Amicus Curiae Brief — Riggins v. Nevada

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

DAVID E. RIGGINS,

Petitioner,

V.

THE STATE OF NEVADA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

NEVADA SUPREME COURT

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

KEVIN M. KELLY, ESQ.

Nevada Attorneys for

Criminal Justice

302 E. Carson Ave., Suite 600

Las Vegas, Nevada 89101

(702) 385-7270

Counsel for Amicus Curiae

———— $$

PDO Printing © Las Vecas., NEVADA © (702) 598-4455

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INTEREST OF THE AMICUS CURIAE

Amicus, Nevada Attorneys for Criminal

Justice, is a non-profit, voluntary

association of those individuals, mainly

criminal defense attorneys, who have an

interest in the fair administration of

justice in the country in general, and

Nevada in particular. Amicus has

approximately 150 members. Amicus presents

this brief in support of the Petitiner for

the Court’s consideration.

TABLE OF CONTENTS

INTEREST OF AMICUS .... «+. « « « «

TABLE OF AUTHORITIES ..... .

ISSUE PRESENTED

ARGUMENT .. +. +++ +e es 6 @ s

I. A CAPITAL DEFENDANT HAS A

FUNDAMENTAL CONSTITUTIONAL RIGHT

TO PRESENT A DEFENSE IN BOTH THE

GUILT AND PENALTY PHASES OF THE

TRIAL UNFETTERED BY ARBITRARY

STATE ACTION.

II. FORCED MEDICATION WITH

PSYCHOTROPIC DRUGS DURING TRIAL

DENIES A CRIMINAL DEFENDANT WHO

IS PROFFERING AN INSANITY DEFENSE

THE RIGHT TO PRESENT CRITICAL

EVIDENCE ON HIS BEHALF.

Itt. A DEFENDANT HAS THE RIGHT

TO WAIVE HIS RIGHT TO BE

COMPETENT TO STAND TRIAL IN ORDER

TO PROPERLY EFFECT HIS DECISION

TO PRESENT AN INSANITY DEFENSE.

IV. THE DEPRIVATION OF THE

PETITIONER'S FUNDAMENTAL DUE

PROCESS RIGHT TO PRESENT A

DEFENSE CANNOT BE CONSIDERED

HARMLESS ERROR.

ii

16

20

Vv. EVEN IF THE COURT UTILIZES A

HARMLESS ERROR STANDARD FOR THE

DEPRIVATION OF THE FOUNDATIONAL

RIGHT OF A DEFENDANT TO PRESENT A

DEFENSE, IT CANNOT BE SAID THAT

THE REFUSAL TO ALLOW THE

DEFENDANT TO PRESENT TO THE JURY

HIS OWN MENTAL STATE AS EVIDENCE

IN AN INSANITY DEFENSE TRIAL IS

HARMLESS ERROR.

CONCLUSION

iii

21

22

TABLE OF AUTHORITIES

Supreme Court Cases

Chambers v. Mississippi, 410 U.S. 284, 302,

93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973)5

Chapman _v. California, 386 U.S. 18, 24, 87

S.Ct. 824, 830, 17 L.Ed.2d 705 (1967) 21, 23

Faretta v. California, 422 U.S. 806, 95

S.Ct. 2525, 45 L.Ed.2d 562 (1975) ... 20

Ford v. Wainwright, 477 U.S. 399, 106 S.Ct.

2595, 91 L.Ed.2d 335 (1986) ... 6, 7, 18

L, 481 U.S. 648, 668, 107

S.Ct. 2045, 2049, 97 L.Ed.2d 622 (1987) 22

Jackson _v. Indiana, 406 U.S. 715, 728, 92

S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972) 8

Vv i , 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966) ...... 19

, 486 U.S. 249, 256, 108

S.Ct. 1792, 100 L.Ed.2d 284 (1988) 21, 22

Skipper _v. South Carolina, 476 U.S. 1, 4,

106 S.Ct. 1669, 90 L.Ed.2d 1, 6 (1986) 6

Taylor v. United States, 414 U.S. 17, 94

S.Ct. 194, 38 L.Ed.2d 174 (1973) ... 20

Washington v. State of Texas, 388 U.S. 14,

18-19, 87 S.Ct. 1920, 1923, 18 L.Ed.2da 1019

(1967) 7. . . - * - .* . . . 7. * . * = . 4

Youngberg v. Romeo, 457 U.S. 307, 320, 102

S.Ct. 2452, 2460, 73 L.Ed.2d 28 (1982) 8

iv

State Cases

Com. Vv. Louraine, 453 N.E.2d 437

(Mass. 1983) ” ie ” * - - . 7” iS, 16, 19

In re Pray, 336 A.2d 174 (Vermont

1975)14, 15

People _v. Hardesty, 362 N.W.2d 787

(Mich.App. 1984) . . . . . . . . . . . il 11

State v. Hayes, 389 A.2d 1379, 1382 (1978)

* a + 9

State v. Jojola, 553 P.2d 1296 (CA NM

1976) . ° + . + + . . . 7 . . . . ii, 12

State v. Law, 244 S.E.2d 302, 307 (SC

es ose 6 ve. Wk +, eee ee: oe 10-12

State v. Lover, 707 P.2d 1351 (Wash.App.

| ee ee ee ee ee ee

State v. Maryott, 492 P.2d 239 (CAl Wash.

1971) >. + . - 7. . - . . >. . >. . . > P 14

State v. Murphy, 355 P.2d 323 £4(Wash.

1960) (En Banc) 276 6 8 ee Oe ee Te ae

Other Authority

Fentiman, Whose Right Is It Anyway?:

Rethinking Competency to Stand Trial in

Light of the Synthetically Sane Insanity

Defendant, 40 U.Miami L.Rev. 1109

(1986)8-10, 17, 20, 21

ISSUE PRESENTED

Amicus submits that the narrow issue

presented by the Writ herein, apparently one

of first impression for this Court, is

whether the Petitioner was denied his rights

under the due process clause of the Fifth

Amendment and the right to a fair trial

under the Sixth Amendment by = forced

medication during trial which prevented

Petitioner from allowing the jury to view

the Petitioner’s true mental state.

The question is whether the Petitioner

was unconstitutionally prevented from

presenting evidence particularly relevant to

his insanity defense- his own mental

condition in its unaltered state.

ARGUMENT

There would seem to be no principle

more basic, no consideration more paramount,

then a criminal defendant’s right to present

a defense unfettered by unnecessary

interference by the State. Here, all the

Petitioner requested was that he be left un-

drugged by the State so that he could best

present his only available defense- his own

insanity at the time of the crime. It was

the Petitioner’s belief, aided by counsel,

that the best presentation of his defense

was the jury’s ability to view his mental

condition unmasked by 800 milligrams per day

of Melliril, the maximum recommended daily

dosage of that psychotropic drug.

The State, without any showing of need,

in fact without any need whatsoever,

deprived the Petitioner of his rights to

present his insanity defense in the manner

thought best by the Petitioner and his

counsel. As such, the Petitioner’s right to

a fair trial, to present a defense, and to

follow the advice of his counsel, were

denied.

Amicus asserts that a criminal

defendant has at least the right to refuse

psychotropic drugging during the limited

period during which the defendant is

actually being tried before a jury. Amicus

proposes that the proper course is for the

trial court to determine whether a defendant

has made an informed choice to forego

medication during trial. If the trial court

determines that such an informed choice has

been made, then the defendant will be

allowed to avoid the effects of medication

during the trial period. If competency is

—

threatened by the avoidance of medication,

the defendant will be considered to have

waived his right to be tried while fully

competent. The defendant will have traded

that right for the ability to present his or

her insanity defense.

Under this process, there is no State

interest threatened. Trial will not be

delayed oor avoided because of the

defendant’s choice to proceed unmedicated.

And the defendant’s right to present a

defense will be retained.

I. A CAPITAL DEFENDANT HAS A

FUNDAMENTAL CONSTITUTIONAL RIGHT

TO PRESENT A DEFENSE IN BOTH THE

GUILT AND PENALTY PHASES OF THE

TRIAL UNFETTERED BY ARBITRARY

STATE ACTION.

This Court has consistently respected

and enforced a criminal defendant’s right to

have a fair opportunity to present a defense

on his own behalf. The Court emphasized the

right to present a defense in Washington v.

State of Texas, 388 U.S. 14, 18-19, 87 S.Ct.

1920, 1923, 18 L.Ed.2d 1019 (1967).

This Court had occasion in In re

Oliver, 333 U.S. 257, 68 S.Ct.

499, 91 L.Ed.2d 682 (1948), to

describe what it regarded as the

most basic ingredients of due

process of law. It observed

that:

“Bh person’s right to

reasonable notice of a charge

against him, and an opportunity

to be heard in his defense- a

right to his day in court- are

basic in our system of

jurisdiction; and these rights

include, as a minimum, a right to

examine the witnesses against

him, to offer testimony, and to

be represented by counsel.”

(Citations omitted)

This Court plainly stated in Chambers

v. Mississippi, 410 U.S. 284, 302, 93 S.Ct.

1038, 1049, 35 L.Ed.2d 297 (1973) that

“"(fjew rights are more fundamental than that

of an accused to present witnesses in his

own defense.”'

We conclude that the

exclusion of this critical

evidence, coupled with the

State’s refusal to permit

Chambers to cross-examine

McDonald, denied him a trial in

accord with traditional and

fundamental standards of due

process. In reaching this

judgment, we establish no new

principles of constitutional law.

.. Rather, we hold quite simply

that under the facts and

circumstances of this case the

rulings of the trial court

deprived Chambers of a fair

trial. Id.

‘Chief Justice Rehnquist's concern regarding

“constitutionalization of the intricacies of the common law of

evidence” Chambers, supra. 410 U.S. 308, 93 S.Ct. 1052 (Rennquist,

J. dissenting) is not implicated under the facts at bar.

Fundamental constitutional due process concerns, not rules of

evidence, are impacted by the State's actions here.

A full and fair presentation of

evidence is particularly critical in a

capital case where the defendant’s life

hangs in the balance. This Court has

repeatedly underscored the principle that a

capital defendant has the right to present

any evidence in mitigation during the

penalty phase of the case.

There is no disputing that

this Court’s decision in Eddings

requires that in capital cases

“the sentencer oe not be

precluded from considering, as a

mitigating factor, any aspect of

a defendant’s character or record

and any of the circumstances of

the offense that the defendant

proffers as a basis for a

sentence less than death.’”

(Emphasis in original) Skipper v.

» 476 U.S. 2, 4,

106 S.Ct. 1669, 90 L.Ed.2d 1, 6

(1986).

The State simply cannot preclude the

capital defendant from presenting relevant

evidence either as to his guilt or the

appropriateness of the death sentence. In

the analogous case of Ford v. Wainwright,

477 U.S. 399, 106 S.ct. 2595, 91 L.Ed.2d 335

(1986), this Court reversed and remanded a

capital case where the Court found that the

State’s procedures for determining the

sanity of the capital defendant were not

sufficient to satisfy constitutional

considerations.

The first deficiency in

Florida’s procedure lies in its

failure to include the prisoner

in the truth-seeking process.

Notwithstanding this Court’s

longstanding pronouncement that

“(tjhe fundamental requirement of

due process of law is’ the

opportunity to be heard,” ... state

practice does not permit any

material relevant to the ultimate

decision to be submitted on

behalf of the prisoner facing

execution. In all other

proceedings leading to the

execution of an accused, we have

said that the factfinder must

“have before it all possible

relevant information about the

individual defendant whose fate

it must determine.” (Citations

omitted) Id., 447 U.S. 413, 106

S.Ct. 2604.

In Ford, the capital defendant’s

fundamental rights were abridged by the

State’s refusal to allow evidence to be

presented during the determination of the

defendant’s post-trial sanity. Here, the

State prevented the Petitioner from

presenting his own demeanor and mental

condition during the guilt and penalty

phases of his capital trial. Amicus asserts

that this action violated the Petitioner’s

right to present a defense.

= > = Sa

II. FORCED MEDICATION WITH

PSYCHOTROPIC DRUGS DURING TRIAL

DENIES A CRIMINAL DEFENDANT WHO

IS PROFFERING AN INSANITY DEFENSE

THE RIGHT TO PRESENT CRITICAL

EVIDENCE ON HIS BEHALF.

This Court has held in a variety of

circumstances that in determining “whether

a substantive right protected by the Due

Process Clause has been violated, it is

necessary to balance ‘the liberty of the

individual’ and ‘the demands of an organized

society.’” Youngberg v. Romeo, 457 U.S. 307,

320, 102 S.Ct. 2452, 2460, 73 L.Ed.2d 28

(1982); see also Jackson _v. Indiana, 406

U.S. 715, 728, 92 S.Ct. 1845, 1858, 32

L.Ed.2d 435 (1972). Amicus asserts that the

State has no compelling interest, in fact no

rational interest, in denying a capital

defendant the right to present critical

insanity evidence at the guilt and penalty

phases of his trial. The defendant’s

interest, on the other hand, is evident. It

is the hope that he will not be killed by

the State.

The precise issue presented here was

addressed ina thoughtful law review article

published in Fentiman, Whose Right Is It

Anyway?: Rethinking Competency to Stand

Trial in Light of the Synthetically Sane

Insanity Defendant, 40 U.Miami L.Rev. 1109

(1986).

“Since the author of the Article has stated Amicus' positior

far better than Amicus can, we adopt whole clothe man,’ tne

principles expressed in that article.

In a small but significant

group of cases such as this one,

the defendant’s constitutional

right not to incriminate himself,

to present a defense to a

criminal charge, and to privacy

are on an apparent’ collision

course with the constitutional

prohibition against the trial of

incompetent defendants. Where

the defendant is a mentally ill

individual who may only be

restored to competency through

the use of psychotropic drugs,

the very fact of this

pharmaceutical restoration may

significantly undercut his

primary defense- that he was

insane at the time of the

offense. The defendant’s

“synthetic sanity,” achieved

through the taking of

antipsychotics or other

psychoactive drugs, precludes the

jury from seeing the defendant as

he was at the time of the crime,

the moment for which the jury’s

assessment of his mental state is

critical. Id. at 1111.

The Fentiman article concluded, inter

alia, that the forced medication of a

defendant who is attempting to present an

insanity defense violates the defendant’s

Due Process right to present a defense.

The result of the compelled

administration of antipsychotic

drugs, with its elimination of

overt symptoms of serious mental

illness and the concomitant

presence of misleading and

distracting side effects, is that

the jury is presented with a

totally false picture of the

defendant’s mental processes.

The use of psychotropic drugs

precludes the jury from catching

even a glimpse of the defendant’s

true mental state. Id. at 1130.

LS ine As recognized in the Fentiman article,

forced medication deprives the defendant of

the best evidence available to prove his

defense- his own mental condition. And, as

argued below, the defendant is deprived of

this evidence without need- compelling or

otherwise. If appropriate procedures are

followed, the defendant can be allowed to

properly present a defense and the State

will be allowed to proceed with the desired

prosecution.

A number of State courts have addressed

the issue presented here. The cases are

divided into those that have found the

defendant’s right to present his mental

demeanor at trial to be paramount and those

who have found that the State’s right to

proceed with prosecution of an incompetent

defendant should control. While Amicus

asserts, as set forth below, that this is an

illusionary conflict, the cases are

instructive on the debate that has occurred

in the States that have addressed the issue.

The cases that have denied the

defendant a right to be tried in an

unmedicated state have found the State’s

interest in proceeding with trial is the

paramount concern. In State v. Law, 244

S.E.2ad 302, 307 (SC 1978), the South

9

Carolina Supreme Court held that the State’s

right to trial outweighed the defendant’s

claimed absolute right to “bodily

integrity”. The court held that “[ijt is

our view that such an absolute right does

not exist. It is our view that medication

may be administered without the consent of

a defendant under compelling circumstances,

including those where medication is

necessary to render a defendant competent to

stand trial.” Id. at 307. The basis for the

court’s holding was its concern that an

incompetent defendant could not be tried and

that the State’s interest in proceeding with

trial constituted a compelling reason for

the forced medication.

Similarly, the court in People v.

Hardesty, 362 N.W.2d 787 (Mich.App.1984)

also found that the State’s interest in

proceeding with prosecution outweighed the

defendant’s interest in avoiding forced

medication.

In our case the medication

allowed the state to bring

defendant to trial so that his

culpability and criminal

responsibility could be

adjudicated. Additionally, the

record clearly demonstrates that

the drugs used enhanced, rather

than diminished, defendant’s

ability to engage in rational

thought and assist counsel at

trial. This being the case, the

balance of competing interests

favors the state ... Id. at 793.

In State v. Jojola, 553 P.2d 1296 (CA

NM 1976), forced medication was upheld on

10

two grounds. First, the court found that

there was no evidence that the “defendant’s

thought processes or the contents of

defendant’s thoughts were affected by the

Thorazine ...%. Id. at 1299. Secondly, the

court found that the argument that the

defendant’ Due Process rights were violated

by depriving him of the right to demonstrate

his unmedicated demeanor was not supported

by the record. The court found that the

theory originally raised by the defendant

that would have made relevant his demeanor

was not pursued at trial. Id.

Finally, the court in State v. Lover,

707 P.2d 1351 (Wash.App. 1985) considered

the State’s right to proceed to trial to

outweigh the defendant’s right to refuse

forced medication as long as the effect of

the medication could be explained to the

jury.

The compelling interest here, as

in Law and Jojola, is the State’s

interest in bringing an accused

to trial, an interest the Maryott

court recognized as “fundamental

to a scheme of ordered liberty.”

No less intrusive method of

achieving this goal has_ been

suggested by the defendant. Id.

at 1354.

The common principle highlighted in the

above cases that have approved the forced

medication of the defendant is that the

State’s interest in proceeding with the

prosecution of a criminal defendant

outweighs the defendant’s right to refuse

psychotropic drugs, at least where no

alternative procedure, short of avoiding

11

trial, has been suggested.

The cases where forced medication has

been disapproved have focused on the

prejudicial effect to the defendant’s

ability to present the jury with his or her

true unmedicated demeanor. The court in

State v. Murphy, 355 P.2d 323 £(Wash.

1960) (En Banc) held that the defendant in a

capital case was entitled to a new trial

where the forced medication altered the

defendant’s demeanor at trial.

Yet, aS a practical, common-sense

matter, it can hardly be denied

that in a case such as this,

where the defendant appears and

admits committing the criminal

acts charged, constituting first

degree murder, a_- significant

consideration in the minds of the

members of the jury respecting

the penalty to be imposed may

well be their evaluation of

defendant’s attitude in regard to

the crime he has committed. Id.

at 326.

Similarly, the court in State vv.

Maryott, 492 P.2d 239 (CAl Wash. 1971) found

that the defendant had an interest in

presenting his demeanor as evidence at trial

and that the State had no counter-balancing

interest.

When mental competence is at

issue, the right to offer

testimony involves more than mere

verbalization. The demeanor in

court of one who has raised the

issue of his sanity is of

12

probative value to the trier of

fact.

In the instant case, it is

difficult to see a legitimate

state interest in imposing drugs

on a defendant who asks to be

free of them. If the motive is

to control a possibly

obstreperous defendant, two

conclusions are suggested,

analogously, by the reasoning in

Allen. First, no control should

be imposed until its need has

been demonstrated. Second, the

control which is imposed should

insure an orderly trial with the

least interference with a

defendant’s rights. Id. at 242,

243.

In In re Pray, 336 A.2d 174 (Vermont

1975), the defendant’s murder conviction was

reversed based upon the fact that the jury

had not been informed that the defendant was

under heavy medication at trial. The

Vermont Supreme Court recognized the

importance of the defendant’s demeanor

during trial.

The more serious question, in the

Situation of this case, is the

impact of a heavily sedated

defendant upon the jury’s

evaluation.

In other words, the jury

never looked upon an unaltered,

undruged Gary Pray at any time

during the trial. Yet his

deportment, demeanor, and day-to-

13

day behavior during that trial,

before their eyes, was a part of

the basis of their judgment with

respect to the kind of person he

really was, and the

justiciability of his defense of

insanity. Id. at 177.

Certainly, a case where the jury was not

apprised of the forced medication of the

defendant presents a more serious violation

of due process than the case at bar.

However, Amicus asserts that merely

apprising the jury of the medication cannot

cure the due process violation in the

absence of any compelling State interest in

forcing the medication upon a defendant.

The court in Com. v. Louraine, 453

N.E.2d 437 (Mass.1983) also reversed a first

degree murder conviction where the defendant

was forcibly medicated during trial. The

court held that the defendant’s demeanor was

critical evidence and that the presentation

of expert testimony regarding the effects of

the medication would not cure the

constitutional violation.

In a case where an insanity

defense is raised, the jury are

likely to assess the weight of

the various pieces before them

with reference to the defendant’s

demeanor. Further, if the

defendant appears calm and

controlled at trial, the jury may

well discount any testimony that

the defendant lacked, at the time

of the crime, substantial

capacity either to appreciate the

wrongfulness of his conduct or to

14

conform his conduct to the

requirements of the law.

The ability to present

expert testimony describing the

effect of medication is not an

adequate substitute. At best,

such testimony would serve only

to mitigate the unfair prejudice

which may accrue to the defendant

as a consequence of his

controlled outward appearance.

It cannot compensate for the

positive value to the defendant’s

case of his own demeanor. Id. at

442.

The Louraine court also noted that if

the State were allowed to forcibly medicate

the defendant during trial, the State would

thus have the ability ”’to determine what

the jury will see or not see of the

defendant’s case by medically altering the

attitude, appearance and demeanor of the

defendant ...’” Id.

Amicus asserts that it is

uncontroverted that a defendant’s demeanor

at trial is of critical relevance where the

sanity of the defendant is in issue.

Furthermore, the substitution of an expert’s

sterile testimony regarding what the

defendant’s demeanor would be, absent forced

medication, cannot substitute for the jury’s

view of an unmedicated defendant.

It can therefore be inferred

that when an insanity defendant

with a history of schizophrenia

and psychotropic drug treatment

appears, due to such treatment,

15

to be calm, in control, and

capable of understanding’ the

proceedings against him, a jury

may be strongly inclined to

ignore the expert witness’s

assessment of psychiatric

impairment. Such a jury will be

much more likely to find the

defendant guilty, rather’ than

acquitting him on grounds of

insanity. Instead of seeing a

violent, extremely disturbed

individual, careening out of

control because of his normal

thought processes, the jury may

easily perceive the defendant as

a "calculating, merciless

criminal,” unmoved by trial

testimony relating to the

grotesque and terrifying conduct

in which he is alleged to have

engaged. Fentiman, supra, at

1131.

Amicus asserts that where the State’s

interest in proceeding to trial is

protected, preventing a defendant ' from

presenting his true unmedicated demeanor at

that trial violates the Constitution and

mandates reversal.

Itt. A DEFENDANT HAS THE RIGHT

TO WAIVE HIS RIGHT TO BE

COMPETENT TO STAND TRIAL IN ORDER

TO PROPERLY EFFECT HIS DECISION

TO PRESENT AN INSANITY DEFENSE.

Although the historical underpinnings

of the prohibition against trial and

punishment of a mentally incompetent

defendant are somewhat vague, American

16

courts have uniformly recognized that

principle. Ford v. Wainwright, supra, at 477

U.S. at 401, 408-409, 106 S.Ct. at 2597,

2601. The State should not be allowed,

however, to use the defendant’s

constitutional shield against being tried

while incompetent as a sword with which to

prevent the presentation of exculpatory

evidence by the defendant. Should the

defendant make a valid waiver of his right

not to be tried while incompetent, the only

State interest then being impacted would be

an interest in having a strategic advantage

at trial. This is, presumably, not such an

interest that will be recognized as

justifying the deprivation of the

defendant’s right to fairly present his or

her defense.

While Amicus certainly agrees with the

general principle that incompetent

individuals should not be subjected to

criminal prosecution but should rather be

provided humane medical assistance,

adherence to that principle does. not

contraindicate exception when necessary to

protect the defendant from greater a harm.

The case at bar best illustrate’s the reason

for the exception. Here, the State of

Nevada is aggressively attempting to bring

about the Petitioner’s death. They have

succeeded in accomplishing that goal to

date- the Petitioner sits on death row. In

order to avoid his death, the Petitioner

sought to present a defense- his insanity.

The State prevented the proper presentation

of that defense by forcing the Petitioner to

accept each day during trial the maximum

recommended dosage of a strong psychotropic

drug. This was done without apparent

inquiry into whether the State had any

17

proper interest in forcing the Petitioner to

be drugged.

Certainly, the State has no

recognizable interest in requiring a

defendant to assert the right to be

competent during trial. Should the

defendant decide, with the advice of

counsel, to waive that right, that trial

strategy decision does not impact the State

at all. Additionally, the State can hardly

be heard to seriously suggest that the

desire to force psychotropic medication on

a defendant is done with the defendant’s

best medical interests in mind. Here, the

State is seeking to kill the Petitioner.

The Petitioner should have the right to

decline any supposed humanitarian concerns

for his well-being in the interim before his

execution if that decision is made in order

to safeguard the right to a fair trial.

Simply put, allowing a defendant to

waive his riyht to be competent at trial

avoids any conflict between the State’s

right to a trial and the defendant’s right

to present a defense. The solution

suggested here has been noted in at least

two of the cases that have addressed the

issue, Louraine, supra, at 444, fn. 13,

State v. Hayes, 389 A.2d 1379, 1382 (1978),

as well as the commentary by Professor

Fentiman.

This Court has long recognized the

ability of a defendant to waive various

constitutional rights implicated in criminal

prosecutions. The defendant may waive the

privilege against self-incrimination,

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966), the right to

18

counsel, Faretta v. California, 422 U.S.

806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975),

the right to be present at trial, Taylor v.

United States, 414 U.S. 17, 94S. Ct. 194, 38

L.Ed.2a 174 (1973), and numerous other

privileges considered to be foundational

rights. Therefore, there seems to be no

principled reason why the Petitioner should

not have been allowed to waive his right to

be competent during trial, if indeed that

would have been the result of termination of

medication, if that decision was made in

consultation with his counsel and for the

purpose of presenting his insanity defense.

See Fentiman, supra, at 1157.

The process that has been suggested

would protect all interests implicated in

the decision to avoid forced medication.

The defendant would be medicated prior to

trial so as to allow the defendant to assist

counsel and make a rational and informed

decision to forego medication. The trial

court would then, upon the defendant’s

request, conduct a hearing into whether the

defendant’s decision to terminate forced

medication was knowingly and intelligently

made. If the trial court determined that

the decision was competently made,

medication would be halted sufficiently

prior to trial so as to ensure that the

defendant would appear before the jury in

his or her true mental state.

Such a defendant would be acting

in accordance with the essential

purposes of the incompetency

prohibition. He would be able to

function as a defendant in terms

of active and comprehending

pretrial preparation, and he

19

would be able to understand why

he was charged and why he might

be punished. He would be able to

recall pertinent facts, identify

potential witnesses, and discuss

with his attorney alternative

trial strategies. As a result,

the defendant would be able to

persuasively mount- the best

defense available to him- that he

was insane at the time of the

offense. Fentiman, supra, at

1159.

This procedure would seem to avoid all

constitutional pitfalls. The defendant is

able to present an adequate defense and the

State is able to proceed with trial. As

opposed to simply denying the defendant the

right to present his or her only defense,

this procedure would seem to protect the

rights of all involved. Petitioner asserts

that this is the procedure that should have

been followed below.

Iv. THE DEPRIVATION OF THE

PETITIONER'S FUNDAMENTAL DUE

PROCESS RIGHT TO PRESENT A

DEFENSE CANNOT BE CONSIDERED

HARMLESS ERROR.

The court has generally allowed resort

to harmless error analysis where it can be

shown beyond a reasonable doubt that the

constitutional error did not contribute to

the verdict. Chapman v. California, 386 U.S.

18, 24, 87 S.Ct. 824, 830, 17 L.Ed.2d 705

(1967). The Court ‘has allowed harmless

error analysis, even in capital cases, where

the error complained of was discrete in

nature. Satterwhite v. Texas, 486 U.S. 249,

20

256, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988).

"Some constitutional violations, however, by

their very nature cast so much doubt on the

fairness of the trial process that, as a

matter of law, they can never be considered

harmless.” Id., 486 U.S. 256, 108 S.Ct.

1797; Gray v. Mississippi, 481 U.S. 648,

668, 107 S.Ct. 2045, 2049, 97 L.Ed.2d 622

(1987). Amicus asserts that the error at

bar cannot, as a matter of law, be

considered harmless error.

Deprivation of a defendant’s right to

present his defense, free from unnecessary

interference by the State, “goes to the very

integrity of the legal system.” Gray, 481

U.S. at 668, 107 S.Ct. at 2049. There can

be nothing more fundamental. As such,

harmless error analysis should not be

utilized.

Vv. EVEN IF THE COURT UTILIZES A

HARMLESS ERROR STANDARD FOR THE

DEPRIVATION OF THE FOUNDATIONAL

RIGHT OF A DEFENDANT TO PRESENT A

DEFENSE, IT CANNOT BE SAID THAT

THE REFUSAL TO ALLOW THE

DEFENDANT TO PRESENT TO THE JURY

HIS OWN MENTAL STATE AS EVIDENCE

IN AN INSANITY DEFENSE TRIAL IS

HARMLESS ERROR.

Even if the Court does resort to

the harmless error analysis in cases, such

as this, where the defendant has been

deprived by the State of the opportunity to

present an adequate defense, Amicus asserts

that such error cannot be considered

harmless under the facts at bar. Even the

State cases that have held that a

defendant’s rights were not fatally violated

21

through forced medication have recognized

that the defendant’s demeanor is relevant in

an insanity defense trial.

Under Chapman, 386 U.S. at 23, 87

S.Ct. at 827-828, the State is required to

prove beyond a reasonable doubt that the

forced medication did not contribute to the

Petitioner’s conviction or the sentence of

death. Petitioner asserts that such a

showing is not possible in a case where the

Petitioner’s demeanor was so relevant and

that demeanor was artificially altered by

the State. It would seem a rare case indeed

where the State asserts that medication of

a defendant is necessary in order to make

him or her competent to stand trial yet the

unmedicated demeanor of the defendant would

have no effect on a jury’s determination of

the sanity question.

Vv. CONCLUSION

Amicus asserts that this case does not

have to involve a constitutional conflict

between the Petitioner’s due process right

to present his defense and the State’s right

to prosecute. Once it is acknowledged that

the Petitioner may waive his right to be

competent at trial, if in fact’ the

termination of medication will lead to

incompetence, then all constitutional

friction disappears.

Amicus further asserts that any error

which leads to the deprivation of the

Petitioner’s right to present a defense is

fundamental and should not be considered

under the harmless error analysis. However,

if the harmless error rule is applied, it

cannot be said that deprivation of the

22

Petitioner’s ability to present his

unmedicated demeanor in support of his

insanity defense is harmless beyond a doubt.

Amicus respectfully urges this Court to

hold that a defendant has the right to waive

competency at trial in order to present his

or her insanity defense. Amicus further

urges this Court to hold that the harmless

error rule has no place when considerations

of such foundational importance are

involved.

Amicus urges reversal of the case

at bar.

Respectfully submitted,

KEVIN M4. KELLY

KEVIN M. KELLY, ESQ.

Nevada Attorneys for

Criminal Justice

302 Carson Ave., Suite 600

Las Vegas, Nevada 89101

(702) 385-7270

Counsel for Amicus Curiae

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CERTIFICATE OF MAILING

I hereby certify that I an am employee

of KEVIN M. KELLY, LTD. and that I am not a

party to nor interested in the within

action; on the /* _ day of November, 1991,

I deposited three (3) true and correct

copies of the BRIEF OF AMICUS CURIAE in the

United States mails, first class postage

prepaid thereon, addressed to the following:

MACE J. YAMPOLSKY, ESQ.

625 South 6th Street

Las Vegas, Nevada 89101

(702) 385-9888

Counsel for Petitioner

REX BELL

District Attorney

JAMES TUFTELAND, ESQ.

Chief Deputy District Attorney

200 South Third Street

Las Vegas, Nevada 89155

~(702) 455-4711

Counsel for Respondent

KEVIN M. KELLY

An employee of KEVIN

M. KELLY, LTD.

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