford nor Harper suggests such a

49 ;.

requirement. In Harper, this Court explicitly rejected the argument

that application of the rules of evidence was constitutionally required.

___ US. at __, 110 S.Ct. at 1044. In addition, the plurality opinion

in Ford stressed that “the adversary presentation of relevant

information [should] be as unrestricted as possible.” 477 U.S. at 417.

Certainly, Perry cannot claim that the documents in question were

not relevant. Moreover, given the medical nature of the competency

determination, the inmate’s interests are better protected by

considering “the realities of frequent and ongoing clinical observation

by medical professionals,” Harper, ____ U.S. at __, 110 S.Ct. at

1042, than by formal adherence to the rules of evidence. In fact,

Perry himself offered six volumes of hearsay medical records at the

first hearing. (R. 539-40). Finally, because Perry was given an

unfettered opportunity to contest the evidence, he cannot assert that

he was prejudiced by its admission.

Perry's second complaint is that the state court failed to comply

with procedures required by Louisiana law. However, Perry does not

identify any specific deficiencies in the state court procedure.

Moreover, a state’s failure to follow its own procedures is not a

violation of due process; “an expectation of receiving process is not,

without more, a liberty interest protected by the Due Process

Clause.” Olim, 461 U.S. at 250 n.12. This Court rejected an identical

argument in Olim v. Wakinekona, 461 U.S. 238 (1983):

vocess is not an end in itself. Its constitutional purpose is to

protect a substantive interest to which the individual has a

legitimate claim of entitlement. . . . The State may choose to

require procedures for reasons other than protection against

deprivation of substantive rights, of course, but in making that

choice the State does not create an independent substantive

right.

Id. at 250-51 (footnote and citations omitted). See also Hewitt, 459 US.

460. Thus, the State’s compliance or noncompliance with its own

procedural requirements is irrelevant to the constitutional issues

before this Court.

50 la

CONCLUSION

For the foregoing reasons, the judgment of the Louisiana

Supreme Court should be affirmed.

Respectfully submitted,

WILLIAM J. GUSTE, JR.

Attorney General

RENE |. SALOMON* '

Assistant Attorney General

M. PATRICIA JONES

Assistant Attorney General

State of Louisiana APPENDIXES

Department of Justice

PO. Box 94095

Baton Rouge, La. 70804-9095

(504) 342-7552

Counsel for Respondent

*Counsel of Record

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

APPENDIX G

APPENDIX H

APPENDIX I

APPENDIX J

APPENDIXES

Excerpts From Record

Louisiana Code of Criminal Procedure, Title XX],

Chapter 1, “Mental Incapacity to Proceed”

Louisiana Revised Statutes, Title 28, Sections 2 and

171

Louisiana Revised Statutes, Title 15, Section 830.1

State Which Expressly Authorizes Medication to

Achieve Competency for Execution

States Which Authorize Treatment or Stay or Sus-

pend Execution Until Competency is Regained

Former Death Penalty States Which Stayed or Sus-

pended Execution Until Competency Was Regained

Death Penalty States Which Involuntarily Treat

Criminal Defendanis in Other Contexts

Non-Death Penalty Jurisdictions Which Involuntari-

ly Treat Criminal Defendants in Other Contexts

States Which Statutorily Provide That Competency

to Stand Trial May Be Achieved Through Treatment

June E. Denlinger (504) 383-1601

Mailing Address

P O. Box 237

Baton Rouge, LA 70821

January 20, 1988

The Honorable L. J. Hymel, Judge

19th Judicial District Court

Parish of East Baton Rouge

222 St. Louis Street

Baton Rouge, LA 70801

Re: State of | owisiana v. Michael Owen Perry

Dear Judge Hymel:

You have asked the defense to submit names of persons who the

defense would like to nominate to the sanity commission in the above

captioned. To that end, the defense would nominate as a psychiatrist

qualified to serve on the sanity commission Dr. Glen Estes, Suite 3,

4521 Jamestown Avenue, Baton Rouge, Louisiana, telephone (504)

927-3062.

As I stated in open court, Dr. Curtis Vincent, a psychologist prac-

ticing in Baton Rouge, did extensive workups on Mr. Perry while

Michael was at Feliciana Forensic Facility. As the 1987 legislature

amended the Code of Criminal Procedure to allow psychologists to sit

on sanity commissions I think it would be appropriate for Dr. Curtis

Vincent to be appointed especially in light of his familiarity with this

case. I therefore nominate as the psychologist member of this panel

Dr. Curtis Vincent, 5000 Constitution Avenue, Baton Rou

a , ’ ge,

Louisiana, telephone (504) 928-6460.

Please advise if there is anything further that we can do to assist

the court in this regard.

Very truly yours,

NORDYKE AND DENLINGER

/s/ Keith B. Nordyke

KEITH B. NORDYKE

EXCERPT FROM MEMORANDUM IN SUPPORT OF

STATE’S MOTION TO DISQUALIFY

KEITH NORDYKE AS COUNSEL OF RECORD IN

THESE PROCEEDINGS AND AS “DO-GOODER” FOR

MICHAEL OWEN PERRY

[RECORD—P. 91]

The State * * * did not receive from defense counsel, a copy of

Mr. Nordyke’s March 14, 1988 letter (attached as App. F) to the War-

den of the Louisiana State Penitentiary. Mr. Nordyke’s letter instruct-

ed the warden to discontinue, the administering of any and all psy-

chotropic medication to Michael Owen Perry: including but not

limited to the medicaition ordered by medical doctors under whose

care Michael Perry was placed.

aoe 184]

Attorneys at Law

228 Napoleon

Baton Rouge, Louisiana 70802

Keith B. Nordyke ; Telephone

June E. Denlinger (504) 383-1601

Mailing Address

P.O. Box 237

Baton Rouge, LA 70821

March 14, 1988

Warden

Angola State Penitentiary

Angola, LA 70775

Re: Michael Owen Perry

(Death Row)

Dear Warden:

totally incompetent and unable to make decisions on his own behalf

He is currently undergoing evaluation by numerous doctors. I deem it

[RECORD—P. 186]

EX PARTE MOTION FOR DELEGATION OF

DECISION MAKING AUTHORITY

NOW INTO COURT, through undersigned counsel, comes

Michael Owen Perry, an incompetent death row inmate, who respect-

fully suggests to the Court through his undersigned counsel the fol-

lowing:

Undersigned counsel visited with Perry on January 6, 1988, at

the hospital at Louisiana State Penitentiary. Michael was blatantly psy-

chotic, unable to articulate any facts regarding his case cogently and

was completely incapable of making decisions on his own behalf.

It is anticipated during the course of the representation of Mr.

Perry for purposes of the “Ferry Motion” that there will be certain is-

sues raised, such as the ability to waive the attorney client privilege,

whether to abandon defenses or not, and whether or not Perry him-

self should be an exhibit or attempt to testify. Counsel believes Perry

to be totally incapable of making these decisions for himself.

On January 15, 1988, undersigned counsel contacted Mr. Tom

Collins, executive counsel of the Louisiana State Bar Association, in an

attempt to obtain ethical guidance and in particular, interpretation of

Rule 1.14 of the Louisiana Code of Professional Responsibility. Rule

1.14 (copy attached) asserts that the attorney must “take other protec-

tive action as may appear appropriate under the circumstances” [when

his client is under a disability and unable to make decisions]. Mr.

Collins stated that the committee would not be able to provide an ethi-

cal opinion or guidance on this issue and that counsel should proceed

under existing procedural or substantive law.

[RECORD—P. 187] 4.

Although Rule 1.14 suggests the possibility of a curator, it is clear

that that portion of Rule 1.14 is dealing with civil matters. Counsel

does not believe there is any authority for a curator to make decisions

in criminal cases on behalf of his client and further, does not believe

that such decisions should or can be made by a curator.

It is anticipated that expert psychiatric testimony in this cause

will show that the decision making processes of the defendant are so

impaired as to renaer them completely unreliable.

Counsel represents to the Court that there are no close family

relatives available to appoint to make decisions on behalf of Mr. Perry

and further, even if such relatives were available, they would not be el-

igible ic> appointment due to the nature of the crime accused int this

matter.

Counsel desires to undertake to make these decisions on behalf

of Mr. Perry, keeping Mr. Perry's best interests at heart at all times, in

order that adequate representation might be given. Other than “a Mo-

tion to Appoint a DoGooder” counsel knows of no other method to ad-

equately protect Mr. Perry's rights and to competently and timely ex-

ercise the decision making that must be done in this case.

Movers desire that this motion be kept under seal and that any

hearing held in this matter be held in chambers ex parte.

Counsel certifies that they have read the appropriate rules of pro-

fessional responsibility and there is no guidance other than what is at-

tached.

10.

In the alternative, mover desires that an experienced criminal

lawyer, who has practiced in the field of death penalty [RECORD—P.

188) defense, be appointed to make decisions on behalf of Michael

Owen Perry and undersigned counsel would be happy to provide the

Court with a list of such persons in the Baton Rouge area.

WHEREFORE, MOVER PRAYS that after due proceedings had,

there be a hearing in chambers, ex parte, and any record thereof be

kept under seal, and that Michael Owen Perry be allowed to make de

cisions through counsel or by a representative to be appointed from

the Criminal Bar of the City of Baton Rouge who has experience in

death penalty defense.

MOVER FURTHER PRAYS for a general and equitable relief as

may be allowed by law.

BY ATTORNEYS:

/s/ June E. Denlinger

KEITH B. NORDYKE

JUNE E,. DENLINGER

228 Napoleon

Baton Rouge, LA 70802

Phone: (504) 383-1601

* * *

10a

LETTER TO JUDGE HYMEL FROM

KEITH B. NORDYKE

[RECORD—P. 193]

Nordyke and Denlinger

Attorneys at Law

228 Napoleon

Baton Rouge, Louisiana 70802

Keith B. Nordyke Telephone

June E. Denlinger (504) 383-1601

Mailing Address

P.O. Box 237

Baton Rouge, LA 70821

June 22, 1988

Honorable L. J. Hyme!

Judge

19th Judicial District Court

222 St. Louis Street

Baton Rouge, Louisiana 70801

Re: State of Louisiana v. Michael Owen Perry

Number: 9-85-472

Dear Judge Hymel:

I enclose herewith an objection to additional evidence which has

been attached to various state briefs in this matter. I understand Your

Honor does not want this matter being set for hearing therefore, we

would appreciate this objection being filed into the record so that our

rights for appellate review are reserved if necessary.

Thanking you for your cooperation and attention, we remain

Very truly yours,

NORDYKE AND DENLINGER

/s/Keith B. Nordyke

KEITH B. NORDYKE

lla

{[RECORD—P. 194]

OBJECTION TO AMICUS BRIEF AND OBJECTION TO

INTRODUCTION OF ADDITIONAL EVIDENCE

NOW INTO COURT, through undersigned counsel, comes

Michael Owen Perry who respectfully objects to the filing of an ami-

cus brief by the State of Louisiana and to the obiection of additional ev-

idence for reasons set forth below:

Mover would object to the amicus brief filed on behalf of the

State of Louisiana (Department of Corrections) for the reason that the

Department of Corrections has no interest in this matter and no cog-

nizable standing to file an amicus brief. Further, Michael Owen Perry

perceives an amicus brief by the state as merely an attempt to get a

“second bite of the apple”. There is no showing anywhere that the At-

torney General’s office is not sufficiently motivated or prepared to

handle this case. In other words, it seems that “the state is the state is

the state” and that an additional opportunity to file a brief is being giv-

en the state by use of an amicus brief.

Attached to the amicus brief and further, attached to the state’s

original memorandum in this matter, is evidence adduced after the tri-

al of this matter held in April, 1988. Michael Owen Perry vigorously

objects to the introduction of this evidence for numerous reasons in-

cluding but not limited to the following:

1. The evidence is hearsay;

2. The evidence was not taken subject to cross examination

3. The evidence purports to be opinion testimony however no

qualification of the expert has been had, and Michael Owen Per-

ry believes that the physicians in this matter are the best experts.

4. Michael Owen Perry has been denied due process as defined

in Ford vu. Wainwright in that the introduction of this evidence

completely denies Michael Owen Perry an opportunity to re-

spond and to be heard.

5. Any evidence obtained from Michael Owen Perry in addition

to being uncross-examined, was in violation of his right to coun-

12a

sel in that said evidence was taken [RECORD—P. 195] from

Michael Owen Perry while he was either incompetent or without

the advice of his counsel and certainly without the knowledge of

his counsel both in violation of the Fifth and Sixth A nendments

to the United States Constitution.

For the above and foregoing reasons and based on the Fifth,

Sixth, Eighth and Fourteenth Amendments to the United States Con-

stitution as well as the corresponding provisions of the Louisiana Con-

stitution plaintiff objects to the introduction of any additional evidence.

WHEREFORE MOVER PRAYS that all evidence filed and not

connected with the trial of this matter and subsequent to the trial of

this matter be stricken and not considered.

BY ATTORNEYS:

/s/ Keith B. Nordyke

KEITH B. NORDYKE

NORDYKE AND DENLINGER

P.O. Box 237

Baton Rouge, Louisiana 70821

Telephone: (504) 383-1601

* * *

13a

[RECORD—P. 196]

OBJECTION TO INTRODUCTION OF ADDITIONAL

EVIDENCE

NOW INTO COURT, through undersigned counsel, comes

Michael Owen Perry who objects to the introduction of evidence sub-

sequent to the close of the hearing for reasons set forth below:

Mover understands however has not been favored with a service

copy of certain evidence which has been forwarded to the trial court

in this matter subsequent to the close of the hearing on April 20, 1988.

In particular, mover has been made aware of a June 7, 1988 letter

from Annette Viator, attorney for the Depar*~ent of Corrections, to

the Honorable L. J. Hymel, forwarding certain documentation from

the Louisiana State Penitentiary to the trial court.

Furthermore, these documents, which are not introduced into

evidence, and have not been subjected to cross examination had been

attached to the state’s brief in this cause.

The aforereferenced June 7, 1988 letter indicates that a physician

at Louisiana State Penitentiary will be following up with weekly re-

ports to Your Honor and mover would respectfully and vigorously ob-

ject to this procedure as evidence has been taken in this matter and

the case has been taken under advisement.

This procedure completely and totally violates defendants rights

in this cause as these witnesses were not called by the State of

Louisiana at the hearing in this matter (when the state [RECORD—P.

197] had total opportunity to do so) and these documents attempting

to be introduced in this fashion solely in an effort to circumvent cross

l4a

The aforereferenced procedure is violative of Michael Owen Per-

ry’s rights under the Fifth, Sixth, Eighth and Fourteenth Amend-

ments to the United States Constitution as well as all Louisiana corre-

sponding constitutional provisions in that the documents submitted in

the aforereferenced fashion have not been tested by cross examina-

tion, have not been subjected to scrutiny by counsel, have not been

served upon counsel, afford no notice and opportunity to be heard

and appear to be derived from Michael Owen Perry without the bene.

fit and advice of counsel.

WHEREFORE MOVER PRAYS that after due proceedings had

mover prays that the State of Louisiana be prohibited from introducing

any further evidence after 20 April 1988 and further, that all such doc-

umentation submitted after 20 April 1988 be stricken from the record.

MOVER FURTHER PRAYS that the State of Louisiana be or-

dered and prohibited from further attempts at providing documenta-

tion to this Court without:

a. Forwarding a copy to opposing counsel.

b. Noticing a hearing and producing the witnesses and the oppor-

tunity to be heard.

BY ATTORNEYS:

/s/ Keith B. Nordyke

KEITH B. NORDYKE

NORDYKE AND DENLINGER

P.O. Box 237

Baton Rouge, Louisiana 70821

Telephone: (504) 383-1601

15a

LETTER TO ANNETTE VIATOR FROM

KEITH B. NORDYKE

[RECORD—P. 204]

Nordyke and Denlinger

Attorneys at Law

228 Napoleon

Baton Rouge, Louisiana 70802

Keith B. Nordyke Telephone

June E. Denlinger (504) 383-1601

Mailing Address

P.O. Box 237

Baton Rouge, LA 70821

June 22, 1988

Ms. Annette Viator

Department of Corrections

P.O. Box 9434

Baton Rouge, Louisiana 70804

Re: Michael Owen Perry

Dear Annette:

* * *

As attorney for Michael Owen Perry I would respecifully request

at this time that all medication to Michael Owen Perry be discontin-

ued until such time as the state has complied with the statutory proce-

dures set forth in Title 15 of the Louisiana Revised Statutes.

* *

STATE OF LOUISIANA

New Orleans

Chief Justice

John A. Dixon, Jr.

Associate Justices

Pascal F. Calogero, Jr.

Walter F. Marcus, Jr.

James L. Dennis

Jack Crozier Watson

Harry T. Lemmon

Luther F. Cole

Clerk of Court 301 Loyola Ave., 70112

Frans J. Labranche, Jr. Telephone 504-568-5707

August 29, 1988

Hon. L. J. Hymel

Judge, 19th Judicial District Court

222 St. Louis St.

Baton Rouge, LA 70801

Re: No. 88-KD-2239

State of Louisiana vs. Michael Owen Perry

Dear Judge Hymel:

This is to advise that the Court took the following action, this

date, in the above entitled matter:

“The order of the trial judge dated August 26, 1988 in the minutes

of court requiring forced medication of defendant pending the

hearing on September 30, 1988 is stayed pending orders of this

Court.”

With kindest regards, I remain,

Very truly yours,

/s/Frans J. Labranche, Jr.

FRANS J. LABRANCHE, JR.

Clerk of Court

Chief Justice

John A. Dixon, Jr.

Associate Justices

Pascal F. Calogero, Jr.

Walter F. Marcus, Jr.

James L. Dennis

Jack Crozier Watson

Harry T. Lemmon

Luther F. Cole

Clerk of Court 301 Loyola Ave., 70112

Frans J. Labranche, 'r. Telephone 504-568-5707

September 23, 1988

Hon. L. J. Hymel

Judge 19th JDC

222 St. Louis Street

Baton Rouge, La. 70801

In Re: State of Louisiana vs. Michael Owen Perry

No. 88: KD-2239

Dear Judge Hymel: 7

This is to advise that the Court took the following action on

September 22, 1988 with regards to the above entitled matter:

“Relator’s motion to stay the September 30, 1988 hearing is de-

nied.”

With kindest regards, | remain,

Very truly yours,

/s/ Frans J. Labranche, Jr.

FRANS J. LABRANCHE, JR.

Clerk of Court

18a

EXCERPTS FROM SANITY HEARING HELD

APRIL 20, 1988

[RECORD—P. 505]

MR. NORDYKE: Dr. Jimenez, if you will please take the stand so

we can get you out of here.

[RECORD—P. 509] [EXAMINATION OF DR. THERESITA

JIMENEZ]

Q Dr. Jimenez, you were appointed by ! Hymel to exami

Mr. Michael Owen Perry, were you not? — -

A Yes, sir.

Q And, of course, you're familiar with Mr. Perry because you

eet a his treating physician in the Feliciana Forensic in '&3

A That's right, sir.

Q And I believe you were also the medical director or the psychi-

atric director of Feliciana Forensic during those years, were you not?

A Yes, sir.

_Q Okay. And on February 4th of 1988 I believe you went to

Louisiana State Penitentiary at Angola and evaluated Mr. Perry, is that

correct?

A Yes, sir.

(RECORD—P. 511) I feel that Mr. Perry will become competent

with the proper medication adjustment. He does understand that he is

convicted and also expressed that he does not want to die.

Q What facts went into that opinion, doctor?

A When I went to see Mr. Perry that day he was fairly coopera

tive but he was evasive with the type of answers and mood that he was

in. He 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

19a

interview he accepted that he did it because he had a lot of anger to

wards his mother. So the information he was giving at that point was

rather inconsistent. He also talked about his lawyer had not defended

him very well because he was a member of the Mafia. And he was

very inconsistent with information that he was giving. He was—I also

felt at that time that if we could readjust the medication that we would

be able to get him much better.

Q I believe you've diagnosed Mr. Perry as having Schizoaffec-

tive Disorder, is that correct?

A That's correct, sir.

Q Would you please tell the judge what Schizoaffective Disorder

is and what the symptoms of Schizoaffective Disorder may be, includ-

ing the bipolar nature and that sort of thing?

A Schizoaffective Disorder is an illness wherein the patient has a

problem with thinking disorder and at the same time also a problem

with his feeling tone or the defective [sic] component. When they are

in the state of acute illness they [RECORD—P. 512] usually are 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

manifesting symptoms like not wanting to sleep, not wanting to talk or

having crying adversity. The problem is also that they would have

some distortion in their thinking and that would be the Schizophrenic

component of the illness.

[RECORD—P. 513}Q Dr. Jimenez, my first interest is you have pre-

viously, have you not, diagnosed Michael Perry as being Schizoaffec-

A Yes, sir, I did.

Q And do you classify that as a major mental illness?

A Yes, sir.

Q Okay. And can that be acute at times and disappear and fade

out at other times?

A The symptoms would get better at some point but the illness

would be there. It has to be controlled by medication.

[RECORD—P. 514) Q All right. Now you mentioned that this is a

thinking disorder. Can you give me some examples of how this think-

ing disorder would affect any one of us? I mean how would it make our

lives different having a thinking disorder labeled as you have Schizoef

fective Disorder?

A Well, if you have problems with thinking disorder there are

times wherein you would not be in touch with reality when you are

acutely ill, and there are times when you would feel like people are out

to get you or people are out against you. And that would be the para

noid component of the illness. And . . .

Q And if—go ahead.

A Sometimes you would think that you are somebody that you

really are not. And that’s like when you think you are God. ;

Q Okay. Now if you think people are out to get you when they're

not is there a label that psychiatrists attach to that phenomena?

A Paranoia.

_Q And do you conclude that paranoia is an element of a Schizoaf

fective Disorder?

A It’s a part of the problem but some people can also be paranoid

without being Schizophrenic.

[RECORD—P. 515] A* * * Sometimes, also, he rambles. His

thinking is not cohesive. He would go from one topic to the other and

there is very loose association.

Q Did you say good or bad association or disassociation?

A Loose, loose.

iia Loose associations. And how do you determine a loose associ-

A A loose association, uh, you would note when you are talking

to a person and the answers that they give you are—or when they give

you information there is no cohesiveness or they just don’t stick to-

2la

[RECORD—P. 518) BY THE COURT:

Q Dr. Jimenez, while you're looking for that, when you examined

him on February 4th of this year at my request do you know wheth. °

or not Mr. Perry was on medication then?

A Yes, sir, he was on medication, a small amount of medication,

but he was not taking it regularly.

Q What type of medication and what dosages?

A Haldol, and I think he was taking ten milligrams of Haldol.

Q Is that a daily prescription?

A Yes, sir, he had often times refused it. In fact, at that time that I

saw him I think he was just restarted or he had just started agreeing

to take the medicine.

Q What kind of drug is Haldol and what is its purpose and what

does it do and what affect, in your opinion, did it [(RECORD—P. 519]

have and does it have on Michael Owen Perry?

A It’s a psychotropic medication. It’s supposed to get the think-

ing process more delusiveness, more cohesive, less paranoia, and get

him to be able to concentrate and participate in the interviews, make

him less paranoid. It’s supposed to help his illness get better. That's

the purpose of keeping him on the medication. At one time he was

also tried on Lithium Carbonate but he did not do too well and he de-

veloped too many side effects so that was discontinued.

Q Do you know of your own knowledge or have you reviewed

the report showing when he was placed on the Haldol?

A I was the one who started that on him back when he—when

he first arrived he was doing well. And at that time I didn’t feel that he

was having any mental illness because he was really—other than be-

ing hostile and uncooperative [RECORD—P. 520) at that time. We

did not then put him on any medication, really just tried to observe

him and referred him for some testing which was done. And then his

behavior became worse and he was very hard to deal with and he was

causing a lot of—making a lot of threats so he was started on medica

tion. He did better after that but then we had problems also with the

side effects so we pretty much had to readjust his medicine regularly

and watch him closely. He also has a problem about wanting to take

22a

medication. He really never was interested in taking medication.

[RECORD—P. 534] Q Dr. Jimenez, does Mr. Perry have a different

diagnosis or prognosis after your February 4th, 1988 interview as op-

posed to your interviews and observations prior to trial? Have you de-

tected any different symptoms in your February 4th, 1988 interview

as opposed to what you observed and saw prior to his trial?

A No, sir.

[RECORD—P. 539] MR. NORDYKE: Now that we're back on

record, Your Honor, in connection with this proceeding | would offer,

introduce and file into evidence, into evidence as Exhibits Two, Three

merch he epentrcage neha se ma Auton wad ad ere

into evidence, copies of which I have provided to everybody, includi

the physicians in this case in bound format. 7

THE COURT: Which volumes [RECORD—P. 540] are those?

MR. NORDYKE: It varies. Exhibit Two, Your Honor, corre-

— with volume six. This is the Lake Charles Mental Health

records.

[RECORD—P. 542] THE COURT: Let it [Exhibit Two] be filed.

[RECORD—P. 543] THE COURT: Which are the Feliciana Foren-

sic - a The Court will allow them [Exhibit 3] to be filed as

such.

* * *

[RECORD—P. 544] THE COURT: Let them [Exhibit 4] be filed as

marked.

* * *

MR. NORDYKE: And, D-5 will be the Angola records

[RECORD—P. 545] THE COURT: Let that be filed as Exhibit Five.

MR. NORDYKE: And we will supplement the record with that at

23a

the next break. We will call Dr. Aris Cox, please. 7

[RECORD—P. 546] [EXAMINATION OF DR. ARIS COX]

Q You are one of Mr. Perry’s treating psychologists at Angola,

are you not?

A No. I'm his treating psychologist [sic] at Angola, yes.

[RECORD—P. 552] A I have not noticed him to have any symptoms

of tardive dyskinesia.

[RECORD—P. 553] A Well, there are medicines that can be given

for side effects that improve the extra-parameatal symptoms, and also

discontinuing neuroleptic medication can prevent it.

A Ihave seen him on and off medication several times now and |

have seen him respond to medication. When I saw him

[RECORD—P. 554] back on the 3rd of March he lookeu about as

good to me then as I've ever seen him look. At that time ! thought he

probably was competent. He deteriorates quickly when off medica-

tion. 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 piace all

the time. And sometimes he’s competent and sometimes he’s isot.

That's what I meant by that.

* * *

BY THE COURT:

Q Who made the decision, it you know, to place him on Haldol?

A One of the other psychiatrists there, a Dr. Jalisonne, and Dr.

Montero has seen him also and they had put him on the medication.

Q * * * But my question is do you agree with [RECORD—P.

555] their. . .

24a

A That treatment is a rational appropriate treatment for the psy-

chiatric illness that this man has, in my opinion.

Q And does Haldol affect him beneficially?

A Yes, sir, when he takes it in adequate doses it affects him bene

ficially.

Q What is an adequate dose, in your opinion?

A Thirty milligrams a day, or more.

[RECORD—P. 559] Q * * * Could you give me your definition of

Schizoeffective Disorder, please?

A It is a psychotic illness characterized by a mixture of symp

toms which include mood swings, disorganized thought processes,

and certain other symptoms, such as, fixed false beliefs, such as, delu-

sions, response to non-existent stimuli, such as, hallucinations, and

disorganized thinking.

Q You used another word on me in your definition that I want

you to define for me and that is psychotic illness.

A Well, psychotic illness is generally accepted as being an im-

pairment of mental functioning to such an eytent that the person is un-

able to meet the ordinary demands of life, | believe the AMA says.

And, also, that there specifically is meant that there contact or appreci-

ation of external reality is impaired. They hear things that aren't there,

they see — that aren't there, they misinterpret what goes on

[RECORD—P. 561] A To me, the changes that have occurred in

him, his response to medication has been valuable to me in reachirg

conclusions about him.

Q Explain to me why.

A Because he gets better when he takes medication and he gets

worse when he doesn’t. And I think this is indicative of the fact that he

has a process going on that responds to the medication. And, second-

ly, I think argues against the fact that he’s malingering because in my

experience people who malinger tend to do it whether they're on med-

ication or not.

25a

[RECORD—P. 567] Q Now you mentioned to me also that there

Q Could you give me a definition for that?

A Neuroleptic medications such as Haldol is the name applied to

these medications which are given to people for certain psychiatric ill-

nesses, and they basically suppress, control, or improve the syrar toms

of the illness.

Q Okay. And what illness is the specific case Mr. Perry endures?

A He’s being given this drug because he has a diagnosis of

{[RECORD—P. 568] Schizoeffective Disorder.

Q And this neuroleptic drugs will suppress what particular

symptoms of Schizoeffective Disorder?

A Makes his thinking become coherent and rational, it makes

his delusional beliefs either go away or become much less compelling

or controlling. If he’s hallucinating it will suppress or cease the halluci-

Q Okay, so you told me he would become passive, it will reduce

his delusions. . .

A Not passive, but he will. . .

Q Less hostile?

A Less hostile, less aggressive, less bouncing around off the

wall.

Q All right, so, what else do we have besides less hostile, and no

delusions or reducing. . .

A Thinking more coherently, and more in contact with his envi-

ronment.

Q More coherently means what?

A Well, more coherent means that he could sit down and give

me—lI could ask him a question and he can develop an answer and ex-

plain an answer to me in a logical fashion, carry out a discussion with

me and string together three or four or five thoughts or concepts in a

logical sequence that makes sense. If, for example, I ask him, for ex-

26a

ample, tell me what happened when you were in the hospital last

week, he’s able to sit down and tell me what was going on, why they

took him to the hospital, how long he was there, etcetera, etcetera, in a

coherent fashion. When he’s not on medication he rambles so that he

goes from talking about the hospital to something that happened be-

fore he ever came to Angola, [RECORD—P. 569] to something else

that is completely unrelated.

{[RECORD—P. 571] A We were discussing the issue of the man’s

competency and I said it has to do with whether or not he’s on medica

tion or not. When he’s on medication I think he’s competent, when

he’s not I don’t think he is. And he [Mr. Nordyke] was aware that

Michael was being given medication at Angola and he was taking it.

And he indicated to me the he was going to advise him to quit taking it

or see to it that he stopped taking it.

[RECORD—P. 573] A Is a specific motor—there’s two specific mo-

tor pathways in the nervous system, the parameatal and the extra-

parameatal motor systems. They control motor movement and coordi-

A Yes.

Q And how does that relate to Mr. Perry?

A Well, it relates to Mr. Perry that he develops sometimes these

symptoms when he is taking Haldol. These symptoms are a recog-

nized side effect of this class of drug.

[RECORD—P. 574] A Do I think he has tardive dyskinesia now?

Q Yes.

A No, I do not think he has it now.

27a

{RECORD—P. 579] MR. NORDYKE: Dr. Curtis Vincent, please.

[RECORD—P. 587] [EXAMINATION OF DR. CURTIS

VINCENT]

Q What was your job at Feliciana Forensic Facility when you

were there?

A li varied some over the years that I was there. For a while |

was acting chief psychologist whenever I was hired in 1979 until |

hired someone to be the chief psychologist there. Once I hired some

one for that position I became a clinical psychologist simply working

there in that position. Through those years more than anything else |

was doing psychological evaluations of individuals to help determine

competency to stand trial, sanity, competency for other issues. | also

did some treatment, individual and group. I put together and man-

aged a program to treat some of the patients who were there.

* *

[RECORD—P. 589] Q Dr. Vincent, you were appointed by the

Court to evaluate Mr. Michael Owen Perry with reference to his com-

petency to be executed, were you not?

A Yes, I was.

Q And as I understand your report you went to Angola and eval-

uated him on March 5th of 1988, is that correct?

A That's correct.

* *- *

[RECORD—P. 590] He did indicate that he knew that he would be

executed if he were found competent to proceed. * * * He was very

tangential with me, that is, that as I asked him questions he would ini-

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

ject, and talked [RECORD—P. 591] about something completely ir-

relevant.

{[RECORD—P. 592] Q Did Mr. Perry indicate to you that he was

God?

A Yes, he indicated at least at one point that he was God.

Q What about his marital status?

A He told me that he had married a woman named Susan Borde

lon since being at Angola and that he was—well, he told me that he

had married her. I didn’t go into any further detail after that.

Q What about auditory hallucinations?

A He told me at that point that indeed he was hearing voices in

his head talking to him and telling him various things. [RECORD—P.

593] And I asked him in particular what those were and very often

they were profanities. And at one point he blurted out that the voice

was saying, this person is innocent. He also indicated to me that he

had been having auditory hallucinations at the time of the offense.

A I also evaluated him in 1983 at Feliciana Forensic

Q I believe in 1983 your diagnosis was that of Schizoeffective

Disorder. Has that changed?

A I believe that the diagnosis stands today, the same diagnosis.

{RECORD—P. 594] A I'm assuming he was taking medication at

that point.

Q Okay.

A The security guard said that he indeed had been taking medi

cation and that the night lieutenant said that he had observed him tak-

ing medication. From my many years working in a psychiatric facility

there are ways to put it in your mouth and not take it. I don’t know that

he was indeed taking it at that point.* * * [RECORD—P. 599)

There are times when an individual can be administered medication

and he can put it in his mouth but not swallow it. * * *

Q Do crazy people and not crazy people both fain [sic] taking

medication?

A Yes, they do.

[RECORD—P. 615] Q All Right, so, this psychological screening

29a

your conclusion was a psychotic disorder characterized by high level

of suspiciousness, coupled with a tenuous grip on reality. 1 mean. . .

A That’s one of my conclusions.

[RECORD—P. 616] Q What treatment would you suggest?

A With the psychotic thinking that I see in him as of March, uh, I

think medication would be the primary treatment modality to use.

**2

[RECORD—P. 626] Q Is it correct to say that your conclusion was

that he had an understanding of the functions of the court?

A One of my conclusions was that he indeed understood the

functions—many of the functions of the court and he understood the

rule[sic] of the various members of the court, yes.

-s &

[RECORD—P. 628] Q All right. But you also say that he does un-

derstand the charges and did understand the results of being found

competent and he does understand the courtroom (inaudible) if we

may use that terminology for the functions of the different parties, cor-

rect?

A Yes, that’s correct.

* *

[RECORD—P. 629] A As of March 5th, as I indicated, he was very

inconsistent in a number of areas but in particular regarding his ac-

tions at the time of the murders and around that time. And that was

very inconsistent. He was also very tangenital, he had some difficulty

paying attention and as a result I would see his having some difficulty

assisting in his defense today, for instance.

[RECORD—P. 634] MR. NORDYKE: Dr. Estes.

THE COURT: Dr. Estes, you have been called as the next wit-

ness

[RECORD—P. 637] [EXAMINATION OF DR. GLEN ESTES]

30a

Q Dr. Estes, you were appointed to evaluate Michael Owen Per-

ry, were you not?

A That’s correct.

Q And of the three persons that have preceeded you on the wit-

ness stand I believe you examined him latest in time, on March 9th,

1988, is that correct?

A That’s correct.

[RECORD—P. 641] A He did not tell me that he was married to

Suzanne Bordelon, he told me that he was married at age seven, how-

ever.

“**

[RECORD—P. 643] Q You indicated that you wished to be relieved

of any responsibility for treatment of Mr. Perry.

A That's correct.

Q Besides not functioning in a prison setting except at the re-

quest and volunteering to do it for the judge, would you pursuant to

his request volunteer to do it? That is, treat Mr. Perry.

A No, I would not volunteer to do that.

[RECORD—P. 644] Q * * * tell me can you treat a man to make

him sane so he can be executed?

A Canl...

THE COURT: That's not the issue before me today, Mr. Sa-

lomon. I’m not going to make him answer the question. The inquiry

today is competency to be executed. Let’s go forward.

Q Doctor, do you have any moral or ethical dilemmas presented

in a case of this nature?

MR. NORDYKE: Same objection, judge.

THE COURT: That's not his decision to make, that’s my decision

if we ultimately get there, Mr. Salomon.

[RECORD—P. 649] Q How many times did you meet with Mr. Per-

ry?

3la

A Once.

Q For what period of time?

A About an hour.

[RECORD—P. 660] THE COURT: Let the record show the defen-

dant is in court with counsel and the State is represented by the Assis-

tant Attorney General. I spoke briefly with defense counsel in the hall-

way outside the courtroom and I was advised that the defendant will

be called as a witness. The court reporter will, of course, attempt to

make as best a transcript as she possibly can but in the event that that

is not possible I understand that the Defense, and I'll ask the State, if

you have any objection to submitting the defendant's testimony on the

video tape itself. Mr. Salomon, would you have any objection to that?

We're going to probably make a transcript but what I'm saying is it

may not be possible. I don't know if it is or not but whatever we get I'm

going to submit the video tape also. Any comments or thoughts or ob-

jections you have on that?

MR. SALOMON: Yes, judge, I'm going to object just because I'm

not sure that’s within court rules and permitted by the State Supreme

[RECORD—P. 661] Court. And that’s going to be my basis.

THE COURT: Your objection is noted and overruled. As I've

said, the court reporter will attempt to make as best a transcript as

possible but in the even she’s not able to do so the Court will submit it

to higher courts in the form of this video cassette. So, with that, do

you want to call Mr. Perry?

MR. NORDYKE: We will call Mr. Perry as an exhibit.

THE COURT: If you would step up, please.

MR. SALOMON: As an exhibit or as a witness?

THE COURT: He's being called as a witness. If you would raise

your right hand and (= olaced under cath, please.

[RECORD—P. 663] [EXAMINATION OF MICHAEL PERRY}

Q * * * A minute ago you told me you were ninety percent.

What is that?

32a

A Well, like I told the judge, and I didn’t mean it, but I was struck

by the voices, you know. * * * [RECORD—P. 667] Now the truth is

is that the voices got me. I wanted to commit suicide the day before |

committed five counts of murder. A lot of people saw me do that. A lot

of kids learned that. One lady is dead. I want her alive. You said you'd

do that. Now once *hose voices get you—I fought it for twenty years of

solid pain. I said, no, I don't want to do that, that’s begging. That's

what they did to me, they begged me for ninety years. They took it. So

I said, okay, I join. Then they killed me for twenty years. Ten years of

that was pain, you know. So to answer your question, I didn't do it. But

I know who did. But that’s going to cost you twenty million dollars be

fore I can answer your question

[RECORD—P. 670] Q When were you born, Michael?

A December 3rd, 1954.

Q And who were your parents?

A Chester Adam Perry.

Q And who was your mother?

A Eve, they said Eve. That's what I first heard. And they

said—tike I read the bible thirteen years, solid pain. Mr. Hymel was a

witness to that, you know. I wish you would respect the man and give

up, you know, let the man send me to Jackson and have all of that sex

activity if that’s what they want to do with me, finish it off, you know.

Uh, Rene, I like you. I'm shocked to death that you become against

me. Uh, I want to give you that but if you don’t like it I'll double it.

That's my life. I have the right to defend my life, you know. I didn't do

it but I know who did. And but, you know, that’s whenever it started on

me, you know, that’s whenever it started. That's between me and you,

you know. You told me to say that last night. We met. I ain't going to lie

about it, you know, because I'm in front of the microphone. That thing

is a cobra. You can't fool me, you know. We spent twenty years togeth-

er and you beat the hell out of me. That's a legal word to say. I don't

know what happened to the camera but you said I'd be on camera but |

don't—there it is right there. But anyway, uh, I mean I told you Id tell

you the truth, too, you know, because I like to have fun with you. Uh, |

know [RECORD—P. 671) your wife. We met before. I don’t know

why she likes me, uh, she said ninety percent. I said a hundred per-

33a

cent, you know. And so I'm guilty, you know, and I'll pay for it. And the

world is going to double. But I was born December 3rd, 1954 and I'm

nine percent crazy, that’s the truth, that’s forever. I'm nine percent

crazy. And, uh, that medicine they put me on I'm going to have to file

suit for ninety million years.

[RECORD—P. 691] THE COURT: The Court will take this matter

under advisement. | will give Defense counsel * * * two weeks, to filc

any memorandum in support of your [RECORD—P. 692] position

* * * You have until the 20th of May at 5:00 p.m. to file a response,

Mr. Salomon, if you wish to do so.* * * | will rule on this case at 9:00

a.m., May 26th.

MR. SALOMON: And, Your Honor, uh, is there something spe-

cial you wish to be addressed in this memoranda?

THE COURT: I think the issues that have been formed. | think

all of you are familiar with the Perry case from the Supreme Court,

by one of the witnesses today is whether or not the Court has the au-

thority or whether or not a defendant has the right to refuse medica

tion. That's an issue, also.

34a

EXCERPTS FROM PROCEEDINGS HELD

AUGUST 26, 1988

[RECORD— P. 698]

THE COURT: * * * The first matter that the Court is going to ad-

dress today is the defense objection to the Court considering these

[RECORD—P. 699] weekly or monthly reports filed into the record

of this case by the officials of the Department of Corrections. Those

reports were filed at my request, or sent to this Court by my request.

* * * (RECORD—P. 700] Next business before the Court is that the

Court is, based on the weekly reports that I have received, I feel that

there has probably been a change in the mental condition of the defen-

dant, I am ordering Drs. Cox and Jiminez to re-examine the defendant

relative to his competency as set up by the Louisiana Supreme Court

in the * _* ] Mich >] Owen Perry decisi ion. * * *

[RECORD—P. 701] THE COURT: We'll do this at 10:00 that morn-

ing, September the 30th at 10:00 a.m. And, of course, the defendant

will be brought into court for the purposes of that hearing. Pending

that hearing, pursuant to RS 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 Department of Public Safety and Corrections.

35a

EXCERPTS FROM SANITY HEARING HELD

SEPTEMBER 30, 1988

[RECORD—P. 712] THE COURT: * * * Dr. Jimenez is ill and will

not be able to be here today, so we'll take her testimony at a later date.

And at this [RECORD—P. 713] time, the Court will call Kovac as a

witness. Step up, please.

{[RECORD—P. 714] DR. KAY BRASIER KOVAC, called by the

Court as a witness to testify herein, after being duly sworn, testified,

as follows:

***

A My name is Kay Brasier Kovac, I'm currently employed at

Louisiana State Penitentiary, Angola. I have been medical director

there since October of 1985.

{RECORD—P. 722] THE COURT: Okay, I'll let Defense counsel

question Dr. Kovac. Which one of you wants to question her?

MR. NORDYKE: I'll take it, Your Honor.

[RECORD—P. 724] Q And, in fact, Michael's affect and delusional

status can vary from day to day, can it not?

A It depends on—just in my limited experience with Michael, it

depends on whether he had taken his medication.

Q But it does vary from day to day?

A Well, just using this example—this week as an example it

hasn't varied, you know, what I saw Monday was the same as | saw

yesterday.

Q That's because you gave him—that’s because he was given a

shot of Haldol-D on September 3rd?

A That's correct, because he had his medication.

{RECORD—P. 731] Q And in your administrative managerial ca

pacity, as a supervising physician at the Angola State Hospital, did you

see some correlation between the acceptance of medication and this

behavior you described as being acutely psychotic?

[RECORD—P. 732] A When Michael has not taken his medication

he’s had—you know, gone into these episodes.

[RECORD—P. 735] THE COURT: Let the record show * * * Dr.

Cox has been called by the Court as a witness and has been placed un-

der oath.

[RECORD—P. 747] THE COURT: * * * Gentlemen, as I've indicat-

ed, the only other person whose testimony I'd like to hear is that of Dr.

Jimenez who is not here today, as I told you the reason why. And pur-

suant to the bench conference we have decided on October 21st at

10:00.

37a

EXCERPTS FROM SANITY HEARING HELD

OCTOBER 21, 1988

[RECORD—P. 761] [EXAMINATION OF DR. JIMENEZ] Q I have

just two questions, in response: The mood, affect, speech and coher-

ence that you found fairly appropriate on these two visits are solely the

result of the Haldol-D, is that true?

A That's right, sir.

Q And in summary—and I don’t want to put words in your

mouth—but, in summary, isn’t it correct to say that if Michael is given

large amounts of Haldol-D, he can be, he can, on occasion, be appro-

priate? And, now, on—if he is not given Haldol-D, he is going to be

crazy?

A That's accurate, in the sense that the dosage of the medication

is being readjusted based on the mental status and behavior of the pa-

tient.

[RECORD--P. 763] BY THE COURT: Gentlemen, I have reviewed

your various briefs that you've submitted throughout these proceed-

ings, and I have reviewed ‘em, I’ve done my own independent re-

search and I am prepared to rule. Is there any further argument not

included in your brief or memoranda that you want to state at this

time, Mr. Nordyke?

MR. NORDYKE: Your Honor, I don’t believe so. I think every-

thing that we have stated is either objected to in written form or else

argued.

What about you, Mr. Giarrusso?

MR. GIARRUSSO: Likewise, Your Honor.

And, Ms. Denlinger?

MS. DENLINGER: Yes, Sir.

{RECORD—P. 766] BY MR. NORDYKE: The only thing I would

point out in rebuttal, Your Honor, is the doctor's testimony is clear,

that all things were said to the doctor on the twe occasions in Septem-

ber were the result of the Haldol-D; that squares the issue.

***

38a

[RECORD—P. 794] [BY THE COURT]: So I am going to set an ap-

peal return date, or a writ perfection date, thirty days from today. That

date will be November the 22nd. Assignments of error to be filed by

November 16th. Transcript to be filed by November 10th.

And the Court will stay the execution of the judgment entered to-

day.

***

39a

APPENDIX B

LOUISIANA CODE OF CRIMINAL PROCEDURE,

TITLE XXI, CHAPTER 1 “MENTAL INCAPACITY

TO PROCEED”

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 under-

stand the proceedings against him or to assist in his defense.

Official Revision Comment

(a) The test of mental incapacity conforms with the prior

law and is a test that has been almost universally adupted. It is a

combination of the formula stated in Art. 267 of the 1928

Louisiana Code of Criminal Procedure and the ciearly stated ap-

plication of that principle in Sec. 4.04 of the A.L.I. Model Penal

Code. The A.L.1. Comment states:

“More commonly however, the statute merely refers to

‘insanity’ or ‘unsound mind’ but, when that is so, the term has

almost always been interpreted judicially to refer to a defen-

dant’s incapacity to understand the proceedings or to partici-

pate in his defense.” The Comment further points out that in

England also, “. . . the inquiry appears to be genuinely focused

on the defendant’s capacity to understand and to defend. See

Royal Commission on Capital Punishment, Report (1953) par.

223.”

(b) The effect of amnesia which renders the defendant un-

able to remember the crime or to account for his conduct or

whereabouts on that occa: ion, is generally stated in State v.

Swails, 223 La. 751, 66 So.2d 796 (1953). In Swails, where the de-

fendant had pleaded insanity at the time of the crime as a de-

fense, the Louisiana Supreme Court rejected the claim of amne-

sia as lack of capacity to stand trial; and Justice McCaleb briefly

stated (66 So.2d at 800):

“This contention would be very forceful and persuasive

were this a prosecution in which the accused was pleading not

guilty for, in such case, his inability to inform his counsel of any

40a

of the facts regarding his own movements in relation to the

charges against him would materially affect him in his defense.

But, here, appellant is pleading insanity at the time of the com-

mission of the crimes—a special defense under our law. LSA-R.S.

14:14 and 15:261. His alleged amnesia as to the events occurring

at, before and after the crimes were committed is not a factor

which hampers his defense. On the contrary, the very fact that

appellant does not remember anything concerning his alleged

criminal acts may be of material aid to his counsel in their presen-

tation of a case of insanity and his testimony, if he sees fit to take

the stand, may have considerable weight with the jury.”

Alcoholic amnesia, consisting of the defendant's failure to

recollect his behavior while under the influence of excessive al-

coholic beverages is never a bar to trial, since it is not “a result of

a mental disease or defect.” State v. Palmer, 232 La. 468, 94 So.2d

439 (1957).

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.

Official Revision Commert :

(a) Although present incapacity to stand trial is ordinarily

urged by the defense, it may be raised by the district attorney or

on the court’s own motion. It is in the interest of fair administra-

tion of justice that a defendant who lacks the capacity to under-

stand the proceedings against him and to assist in his defense

should not be brought to trial while that condition exists. Art. 267

of the 1928 Code of Criminal Procedure, as amended in 1932,

similarly provided for appointment of a lunacy commission when-

ever “the court has reasonable ground to believe that the defen-

dant . . . is insane or mentally defective to the extent that (he) is

unable to understand the proceedings against him or to assist in

his defense.” This provision was applied in State v. Hebert, 186

La. 308, 172 So. 167 (1937), to uphold the trial judge’s appoint-

4la

ment of a lunacy commission on the district attorney’s sugges-

tion that the defendant might be mentally unfit to proceed with

the trial, and despite the fact that no plea of present insanity had

been tendered by the defense.

(b) When the question of the defendant’s mental capacity to

proceed has been raised, all proceedings in the case are stayed

until that issue is determined, thus making sure that no action

prejudicial to the defendant will be taken until the defendant's ca-

pacity to understand the nature of the proceedings and to assist

in his defense has been established. An exception is made as to

institution of the criminal prosecution. This may sometimes be

necessary in order to prevent the time limitations on the institu-

tion of the prosecution from running out while the proceedings

against a mentally incapable defendant have been stayed. Only

the time limitations upon commencement of trial are interrupted

by insanity of the defendant. See Art. 579.

Art. 643. Order for mental! examination

The court shall order a mental examination of the defendant

when it has reasonable ground to doubt the defendant’s mental capaci-

ty to proceed. Prior to the ordering of any such mental examination,

the court shall appoint counsel to represent the defendant if he has

not already retained counsel. Amended by Acts 1975, No. 325, § 1.

Official Revision Comment

(a) The ordering of a mental examination as to the defen-

dant’s present capacity to proceed rests in the sound discretion

of the court. It is not enough that the defense has filed a motion

urging the defense, but there must be sufficient evidence to raise

a reasonable doubt as to such capacity. Art. 267 of the 1928 Code

providing for the defense of present unfitness, has been similarly

construed in State v. Ridgway, 178 La. 609, 152 So. 306 (1934);

State v. Neu, 180 La. 545, 157 So. 105 (1934); State v. Messer, 194

La. 238, 193 So. 633 (1940); State v. Washington, 207 La. 849, 22

So.2d 193 (1945); State v. Ledet, 211 La. 769, 30 So.2d 830 (1947);

State v. Green, 221 La. 713, 60 So.2d 208 (1952). If there is a sub-

stantial doubt as to the defendant's mental capacity it is an abuse

of discretion for the trial judge to refuse to order a mental exami-

nation. See State v. Allen, 204 La. 513, 15 So.2d 879 (1943).

42a

(b) The mental examination ordinarily will be limited to a

determination of present mental capacity to proceed. It will not

include a determination of the defendant’s mental condition at

the time of the crime, unless the defense of insanity at the time of

the crime is urged and “becomes an issue in the cause.” State v.

Chinn, 229 La. 984, 87 So.2d 315 (1955), discussed in The Work

of the Louisiana Supreme Court for the 1955-1956 Term—Crimi-

nal Law and Procedure, 17 La.L.Rev. 404, 411 (1957).

doubt may not be qualified to determine his need for legal assis-

tance nor capable of procuring counsel; therefore, this article

makes special provision for counsel, because the usual provi-

sions for appointment of counsel at arraignment do not afford full

protection of such a defendant’s interests. As under former R.S.

15:271, enacted in 1964, this right to counsel is not limited to

felony cases.

Art. 644. Appointment of sanity commission; examination of

defendant

A. Within seven days after a mental examination is ordered, the

court shall appoint a sanity commission to examine and report upon

the mental condition of the defendant. The sanity commission shall

consist of at least two and not more than three physicians who are li-

censed to practice medicine in Louisiana and have been in the actual

practice of medicine for not less than three consecutive years immedi-

ately preceding the appointment. No more than one member of the

commission shall be the coroner or any one of his deputies. The court

may appoint, in lieu of one physician, a psychologist who is licensed to

practice psychology in Louisiana and who has been engaged in the

practice of clinical or counseling psychology for not less than three

consecutive years immediately preceding the appointment.

B. The physicians appointed to make the examination shall have

free access to the defendant at all reasonable times. The court shall

subpoena witnesses to attend the examination at the request of the de

fendant, the commission, or any member thereof.

C. For the purpose of the mental examination, the court may or-

der a defendant previously released on bail to appear for mental exam-

inations and hearings in the same manner as other proceedings.

43a

Amended by Acts 1975, No. 325, § 1; Acts 1987, No. 577, § 1.

Official Revision Comment

(a) Other than the minimal requirements that the members

of the sanity commission must be regularly licensed physicians

with three years’ actual practice, the determination of the qualifi-

cations of the members is left in the sound discretion of the trial

judge. It is contemplated that Louisiana courts will continue their

practice of appointing a psychiatrist or psychiatrists when avail-

able, as under a similar discretionary provision of amended Art.

269 of the 1928 Code of Criminal Procedure. Similarly, the coro-

ner will frequently be well qualified to serve as a member of the

commission and may be appointed. It is logical to assume that

the court will appoint the most competent physicians

available—for the value and weight of the sanity commission’s re-

port will largely depend on the competency and prestige of its

mem

(b) The type of examination and procedures to be followed

will be determined by the sanity commission, subject to such

general directions as the court may include in the order for ex-

amination. The Louisiana Supreme Court has recently affirmed

the wisdom of flexible sanity commission procedures, stating:

“There is nothing in the statute requiring that an accused be kept

under constant observation for any fixed period of time, and the

legislature has not therein attempted to dictate to these experts

in the manner and method to be employed by them in conducting

their examination, undoubtedly feeling, as do we, that they are

eminently better qualified to know just exactly how to best carry

out their duties in this respect as the particular facts of each case

may warrant.” State v. Faciane, 233 La. 1028, 1048, 99 So.2d 333,

340 (1957); State v. Augustine, 241 La. 761, 131 So.2d 56 (1961).

pose of the examination, the right of free access to the defendant

at all reasonable times, and the power to procure compulsory at-

tendance of witnesses are all necessary to enable the commis-

sion to make accurate and complete investigations.

44a

Art. 645. Report of sanity commission

The report of the sanity commission shall be filed in triplicate

with the presiding judge within thirty days after the date of the order

of appointment. The time for filing may be extended by the court. The

clerk shall make copies of the report available to the district attorney

and to the defendant or his counsel without cost.

Official Revision Comment

(a) The A.L.I. Model Penal Code, Proposed Official Draft

(1962), § 4.05(1), authorizes commitment for a period not ex-

ceeding sixty days or such longer period as the court determines

to be necessary. Art. 269 of the 1928 Louisiana Code provided

that the sanity commission should report within thirty days.

This article is a compromise. It makes the normal period thirty

days after the date of the order of appointment, but allows the

court to extend the time for filing the commission’s report when

additional time is required for the examination.

(b) The requirement that the report be filed in triplicate

and copies made available to the district attorney and the defen-

dant, makes the report fully available to all interested parties.

Art. 269 of the 1928 Louisiana Code of Criminal Procedure simi-

larly required that the report be made in writing and be accessi-

ble to the district attorney and the attorney of the accused. The

importance of accessibility of a written copy of the report is

shown by State v. Winfield, 222 La. 157, 62 So.2d 258 (1952), dis-

cussed in The Work of the Supreme Court for the 1952-1953

Term—Criminal Procedure, 14 La.L.Rev. 231, 235 (1953). In Win-

field the trial judge was held to have committed reversible error

in determining the issue of present insanity on the basis of a tele-

phone report of the findings of the lunacy commission, rather

than waiting for the actual filing of a written report. The underly-

ing basis of the Winfield decision clearly appeared in Justice Mo-

ise’s statement that “The mandatory provisions of the

statute—that the written report of the commission shall be present-

ed to the trial judge and shail be accessible to the district attorney

and to the attorney for the accused—were not followed.” (Empha-

sis by the court.) Jd. at 161, 62 So.2d at 259.

45a

Art. 646. Examination by physician retained by defense or

district attorney

The court order for a mental examination shall not deprive the

defendant or the district attorney of the right to an independent men-

tal examination by a physician of his choice, and such physician shall

be permitted to have reasonable access to the defendant for the pur-

poses of the examination.

Official Revision Comment

This article, following Art. 268 of the 1928 Louisiana Code,

continues the right of the defense or of the district attorney, to

have the defendant examined by physicians of their own choice.

The Comment to a somewhat similar provision of the A.L.I. Mod-

el Penal Code, Proposed Official Draft (1962), § 4.07(2), states

that it “clears up a disputed point in a small numbers of jurisdic-

tions where the defendant may have to have the consent of the

warden or some other official before a psychiatrist of his own

choosing may examine a defendant who is in custody.”

Art. 647. Determination of mental capacity to proceed

The issue of the defendant's mental capacity to proceed shall be

determined by the court in a contradictory hearing. The report of the

sanity commission is admissible in evidence at the hearing, and mem-

bers 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 commission are subject te cross-exami-

nation by the defense, by the district attorney, and by the court. Other

evidence pertaining to the defendant's mental capacity to proceed may

be introduced at the hearing by the defense and by the district attor-

ney.

Official Revision Comment

; (a) This article adopts the rule of Art. 267 of the 1928

Louisiana Code, and of Sec. 4.06(1) of the A.L.I. Model Penal

Code, Proposed Official Draft (1962), that the issue of the defen-

dant’s fitness to proceed shall be determined by the court. The

A.LI. Comment to Sec. 4.06(1) lists 11 states and the federal laws

(18 U.S.C. § 4244), that exclude a jury trial on the issue of fitness

to proceed. Accord: State v. Ridgway, 178 La. 606, 152 So. 306

(1934); State v. Neu, 180 La. 545, 157 So. 105 (1934): State v.

46a

Hebert, 186 La. 308, 172 So. 167 (1937); State v. Bessar, 213 La.

299, 34 So.2d 785 (1948); State v. Cook, 215 La. 163, 39 So.2d 898

(1949).

(b) The requirement of a contradictory hearing follows the

rule of Art. 267 of the 1928 Code of Criminal Procedure. State v.

Hebert, 186 La. 308, 172 So.2d 167 (1937).

mission is admissible in evidence at the hearing conforms with

the ALLL Model Penal Code, § 4.06(1) (Tent. Draft No. 4, 1955).

The Comment to that provision states that it “may be interpreted

as creating or at least allowing for an exception to the hearsay

rule in connection with receiving in evidence the report of the ex-

amining experts without requiring that they appear and testify,

thus obviating the necessity for taking the testimony of these ex-

perts in every case in which a report is contested [citing Wis.

Stats.].” Nevertheless, full provision is made for utilization of di-

rect testimony of the commission members in explanation and

support of their findings.

(d) The last sentence, authorizing the introduction of other

evidence, follows through on the right of the defense and the dis-

trict attorney to have the defendant examined by their own psy-

chiatrist or other physician. The provisions for testimony at the

hearing further point up the general proposition that the report

is only prima facie evidence of the sanity commission’s findings

and conclusions. In State v. Hebert, 187 La. 318, 174 So. 369

(1937), the supreme Court considered the testimony of the

court-appointed physicians and of other witnesses in concluding

that the trial judge had erred in adopting the lunacy commis-

sion’s report of present insanity. The commissioners’ report, ac-

cording to the supreme court, was not supported by their testi-

mony or by the testimony of all witnesses as a whole.

Art. 648. Procedure after determination of mental capacity or

incapacity

A. The criminal prosecution shall be resumed if the court deter-

mines that the 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

47a

defendant to the custody of the Department of Health and Human Re

sources or a private institution approved by the court for custody,

care, and treatment as long as the lack of capacity continues. If the

court determines that the defendant’s mental capacity is likely to be

restored within ninety days by outpatient care and treatment at an in-

stitution 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 institu-

tion as defined by RS. 28:2(28). Defendants committed to the custody

of the Department of Health and Human Resources shall be given in-

patient care and treatment at an institution as defined by R.S. 28:2(28);

however, 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 be maintained in custody at

the forensic unit at Feliciana Forensic Facility.

B. (1) In no instance shall such custody, care, and treatment ex-

ceed the time of the maximum sentence the defendant could receive 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 reason-

able time and after at least ten days notice to the district attorney and

defendant’s counsel, conduct a contradictory hearing to determine

whether the mentally defective defendant is, and will in the foresee-

able future be, incapable of standing trial and whether he is a danger

to himself or others.

(2) If, after the hearing, the court determines the defendant is,

and will in the foreseeable future be, incapable of standing trial and

may be released without danger 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 defec-

tive defendant incapable of standing trial, is a danger to himself or oth-

ers, and is unlikely in the foreseeable future to be capable of standing

48a

trial, the court shall order commitment to a designated and medically

suitable treatment facility. Such a judgment shall constitute an order

of civil commitment. However, the director of the institution designat-

ed for the patient’s treatment shall, in writing, notify the court and the

district attorney when the patient is to be discharged or conditionally

discharged.

C. The superintendent of the forensic unit of the Feliciana Foren-

sic Facility shall admit only those persons charged with a felony or a

misdemeanor classified as an offense against the person and commit-

ted on recommendation 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 state correctional institutions. Amended by Acts

1975, No. 325 § 1; Acts 1979, No. 318, § 1; Acts 1980, No. 612, § 1;

Acts 1982, No. 495, § 1; Acts 1983, No. 399, § 1; Acts 1987, No. 928, §

1, of. July 20, 1987; Acts 1988, No. 383, § 1.

Official Revision Comment

(a) Committing a mentally incapacitated defendant to a

state mental institution for as long as such incapacity continues is

in conformity with the usual disposition of such cases. See Art.

267 of the 1928 Louisiana Code of Criminal Procedure.

(b) Appellate review of the court’s determination of mental

capacity to proceed or of the necessity of ordering a mental ex-

amination, will follow the normal procedures. If the court improp-

erly refuses to order a mental examination and appoint a sanity

commission, the defendant’s remedy is to reserve a bill of excep-

tions and urge this objection as a ground for a motion for a new

trial which will be the basis of an ultimate appeal. State v. Leon,

177 La. 293, 148 So. 54 (1933). Likewise, the defendant can re-

serve a bill of exceptions to the court’s determination of present

mental capacity and have that question reviewed on appeal. State

v. Neu, 180 La. 545, 157 So. 105 (1934).

The defendant has a right of direct appeal from a determina-

tion of present lack of capacity to stand trial when he would pre-

fer an immediate trial rather than commitment to a mental insti-

tution. “(A)n appeal lies from such judgment [of present

incapacity] because it is final in so far as the only issue involved

49a

in such a proceedings is concerned and is prejudicial because it

deprives the party of his liberty.” State v. Hebert, 187 La. 318,

324, 174 So. 369, 371 (1937); State v. Gunter, 208 La. 694, 23 So.2d

305 (1945). State v. Yaun, 237 La. 186, 110 So.2d 573 (1956), clas-

sified this type of ruling as an appealable final judgment.

The state’s appellate remedy, as in the case of other adverse

preliminary rulings, is necessarily by immediate appeal for it has

no review after an acquittal. Although there are no supreme

court decisions in point, a ruling that the defendant is presently

incapable of standing trial is final determination of that issue, and

the state’s case might be seriously prejudiced by the resulting de

lay in bringing the defendant to trial. Such a determination does

not relate to the basic issue of guilt or innocence; therefore the

facts may be reviewed on appeal. Op.Atty.Gen., 1942-44, p. 249;

State v. Hebert, 187 La. 318, 174 So. 369 (1937).

the case of a defendant charged with a nonviolent offense who is

committed for a long period pending a finding of present capacity

to proceed. In such a situation probation is authorized upon a

finding that the defendant is not being helped by continued cus-

tody in the mental institution and that he may be released with-

out danger. The public is further protected by the requirement

that the probation may be granted only on recommendation of

the superintendent of the mental institution and by an order of

the committing court. Probation procedures follow the applicable

provisions of Art. 657. Conditions of the probation, to be imposed

by the court, may include submission to treatment, abstinence

from alcohol, special help by parents, or other appropriate re-

quirements designed to aid in recovery and to fully protect the

public.

Art. 648.1. Information required prior to admission

No superintendent of an institution shall admit a defendant found

by the court to lack the mental capacity to proceed pursuant to Art.

648 unless he is furnished by the court the following information:

(1) The name and address of the defendant's attorney.

(2) The crime or crimes with which the defendant is charged

and the date of such charge or charges.

(3) A copy of the report of the sanity commission.

(4) Any other pertinent information concerning the defendant's

health which has come to the attention of the court such as injuries

sustained at the time of arrest or injuries sustained following incarcer-

ation. Added by Acts 1975, No. 325, § 2.

Art. 649. Procedure when capacity regained

A. At any time after a defendant’s commitment, if the superinten-

dent of the mental institution reports to the committing court that the

defendant presently has the mental capacity to proceed, the court

shall hold a contradictory hearing within thirty days on that issue.

B. Prior to such a hearing, the court shall appoint counsel to rep-

resent the defendant if the defendant does not have counsel, and shall

order a mental examination by a sanity commission appointed in con-

formity with Article 644. if the committing court does not hold a hear-

ing within thirty days, the sheriff of the parish from which the defen-

dant was committed shall appear at the institution within seven days

thereafter and shall receive and hold the defendant in custody pending

further orders of the committing court. If the sheriff fails to appear

with a court order and accept custody of the defendant, the superin-

tendent of the state mental institution or the director of the mental

health unit shall notify the judicial administrator and the attorney gen-

eral of such fact. Thereafter the Criminal Court Fund of the parish

from which the defendant was committed shall pay to the general fund

of the state the sum of one hundred dollars a day until the sheriff ap-

pears and accepts custody of the defendant for the court.

C. The district attorney or the defense may apply to the court to

have the proceedings resumed, on the ground that the defendant

presently has the mental capacity to proceed. Upon receipt of such ap-

plication the court shall hold a contradictory hearing to determine if

there is reasonable ground to believe that the de‘endant presently has

the mental capacity to proceed. The court may direct the superinten-

dent of the mental institution where the defendant is committed to

make a report and recommendation prior to such hearing as to

whether the defendant présently has capacity to proceed, or may or-

der an independent mental examination by a sanity commission ap-

pointed in conformity with Article 644.

D. Reports as to present mental capacity to proceed shall be filed

5la

in conformity with Article 645, and the court’s determination of pres-

ent mental capacity to proceed shall be made in conformity with the

appropriate provisions of Articles 646 and 647.

E. If the court determines that the defendant has the mental ca-

pacity to proceed, the proceedings shall be promptly resumed.

Amended by Acts 1975, No. 325, § 1; Acts 1987, No. 928, § 1, eff. July

20, 1987; Acts 1988, No. 383, § 1.

Official Revision Comment

(a) This article provides a procedure for a redetermination

of the present capacity issues when it later appears that the de

fendant may be capable of proceeding with the trial. The subse

quent hearing as to capacity may be instigated by a report by the

superintendent of the mental institution to which the defendant

was committed, or by an application made by the district attorney

or the defense. Certain differences inherent in the two proce-

dures necessitated the partially separate statement.

(b) Under the first paragraph, when the superintendent of

the mental institution reports that the defendant presently has

capacity to proceed, a contradictory hearing is mandatory. The

hearing must be held within thirty days and the defendant must

be represented by counsel at the hearing. The requirement of a

prompt hearing is fortified by the second paragraph, which au-

thorizes the superintendent of the mental institution to return the

defendant to the parish from which he was committed if the hear-

ing is not held within the prescribed thirty days.

the defense applies to have the proceedings resumed, the court

is required to hold a contradictory hearing only if there is reason-

able ground to believe that the defendant presently has the men-

tal capacity to proceed, i.e., if there is a prima facie showing of

present capacity.

(d) In both situations the ordering of an independent men-

tal examination is discretionary with the court. When the super-

intendent of the mental institution reports that the defendant is

capable of standing trial, the court may not feel that a further ex-

amination is necessary. When application is made by the district

attorney or the defense, it is quite likely that the order for a men-

52a

tal examination will be directed to the superintendent of the men-

tal hospital where the defendant is committed. Such an examina-

tion and report will be a part of the services of that state institu-

tion, but the staff psychiatrist making the examination will be

entitled to reasonable fees as an expert witness, and traveling ex-

penses when he testifies at the hearing. Art. 660. Appointment of

an independent sanity commission, in conformity with Art. 644 is

also expressly authorized.

(e) Additional examinations by the defense and district at-

torney will be authorized under Art. 646. The court’s determina-

tion of the question of regained capacity to stand trial is in accord

with State v. Laborde, 210 La. 291, 26 So.2d 749 (1946), which

held that the court was not limited to or bound by recommenda-

tions of the physicians.

Art. 649.1. Prescribed medication; administration

When a person is returned to the committing court from an insti-

tution pursuant to Article 649 pending a sanity hearing, and the super-

intendent of the committing institution deems it necessary that the pa-

tient receive prescribed medication, it shall be the duty of the chief

administrative officer of the parish jail to make such medication avail-

able to the person until such time as the coroner or another physician

finds that the medication or its prescribed dosage is no longér neces-

sary. Added by Acts 1975, No. 325, § 2.

53a

APPENDIX C

LOUISIANA REVISED STATUTES, TITLE 28,

SECTIONS 2 AND 171

§ 2. Definitions

Whenever used in this Title, the masculine shall include the femi-

nine, the singular shall include the plural, and the following definitions

shall apply:

(1) “Conditional discharge” means the physical release of a judi-

cially committed person from a treatment facility by the director or by

the court. The patient may be required to report for out patient treat-

ment as a condition of his release. The judicial commitment of such

persons shall remain in effect for a period of up to one year and during

this time the person may be hospitalized involuntarilv for appropriate

medical reasons upon court order.

(2) “Court” means any duly constituted district court or court

having family or juvenile jurisdiction. “Court” does not include a city

court, which shall have no jurisdiction to commit persons to mental

health treatment facilities in civi! or criminal proceedings, except

an 2 ‘le iurisdiction.

(3) “Dangerous to others” means the condition of a person

whose behavior or significant threats support a reasonable expecta-

tion that there is a substantial risk that he will inflict physical harm

upon another person in the near future.

(4) “Dangerous to self” means the condition of a person whose

behavior, significant threats or inaction supports a reasonable expecta-

tion that there is a substantial risk that he will inflict physical or severe

emotional harm upon his own person.

(5) “Diagnosis” means the art and science of determining the

presence of disease in an individual and distinguishing one disease

from another.

(6) “Director” or “superintendent” means a person in charge of a

treatment facility or his deputy.

(7) “Discharge” means the full or conditional release from a treat-

ment facility of any person admitted or otherwise detained under this

Chapter.

S4a

(8) “Department” means the Department of Health and Human

Resources

(9) “Formal voluntary admission” means the admission of a per-

son suffering from mental illness or substance abuse desiring admis-

sion to a treatmen’ facility for diagnosis and/or treatment of such con-

dition who may be formally admitted upon his written request. Such

persons may be detained following a request for discharge pursuant to

R.S. 28:52.2.

(10) “Gravely disabled” means the condition of a person who is

unable to provide for !is own basic physical needs, such as essential

food, clothing, medical care, and shelter, as a result of serious mental

illness or substance abuse and is unable to survive safely in freedom

or protect himself from serious harm; the term also includes incapaci-

tation by alcohol, which means the condition of a person who, as a re

sult of the use of alcohol, is unconscious or whose judgment is other-

wise so impaired that he is incapable of realizing and making a rational

decision with respect tc his need for treatment.

(11) “Informal voluntary admission” means the admission of a

person suffering from mental illness or substance abuse, desiring ad-

mission to a treatment facility for diagnosis and/or treatment of such

condition who may be admitted upon his request without making for-

mal application.

(12) “Major surgical procedure” means an invasive procedure of

a serious nature with incision upon the body or parts thereof under

general, local or spinal anesthesia, utilizing surgical instruments, for

the purpose of diagnosis or treatment of a medical condition. Diagnos-

tic procedures, including, but not limited to, the following, shall not be

considered as major surgical procedures:

(a) Endoscopy through natural body openings, such as the

mouth, anus, or urethra, to view the trachea, bronchi, esophagus,

stomach, pancreas, small or large intestine, urethra, urinary bladder,

or ureters, and to obtain from such organs specimens of fluids or tis-

sues for chemical or microscopic analysis.

(b) Sub-cutaneous percutaneous liver biopsy.

(d) Bone marrow biopsy.

(e) -Lumbar puncture.

( Myelogram.

(g) Thoracocentesis.

(h) Abdominocentesis.

(i) Conization of the uterine cervix.

@ Renal angiography.

(k) Femoral angiography.

(@) Carotid angiography.

(m) Vertebral angiography.

(13) “Mental health advocacy service” means a service estab-

lished by the state of Louisiana for the purpose of providing legal

counsel and representation for mentally disabled persons and to in-

sure that their legal rights are protected.

(14) “Mentally ill person” means any person with a psychiatric

disorder which has substantial adverse effects on his ability to func-

tion and who requires care and treatment. It does not refer to a person

suffering solely from mental retardation, epilepsy, alccholism, or drug

abuse.

(15) “Minor” means a person under eighteen years of age.

(16) “Parent” means a person who is the biological mother or fa-

ther of an individual or the legally adoptive mother or father of an indi-

vidual.

(17) “Patient” means any person detained and taken care of as a

mentally ill person or person suffering from substance abuse.

(18) “Peace officer” means any sheriff, police officer, or other

person deputized by proper authority to serve as a peace officer.

(19) “Person of legal age” means any person eighteen years of

age or older.

(20) “Petition” means a written civil complaint filed by a person of

legal age alleging that a person is mentally ill or suffering from sub-

stance abuse and requires judicial commitment to a treatment facility.

(21) “Physician” means a person permitted to practice and in ac-

tive practice as a physician under the laws of Louisiana or a person in a

post-graduate medical training program of an accredited medical

56a

school in Louisiana or a medical officer similarly qualified by the gov-

ernment of the United States while in the state in the performance of

his official duties.

(22) “Psychiatrist” means a physician who has at least three

years of formal training or primary experience in the diagnosis and

treatment of mental illness.

(23) “Respondent” means a person alleged to be mentally ill or

suffering from substance abuse and for whom an application for com-

mitment to a treatment facility has been filed.

(24) “Restraint” means the partial or total immobilization of any

or all of the extremities or the torso by mechanical means.

(25) “Substance abuse” means the condition of a person who

uses narcotic, stimulant, depressant, soporific, tranquilizing, or hallu-

cinogenic drugs or alcohol to the extent that it renders the person

dangerous to himself or others or renders the person gravely dis-

abled.

(26) “Transfer” means the removal of a patient from one mental

institution to another without any procedure for admission other than

is prescribed by the department.

(27) “Treatment” means an active effort to accomplish an im-

provement in the mental condition or behavior of a patient or to pre-

vent deterioration in his condition or behavior. Treatment includes,

but is not limited to, hospitalization, partial hospitalization, outpatient

services, examination, diagnosis, training, the use of pharmaceuticals,

and other services provided for patients by a treatment facility.

(28) (a) “Treatment facility” means any public or private hospital,

retreat, institution, mental health center, or facility licensed by the

state of Louisiana in which any mentally ill person or person suffering

from substance abuse is received or detained as a patient. The term in-

cludes Veterans Administration and public health hospitals and foren-

sic facilities. “Treatment facility” includes, but is not limited to, the fol-

lowing, and shall be selected with consideration of first, medical

suitability; second, least restriction of the person’s liberty; third, near-

ness to the patient’s usual residence; and fourth, financial or other sta-

tus of the patient, except that such considerations shall not apply to

forensic facilities:

(i) Community mental health centers.

57a

(ii) Private clinics.

(iii) Public or private halfway houses.

(iv) Public or private nursing homes.

(v) Public or private general hospitals.

(vi) Public or private mental hospitals.

(vii) Detoxification centers.

(viii) Substance abuse clinics.

(ix) Substance abuse in-patient facility.

(x) Forensic facilities.

(b) Patients involuntarily hospitalized by emergency certificate

for mental health treatment shall not be admitted to the facilities listed

in Subparagraphs (ii), (iii), (iv), (viii), or (x) of this Paragraph, except

that patients in custody of the Department of Public Safety and Cor-

rections may be admitted to forensic facilities by emergency certifi-

cate provided that judicial commitment proceedings are initiated dur-

ing the period of treatment at the forensic facility authorized by

emergency certificate. Patients involuntarily hospitalized by emergen-

cy certificate for substance abuse treatment shall not be admitted to

the facilities listed in Subparagraphs (ii), (iii), (iv), or (x) of this Para-

graph. Judicial commitments, however, may be made to any of the

above facilities except forensic facilities. However, in the case of any

involuntary hospitalization as a result of such emergency certificate

for substance abuse or in the case of any judicial commitment as the

result of substance abuse, such commitment or hospitalization may be

made to any of the above facilities, except forensic facilities, provided

that such facility has a substance abuse in-patient operation main-

tained separate and apart from any mental health in-patient operation

at such facility.

kind, or any facility under the control or supervision of the Depart-

ment of Public Safety and Corrections unless the facility has been des-

ignated by the Department of Health and Human Resources and the

Department of Public Safety and Corrections as a treatment facility

pursuant to R.S. 15:830.1(B); however, a jail or prison shall not be con-

strued as a forensic facility. Only adult inmates sentenced to the De

partment of Public Safety and Corrections may be admitted to a treat-

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ment facility designated pursuant to R.S. 15:830.1(B).

§ 171. Enumerations of rights; restrictions

A, No patient in a treatment facility pursuant to this Chapter shall

be deprived of any rights, benefits, or privileges 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 fa-

cility. These rights, benefits, and privileges include, but are not limited

to, civil service status; the right to vote; the right to privacy; rights re-

lating to the granting, renewal, forfeiture, or denial of a license or per-

mit for which the patient is otherwise eligible; and the right to enter

contractual relationships and to manage property.

B. No patient in a treatment facility shall be presumed incompe-

tent, nor shall such person be held incompetent except as determined

by a court of competent jurisdiction. This determination shall be sepa-

rate from the judicial determination of whether the person is a proper

subject for involuntary commitment.

C. The patient in a treatment facility shall be permitted unimped-

ed, private and uncensored communication with persons of his choice

by mail, telephone, and visitation. These rights may be restricted by

the director of the treatment facility if sufficient cause exists and is so

documented in the patient’s medical records. The patient’s legal coun-

sel, as weil as his next of kin or responsible party must he 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 correspon-

dence 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 vis-

its may be established in writing by the director of any treatment facili-

ty.

D. Restraint may be used only as a therapeutic measure or to pre-

vent a patient from causing physical or mental harm to himself or oth-

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ers. In no event shall restraint 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 sta-

tus 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 seclusion be utilized solely to punish or disci-

pline a patient, nor is seclusion to be used as a convenience for the

staff of the treatment facility. A person placed in seclusion shall have

his status reviewed periodically.

F. No patient confined by emergency certificate, judicial commit-

ment, or non contested status shall receive major surgical procedures

or electreshock therapy without the written consent of a court of com-

petent jurisdiction after a hearing.

If the director of the 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 pro-

cedures or electroshock therapy are administered, such emergency

measures may be performed without the consent otherwise provided

for in this Section. No physician shall be liable for a good faith deter-

mination 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 his medical record. The pa-

tient shall also be allowed to spend a reasonable sum of his own mon-

ey for canteen expenses and small purchases, and to have access to in-

dividual storage spaces for his private use. If the patient is financially

unable to provide these articles for himself, the treatment facility shall

provide a reasonable supply of clothing and toiletries.

H. Every patient shall have the right to be employed at a useful

occupation depending upon his condition and available facilities.

I. Every patient shall have the right to sell the products of his per-

sonal 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 discharged from a treat-

60a »

ment facility when his condition has changed or improved to the ex-

tent that confinement and treatment at the treatment facility are no

longer required. The director of the treatment facility shall have the

authority to discharge a patient admitted by judicial commitment with-

out the approval of the court which committed him to the treatment fa-

cility. The court shall be advised of any such discharge. The director

shall not be legally responsible to any person for the subsequent acts

or 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 service, if he so reques

This text is long and has been trimmed here. Open the source document for the complete record.

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.