# Amicus Curiae Brief — Perry v. Louisiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1451%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 498 U.S. 38 ## Text NO. 89-5120 In The Supreme Court of the Gnited States October Term. 1989 MICHAEL OWEN PERRY, Petitioner v. 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? ee ee ee a ee a ee ee ae ee ee ee ee e < ; — ae! ee ee ee Te! te TE 0 ee 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 2. 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. 6. Factual Underpinnings ......................... 2. Ford And The Meaning Of Insanity ......... 3. 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 Se MIE enbbeccndscsccdendassecosccescecccess Page 10 10 13 %, beads —-" © we i°'* Roc © Bie _. = 7 ££ a ee ae 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 16 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 es 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 a 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. 32 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. a 33 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). 34 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). 35 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. 36 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. ee 37 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 38 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 ’ 39 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. 40 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 41 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. 42 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 43 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. ee ———— 44 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 45 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. 46 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 47 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 48 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 2a 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 4a 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 a Sa 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 7a [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: 1 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. 2. 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. 3. 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 8a in criminal cases on behalf of his client and further, does not believe that such decisions should or can be made by a curator. 5. 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. 6. 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. 7 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. 8. Movers desire that this motion be kept under seal and that any hearing held in this matter be held in chambers ex parte. 9 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 9a 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: 1 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. 2. 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. 3. 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: 1. 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. 2. 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. 3. 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. 4 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. 5. 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 6. 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. ne [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). (c) A defendant whose mental capacity to proceed is in 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1451%3A8. Public record. Not legal advice.