Petitioners Brief — Riggins v. Nevada

Supreme Court, U.S,

FILED

NOV 26 ig)

No. 90-8466

: OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

o

DAVID E. RIGGINS,

Petitioner,

STATE OF NEVADA,

Respondent.

e

On Writ Of Certiorari To The

Supreme Court Of The State Of Nevada

¢

BRIEF FOR PETITIONER

.

Mace J. YAMPOLSKY* Jay Torkis

Attorney for Petitioner Neat H. KiLausNner

625 South Sixth Street Steven C. HERz0cG

Las Vegas, Nevada 89101 a

(702) 385-9777 ge mCi

WHARTON & GARRISON

1285 Avenue of the

Americas

New York, New York

10019-6064

(212) 373-3000

Attorneys for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the forcible administration of anti-

psychotic drugs to an insanity defendant! during trial

violates the defendant's rights under the Due Process

Clause of the Fourteenth Amendment.

2. Whether the forcible administration of anti-

psychotic drugs to an insanity defendant in a capital case

violates the defendant's Eighth Amendment right not to

be subjected to cruel and unusual punishment.

' In this brief, “insanity defendant” refers to a criminal

defendant whose primary defense is that he was legally insane

at the time of the crime.

* a pew & a a a — ~~ = 7.) ll a, eee

> _ Be Ae ee — ss es lO CU

gah J di? » ute ee, 3 Be 2. -_

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 2.0... cccccccccccccccccss i

Pe Se Ig ho 66 6.5 Co oe veeedbedccekdans ii

Se ee ID so 6 ob kno bse sbedeceweeeces iv

EE a wdc Gwiv kee udcuuucuaetouteveces 1

Sas x 566 LEW Kavcueesd Wa Gkeukaouneees 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 1

DER eees COP Thee CADE, «0... ccccccccccsccvess 2

SUMMARY OF ARGUMENT....................... 9

SE 5. ka ba caen tanec cadkhacked svaeusek sas 11

I. COMPELLED MEDICATION VIOLATED PETI-

TIONER’S RIGHT TO PRESENT A DEFENSE

AND HIS RIGHT AGAINST SELF-INCRIMINA-

PR 60s 00 s00cag bles eeeetennse ene 11

A. Compelled Medication Violated Riggins’

Right To Present A Defense .............. 11

B. Compelled Medication Infringed Riggins’

Fifth Amendment Right Against Self-

NOT 65.05 Keka Nae eaeeecensesaeeets 16

C. No Compelling State Interest Justified The

Involuntary Medication of Riggins........ 18

D. Riggins Was Denied His Right To Waive His

Right To Be Tried While Competent ...... 23

Il. FORCIBLY MEDICATING PETITIONER VIO-

LATED HIS RIGHT TO A FAIR TRIAL

BECAUSE IT VIOLATED HIS DUE PROCESS

RIGHT TO REFUSE MEDICATION............ 26

Pe Pn a eee ee

ili

TABLE OF CONTENTS - Continued

Page

A. Riggins Has Fundamental Liberty Interests

In Not Being Compelled To Ingest Anti-

nei daes ess escsswesccese 27

B. Due Process Required the State to Prove By

Clear and Convincing Evidence That Medi-

cating Riggins Was Necessary to Achieve a

Compelling State Interest ................. 30

C_ The Facts Presented Did Not Support Com-

pelled Medication Under Any Conceivably

EY IIE « So ccccccesevscesesees 32

D. Due Process Required the Trial Court to

Make Factual Findings On the Record.... 35

Ill. THE COMPELLED MEDICATION VIOLATED

PETITIONER’S RIGHT TO A FAIR SENTENC-

ING DETERMINATION..................0000- 36

CONCLUSION

iv

TABLE OF AUTHORITIES

Page

Cases

Addington v. Texas, 441 U.S. 418 (1979) ........... 30, 31

Ake v. Oklahoma, 470 U.S. 68 (1985) .......... 12, 14, 15

Ballew v. Georgia, 435 U.S. 223 (1978)... ee 20

Bee v. Greaves, 744 F.2d 1387 (10th Cir. 1984), cert.

denied, 469 U.S. 1214 (1985)................ 19, 28, 32

Bell v. Wolfish, 441 U.S. 520 (1979) .................. 29

Brady v. Maryland, 373 U.S. 83 (1963)................ 13

Brady v. United States, 397 U.S. 742 (1970)........... 23

Brooks v. Tennessee, 406 U.S. 605 (1972) .............. 13

California v. Brown, 479 U.S. 538 (1987).............. 38

Chambers v. Mississippi, 410 U.S. 284 (1973).......... 15

Commonwealth v. Louraine, 453 N.E.2d 437 (Mass.

EP rer Te Come eee ten ret 12, 14, 25

Cruzan v. Director, Missouri Dep't of Health, 110

SE GAP céstnsevess bee cecekcced. 24, 25, 27

Duren v. Missouri, 439 U.S. 357 (1979)............... 18

Eddings v. Oklahoma, 455 U.S. 104 (1982).......... 37, 38

Elrod v. Burns, 427 U.S. 347 (1976) ..............0... 18

Estelle v. Williams, 425 U.S. 501 (1976)............... 22

Faretta v. California, 422 U.S. 806 (1975) ...... 11, 23, 24

Ford v. Wainwright, 477 U.S. 399 (1986).............. 36

Geders v. United States, 425 U.S. 80 (1976)........ 20, 22

Vv

TABLE OF AUTHORITIES - Continued

Page

Hitchcock v. Dugger, 481 U.S. 393 (1987) ............. 38

Illinois v. Allen, 397 U.S. 337 (1970) .............. 21, 24

In re Pray, 336 A.2d 174 (Vt. 1975).................. 14

In re Winship, 397 U.S. 358 (1970)................... 30

Kramer v. Union School Dist. No. 15, 395 U.S. 621

cco EE EET Pre Pe nt Me ee ENS 18

Lockett v. Ohio, 438 U.S. 586 (1978)............... 37, 38

Malloy v. Hogan, 378 U.S. 1 (1964)................... 16

McKay v. Bergstedt, 801 P.2d 617 (1990).............. 27

Mills v. Rogers, 457 U.S. 291 (1982).................. 28

Miranda v. Arizona, 384 U.S. 436 (1966).............. 23

Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) .... 16

Napue v. Illinois, 360 U.S. 264 (1959).............. 17, 18

Pate v. Robinson, 383 U.S. 375 (1966) ......... 12, 19, 23

Penry v. Lynaugh, 492 US. 302 (1989)................ 37

Rochin v. California, 342 U.S. 165 (1952).............. 27

Rock v. Arkansas, 483 U.S. 44 (1987) .............. 11, 15

Santobello v. New York, 404 U.S. 257 (1971)........... 23

Santosky v. Kramer, 455 U.S. 745 (1982) .............. 30

Skipper v. South Carolina, 476 U.S. 1 (1985) .......... 37

State v. Hayes, 389 A.2d 1379 (N.H. 1978) ........ 14, 25

State v. Maryott, 492 P.2d 239 (Wash. App. 1971) .... 14

vi

TABLE OF AUTHORITIES - Continued

Page

State v. Murphy, 355 P.2d 323 (Wash. 1960).......... 38

Taylor v. United States, 414 U.S. 17 (1973)............ 23

Turner v. Safley, 482 U.S. 78 (1987) .................. 28

Union Pacific Ry. v. Botsford, 141 U.S. 250 (1891)..... 27

United States v. Charters, 829 F.2d 479 (4th Cir.

1987), modified on rehearing, 363 F.2d 302%4th

Cir. 1988), cert. denied, 110 S.Ct. (1990)......... 19, 32

United States v. Plattner, 330 F2d 271 (2nd Cir.

CS S46 ao 50 us a2555 6a55 Code Rares sah evs wena ne Wa 23

Washington v. Texas, 388 U.S. 14 (1967) ............. 11, 15

Washington v. Harper, 110 S.Ct. 1028 (1990) 27, 29, 32, 34

ke me OU Sy en 12

Winston v. Lee, 470 U.S. 753 (1985).................. 27

Woodson v. North Carolina, 428 U.S. 280 (1976)... .36, 38

STATUTES

5 Nev. Rev. Stat. § 178.400(1) ....................... 19

el ON TE EL a ee ae ne a AE 35

MISCELLANEOUS

4 Wigmore on Evidence § 1160 (rev. ed. 1972)....... 12

Fentiman, Whose Right Is It Anyway?: Rethinking

Competency to Stand Trial in Light of the Synthet-

ically Sane Insanity Defendant, 40 U. Miami L.

CIID 6x oo. s 6040 veces eves con sés couse 13, 24

peeren Beameens (iS @G. TOGF) c. occ ccc ccc decccdsn 4

vii

TABLE OF AUTHORITIES - Continued

Page

Note, Anti-psychotic Drugs and Fitness to Stand

Trial: The Right of the Unfit Accused to Refuse

Treatment, 52 U. Chi. L. Rev. 773 (1985)........... 13

The Physician's Desk Reference (45th ed. 1991)......... 4

Stedman's Medical Dictionary (Sth ed. 1982) ........... 3

Winick, Restructuring Competency to Stand Trial, 32

PE We OE WE II snc kon ec cavuccccdcescss 25

Winick, The Right to Refuse Mental Health Treat-

ment: A First Amendment Perspective, 44 U.

OEE Wir WOW UID nec cnccssacvnccccodcces ss 28

OPINIONS BELOW

The opinion of the Supreme Court of Nevada is

reported at 808 P.2d 535 (Nev. 1991), and reproduced in

the Joint Appendix (“J.A.”) at 52-69. The Nevada District

Court’s order denying petitioner’s motion to terminate

the administration of medication is reproduced at J.A. 49.

S

JURISDICTION

The judgment of the Supreme Court of Nevada was

entered on March 28, 1991. A motion to stay remittitur

pending a Writ of Certiorari was granted by the Supreme

Court of Nevada on April 15, 1991.

On June 13, 1991, petitioner filed a Petition for Writ

of Certiorari, which was granted by this Court on Octo-

ber 7, 1991. Jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

1. The Fifth Amendment to the United States Con-

stitution provides in relevant part: “No person . . . shall

be compelled in any criminal case to be a witness against

himself.”

2. The Sixth Amendment to the United States Con-

stitution provides in relevant part: “In all criminal pros-

ecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defense.”

3. The Eighth Amendment to the United States Con-

stitution provides in relevant part: “[C]ruel and unusual

punishments [shall not be] inflicted.”

4. The Fourteenth Amendment to the United States

Constitution provides in relevant part: “[NJor shall any

State deprive any person of life, liberty, or property,

without due process of law.”

¢

STATEMENT OF THE CASE

Petitioner David E. Riggins is presently under sen-

tence of death after he was so heavily drugged by the

State of Nevada that he appeared like a zombie through-

out his trial. Despite Riggins’ objection while competent

to receiving medication during his trial, and despite sub-

stantial evidence that Riggins would have been compe-

tent to stand trial without medication, the State of

Nevada forced Riggins to ingest extremely high dosages

of the antipsychotic drug Mellaril each day of his trial.

The medication sedated Riggins; it made him appear

apathetic, uncaring, and without remorse. Riggins was

therefore prevented from presenting the best evidence he

had - his unmedicated demeanor - to support his only

defense — that he was legally insane at the time of the

crime.!

| The trial court instructed the jury that, under Nevada

law, to establish an insanity defense, the defendant must prove

(Continued on following page)

The Court denied Riggins’ motion to discontinue the

medication, but it made no finding (1) that Riggins would

have been incompetent without the medication; (2) that

Riggins suffered from a mental disorder that was appro-

priately treated with Mellaril; or (3) that Riggins would

present a danger to himself or others without medication.

Riggins was arrested on November 21, 1987, in con-

nection with the death of Paul Wade. Soon after his

arrest, he was examined by Dr. Edward Quass, a prison

psychiatrist, because he had complained that he was

hearing voices and having trouble sleeping. (R. 440). Rig-

gins suffers from paranoid schizophrenia (J.A. 3-5, 11-12;

R. 747-48), a psychosis characterized by “a disorder in the

thinking processes, such as delusions and _ hallucina-

tions.” particularly “delusions of persecution.” Stedman's

Medical Dictionary 1261 (5th ed. 1982). Without medica-

tion he appears emotionally disturbed, exhibits “a consid-

erable degree of nervous[ness]” (R. 460), is “delusional,”

“paranoid” and “very agitated” (J.A. 3-5) and experiences

auditory hallucinations (R. 440).

Despite these symptoms, Dr. Quass believed Riggins

was competent without medication. Nevertheless, he

(Continued from previous page)

by a preponderance of the evidence that, at the time of the

crime, “he was laboring under such a defect of reason, from

disease of the mind, as not to know the nature and quality of

the act he was doing, or, if he did know it, that he did not

know he was doing what was wrong.” (R. 853)

prescribed the antipsychotic drug Mellaril? because Rig-

gins “said that he had been on Mellaril in the past and it

had worked for him.” (R. 440-41). Dr. Quass started Rig-

gins on a regimen of 25 milligrams of Mellaril, 4 times a

day.

On January 13, 1988, Riggins moved to suspend his

trial until it was determined whether he was competent

to stand trial. (J.A. 6). By this time, his Mellaril prescrip-

tion had been increased to 450 milligrams a day. (R. 91,

405, 465, 480). He was ultimately examined by three

court-appointed psychiatrists. Two, Drs. Franklin D. Mas-

ter and William D. O’Gorman, found the medicated Rig-

gins competent to stand trial. (J.A. 7-10 (Master)); (R. 475,

488-89 (O’Gorman)). The third psychiatrist, Dr. Jack A.

Jurasky, found the medicated Riggins incompetent. (J.A.

11-12). The trial court did not hold a competency hearing

and, based solely on the psychiatrists’ reports, found

Riggins competent to stand trial. (J.A. 13-14).

On June 10, 1988, Riggins filed notice of his insanity

defense (J.A. 25) and also moved to terminate the admin-

istration of Mellaril on the ground that continued medica-

tion would deprive him of his right to present a defense.

(J.A. 20-24; R. 52-56). By then, Riggins’ prescription for

Mellaril had been increased again, this time to 800 milli-

grams a day, eight times the dosage of the original pre-

scription. (R. 441-42). The State opposed this motion,

2 Mellaril is the product name for the antipsychotic drug

thioridazine, which is commonly used in the treatment of acute

and chronic schizophrenia. The Physician’s Desk Reference

1950-52 (45th ed. 1991); Merck Manual 2486 (15th ed. 1987).

arguing that the medication was “essential for him in

order for him to maintain his competence.” (J.A. 32).

The trial court held a hearing on Riggins’ motion the

following month, at which Drs. Quass, Master and O’Gor-

man testified. Dr. Quass testified that Riggins would be

competent to stand trial without any medication. (R. 443).

Dr. Master testified that, while “[i]t is a possibility” that

Riggins would become incompetent if the medication

were stopped, there was no real “likelihood” of this hap-

pening (R. 414): “My guess is that taking [Riggins] off of

medication would have no noticeable effect.” (R. 411-12).

Finally, Dr. O’Gorman testified that he had examined

Riggins, without medication, in 1982 and that he had

been competent at that time. (R. 475). Dr. O'Gorman said

that he could not, however, render an opinion whether

Riggins would become incompetent without medication,

because he had not recently evaluated Riggins in an

unmedicated condition. (R. 485). Thus, none of the psy-

chiatrists testified that Riggins would likely become

incompetent if the medication were discontinued. To the

contrary, the only psychiatrist who had recently exam-

ined Riggins without medication - Dr. Quass - concluded

that he was competent without medication.

While the trial judge acknowledged that it was

merely a possibility that Riggins would become incompe-

tent without medication (R. 502), he expressed concern

about how long it would take “to bring back [Riggins’]

competency to stand — continue with the trial” in the

event he did become incompetent. (R. 417-18). But the

trial, at that time, was still four months away, and the

psychiatrists opined that, if Riggins’ medication was

stopped, it would take only ten days to four weeks to see

whether he was incompetent without medication (R. 419,

500), and, if he was, perhaps only several weeks of medi-

cation to restore his competency. (R. 418). Nonetheless,

the trial judge rejected defense counsel’s request to stop

Riggins’ medication in order to have him reevaluated for

competency while unmedicated. (R. 500). Instead, the

judge issued a one-page order that contained no findings

of fact - let alone a finding that Riggins would become

incompetent without medication —- and denied Riggins’

motion. (R. 108).?

Accordingly, Riggins was forced to ingest 800 milli-

grams of Mellaril each day of his trial, a dosage every

psychiatrist considered excessive. Dr. Jurasky, who did

not testify at the hearing but did testify at trial, described

this dosage as enough to “tranquilize an elephant” (R.

752); Dr. Master considered it “just about the maximum

amount of Mellaril that can be given before you get into a

toxic range” (R. 415); and Dr. O'Gorman remarked that

even 450 milligrams of Mellaril a day was “an extremely

high dose” for Riggins (R. 473). It was no surprise, there-

fore, that Riggins was seen closing his eyes during the

hearing on his motion to terminate the medication (R.

429-30) and had a zombie-like appearance throughout his

trial.

Riggins’ sole defense was insanity, and he took the

stand to prove this. He testified about hearing the voices

3 The court’s order did not indicate whether the judge

considered Dr. Jurasky’s reports. Dr. Jurasky concluded, based

on interviews with Riggins on February 9, 1988 and June 6,

1988, that Riggins was incompetent to stand trial even while

receiving medication. (J.A. 11-12, 18-19).

of “Satan and his assistant” who would order him to do

certain things, such as hurt or kill people (R. 712-13); he

described how, ten months before his arrest, he had been

hospitalized after wandering on the streets in his under-

wear declaring that he was the son of John F. Kennedy

and Marilyn Monroe and was sought by the Mafia (R.

739, J.A. 3); he said that Wade (the decedent) had once

told him that he had killed two girls and wanted to kill

Riggins before Riggins told the police (R. 719); he testi-

fied that Wade had tried to kill him by putting fiberglass

in his water and by squirting AIDS-infected blood on his

cocaine (Wade had supplied Riggins with drugs) (R.

716-17, 723, 741); he said that the voices of Satan and his

assistant told him that killing Wade would be justifiable

homicide (R. 723); and he explained that he killed Wade

only after Wade attacked him with a knife (R. 719). Rather

than presenting this bizarre testimony in the unmedi-

cated condition he was in at the time of the offense (R.

740), the “synthetically sane” Riggins appeared rational,

cool and unemotional. His testimony, therefore, did not

sound truthful and obviously had no impact.

The State exploited Riggins’ drug-induced demeanor

during his trial, and in so doing, directly contradicted its

pre-trial representations to the court. (R. 508-10). Before

trial, the State had argued that Riggins needed to be

heavily medicated because he was mentally ill, heard

voices and would otherwise be incompetent to stand trial.

(R. 451, 497). During the trial, however, it used its wit-

nesses to paint an entirely different picture. Dr. Quass

testified that Riggins was “rational and coherent” (R. 783,

879); Dr. O'Gorman testified that Riggins exaggerated the

fact that he was hearing voices (R. 806, 880); and Dr.

Master testified that he “did not believe that [Riggins]

had mental illness” (R. 828). The credibility of this testi-

mony was buttressed by the fact that Riggins appeared

perfectly sane at trial. The prosecutor then used his clos-

ing argument to focus the jury on Riggins’ demeanor:

“Does Riggins express sorrow, no. Does he express

remorse, no.” (R. 864).

The compelled medication also seriously prejudiced

Riggins’ efforts to present a defense during the penalty

phase of the trial. Both mitigating factors that he sought

to establish - (1) that he was “under the influence of

extreme mental or emotional disturbance” at the time of

the crime (R. 935-37), and (2) that he felt remorse for

killing Wade - were undermined by the effects of the

Mellaril. Rather than looking like the emotionally dis-

turbed individual that he is, the heavily sedated Riggins

sat calmly and impassively through the sentencing hear-

ing. Although he wanted to express the grief and sorrow

he felt for killing Wade, the medication prevented him

from doing so, and, in fact, prevented him from reading a

statement he had prepared expressing these sentiments.

(R. 951-52).

As a direct result of the medication’s effect on his

defense, Riggins was convicted of capital murder on

November 15, 1988, and sentenced to death on November

17, 1988. He appealed his conviction and sentence to the

Supreme Court of Nevada, which specifically rejected his

argument that involuntary medication during trial

deprived him of his right to present his insanity defense.

(J.A. 54).

In a concurring opinion, however, Justice Rose wrote

that, in light of the psychiatrists’ testimony, the trial court

should have permitted Riggins “to terminate the massive

dosage of Mellaril prior to trial to determine if he could

function without the drug.” (J.A. 59).

In dissent, Justice Springer recognized that an insan-

ity defendant’s most reliable and potent evidence is his

“natural, undrugged, state” (J.A. 66-68), and stated that

antipsychotic drugs not only deprive the defendant of

this evidence, but make him appear “perfectly sane”

while also rendering him “mentally and emotionally

inert.” (J.A. 61-62). He, therefore, concluded that, under

this Court’s precedents, the forced medication deprived

Riggins of various constitutional rights, including the

right to defend himself and present evidence of his true

mental state at the time of the offense. (J.A. 64-69).

Petitioner requests that this Court reverse his convic-

tion and sentence.

SUMMARY OF ARGUMENT

A criminal defendant has the fundamental right to

testify in his own defense and to present evidence favor-

able to his defense. When the sole issue at trial is whether

the defendant was legally insane at the time of the crime,

his most compelling evidence is his natural demeanor.

Forcing a mentally ill insanity defendant to ingest anti-

psychotic drugs during his trial, thereby suppressing his

psychotic symptoms and making him appear sane, vio-

lates his right to testify and present a defense. Forcibly

medicating an insanity defendant with antipsychotic

10

drugs also violates his Fifth Amendment rights by coerc-

ing him to present demeanor evidence that undercuts his

defense and makes him appear apathetic and without

remorse.

The State asserted no compelling interest to justify

infringing these fundamental rights. Even if the State’s

interest in bringing Riggins to trial while competent

would be sufficiently compelling to outweigh these

rights, there was essentially no evidence that forcing

Riggins to ingest 800 milligrams of Mellaril each day of

his trial was necessary to maintain his competence. More-

over, the trial court had the alternative of stopping Rig-

gins’ medication to see if he would have become

incompetent, but never tried this.

Although the evidence suggested that Riggins would

have remained competent without medication, even if he

would have become incompetent, he had the right, while

competent, to waive his right to be tried while competent.

Forcibly medicating Riggins also infringed his funda-

mental right to refuse medical treatment, and the State

advanced no interest substantial enough to justify

infringing this right. Even if the State’s interest in ensur-

ing that a defendant is competent for trial is significant

enough to outweigh this right, the State failed to prove by

clear and convincing evidence - or, for that matter, even a

preponderance of the evidence — that drugging Riggins

was necessary to maintain his competency. a

The compelled medication also violated Riggins’

Eighth Amendment right to a fair sentencing determina-

tion. A defendant in the sentencing phase of a capital case

has the right to present, and have the jury consider, any

11

relevant mitigating evidence. Forcing Riggins to appear

at his trial under the influence of antipsychotic drugs

prevented him from presenting his most compelling mit-

igating evidence — that he suffers from a serious mental

illness and that he felt remorse for killing Wade.

¢

ARGUMENT

I.

COMPELLED MEDICATION VIOLATED PETI-

TIONER’S RIGHT TO PRESENT A DEFENSE AND HIS

RIGHT AGAINST SELF-INCRIMINATION

A. Compelled Medication Violated Riggins’ Right to

Present A Defense

A criminal defendant’s fundamental right to be heard

in his own defense is guaranteed by the Due Process

Clause of the Fourteenth Amendment, the Compulsory

Process Clause of the Sixth Amendment and is a corollary

to the Fifth Amendment's guarantee that no person in a

criminal case can be compelled to be a witness against

himself. Rock v. Arkansas, 483 U.S. 44 (1987). The

accused's right to present his own version of the facts “is

one of the rights that ‘are essential to due process of law

in a fair adversary process.’ ” Id. at 51 (quoting Faretta v.

California, 422 U.S. 806, 819 n.15 (1975)); accord Washington

v. Texas, 388 U.S. 14, 19 (1967).

When insanity is at issue, a defendant's right to be

heard in his own defense involves more than testimony

from the witness stand; the defendant’s courtroom

demeanor will necessarily have significant probative

12

value to the jury. See Pate v. Robinson, 383 U.S. 375, 385-86

(1966). Indeed, his own demeanor is perhaps the most

persuasive evidence an insanity defendant can offer

about his mental state at the time of the crime. When an

insanity defendant takes the stand, as Riggins did, this is

surely of paramount importance.

When an insanity defense is raised, the jury is likely

to assess testimony concerning the defendant’s mental

state at the time of the crime with reference to his court-

room demeanor. Commonwealth v. Louraine, 453 N.E.2d

437, 442 (Mass. 1983); see also 4 Wigmore on Evidence § 1160

(rev. ed. 1972) (“it seems to be universally accepted that

in whatever form the issue of insanity may be presented,

the jury may take into consideration the behavior of the

person as observed by them”). Indeed, in this case, the

trial court instructed the jury to consider Riggins’ “man-

ner upon the stand” when assessing the credibility of his

insanity defense. (R. 858). It is likely, therefore, that Rig-

gins’ calm and controlled demeanor at trial made the jury

discount evidence that suggested he was insane at the

time of the crime.

This Court has repeatedly held that depriving a

defendant of the opportunity to present a defense vio-

lates the defendant’s right to due process of law. In Webb

v. Texas, 409 U.S. 95, 97-98 (1972), for example, the Court

found that a trial judge’s lecture to a defense witness

about the consequences of perjury, causing that witness

not to testify, violated the defendant’s right to present his

defense. Similarly, in Ake v. Oklahoma, 470 U.S. 68, 86-87

(1985), the Court held that a State’s refusal to provide an

indigent insanity defendant with the assistance of a psy-

chiatrist to explore the merits of an insanity defense

13

violated his right to present a defense. See also Brvoks v.

Tennessee, 406 U.S. 605 (1972) (holding that a statute

requiring a defendant desiring to testify to do so before

any other defense witness testified violated the defen-

dant’s right to present his defense).

Moreover, it is well established that due process does

not permit a State to suppress “evidence favorable to the

accused . . . where the evidence is material either to guilt

or to punishment.” Brady v. Maryland, 373 U.S. 83, 87

(1963). Antipsychotic drugs work just for such a depriva-

tion.

Antipsychotic drugs suppress psychotic symptoms;

they make a mentally disturbed person appear calm,

competent and sane. They also suppress a person’s emo-

tions, causing him to appear listless and apathetic. Anti-

psychotic drugs therefore undercut an effective insanity

defense by misleading the jury as to the defendant's

probable mental state at the time of the crime. See gener-

ally Fentiman, Whose Right Is It Anyway?: Rethinking Com-

petency to Stand Trial in Light of the Synthetically Sane

Insanity Defendant, 40 U. Miami L. Rev. 1109 (1986); Note,

Antipsychotic Drugs and Fitness to Stand Trial: The Right of

the Unfit Accused to Refuse Treatment, 52 U. Chi. L. Rev. 773

(1985).

By drugging Riggins into an artificial sanity, the State

deprived him of the opportunity to present hard evidence

of his true mental condition. Rather than seeing Riggins

as the extremely disturbed and irrational individual that

he is (see, e.g., J.A. 3-5; R. 494-95), the jury saw him as

unemotional, indifferent, and remorseless, unmoved by

trial testimony relating to the terrible acts he was accused

14

of committing. The Mellaril also defeated the purpose of

Riggins taking the witness stand. His calm and impassive

demeanor contradicted his bizarre testimony. Exposed

only to a defendant who appeared sane during his trial -

even while testifying - it was no surprise that the jury

inferred that Riggins must have been sane at the time of

the offense.

In short, by forcing Riggins to take antipsychotic

drugs throughout his trial, the State effectively denied

Riggins the opportunity, and therefore the right, to pre-

sent his defense.4

In Ake, the Court emphasized that truth is the para-

mount goal of the adversary system. It found that a

criminal trial is fundamentally unfair if the State is able to

maintain “a strategic advantage over the defense, if the

result of that advantage is to cast a pall on the accuracy of

the verdict obtained.” Ake, 470 U.S. at 79. Truth was

clearly suppressed in Riggins’ trial. Neither the court-

appointed psychiatrists who testified about Riggins’ men-

tal state at the time of the crime nor the jury ever saw

Riggins in an unmedicated condition, as he was at the

time of the crime. Compelling Riggins to appear sane at

trial gave the State “a strategic advantage” that made the

verdict unreliable. Indeed, depriving Riggins of the abil-

ity to offer evidence of his insanity through his demeanor

4 Numerous state courts have so held. See Commonwealth v.

Louraine, 453 N.E.2d 437, 442 (Mass. 1983); State v. Hayes, 389

A.2d 1379, 1381-82 (N.H. 1978); In re Pray, 336 A.2d 174, 176-77

(Vt. 1975); State v. Maryott, 492 P.2d 239, 242-44 (Wash. App.

1971).

15

was even more unfair than the deprivation of the assis-

tance of a psychiatrist in Ake, because Riggins’ evidence

of insanity would have come directly from himself rather

than through the filter of an outside observer. As Justice

Springer recognized in his dissent below, “[n]o testimony

of psychiatrists, psychologists, social workers, friends or

family can approach the insight a jury is afforded by the

opportunity to see and hear the defendant, as is. (J.A. 67

(emphasis in original)). A “live” demonstration of a

defendant’s mental condition is much more persuasive

than the cold presentation of expert testimony.

In Rock v. Arkansas, 483 U.S. 44, 52 (1987), this Court

reaffirmed that “an accused’s right to present his own

version of events in his own words” is fund-mental. The

Court explained that the source of this right is not only

the Due Process Clause of the Fourteenth Amendment,

but the Compulsory Process Clause of the Sixth Amend-

ment, which applies to the States through the Fourteenth

Amendment. Id.; see also Washington v. Texas, 388 U.S. 14,

17-19 (1967). The Compulsory Process Clause guarantees

to a defendant the “fundamental” right to call “witnesses

in his favor.” Chambers v. Mississippi, 410 U.S. 284, 302

(1973). Logically included in this right is a defendant's

right to testify himself, if he should decide that it is in his

interest to do so. “In fact, the most important witness for

the defense in many criminal cases is the defendant him-

self.” Rock, 483 U.S. at 52. This certainly was true in

Riggins’ case: except for Dr. Jurasky, Riggins was the only

defense witness.

In Rock, the Court found that a statute prohibiting a

defendant from offering his hypnotically-refreshed testi-

mony unconstitutionally restricted the defendant's right

16

to testify. Although the statute did not prevent the defen-

dant from taking the witness stand, it “exclude[d] mate-

rial portions of his testimony.” Id. at 55. Here, although

Riggins was able to take the stand, he was prevented

from offering “material portions” of his testimony: his

natural demeanor and his unmedicated thought pro-

cesses. Nothing could have been more unfair to Riggins.

His only defense depended on this evidence and its

exclusion violated his rights to due process and com-

pulsory process.

B. Compelled Medication Infringed Riggins’ Fifth

Amendment Right Against Self-Incrimination

The Fifth Amendment to the United States Constitu-

tion provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” This

right against self-incrimination reflects our criminal jus-

tice system’s fundamental values, such as “requiring the

government, in its contest with the individual to shoulder

the entire load.” Murphy v. Waterfront Comm'n, 378 U.S.

52, 55 (1964). The government is constitutionally required

to establish guilt “by evidence independently and freely

secured, and may not by coercion prove a charge against

an accused out of his own mouth.” Malloy v. Hogan, 378

U.S. 1, 8 (1964).

Compulsory medication violates an insanity defen-

dant’s Fifth Amendment rights in at least two ways: first,

it makes it easier for the States to rebut the evidence

proffered by the defendant on the question of his sanity,

thereby undermining the requirement that the State

“shoulder the entire load”; second, it forces the defendant

17

to effectively present evidence against himself by compel-

ling him to appear unremorseful, apathetic and sane.

When Riggins took the stand in his own defense he

was compelled to present the demeanor and thought

processes of a sane person. He was compelled to appear

indifferent, rational and unemotional. He thus became an

instrument of his own conviction. Indeed, in violation of

a pre-trial order (R. 508-10), the prosecutor used Riggins’

demeanor at trial to challenge his veracity and to inflame

the jury: “Mr. Riggins claims to hear voices. It’s funny

that his roommates never new that. He never told his

roommate about those funny voices. .. . And does Rig-

gins express sorrow, no. Does he express remorse, no. Is

Riggins crazy, no.” (R. 864). This prejudicial argument

was further exacerbated by the court’s instruction to the

jury that “[t]he credibility of a witness shall be deter-

mined by his manner upon the stand.” (R. 858).°

It was particularly unfair for the State to argue, as it

did during the trial, that Riggins was not mentally ill (R.

828) and that he had fabricated his testimony about hear-

ing voices. (R. 806, 822, 864, 880). The State had, of

course, argued to the contrary before the trial when insis-

ting that Riggins be medicated. (R. 451, 497). The State’s

trial strategy was akin to obtaining a conviction through

the use of false evidence, something the Court has long

condemned as violating the Due Process Clause of the

Fourteenth Amendment, even if the false evidence goes

only to the credibility of a witness. See, e.g., Napue v.

° The trial court did not instruct the jury concerning how

the Mellaril affected Riggins’ demeanor and thought processes.

18

Illinois, 360 U.S. 264 (1959). The State’s tactics were analo-

gous to forcing a brown-haired defendant to dye his hair

blond in order to fit an eyewitness description of the

perpetrator.

Forcibly medicating Riggins therefore gave the State

two “strategic advantages” that “cast a pall on the accu-

racy of the verdict obtained”: the State was able to sup-

press evidence favorable to Riggins’ defense while

compelling him to present evidence prejudicial to that

defense.

C. No Compelling State Interest Justified the Involun-

tary Medication of Riggins

Admittedly, the right to testify in one’s own defense

is not absolute; nonetheless, it would take a compelling

state interest to justify infringing this fundamental right.

See, e.g., Duren v. Missouri, 439 U.S. 357, 367-68 (1979) (a

“significant State interest” is necessary to justify infring-

ing a defendant's right to a jury trial from a fair cross-

section of the community, and that “significant State

interest [must] be manifestly and primarily advanced” by

the State regulation that results in an unfair cross-sec-

tion); cf. Kramer v. Union School Dist. No. 15, 395 U.S. 621,

627 (1969) (when a statute denies certain persons the

right to vote, “the Court must determine whether the

exclusions are necessary to promote a compelling State

interest”); Elrod v. Burns, 427 U.S. 347, 362-63 (1976) (“a

significant impairment of First Amendment rights must

survive exacting scrutiny”; “the interest advanced [by the

State] must be paramount, one of vital importance”).

There was no compelling State interest in this case. While

19

the State of Nevada has an interest in bringing to trial

defendants accused of violating its laws and it may not

subject an incompetent person to trial® — at least if the

person has not waived his right to be tried while compe-

tent? — neither of those interests was implicated here.

Moreover, the State also has an interest in obtaining

accurate verdicts in criminal cases, an interest that is

undermined when a jury receives false information about

the defendant’s mental! state, especially when that is the

sole issue at trial. See United States v. Charters, 829 F.2d

479, 493-94 (4th Cir. 1987) (“the real government interest

at issue here is not simply an interest in trying an

accused; rather, the government's interest is in a fair trial

in which the accused’s guilt or innocence is correctly

determined”), modified on rehearing, 863 F.2d 302 (4th

Cir. 1988), cert. denied, 110 S. Ct. 1317 (1990). Thus, it is

doubtful that a State’s interest in making a defendant

competent to stand trial can ever be so “compelling”

where to do so requires medicating an insanity defendant

with drugs that undermine his defense. See Bee v. Greaves,

744 F.2d 1387, 1395 (10th Cir. 1984), cert. denied, 469 U.S.

1214 (1985).

Even if such an interest could be termed “compel-

ling,” there was little evidence in this case that forcing

© See Pate v. Robinson, 383 U.S. 375 (1966). Under Nevada

statutory law, “[a] person may not be tried, adjudged to pun-

ishment or punished for a public offense while he is incompe-

tent.” 5 Nev. Rev. Stat. § 178.400(1).

? See Section I.D. infra.

20

Riggins to ingest 800 milligrams of Mellaril each day of

his trial was necessary to maintain his competence. None

of the psychiatrists who testified believed it likely that

Riggins would become incompetent without the medica-

tion. Indeed, only one psychiatrist who thought Riggins

was competent while on Mellaril opined that there was

even a “possibility” of Riggins becoming incompetent

without the drug.® The State’s concern that Riggins

“might become incompetent during trial” (R. 498) without

Mellaril was too tenuous to justify depriving Riggins of

the fundamental right to testify in his own defense.

Certainly, the State’s concern that an unmedicated

Riggins might “fake a psychosis” was not compelling. (R.

498-99). Recognition of this concern would permit the

State to medicate defendants for the express purpose of

altering their demeanor, even when medication would

have no beneficial effect and is not necessary to maintain

the defendant’s competence. See Geders v. United States,

425 U.S. 80 (1976) (order prohibiting defendant from con-

sulting his attorney during an overnight recess held

unconstitutional because the State’s interest in cross-

examining a defendant without the risk of improper

“coaching” does not outweigh defendant's right to the

assistance and guidance of counsel). Similarly, the State’s

concern that if Riggins did become incompetent without

medication, there might be “a two-month delay to get

him back to the period of where he’s competent” (R. 499)

was frivolous. The hearing on Riggins’ motion to termi-

nate medication occurred four months before trial. See

Ballew v. Georgia, 435 U.S. 223, 243-44 (1978) (“savings in

5 This lack of the evidence is discussed further in Point Il

infra.

21

court time and in financial costs” does not justify reduc-

ing juries to the unconstitutional level of five members).

Even when a State can advance a compelling interest

to restrict a defendant’s fundamental right to testify, the

means chosen to achieve that interest must be the least

restrictive available. In I/llinois v. Allen, 397 U.S. 337

(1970), for example, the Court considered how a trial

court may properly limit the defendant’s fundamental

right to be present in the courtroom at every stage of his

trial. The Court held that the right to be present was not

absolute and could be limited when a trial judge is con-

fronted with an obstreperous defendant. The Court said

that the judge could handle the obstreperous defendant

in at least three constitutionally permissible ways: “(1)

bind and gag him, thereby keeping him present; (2) cite

him for contempt; (3) take him out of the courtroom until

he promises to conduct himself properly.” Id. at 344.% Not

surprisingly, the Court found that the least acceptable of

these alternatives would be binding and gagging the

witness: \

[E]ven to contemplate such a technique, much

less see it, arouses a feeling that no person

should be tried while shackled and gagged

except as a last resort. . . . [I}t [is] possible that

the sight of shackles and gags might have a signif-

icant effect on the jury’s feelings about the defen-

dant.

9 Illinois v. Allen is cited by way of analogy. There is no

evidence, and the State has never contended, that an orderly

trial would have been impossible if Riggins had not been

medicated.

22

Id. (emphasis added); see also Estelle v. Williams, 425 U.S.

501, 504-05 (1976) (trying a person in prison garb deni-

grates presumption of innocence); Geders, 425 U.S. at 91

(holding that trial court should have found a way “to

deal with the problem of possible improper influence on

testimony of ‘coaching’ of a witness short of putting a

barrier between a client and counsel”).

There were less restrictive alternatives available to

assure that Riggins was competent to stand trial. For

example, Riggins’ medication could have been stopped to

see if, in fact, he would become incompetent. Defense

counsel suggested this (R. 500), and there was plenty of

time to give this option a chance. During the hearing on

the motion to terminate medication, which occurred

nearly four months before trial, Dr. Master told the trial

judge that, at mosi, it would take three or four weeks

after medication was stopped to see whether Riggins

would become incompetent. (R. 419). Dr. O'Gorman said

it would take only “ten to fourteen days.” (R. 485). Even

if Riggins had become incompetent, it would only have

taken several weeks to restore his competency. (R. 418).

Accordingly, there was no legitimate reason not to

employ this alternative. As Justice Rose said in his con-

curring opinion:

A defendant's right to have the jury observe his

actions and demeanor should not be prevented

unless it is absolutely required. One way to

determine if it is necessary would be to suspend

the taking of the medication and observe the

defendant’s behavior. This was not done [but

should have been done] with Riggins.

(J.A. 60).

23

In this case, mentally “shackling and gagging” Rig-

gins was not the least restrictive means to accomplish the

State’s interest in assuring Riggins’ competency to stand

trial. If anything, it was the most intrusive and prejudicial

means.

D. Riggins Was Denied his Right To Waive His Right

To Be Tried While Competent

Although this Court has long recognized that the

trial of an incompetent defendant violates due process,

see Pate v. Robinson, 383 U.S. 375, 378 (1966), it has also

recognized that a criminal defendant has the right to

waive certain constitutional rights as long as the waiver

is knowing and intelligent and made with adequate

awareness of its consequences. Brady v. United States, 397

U.S. 742, 748 (1970). Thus, a defendant may waive his

privilege against self-incrimination, Miranda v. Arizona,

384 U.S. 436 (1966), his right to counsel, Faretta v. Califor-

nia, 422 U.S. 806 (1975), and his right to be present at trial,

Taylor v. United States, 414 U.S. 17, 19 (1973).

Waiver is generally permitted when it will allow the

defendant to achieve a desired litigation end. For exam-

ple, a defendant may plead guilty and waive his right to a

jury trial in order to obtain a lesser sentence. Santobello v.

New York, 404 U.S. 257 (1971).

A competent defendant’s right to waive his right to

be tried while competent should also be permitted based

on his Sixth Amendment right “personally to manage and

conduct his own defense in a criminal case.” Faretta, 422

U.S. at 817 (quoting United States v. Plattner, 330 F.2d 271,

274 (2nd Cir. 1964)). In Faretta, the Court held that the

24

Sixth Amendment guarantees a criminal defendant the

right to fepresent himself, even though the assistance of

counsel usually enhances a defendant's chances of being

acquitted. Because it is the “defendant, and not the law-

yer or the State, [who] will bear the personal conse-

quences of a conviction, [i]t is the defendant, therefore,

who must be free personally to decide whether in his

particular case counsel is to his advantage.” Id. at 834.

Waiver also should have been permitted out of the same

respect for individual autonomy and freedom of choice

that underlies a competent person’s right to refuse

“unwanted medical treatment.” Cruzan v. Director, Mis-

sourt Dep't of Health, 110 S.Ct. 2841, 2851 (1990).

The insanity defendant has a strong interest in

appearing at trial in an unmedicated condition, even if

that means he will be tried while incompetent, because

the most probative evidence of his mental state at the

time of the offense is likely to be his unmedicated

demeanor. “Permitting the insanity defendant to be tried

in an unmedicated state effectuates his Sixth Amendment

right to personally manage and present his own defense,

promotes the State’s and the defendant’s interest in accu-

racy of adjudication by providing the jury with the most

trustworthy picture of the defendant’s mental state at the

time of the crime, and maximizes the defendant's right to

self-determination and personal autonomy, a hallmark of

our legal system.” Fentiman, supra, at 1157-58.

Although an insanity defendant who chooses to be

tried without medication may undermine his ability to

assist his lawyer, “his choice must be honored out of that

respect for the individual which is the lifeblood of the

law.” Faretta, 422 U.S. at 834 (quoting Illinois v. Allen, 397

25

U.S. at 350-51 (Brennan, J. concurring)). Accordingly, a

defendant who is competent to stand trial only when

medicated should, when competent, be permitted to

waive his right not to be tried while incompetent, as long

as he understands the consequences of his waiver. Com-

monwealth v. Louraine, 453 N.E.2d 437, 444 n.13 (Mass.

1983); State v. Hayes, 389 A.2d 1379, 1382 (N.H. 1978); see

generally Winick, Restructuring Competency to Stand Trial,

32 UCLA L. Rev. 921, 950-78 (1985); cf. Cruzan, 110 S.Ct. at

2852 (recognizing right of incompetent person to refuse

unwanted medical treatment if, while competent, the per-

son expressed desire not to receive such treatment).

Riggins was competent at the time he requested that

his medication be discontinued. The evidence suggested

that Riggins would have remained competent if his medi-

cation were stopped. However, even if his mental condi-

tion would have deteriorated without medication, he had

a right to be tried in that condition: the entire purpose of

his motion to terminate his medication was to enable him

“to fully present evidence to the jury pertaining to his

mental condition at the time of the alleged offense, 1.e., to

permit the jury to observe him free from the effects of the

powerful antipsychotic Mellaril.” (J.A. 42). Riggins

should have been permitted to waive his right to be tried

while competent.

26

Il.

FORCIBLY MEDICATING PETITIONER VIOLATED

HIS RIGHT TO A FAIR TRIAL BECAUSE IT VIO-

LATED HIS DUE PROCESS RIGHT TO REFUSE MEDI-

CATION

While this Court has never considered under what

circumstances, if any, a person can be forcibly medicated

during his criminal trial, it has recognized that a person’s

liberty interests in his bodily and mental integrity and in

privacy are implicated when a State seeks to medicate

him against his will.

The context of a criminal trial makes the otherwise

applicable standards governing forced medication inap-

posite, because the interests at stake are so different and

because an extensive body of jurisprudence already exists

which mandates that a criminal defendant be given a fair

opportunity to defend himself. More specifically, as set

forth in Section I of this brief, the nature of the insanity

defense should bar the State from forcibly medicating an

insanity defendant, at least absent a clear showing of

compelling need.

Even if the Court should decide to look to its prece-

dent concerning forced medication in the civil context,

the State failed, in this case, to make an adequate show-

ing to meet any conceivably applicable standard govern-

ing the determination to medicate. Moreover, the trial

court, by failing to find facts supporting any bases for

medication, failed to accord Riggins a constitutionally

adequate procedure to determine if forced medication

was appropriate. These failures resulted in a violation of

27

Riggins’ constitutionally protected liberty interest and

consequently deprived him of fair trial.

A. Riggins Has Fundamental Liberty Interests In Not

Being Compelled To Ingest Antipsychotic Drugs

The Court has often found state invasions into the

body repugnant to the liberty interests protected by the

Due Process Clause. See, e.g., Rochin v. California, 342 U.S.

165, 209-10 (1952) (“Illegally breaking into the privacy of

the petitioner, the struggle to open his mouth and remove

what was there, the forcible extraction of his stomach’s

contents . . . is bound to offend even hardened sensi-

bilities”); Winston v. Lee, 470 U.S. 753, 759 (1985) (“A

compelled surgical intrusion into an individual’s body for

evidence . . . implicates expectations of privacy and secu-

rity of such magnitude that the intrusion may be ‘unrea-

sonable’ even if likely to produce evidence of a crime”).

Just last term, the Court held that competent individuals

have “a constitutionally protected liberty interest in

refusing unwanted medical treatment,” regardless of

whether their choices appear wise or foolish. Cruzan v.

Director, Missouri Dep't of Health, 110 S.Ct. 2841, 2851

(1990). The Court recognized that “no right is held more

sacred, or is more carefully guarded . . . than the right of

every individual to the possession and control of his own

person, free from all restraint or interference of others,

unless by clear and unquestionable authority of law.” Id.

at 2846 (quoting Union Pacific Ry. v. Botsford, 141 U.S. 250,

252 (1891)).!9 And in Washington v. Harper, 110 S. Ct. 1028,

10 The Nevada Supreme Court itself has also declared that the

right of a competent individual to refuse medical treatment is a

“fundamental right.” McKay v. Bergstedt, 801 P.2d 617, 621 (Nev.

1990).

28

1036 (1990), the Court specifically recognized that, even

when incarcerated, an individual has “a significant lib-

erty interest in avoiding the unwanted administration of

antipsychotic drugs.”!!

In Harper, the Court held that, while in prison, a

convicted criminal, although competent, may be involun-

tarily medicated with antipsychotic drugs if he is men-

tally ill, would pose a serious danger to himself or others

without the drugs, and treatment with the drugs is medi-

cally appropriate. Id. at 1037 n.8, 1039-40. The Court

explained that in the prison environment, where the State

has well established “interests in prison safety and secu-

rity,” id. at 1037, a regulation that infringes a fundamental

right need only be “reasonably related to legitimate

penological interests.” Id. (quoting Turner v. Safley, 482

U.S. 78, 89 (1987)). But the Court held that the presence of

'! In addition to Riggins’ liberty interest in avoiding the

unwanted antipsychotic drugs, forcing him to ingest mind-

altering drugs also implicated his First Amendment interests.

Antipsychotic drugs, such as Mellaril, are - as this Court has

recognized ~ compounds that affect the mind, intellectual func-

tions, perception and emotions. See Mills v. Rogers, 457 U.S.

291, 293 n.1 (1982); see also Bee v. Greaves, 744 F.2d 1387, 1394

(10th Cir. 1984) (“Antipsychotic drugs have the capacity to

severely and even permanently affect an individual's ability to

think and communicate.”), cert. denied, 469 U.S. 1214 (1985).

The primary effects of these drugs, including Mellaril, is to

alter mental processes and emotions that play a part in the

development and expression of ideas and beliefs. (R. 408).

Freedom of expression would be bereft of meaning were the

government readily able to alter, shape and control mental

processes. See generally Winick, The Right to Refuse Mental

Health Treatment: A First Amendment Perspective, 44 U. Miami L.

Rev. 1, 58-59 (1989).

29

“ready alternatives” would be evidence that the prison

regulation is not “reasonable.” Moreover, the Court indi-

cated that, outside the prison environment, the state’s

infringement of an individual’s fundamental right to

refuse unwanted medical treatment would be subject to

the “rigorous standard of review” that ordinarily applies

to infringements of fundamental rights. Id. at 1037-38.

This is the standard that should have been applied in the

instant case. Unlike Harper, who was a convicted crimi-

nal sentenced to prison, Riggins was merely a pre-trial

detainee. As this Court held in Bell v. Wolfish, 441 U.S.

520, 545 (1979), “pretrial detainees, who have not been

convicted of any crimes, retain at least those constitu-

tional rights that we have held are enjoyed by convicted

prisoners.”

Given the significant liberty interests at stake in the

decision to medicate an insanity defendant at a trial

where his life is at stake, the State interests that could

justify medicating Riggins had to be more compelling

than the interests that justified medicating Harper. More-

over, those interests could justify forced medication only

if the medication was also medically necessary and

appropriate and no “ready alternative” for achieving that

interest was available. Harper, 110 S. Ct. at 1037 n.8, 1038.

The only interest advanced by the State in Riggins’

case that could possibly have justified forcing Riggins to

ingest huge dosages of Mellaril was ensuring that Riggins

was competent for trial. Unlike in Harper, the State did

not advance its interest in “prison safety or security” or

contend that Riggins would be dangerous to himself or

others without the medication. And, as discussed in Point

I of this brief, the State’s purported interests in avoiding a

30

minor delay of Riggins’ trial or in preventing Riggins

from “faking a psychosis” were insubstantial.

B. Due Process Required the State to Prove by Clear

and Convincing Evidence That Medicating Riggins

Was Necessary to Achieve a Compelling State inter-

est

Because of the gravity of the interests at stake when a

State seeks to forcibly medicate an insanity defendant,

due process requires a judicial hearing at which the state

must prove by clear and convincing evidence that medi-

cation is necessary to achieve a compelling state interest.

“The function of the standard of proof . . . is to

‘instruct the factfinder concerning the degree of confi-

dence our society thinks he should have in the correct-

ness of factual conclusions for a particular type of

adjudication.’” Addington v. Texas, 441 US. 418, 423

(1979) (quoting In re: Winship, 397 U.S. 358, 370 (1970)

(Harlan, J., concurring)). The Court has required the

“clear and convincing” standard “when the individual

interests at stake in a State proceeding are both ‘partic-

ularly important’ and ‘more substantial than mere loss of

money.” Santosky v. Kramer, 455 U.S. 745, 756 (1982)

(quoting Addington, 441 US. at 424).

The liberty interests at stake when the State seeks to

medicate a competent individual with antipsychotic

drugs against his will are substantial, and are enhanced

when the individual is an insanity defendant standing

trial for a crime punishable by death. The defendant's

interests in this context are of the utmost importance and

should not be infringed absent “clear and convincing”

31

evidence that an infringement is necessary to achieve a

compelling state interest.

The Court has required this standard of proof in the

analogous context of civil commitment proceedings. In

Addington, 441 U.S. at 433, the Court held that in a civil

commitment proceeding a State must show clear and

convincing evidence that its interest in commitment out-

weighs the individual’s interest in continued liberty. The

Court reasoned that in these proceedings, which threaten

individuals with a substantial loss of liberty, the risk of

an erroneous determination should fall on society. /d. at

427. The Court recognized the danger of making “psycho-

logical” determinations based on one or two instances of

unusual conduct. “Increasing the burden of proof is one

way to... perhaps reduce the chances that inappropriate

commitments will be ordered.” Id. If anything, the invol-

untary administration of antipsychotic drugs to a crimi-

nal defendant - and particularly to one who pleads

insanity — for the purpose of making him competent to

stand trial requires at least as high a standard as the one

adopted in the civil context of Addington: “In the adminis-

tration of criminal justice, our society imposes almost the

entire risk of error upon itself.” /d. at 424.

The defendant should not bear the consequences of

an erroneous decision that medication is necessary to

maintain his competency. As with civil commitment,

absent a strict burden of proof, involuntary medication

could occur on the basis of “a few isolated instances of

unusual conduct” or on the basis of a single brief psychi-

atric examination. This threatened deprivation risks par-

ticularly severe consequences for an insanity defendant.

For these reasons, a burden of proof greater than a “mere

32

preponderance” is necessary to protect the rights at stake:

an individual should “not be asked to share equally with

society the risk of error when the possible injury to the

individual is significantly greater than any possible harm

to the State.” Id. at 427.

C. The Facts Presented Did not Support Compelled

Medication Under Any Conceivably Applicable

Standard

The only interest advanced by the State in this case

that could conceivably have overcome Riggins’ compel-

ling liberty interests was the State’s interest in rendering

him competent for trial. The State failed to demonstrate

by clear and convincing evidence — or, for that matter, by

even a preponderance of evidence - that forcing Riggins

to ingest 800 milligrams of Mellaril each day of his trial

was necessary to achieve its interest. It also failed to

show that a smaller dosage of Mellaril or some less

intrusive therapy would not have been sufficient to main-

tain Riggins’ competency.'? See United States v. Charters,

829 F.2d 479, 493 (4th Cir. 1987), modified on rehearing,

863 F.2d 302 (4th Cir. 1988), cert. denied, 110 S. Ct. 1317

(1990); Bee, 744 F.2d at 1396.

'2 Before compelling a person to ingest antipsychotic drugs

for any reason, the State must also establish that the medication is

medically necessary and appropriate. See Washington v. Harper, 110

S. Ct. 1028, 1037 n.8, 1039-40 (1990). No such showing was made in

this case. To the contrary, several of the psychiatrists questioned

whether Riggins should be taking such heavy dosages of Mellaril.

(See, e.g., R. 473-75 (Dr. O’Gorman)). Indeed, at trial, Dr. Master

testified that “I would never prescribe Mellaril for Mr. Riggins as

he is now.” (R. 836; See also R. 836-38).

33

Three psychiatrists testified at the hearing to termi-

nate medication, but none testified that he ever found

Riggins to be incompetent. Dr. Quass, the prison psychi-

atrist who examined Riggins several times and who first

prescribed Mellaril for him during his detention, testified:

“Each time I have seen him [Riggins] | felt he would be

competent to stand trial... . At the time he was started on

Mellaril | considered him to be competent. He was not

grossly psychotic at any time.” (R. 443). Similarly, Dr.

Master, who interviewed Riggins once in February 1988,

stated that at that time —- when Riggins was on nearly half

the dosage of Mellaril that he was on at the time of trial -

he found Riggins competent to stand trial. (R. 407).

Finally, Dr. O'Gorman, who examined Riggins in March

1988 and who had treated him six years earlier, testified

that he at no time viewed Riggins as an incompetent

person. (R. 475).

Each psychiatrist also testified regarding what he

considered the likely effects of stopping Riggins’ medica-

tion. None stated that ceasing the medication would

likely or probably cause Riggins to degenerate into an

incompetent state. Dr. Quass testified that Riggins would

be competent without medication. (R. 443). Dr. Master

intimated that he had no idea how ceasing medication

would affect Riggins: “It will have one of twelve different

effects . . . [that] requires guessing the future.” When

persuaded to venture a guess, Dr. Master concluded: “My

guess is that taking the patient - the defendant off of

medication would have no noticeable effect,” (R. 412) and

would not render him incompetent. (R. 415). Finally, Dr.

O’Gorman testified that he could not render an opinion

as to the effects of taking Riggins off Mellaril. (R. 485).

34

In short, none of the three expert witnesses, who

were the only witnesses at the hearing, offered any sup-

port for the State’s contention that Riggins would become

incompetent without medication. Their testimony, in fact,

convincingly demonstrates the contrary -— that Riggins

was always a competent individual regardless of whether

or not he was taking Mellaril. Only one psychiatrist

“guessed” that it was even “possible” that Riggins would

become incompetent. (R. 414). No evidence suggests,

however, that the possibility was at all likely. Accord-

ingly, this was not a case where the trial court had to

assess the credibility of witnesses or the weight of evi-

dence - there was simply no evidence supporting the

State’s position.'*

3 Indeed, the State failed even to present evidence that

would satisfy the Washington v. Harper test, which petitioner

contends is inapposite in this context. Harper held that the Due

Process Clause permits a State to medicate a convicted pris-

oner if the prisoner is dangerous to himself or others, and the

treatment is in the prisoner’s medical interest. Harper, 110 S.

Ct. at 1037 n.8, 1039-40. Here, the State presented no evidence

(because there was no evidence) that Riggins presented a dan-

ger to himself or others without medication. As discussed in

note 12, supra, both Dr. O'Gorman and Dr. Master, the two

court-appointed psychiatrists who testified for the State, ques-

tioned the necessity and the appropriateness of forcing Riggins

to ingest 800 milligrams of Mellaril each day of his trial. (See R.

473-75, 836-38).

35

D. Due Process Required the Trial Court to Make Fac-

tual Findings on the Record

In light of the liberty interests at stake when an insanity

defendant is medicated for trial, due process also requires

the trial court to make specific factual findings on the record.

Absent such findings, reviewing courts - such as this one -

are handicapped in attempting to assess the manner in

which a lower court reached its decision. The Federal Rules

of Civil Procedure generally require federal trial courts in

civil cases to “find the facts specifically and state separately

their conclusions of law thereon.” Fed. R. Civ. P. 52(a). Where

the state seeks to force medication upon an insanity defen-

dant who faces a potential death sentence, similar procedural

protections are due.

The trial court’s one-page order denying Riggins’

motion to terminate medication (J.A. 49) made no finding

of facts: it did not identify what State interest justified

involuntary medication nor did it find that forcing Rig-

gins to take 800 milligrams of Mellaril a day was medi-

cally necessary and appropriate. Indeed, the

determination to medicate Riggins was made without

reference to legal standards, without findings of any

facts, and without reference to any burden of proof. It

was, in fact, nothing more than a conclusory determina-

tion that in one judge’s opinion, for unknown and un-

stated reasons, and based on unknown - and in this case,

non-existent — evidence, the medication of Riggins should

continue.'* Such a procedure does not comport with due

'* The trial court’s failure to set forth findings of fact

justifying medication stands in sharp contrast to the court's

(Continued on following page)

36

process where significant liberty interests, and ultimately

a man’s life, are at stake.

THE COMPELLED MEDICATION VIOLATED PETI-

TIONER’S RIGHT TO A FAIR SENTENCING DETER-

MINATION

The State’s involuntary medication also unfairly prej-

udiced Riggins in his effort to persuade the jury not to

impose the death penalty, in violation of the Eighth

Amendment. By denying Riggins the opportunity to pre-

sent crucial evidence of his mental illness —- namely, his

own testimony regarding his thought processes, and his

natural demeanor and physical appearance - the State

denied him the opportunity to present crucial mitigating

evidence, at a proceeding when nothing less than his life

was at stake.

As this Court has repeatedly held, the finality of the

death penalty makes it qualitatively different from a sen-

tence of imprisonment. “Because of that qualitative dif-

ference, there is a corresponding difference in the need

for reliability in the determination that death is the

appropriate punishment in a specific case.” Woodson v.

North Carolina, 428 U.S. 280, 305 (1976); see also Ford v.

Wainwright, 477 U.S. 399, 412 (1986) (need for guarding

(Continued from previous page)

disposition of Petitioner's motion to determine competency. In

its order finding Riggins competent, the court set forth the

evidence relied upon, and the specific factual finding that

Riggins was “in possession of sufficient mental faculties to aid

and assist counsel in his defense.” (J.A. 13).

37

against error is “particularly acute” in procedure to deter-

mine prisoner’s sanity for execution).

In Lockett v. Ohio, 438 U.S. 586, 604 (1978), a plurality

of the Court recognized that in order to give meaning to

the individualized sentencing requirement in capital

cases, the sentencer must be permitted to consider, “as a

mitigating factor, any aspect of a defendant’s character or

record and any of the circumstances of the offense.” This

approach was adopted by a majority of the Court in

Eddings v. Oklahoma, 455 U.S. 104 (1982). Eddings held that

the. Eighth Amendment required that a capital sentencing

scheme not only permit the defendant to present any

relevant mitigating evidence, but required the sentencer

“to listen” to that evidence. Id. at 115 n.10.

Since Lockett and Eddings, the Court has not hesitated

to reverse a defendant’s death sentence where a trial

court has precluded or prevented a defendant from pre-

senting mitigating evidence. In Skipper v. South Carolina.

476 U.S. 1, 8 (1986), for example, the Court unanimously

reversed the petitioner’s death sentence where the trial

court excluded testimony relating to the petitioner’s

adjustment to prison. The Court held that the exclusion of

this evidence “impeded the sentencing jury’s ability to

carry out its task of considering all relevant facets of the

character and record of the individual offender.” Id.

More recently, in Penry v. Lynaugh, 492 U.S. 302, 328

(1989), the Court held that a Texas statute which limited

the sentencer’s discretion to decline to impose the death

penalty despite the defendant’s mental retardation and

abused background violated the Eighth Amendment,

because the jury was not provided with a vehicle for

38

expressing its “reasoned moral response” to the mitigat-

ing evidence. The Court found that Lockett and Eddings

compelled a remand for resentencing, so that the Court

“not risk that the death penalty will be imposed in spite

of factors which may call for a less severe penalty.” /d.

(quoting Lockett, 458 U.S. at 605). See also Hitchcock v.

Dugger, 481 U.S. 393 (1987) (remanding for resentencing

where sentencer had been precluded from considering

evidence relating to defendant’s childhood and charac-

ter).15

Thus, a long line of cases stand for the proposition

that consideration of any relevant mitigating evidence is

a “constitutionally indispensable part of the process of

inflicting the penalty of death.” California v. Brown, 479

U.S. 538, 541 (1987) (quoting Woodson, 428 U.S. at 304).

That right was manifestly denied to David Riggins.

Riggins’ most compelling mitigating evidence was

that he suffers from a severe mental illness. Riggins

sought to persuade the jury that his mental illness, at

least in part, explained his actions at the time of the crime

and should mitigate his punishment. (R. 935-36). Even if

Riggins’ mental illness did not render him legally insane

at the time of the crime - which he contends it did — it

certainly should have been considered to mitigate his

'S The importance of demeanor evidence in a capital case

was highlighted in State v. Murphy, 355 P.2d 323 (Wash. 1960),

where the court ordered a new trial for a defendant who had

been sentenced to death after being tried in a drugged condi-

tion. The court reasoned that “the matter of the life or death of

the accused may well depend upon the attitude, demeanor and

appearance he presents to the members of the jury.” Id. at 327.

<<

39

culpability for the crime and weigh against the imposi-

tion of a death sentence. Because Riggins was precluded

from presenting this evidence, the jury may well have

believed that he was not mentally ill.

As discussed in Point | of this brief, the Mellaril

made Riggins appear without remorse, uncaring, and

rational. In addition, the effects of the Mellaril likely

made Riggins unable to read a statement he had planned

to read to the jury at the conclusion of the penalty phase

of the trial. (R. 446-47). In this statement, Riggins said

that he felt grief and remorse, that he regretted his

actions, and that even under heavy sedation, he had

trouble sleeping when he thought about the crime. (R.

951).16

The medication he was compelled to ingest dramati-

cally altered Riggins’ appearance before the jury. Instead

of seeing a man who was concerned and nervous about

his fate and remorseful for his actions, the jury was

presented with a man who appeared cold, apathetic, and

without remorse. No explanation or instruction could

remedy this prejudice - and the Court did not even

attempt to give one to the jury. Instead, the jury was left

to sentence a man who was not the actual man before

them, but a distortion of that man created for the express

purpose of undermining his defense. Such a procedure

can hardly be said to comport with the requirement of

special reliability this Court has recognized as necessary

for a procedure by which a State seeks to impose the

16 Riggins’ statement was instead read to the jury by his

counsel — an inadequate substitute for a defendant's personal

expression of grief and remorse. (R. 951).

40

death penalty. David Riggins’ death penaity must there-

fore be vacated.

CONCLUSION

The judgment of the Supreme Court of Nevada

should be reversed and the case remanded for further

proceedings.

Respectfully submitted,

Mace J. YAMPOLSKY

Counsel of Record

625 South Sixth Street

Las Vegas, Nevada 89101

Jay Torxis

Neat H. KLAusNeR

STEVEN C. HERzOG

Paut, Weiss, RIFKIND,

WHARTON & GARRISON

1285 Avenue of the Americas

New York, New York 10019-6064

Attorneys for Petitioner