Amicus Curiae Brief — Riggins v. Nevada

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S,

FILED

No. 90-8466 , HOV) 1 294

IN THE OFFISE OF The GLKA

Supreme Court of the United States

OCTOBER TERM, 1991

DAVID E. RIGGINS,

Petitioner,

STATE OF NEVADA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF NEVADA

BRIEF AMICUS CURIAE OF THE COALITION FOR

THE FUNDAMENTAL RIGHTS OF EQUALITY OF

EX-PATIENTS IN SUPPORT OF PETITIONER AND

FOR REVERSAL OF THE JUDGMENT BELOW

WILFREDO CARABALLO PETER MARGULIES*

Public Advocate of New Jersey Visiting Professor

Department of the Public Advocate City University of New York

Of Counsel and on the Brief a : eee —_—" ae

PATRICK REILLY Flushing, New York 11367

Deputy Director (718) 575-4386

Division of Mental Health Advocacy ess

CN 850 ELLEN SAIDEMAN

Trenton, New Jersey 08625 HIERBERT SEMMEL

(609) 292-1780 New York Lawyers for the

Public Interest, Inc.

30 West 21st Street

New York, New York 10010

(212) 727-2270

* Counsel of Record

7 (eet ee Oe

Ne ell al i tee Be al , '

QUESTION PRESENTED FOR REVIEW

Whether forced medication at trial of a defendant who has

asserted the insanity defense in a capital case violates his right to a

full and fair trial under the Sixth and Fourteenth Amendments to the

United States Constitution.

TABLE OF CONTENTS

EE ee

I. —Statement of Interest of Amicus Curiae............

11. —Summary of Argument ............-00eeeeeeee

DE cnc cceccescccccscccccsccccccesccess

A. Because of Its Known, Intended Effects, Involuntary

Drugging During Trial Interfered with Petitioner's

Constitutional Right To Confrontation. ...........

The Known, Intended Effects of Mellaril Were

to Sedate Petitioner and Deaden His Emotions. .

The Involuntary Drugging Interfered with

Petitioner's Confrontation Rights ............

There Was No Constitutional Justification For Invo-

luntarily Drugging Petitioner During Trial ........

Because of the Powerful and _ Potentially

Dangerous Side Effects of These Drugs, Peti-

tioner Should Have Been Given Every Oppor-

tunity to Avoid Being Involuntarily Drugged at

REG EEe eee eng eareccececoucececs

Any Balancing of Interests Here Favors

Petitioner's Interest in Not Being Involuntarily

TE ntceebecnccccosccovcences

Forced Drugging Interfered with the Petitioner's

Right to Present an Insanity Defense Because the

Jury Was Unable to See His Natural Demeanor and

Instead Medication Rendered His Demeanor Sedated

Des ccc ecesceeusseccceses

Neen ee wc eeccesees

iii

PAGE

TABLE OF AUTHORITIES

Cases

Ake v. Oklahoma, 470 U.S. 68 (1985) ... 2.6... eee eens 2,8

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

denied, 469 U.S. 1214 (1985) ......- 6-6 e eee eee 17-18, 19,22

California v. Green, 399 U.S. 149 (1970) ... 6... 0. eee eee 13

Commonwealth v. Louraine, 398 Mass 28, 453 N.E.2d 437

ED doveninkaccdoeduccusetnanssehensey couse 23,27

Coy v. lowa, 487 U.S. 1012 (1988) .. 2.6... 9,13,14

Diaz v. United States, 223 U.S. 442 (1912) ..........45. 10

Dowdell v. United States, 221 U.S. 325 (1911) .......... 10

Gardner v. Florida, 430 U.S. 349 (1977)... 0... cece eee 19

Geders v. United States, 425 U.S. 80 (1976) ............ 13

Illinois v. Allen, 397 U.S. 337 (1970) ........--.-5- 10, 11,12,21

Jones v. Gerhardstein, 114 Wis.2d 710, 416 N.W.2d 883

SR o duck dn duensndondvudusdeensensexebuseess 3

Jones v. United States, 463 U.S. 354 (1983) ............ 21

Large v. Superior, 714 P.2d 399 (Ariz. 1986) ........... 18

Maryland v. Craig, ___ U.S. ___, 110 S. Ct. 3157 (1990). .9, 12, 13

Mattox v. United States, 156 U.S. 237 (1885) ........... 10

Medina v. California, cert. granted, 60 U.S.L.W. 3330

(U.S. Oct. 21, 1991) (No. 90-8370). ...........000e 26

PAGE

Mills v. Rogers, 457 U.S. 291 (1982) ...........eeeeees 2,5,21

Morrisette v. United States, 342 U.S. 246 (1952)......... 26

Perry v. Leeke, 468 U.S. 272 (1989) ............ee eee: 13

Perry v. Louisiana, U.S. ,111 S.Ct. 449(1990).. 3,8,20

In re Pray, 133 Vt. 253, 336 A.2d 174 (1975) ........... 19

Rennie v. Klein, 720 F.2d 266 (3d Cir. 1983)............ 2,3,21

Riese v. St. Mary's Hosp. & Medical Center, 196 Cal.

App. 3d 1388, 243 Cal. Rptr. 241 (1987)............. 3

Sandstrom v. Montana, 442 U.S. 510 (1979)... ......... 26

State v. Maryott, 6 Wash. App. 96, 492 P.2d 239 (1971). 19,23,24

See U. , Ge Us DOs ccc ccceccacscccesees: 2

Turner v. Salfey, 483 U.S. 78 (1987) .......ccc ee ceeees 17

United States v. Charters, 863 F.2d 302 (4th Cir. 1988),

cert. denied, 110 S. Ct. 1317 (1990) .............. 18, 19,22

United States v. Watson, 893 F.2d 970 (8th Cir.

Ph. «sents eedececed hb oe deed eed tee nkae ks 21

Vitek v. Jones, 445 U.S. 480 (1980) ..............205.- 21,22

Washington v. Harper, 494 U.S. 210 (1990). . 3,5, 17, 19, 20,21, 22

Winston ¥. Lee, STO U.S. FEB (IDES) 2. ccc csccccccccces 22

Constitutional Provisions

i eeieke eb aeedes

rs cee se ennenneees seen

Statutes

LR Pod | OU OT EPPPTETITET TET Tree

lowa Code § 910A.14 (1987) .........cc cece ee ecccees

Miscellaneous

Alexander, ‘‘Cardiotoxic Effects of Phenothiazine and

Related Drugs,’* 38 Circulation 1014 (1968)..........

Ananth & Lin, *‘SIADH: A Serious Side Effect of Psycho-

tropic Drugs,”’ 16 /nt'l J. Psych. Med. 401 (1987)......

Axelsson & Ohman, ‘‘Pattems of response to neuroleptic

treatment: Factors influencing the amelioration of indivi-

dual symptoms in psychotic patients,’’ 76 Acta Psych.

Se Te kk cvcccserceneceseevecesscenss

Ball & Caroff, ‘‘Retinopathy, Tardive Dyskinesia and

Thioridazine,”’ 143 Am. J. Psych. 256 (1986) .........

Barancik, Brandborg & Albion, **Thioridazine-Induced

Cholestosis,’’ 200 JAMA 69 (1967) ..... 6.6.2 eee eee

Bell & Loftus, ‘* Vivid Persuasion in the Courtroom,’’ 49 J.

Personality Assessment 659 (1985) ... 6... 602-0 e eee

Blackbum, ‘*New Directions in Mental Health Advocacy?

Clozapine and the Right of Medical Self-

Determination,’’ 14 A.B.A. Mental & Physical Disability

L. Rep. 433 (IDID) 2. cccvcccccccsccvcccccsesces

PAGE

passim

Cameron & Wisner, ‘‘An Anticholinergic Toxicity Reac-

tion to Chlorpromazine Activated by Psychological

Stress,’" 167 J. Nervous & Mental Disorders 508(1979)

Carlton, A Primer of Behavioral Pharmacology (1983)

Davidorf, ‘‘Thioridazine Pigmentary Retinopathy,’ 90

I Se Ge In 06 68 hK ce séacevcececs:

Diagnostic and Statistical Manual of Mental Disorders (3d

Se ee EE hobo bee eae ee chee shee sanuaen es

Doyle, *‘Silver Blaze’’ in The Complete Sherlock Holmes

TCO SCTE C CTC T Te TTT TTT TET TET rer Tre

‘Drugs and Social Behavior’’ in Psychoactive Drugs and

Social Judgment 25 (Hammond & Joyce, eds. 1975)... .

Ennis & Litwack, *‘Psychiatry and the Presumption of

Expertise: Flipping Coins in the Courtroom,’’ 62 Calif.

EE cho cbbdwvasseeeessadcenuaudeses

Fentiman, *‘Whose Right Is It Anyway? Rethinking Com-

petence to Stand Trial In Light of the Synthetically Sane

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

Ferleger, ‘‘Loosing the Chains: In-Hospital Civil Liberties

of Mental Patients,’’ 13 Santa Clara Law. 447 (1973) ..

Friedman, ‘*The Concept of Self in Legal Culture,’ 38

Se ED Sovechsecueseseesecencees

Geimer & Amsterdam, *‘Why Jurors Vote Life or Death:

Operative Factors in Ten Florida Death Penalty Cases,”’

RP ee Gin Is 6 cin cd ceccnusaccsucses

Geller, Erlen, Kaye & Fisher, ‘‘Feigned Insanity in

Nineteenth-Century America: Tactics, Trials and Truth,”’

oe FE Per ree

21,

Vii

Gillies & Lader, Guide to the Use of Psychotropic Drugs

oie ckdctdncetkenddud keen CONSS 9800885 40

Gillis, **The Effects of Selected Antipsychotic Drugs on

Human Judgment,’’ 21 Current Therapeutic Research

, |, PPT Tre TerTi TT Ts TTT Ti

Giron, ‘Tardive Dystonia After a Short Course of Thiori-

dazine,’’ 24 J. Fam. Prac. 405 (1987)... 2.66.66. 6 06

Gonzalez, ‘‘Disadvantages of Prescribing Thioridazine,”’

138 Am. J. Psych. VU31 (1981)... cece eee eee eens

Goudie & Emmett, Psychoactive Drugs: Tolerance and

Grebb & Cancro, **Schizophrenia: Clinical Features,’’ in

Comprehensive Textbook of Psychiatry 757 (Sth ed.

Perr Terror Tort tri Te eee

Green & Salzman ‘*Clozapine: Benefits and Risks,’’ 14

Hospital & Community Psych. 379 (1990)... 6.6 6

Griswold, *‘The Due Process Revolution and Confronta-

ten °° 199 U. Pa. L. Bev. TUG CIGTE) . ww ccc cccceces

Gutheil & Appelbaum, ***Mind Control’, ‘Synthetic San-

ity’, ‘Artificial Competence’ and Genuine Confusion:

Legally Relevant Effects of Antipsychotic Medication,”

12 Hofstra L. Rev. 77 (1983) «2.2.66 0 cece ener

Haberman, **Malignant Hypothermia: An Allergic Reaction

to Thioridazine Therapy,"’ 138 Arch. Internal Med. 800

SN cca n ceusttcl ests beshndnek tense swenseees

Handbook of Stress: Theoretical and Clinical Aspects

(Goldberg & Breznitz, eds. 1983)... ....- 6-66 eee eee

Vii

Hitri, Carter, Shoh, Borison & Diamond, **Neuroleptic

Blood Levels and Tardive Dyskinesia,’’ in Chronic

Treatments in Neuropsychiatry’’ (1985) .............

Horton, ‘‘Restoration of Competency for Execution:

Furiosus Solo Furore Punitur,”’ 44 Sw. LJ. 1191 (1990)

Hussain & Murphy, ‘‘Thioridazine-induced toxic

psychosis,"’ 104 Can Med. AJ. 884 (1971)... 2.0.0...

Iversen & Iversen, Behavioral Pharmacology

RR eT rer rer ere ere rey Te rrr e

Judd, Goldstein, Rodnich & Jackson, ‘‘Acute Schizo-

phrenia and Phenothiazine”™’ in Psychopharmacology and

the Individual Patient 83 (1970)... 0.0.0... 0 0000000

Kelly, Fay & Lavery, **Thioridazine Hydrochloride (Mel-

laril): Its Effect on the Electrocardiogram and a Report

of Two Fatalities with Electrocardiographic Abnomnali-

ties," 89 Can. Med. AJ. 546 (1963) ........0....0.5..

Klein, Gittelman, Quitkin & Rifkin, Diagnosis and Drug

Treatment of Psychiatric Disorders (1980)... ........

Koschlo, Dolor & Lipper, *‘Delayed Onset of Neuroleptic

Malignant Syndrome after Discontinuation of Thiorida-

zine,”’ 10 J. Clinical Psychopharmacology 146 (1990) . .

Kotin, Wilberg, Verbert and Solinger, ‘*Thioridazine and

Sexual Dysfunction,’* 133 Am. J. Psych. $2 (1976)... ..

Leesuma & Koening ‘‘Sudden Death and Phenothiazine,"’

1S Arch. Gen. Payoh. 137 (19GB) 2... cc ccc ccc cccees

Leger, ‘*A Four-Year Appraisal of Thioridazine,”’ 123 Am

Se SE EY i hoa Nese edewes be sceaeeecaes

PAGE

Lindsay, DeVane, Williams & Wilkins, Fundamentals for

Monitoring Psychoactive Drugs (1990) ...........4.4. 5

Mendel, Treating Schizophrenia 166 (1989) .......... 6

Moore, MacFarlane & Blumhardt, *‘Neuroleptic Malignant

Syndrome,”’ 53 J. Neurology, Neurosurgery, & Psych.

gr ee ere ee 15

National Institute of Mental Health, Schizophrenia: Ques-

tions and Answers (Pamphlet, 1986) ..............5. 27

Note, “‘Eighth Circuit Applies the Confrontation Clause at

a Sentencing Hearing,’ 17 Wm. Mitchell L. Rev. 829

SG esos eussane see bnesdneeeneeeeeaeiaseuss 14

Perlin, *‘Unpacking the Myths: The Symbolism Mythology

of Insanity Defense Jurisprudence,’’ 40 Case W. Res. L.

he Rtaw nid env dnhei ens nednstdeeas 19,20, 27

Perry, Alexander, & Liskow, Psychotropic Drug Handbook

SRP TT COTTE TOT TET TT TTT eT TEC CC TTT 5

Physicians’ Desk Reference (45thed. 1991)... ee ee 5

Plotkin & Riging, *‘Invisible Manacles: Drugging mentally

retarded people,’* 31 Stanford L. Rev. 637 (1979) ...... 12

Poythress & Stoch, ‘*Competency to Stand Trial: A Histor-

ical Review and Some New Data,”’ 8 J. Psych. & L. 131

8 PTT TY TT TP ee TTT Tee TUTTE TTT eee 19

Reyes, Thompson & Bower, *‘Judgmental Biases Resulting

from Differing Availabilities of Arguments,”’ 36 J. Per-

sonality & Soc. Psych. 2 (1980) ..........00 020 c eae. 26

Rosenzweig & Griscom, Psychopharmacology and

PR CUD 6a bu'suideewss Ghpadewd-eneane

Rothstein, ‘‘Allergic Reactions to Thioridazine,’’ 290 N.

is ce ED nbs 44 ku heed eccdbenvunasess

Saks & Kidd, ‘‘Human Information Processing and Adjudi-

cation: Trial by Heuristics, ’’ 15 Law & Soc. Rev. 121

SE Added euchieelanundudeudbaaseeneniceua

Schwalb, ‘‘Child Abuse Trials and the Confrontation of

Traumaiized Witnesses: Defining ‘Confrontation’ to

Protect Both Children and Defendants,’ 26 Harv. Civ.

Rights & Civ. Liberties L. Rev. 189 (1991) ...........

Shedler & Manus, *‘Can the Availability Heuristic Explain

Vividness Effects?’’ 51 J. Personality & Soc. Psych.

PE hab ake cane tuned seen edee ce euunee cs

Slobogin, ‘*‘Dangerousness and Expertise,’ 133 U. Pa. L.

ssa al de eee see ee hee seeks

Sovner, ‘‘Behavioral Psychopharmacology Update,’’ 9

Habilitative Mental Healthcare Newsletter 34 (1990)...

Spitz & Rosenan, Cocaine Abuse (1987) ...............

Spotts & Shontz, Cocaine Users (1980)..............-.

Taylor & Thompson, ‘‘Stalking the Elusive ‘Vividness’

a Rs ee

Torrey, Surviving Schizophrenia (1983)... 2... .6.4.4.

Urberg, ‘‘Thioridazine-Induced Non-Icteric Hepatotoxi-

city,’’ 30 J. Fam. Prac. 342 (1990) .............006.

PAGE

Wendkos, *‘Thioridazine and Electrocardiographic Abnor-

malities,"" 89 Can. Med. AJ. 1297 (1963) ..........-.

Wilens & Stern, ** Ventricular Tachycardia Associated with

Desipramine and Thioridazine,’’ 31 Psychosomatics 100

AEE Rey errr reser ee eet rere te

Winslow, **‘Courts Consider Schizophrenia Drugs Access,”’

Wall Se. J..B1i (Qotober 5, DFO) 2... cw wccccscccsces

World Health Organization, Adverse Consequences of

Cocaine Abuse (Asis e0. 1967)... 2. cccccccscescess

Zammit & Sullivan, *‘Thioridazine and Neuroleptic Malig-

nant Syndrome,”’ 22 Biol. Psych. 1296 (1987) (letter)...

No. 90-8466

Supreme Court of the United States

OCTOBER TERM, 1991

DAVID E. RIGGINS,

Petitioner,

‘

STATE OF NEVADA,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF NEVADA

BRIEF AMICUS CURIAE OF THE COALITION FOR

THE FUNDAMENTAL RIGHTS OF EQUALITY OF

EX-PATIENTS IN SUPPORT OF PETITIONER AND

FOR REVERSAL OF THE JUDGMENT BELOW

STATEMENT OF INTEREST OF AMICUS CURIAE

This brief amicus curiae is being filed in support of the Petitioner

and his arguments against his drugging at trial and for reversal of

the judgment below. This case is of paramount concem to all of the

organizations participating in the advocacy of amicus curiae, the

Coalition for the Fundamental Rights and Equality of Ex-patients

(*‘The Coalition for the Free’’).' Since the issue of involuntary use

1. The participants in the Coalition for the FREE are as follows:

The NATIONAL MENTAL HEALTH ASSOCIATION

(“‘“NMHA"’) is the nation’s oldest and largest non-governmental,

citizens’ voluntary organization concemed with mental illnesses and

mental health. Founded in 1909 by Clifford Beers, a man who suf-

fered from a serious mental illness, the NMHA has historically led

efforts on behalf of mentally ill people in institutions and the com-

munity. The NMHA has grown into a network of 650 chapters and

of psychotropic drugs first emerged, the Coalition and many of its

State divisions working across the United States. It is composed of

volunteers who include family members whose loved ones have been

affected by mental illness and former patients. All are committed to

advocacy for the improved care and treatment of mentally ill people,

the promotion of mental health and the prevention of mental

illnesses.

The NATIONAL ASSOCIATION OF PROTECTION AND

ADVOCACY SYSTEMS (‘‘NAPAS"’) represents agencies esta-

blished pursuant to the Protection and Advocacy for Mentally Indivi-

duals Act of 1986, 42 U.S.C. § 10801, et seg. These agencies have

the statutory mandate to protect and advocate the rights of persons

identified as mentally ill.

PENNSYLVANIA PROTECTION AND ADVOCACY, INC.

(“‘PP&A’’) is the federal protection and advocacy agency in Pennsyl-

vania for persons diagnosed as mentally ill pursuant to 42 U.S.C.A.

§ 10801 et seg. PP&A has represented persons who were being

drugged while on tnal, including persons raising the insanity defense.

PP&A has been amici in numerous cases, most recently, Sullivan v.

Zebley, 493 U.S. 521 (1990).

The NEW JERSEY DEPARTMENT OF THE PUBLIC ADVO-

CATE (*‘New Jersey Public Advocate’’), through its DIVISION OF

MENTAL HEALTH ADVOCACY (**‘DMHA’"’), is a cabinet-level

state agency that has represented psychiatric patients for 17 years in a

wide range of matters including civil commitment and medication

refusal, pursuant to enabling legislation, N.J.S.A. 52:27E-21 through

27. The New Jersey Public Advocate is the federal protection and

advocacy Agency in New Jersey under 42 U.S.C.A. 10801 ef seg.

DMHA represented the plaintiff class in Rennie v. Klein, 720 F. 2d

266 (3d Cir. 1983), one of the first cases to determine the right of

psychiatric patients to refuse psychotropic medication. DMHA has

filed numerous amici briefs on issues related to patients’ rights, men-

tal health advocacy, and the “‘right to refuse’’ drugging. See, e.g.,

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

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

(1982).

The MENTAL HEALTH CONSUMERS’ NATIONAL LEGAL

DEFENSE AND EDUCATION PROJECT was organized by consu-

mers in Philadelphia, Pennsylvania in 1988 to provide technical

assistance, research and training to mental health consumers and their

advocates on legal and policy issues involving mental illness and

members have previously been involved in similar ‘‘right to

refuse’’ drugging cases in federal and state courts across the coun-

try,” as well as in ‘‘right to refuse’’ issues before this Court.”

Many of the members of the Coalition’s constituent groups are

themselves mental health consumers who have had their own

experiences with the drug involved here and other similar drugs,

including drugging during trial proceedings. Many of the other

Coalition members are family members and advocates for persons

involved in issues related to forced druggings. Because of the

Coalition’s long-demonstrated concem about the issues related to

forced drugging throughout our society, particularly where an indi-

vidual who has been diagnosed with mental illness is raising the

insanity defense in a capital case, the Coalition has a strong interest

in participating as amicus curiae in this case.

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

legislatures and agencies on matters affecting their lives as consu-

mers of mental health services.

The MENTAL HEALTH PATIENT’S ASSOCIATION OF NEW

JERSEY, established in 1984, is a statewide network of individuals

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

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

mental health consumers.

The MENTAL PATIENTS’ ASSOCIATION OF PHILADEL-

PHIA was formed in 1985 in an effort to organize mental health con-

sumers to oppose all efforts to erode the rights and freedoms of those

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

end to discrimination against the psychiatrically disabled in any form.

2. See, e.g., the briefs amicus curiae filed by the Coalition in Riese v. St.

Mary's Hosp. & Medical Center, 196 Cal. App. 3d 1388, 243 Cal. Rptr.

241 (1987) and by members of the Coalition in Jones v. Gerhardstein, 114

Wis.2d 710, 416 N.W. 2d 883 (1987) and, previously, the representation

of the plaintiff class by the New Jersey Public Advocate throughout the

case of Rennie v. Klein, 720 F. 2d 266 (3d Cir. 1983) (en banc)

3. See, e.g. the briefs amicus curiae of the Coalition and that of the New

Jersey Public Advocate, separately, in Washington v. Harper, 494 U.S.

210 (1990) and, together, in Perry v. Louisiana, 111 S. Ct. 449 (1990)

II.

SUMMARY OF ARGUMENT

Sedation and suppression of emotion are the known, intended

effects of Mellaril, the medication used to drug the Petitioner in this

case. These known, intended effects of Mellaril combined with the

stress of trial, altered his demeanor and behavior so that he appeared

sedated and emotionless. These effects of the forced drugging are

precisely the reasons that such drugging of defendants during trial

violate their constitutional rights to a fair trial and to confront the

witnesses against them under the Sixth Amendment and to due pro-

cess of law under the Fourteenth Amendment. III. A.

Mellan! and other psychotropics are powerful, intrusive and

potentially dangerous drugs which should only be used during trial

when proven to be absolutely necessary in order to protect the

defendant or others. Here, there was no constitutional justification

for continuing the involuntary drugging of Petitioner during trial.

Ill. B.

Forced drugging interfered with the Petitioner's ability to mount

an effective defense because the jury was not permitted to see his

natural, unmedicated demeanor. III. C.

Ill.

ARGUMENT

A. Because of Its Known, Intended Effects, Involuntary

Drugging During Trial Interfered with Petitioner’s

Constitutional Right To Confrontation.

1. The Known, Intended Effects of Mellaril Were

to Sedate Petitioner and Deaden His Emotions.

This case is unusual in that, first and foremost, Petitioner's *‘right

to refuse’’ claim focuses as much on the well known, in-

tended and clearly predictable effects of the drug involved

here,* as on the potentially harmful ‘‘side’’ effects which are usu-

ally the focus of such claims.° In his Motion to Terminate Adminis-

tration of Medication, dated June 10, 1988,° Mr. Riggins pointedly

objected to the very effects for which Mellaril is most noted: seda-

tion and loss of affect or emotion. At trial, he denied that the drug

helped him to understand what was happening at the trial. R. 742.

Significantly, at trial, Mr. Riggins was receiving the maximum dose

of Mellaril, 800 mg.’

}

4. The effects of Mellaril (generic name thioridazine) are described as

follows in the standard drug reference work:

Mellaril (Thioridazine) is effective in reducing excitement,

hypermotility, abnormal initiative, affective tension and agitation

through its inhibitory effect on psychomotor functions. Physi-

cians’ Desk Reference 1951 (45th Ed. 1991) (hereinafter

““*PDR"’).

5. See, e.g. Mills v. Rogers, 457 U.S. 291, 293 n. 1 (1982); Washington

v. Harper, 494 U.S. 210 229 (1990).

6. Record on Appeal (hereinafter *“R."*) at 52.

7. Because of its documented, dangerous side effects (Part II] B below)

the highest recommended dose of Mellaril is 800 mg. R. 415, 473 (“Eight

hundred a day is — well, that’s a pretty high dose’). See Lindsay,

DeVane, Williams and Wilkins, Fundamentals for Monitoring Psychoac-

tive Drugs 377 (1990). (°‘A ceiling dose of 800 mg has been established

to minimize the possibility of pigmentary retinopathy. Thioridazine is

notable for a high frequency of cardiac effects’’). Despite the testimony

before the Court that tolerance develops for such high doses, R.473, it ts

undisputed in psychopharmacological studies that tolerance does not

develop for Mellaril and other similar drugs. See Goudie & Emmett,

Psycholactive Drugs: Tolerance and Sensitization 375 (1989) (tolerance is

“*rarely observed in relation to antipsychotic effects’’); Perry, Alexander,

& Liskow, Psychotropic Drug Handbook 5 (1985) (*‘Tolerance does not

develop to the therapeutic effects of antipsychotics’’). Nor is there any

pharmacological evidence to support the supposed increase in tolerance to

Mellaril due to Petitioner's alleged cocaine use. (R. 473) See, e.g. World

Health Organization, Adverse Health Consequences of Cocaine Abuse, 22

(Aris. ed.) (1987); Spitz & Rosencan, Cocaine Abuse 265-266 (1987):

Spotts & Shontz, Cocaine Users 15-19 (1980).

Riggins’ symptoms, which included auditory hallucinations

(hearing voices), and diagnosis are those of a classic case of schizo-

phrenia.* Given his illness, once the decision was made to drug

Petitioner, any competent medical professional could have readily

foreseen the sedative effects of the drugging on his demeanor, atten-

tion and attitude. R. 419-20, 445-446, 474-75. The sedative effects

of Mellaril— even absent the added effects of stress of trial— have

long been documented in pharmacological texts. Because of the

soporific effects of Mellaril, the PDR cautions patients against parti-

Cipating in activities requiring complete mental alertness such as

driving. Prescribers are advised to administer Mellaril cautiously.”

Finally, the drug’s intended ‘‘calming’’ effects have been

described in terms that are particularly relevant here regarding Mr.

Riggins’ demeanor at trial:

The hostile patient, unreceptive to previous therapy, became

more quiet, more tolerant and less demanding . . . . The

capacity of Thioridazine to suppress the symptoms of

schizophrenia was reflected in the prototype of a calm,

obedient, well-behaved and manageable patient.'“

Indeed, in some of the leading comparative studies of common

psychotropics, the research has demonstrated Mellaril’s particular

efficacy in regard to sedation; Mellaril is ‘‘most likely to produce

8. See Torrey, Surviving Schizophrenia at 2, 6 (1983); Diagnostic and

Statistical Manual of Mental Disorders (3d ed. rev. 1987) (‘‘DSM-III-

R*’), at 194 (diagnostic criteria for schizophrenia); Grebb & Cancro,

**Schizophrenia: Clinical Features," in Comprehensive Textbook of

Psychiatry 757, 761 (Sth ed. 1989)

9. The PDR notes that Mellaril’s basic pharmacological activity is simi-

lar to that of other phenothiazines, which researchers have described as

having *‘a high incidence of sedation, orthostatic hypotension and anticho-

linergic side effects."" Mendel, Treating Schizophrenia 166 (1989)

10. Leger, *‘A Four Year Appraisal of Thioridazine,"’ 123 Am. J. Psych.

728, 729-730, 732 (1966) (emphasis added).

sedation and postural hypotension ... In fact, the marked sedation

often produced by chlorpromazine and thioridazine limits the prac-

tical dosage..."’'' Other leading commentators and researchers

have ldng documented the sedative effects of Mellaril and related

drugs.'*

Morever, Mellaril’s sedative properties also interfere with the

day-to-day intellectual and cognitive performance of its recipients.!*

This deterioration has been observed with Mellaril and other drugs

in its class."

11. Klein, Gittelman, Quitkin and Rifkin, Diagnosis and Drug Treatment

of Psychiatric Disorders 149 (1980) (emphasis added).

12. See, Gillies and Lader, Guide to the Use of Psychotropic Drugs 495

(1986) (“‘In psychiatry thioridazine is used as: A sedative antipsychotic in

schizophrenia ...""); Iversen & Iversen, Behavioral Pharmacology 250

(1975) (‘‘Although the sedative effects of the phenothiazines are their

most dramatic behavioral effect, it is doubtful if their antipsychotic actions

depends on sedation.”’); Rosenzweig & Griscom, Psychopharmacology

and Psychotherapy 127 (1978) (‘They all have sedative properties but

sedation and antipsychotic action are not related, and in some patients

sedation may be an undesirable side effect.... [A]}ntipsychotic action is

unrelated to sedation or anti-anxiety properties. ..’"); Carlton, A Primer of

Behavioral Pharmacology 198 (1983) (“The major secondary effects ..

are ...: 1. Sedative ...°’).

13. Thus the Thioridazine [Mellaril] subjects demonstrate a lower level

of task knowledge and are less consistent than either of the other

drug groups [Haloperidol (Haldol) and Trifluoperazine (Stelazine))}.

The cumulative effects of these deficiencies result in their overall

performance impairment... Thioridazine patients, however, actu-

ally evidenced detenoration in performance after feedback had been

provided in two of three experimental tasks. Gillis, ‘The Effects of

Selected Antipsychotic Drugs on Human Judgment,”’ 21 Current

Therapeutic Research 224, 231 (1977)

14.°*The apparent loss of behavioral response with phenothiazines,

iherefore, seems to be due to a loss of response to certain controlling

stimuli in the environment.’” Iversen & Iversen, Behavioral Pharmacol-

ogy 248 (1975).

Clearly then, drugging with such a powerful sedative affected —

and was affected by—the Petitioner's ability to deal with the

Stressful interactions inherent in a trial situation, especially a capital

trial. The research demonstrates that the effects of psychotropic

drugging are, in tum, affected by the environment in which the

drugging occurs, and are particularly affected by stress.'*

There can be little doubt that a capital trial is highly stressful and,

thereby, produces a psychological reaction that alters responses to

drugging. Thus, the already powerful sedative and other emotion

deadening effects of the drugs may have actually been intensified

during the crucial *‘confrontation’’ phase of Mr. Riggins’ trial

proceedings. The primary intended result of the drugging—

15. Conditions of stress... alter the physiological state of the organism,

affecting hormonal balances and central nervous system function-

ing. Thus it follows that drug responses should also be altered by

stress .... That is, stimulus conditions perceived as uncomfortable

or dangerous can result in individual homeostatic changes. Stress

may cause profound central and peripheral changes which are not

always adaptive. Hypoxia, hypothermia, exercise, and psychologi-

cal stress all cause activation of the sympathetic nervous system and

bring about “‘stress hypoglycemia’’, in which glucose metabolism is

changed and insulin secretion inhibited by epinephrine. Since the

CNS itself is not sensitive to insulin, it utilizes the available glucose.

So these changes in insulin regulation and glucose metabolism

underlie certain altered responses to drugs during stress.

‘Drugs and Social Behavior’’ in Psychoactive Drugs and Social Judg-

ment 25 (Hammond & Joyce, eds. 1975) (emphasis added). See also,

Handbook of Stress: Theoretical and Clinical Aspects, at 340-45 (Gold-

berg & Breznitz, eds. 1983). See also, Cameron & Wisner, **An Anticho-

linergic Toxicity Reaction to Chlorpromazine Activitated by Psychologi-

cal Stress,’* 167 J. Nervous & Mental Disorders 508 (1979).

Before this Court, Amicus and its members have long noted the impact

of stress on the effects of these drugs. See, e.g., Brief amicus curiae of the

Coalition for the FREE in Perry v. Louisiana, 111 S. Ct. 449 (1990), at 12,

n.9 and the Brief amicus curiae of the New Jersey Department of the Pub-

lic Advocate in Ake v. Oklahoma, 470 U.S. 68 (1985), at 52, n. 41.

sedation— tends to defeat the Petitioner's interests in being present

and involved at his own trial.

2. The Involuntary Drugging Interfered with

Petitioner’s Confrontation Clause Rights

This Court has twice recently examined the nature of the

accused's right to confront his accusers in Coy v. /owa, 487 U.S.

1012 (1988) and Maryland v. Craig, ___ U.S. ___, 110 S. Ct. 3157

(1990). In both cases, the Court has rejected the view that the Con-

frontation Clause of the Sixth Amendment involves only a mere

guarantee of the right to cross-examination.'® As the Court noted in

Coy; 487 U.S. at 1019:

The thesis is on its face implausible, if only because the

phrase *‘be confronted with the witnesses against him’’ is an

exceedingly strange way to express a guarantee of nothing

more than cross-examination.

Similarly, the Court noted in Craig, 110 S. Ct. at 3166:

{W]e are mindful of the many subtle effects face-to-face con-

frontation may have on an adversary criminal proceeding, the

presence of the other elements of confrontation — oath, cross-

examination, and observation of the witness’ demeanor—

adequately ensures that the testimony is both reliable and sub-

ject to ngorous adversarial testing...

Clearly then, the ‘*face-to-face’’ component of the confrontation

is a two-way process — absent special considerations as in Craig.

True confrontation necessarily involves both the face of the witness

and that of the accused. Thus, the Court in Coy speaks of the

difficulty of a witness lying about a person ‘‘to his face’’ or that a

**witness’ may feel quite differently when he has to repeat his story

looking at the man whom he will harm...” Coy, 487 U.S. at 1019.

(emphasis added)!’

16.See Dean Griswold’s similar views in Griswold, **The Due Process

Revolution and Confrontation,” 199 U. Pa. L. Rev. 711 (1971).

17. These current analyses also parallel the Court's earlier expansive

view of the Confrontation Clause in the context of out-of-court statements:

Implicit in all of this described interaction among witness,

accused and jury is the plain-but ‘‘subtle effect’’— that the witness

and the jury both can observe the accused’ s reaction to his accuser.

Thus, quite apart from the separate due process issues raised by the

effects of the drugging on the accused (see Part III B below), here

interference with confrontation arises from the fact that the drug-

ging dulled both Mr. Riggins’ appearance to the testifying witnesses

and jury and ‘‘dampened,’* see n. 50 below, his reactions to the

witnesses at trial.

The drugging also rendered Riggens effectively **absent’’ — over

his objection — from the courtroom in contravention of the consti-

tutional right to be present at one’s trial.'* The Sixth and Fourteenth

Amendments guarantee a defendant the right to be present

throughout his trial. //linois v. Allen, 397 U.S. 337, 346 (1970). In

Illinois v. Allen, where the defendant had disrupted his trial, this

Court noted that *‘courts must indulge every reasonable presump-

tion against the loss of constitutional rights,’* and held that a defen-

dant may lose the right to be present only if he ‘‘insists on

[T]he accused has an opportunity, not only of testing the recollec-

tion and sifting the conscience of the witness, but of compelling

him to stand face to face with the jury that they may look at him,

and judge by his demeanor upon the stand and the manner in

which he gives his testimony whether he is worthy of belief. Mar-

tox v. United States, 156 U.S. 237, 242-3 (1885)

See also Dowdell v. United States, 221 U.S. 325, 330 (1911) (regarding a

similar clause in the Philippine Bill of Rights was intended **to secure the

accused the right to be tried, so far as facts provable by witnesses are con-

cerned, by only such witnesses as meet him face to face at the trial, who

give their testimony in his presence . . ."’) (emphasis added).

18. Here, the defendant's absence was involuntary; the court denied his

Motion to Terminate Administration of Medication after a truncated

review. Cf. Diaz v. United States, 223 U.S. 442 (1912) (defendant's

““voluntary’’ absence not grounds for finding 4 violation of the Confronta-

tion Clause).

conducting himself in a manner so disorderly, disruptive and

disrespectful of the court that his trial cannot be carried on with him

in the courtroom.’’ 397 U.S. at 343 (footnote omitted).

In /ilinois v. Allen, this Court suggested three constitutionally

permissible ways to handle an obstreperous defendant: **(1) bind

and gag him, thereby keeping him present; (2) cite him for con-

tempt; (3) take him out of the courtroom until he promises to con-

duct himself properly.’* This Court held that courts are not required

to try defendants in shackles.'”

Here, eighteen years after //linvis y. Allen, the defendant's

‘*shackling’’ and ‘‘gagging’’ was accomplished by means of drug-

ging rather than by the more obvious, physical means

used on Allen.2° Nonetheless, there were likely *‘significant feel-

ings’’ related to the jury's secing the chemically restrained

19. Trying a defendant for a crime while he sits bound and gagred

before the judge and jury would to an extent comply with that part

of the Sixth Amendment's purposes that accords the defendant an

opportunity to confront the witnesses at the trial. But even to con-

template 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. Not only is it possible that the sight of shackles and gags

might have a significant effect on the jury's feelings about the defen-

dant, but the use of this technique is itself something of an affront to

the very dignity and decorum of judicial proceedings that the judge

is seeking to uphold. Moreover, one of the defendant's primary

advantages of being present at the trial, his ability to communicate

with his counsel, is greatly reduced when the defendant is in a con-

dition of total physical restraint.

Illinois v. Allen, 397 U.S. at 343-344 (emphasis added).

20. Foreshadowing this case, in his opinion in //linois v. Allen, 397 U.S.

at 356-57, Justice Douglas concluded: “‘The case presented here. . .

involves a defendant who was a sick person and who may or may not have

been insane in the classical sense, but who apparently had a diseased

mind."’ Justice Douglas noted Allen's initial finding of incompetence to

stand trial and his history of mental hospitalization. /d. at 357, n. 5.

defendant, just as the Court predicted in the ‘‘visible restraint’’

Situation described in /ilinois. It is no exaggeration that Mellaril

and other similar psychotropic drugs are commonly referred to as

‘*chemical restraints’* — and worse.”! .

Applying //linois v. Allen to the case at hand, it is clear that the

Petitioner here is entitled to the reasonable presumption against the

loss of his constitutional right to be present at his trial, without any

restraints, either physical or chemical in nature. /n /I/linois v. Allen,

397 U.S. at 341, 342, Allen had repeatedly and purportedly deli-

berately attempted to disrupt the proceedings against him. Here,

Riggins never had the opportunity to appear in count in his natural,

unmedicated state; he was chemically restrained throughout the

trial. Thus, there is no evidence that he was disruptive. There is

only a pair of half-hearted predictions of possible deterioration and

obstruction by one psychiatrist who testified at trial. R. 753, 762.

Speculation alone is clearly an inadequate basis to justify depriving

petitioner of his right to be present at his trial and to confront the

witnesses against him. Moreover, this is hardly an adequate expla-

nation to the jury for denial of Petitioner's right to confrontation.

Further, Mr. Riggins’ mental illness was not typically characterized

by loud or disruptive behavior. R. 595, 653, 656.

The Sixth Amendment surely includes the right to freely interact

with one’s counsel during the testimony of adverse witnesses. In

Maryland v. Craig, this Cour specifically noted the importance of

this subtle aspect of confrontation, the right to interact with one’s

21. See Sovner, *‘Behavioral Psychopharmacology Update’ 9 Habilita-

tive Mental Healthcare Newsletter 34, 35 (1990) (*‘chemical restraint (the

way thioridazine [Mellaril] is’) (emphasis added). See also, Horton

‘Restoration of Competency for Execution: Furiosus Solo Furore Puni-

tur, "44 Sw. LJ. 1191, 1204 (1990) (psychotropic drugs described as *‘a

chemical straitjacket’’) See, e.g., Ferleger “Loosing the Chains: In-

Hospital Civil Liberties of Mental Patients,’ 13 Santa Clara Law. 447

(1973); Plotkin & Riging, ‘‘Invisible Manacles: Drugging mentally

retarded people."’ 31 Stanford L. Rev. 637 (1979).

lawyer during the trial.?* In holding that testimony by closed circuit

television by a child may be permissible, this Court noted that the

“defendant retains full opportunity for contemporaneous cross-

examination."’ 110 S. Ct. at 3166.2? In Craig, the defendant

remained in electronic communication with his attomey, and was

thus able to assist in cross-examination. 110 S. Ct. at 3161. As

part of the Confrontation Clause requirement that the defense be

given a full and fair opportunity to probe and expose testimonial

infirmities, 110 S. Ct. at 3164, defendant must have the opportunity

to communicate with his attomey throughout the trial. If a defen-

dant is sedated as a result of forced drugging, it may be impossible

for him to be alert during the trial and therefore he may be unable to

consult with his attomey during the examination of witnesses.

Surely, given the soporific effects of Mellaril, drugging Mr. Riggins

with a high dose of Mellarii during trial was, in effect, *‘placing a

sustained barrier to communicate between ... defendant and his

lawyer.’ Geders v. United States, 425 U.S. 80, 91 (1976); cf.

Perry v. Leeke, 468 U.S. 272 (1989).

The Confrontation Clause also involves the defendant's observa-

tion of the witnesses’ demeanor and his reactions to their cross-

examination. California v. Green, 399 U.S. 149, 158 (1970).*4

22. Earlier, in Coy, it is not clear from the opinion where the defendant's

counsel was positioned relative to the ‘‘large screen . . . placed between

appellant and the witness stand .. .°" Coy v. lowa, 487 U.S. at 104.

However, the lowa statute specifically addressed the issue: **[T)he court

shall take measures to insure that the party and counsel can confer during

the testimony . . ..” lowa Code §910A.14 (1987)). Nonetheless, this

Court found that the use of a screen violated the defendant's rights under

the Confrontation Clause. Coy, 487 U.S. at 1022.

23. Craig itself has been criticized for not dealing adequately enough

with the interference to communication with counsel under the Maryland

television scheme. See, e.g., Schwalb, **Child Abuse Trials and the Con-

frontation of Traumatized Witnesses: Defining ‘Confrontation’ to Protect

Both Children and Defendants,’ 26 Harv. Civ. Rights & Civ. Liberties L.

Rev. 189, 202-204 (1991).

24. One possible source for the Confrontation Clause is in the 1696 trial

of Sir John Fenwick. There, the court stated:

Here, Mr. Riggins was not able to react normally to the witnesses’

testimony because of the sedating influence of Mellaril. Here we,

too, as Justice Scalia noted in Coy, have no way of knowing

‘*whether the witnesses’ testimony would have been unchanged, or

the jury’s assessment unaltered ..."" Coy v. Jowa, 108 S. Ct. at

2803. The Petitioner's drugged ‘‘presence,’’ much like his total

absence or actual physical shackling and gagging, unalterably

skewed the reactions of the other participants in the trial process.

B. There Was No Constitutional Justification for

Involuntarily Drugging Petitioner During Trial

1. Because of the Powerful and Potentially Dangerous

Side Effects of These Drugs, Petitioner Should

Have Been Given Every Opportunity to Avoid Being

Drugged At Trial.

When the trial judge denied Petitioner's Motion to Terminate

Administration of Medication, he permitted continuation of psycho-

tropic drugging that was fraught with peril for Riggins. All the

most Current research on Mellaril confirms that even ‘‘low’’ doses

of this drug are capable of causing irreversible harm and a wide

variety of bodily organic and systemic effects including cardiac,”

‘*Our law requires persons to appear and give their testimony ‘viva

voce’; and we see that their testimony appears credible or not by their

very countenances and the manner of their delivery; and their falsity

may sometimes be discovered by questions that the party may ask

them. . .”’ Proceedings Against Sir John Fenwick, 13 How. St. Tr.

537, 591-92 638 (1696) in 5 The Founders’ Constitution 247 (Kur-

land & Lerner 1987).

Note, **Eighth Circuit Applies the Confrontation Clause at a Sentencing

Hearing,” 17 Wm. Mitchell L. Rev. 829, 832-3, n.16 (1990) (emphasis

added).

25. Wilens & Stern, ‘‘Ventricular Tachycardia Associated with

Desipramine and Thioridazine,”’ 31 Psychosomatics 100 (1990).

renal,”° vision,”’ excretory,?® and other dysfunctions, as well as

disabling conditions, such as tardive dyskinesia, dystonia, and, neu-

roleptic malignant syndrome.”? This newer research merely

confirms what has been known about the drug’s side effects almost

since the first introduction and adoption of Mellaril in 1959 as a

symptom suppressing agent.*°

Current research demonstrates that by themselves, even low

dosages and short terms of Mellaril treatment or even drug treat-

ment withdrawal are no protection from the risks of serious disa-

bling, even disfiguring and stigmatizing side effects.*! Lest these

26. Urberg, **Thioridazine-Induced Non-Icteric Hepatotoxicity,”” 30 J.

Fam. Prac. 342 (1990).

27. Ball & Caroff, *‘Retinopathy, Tardive Dyskinesia and Thioridazine,””

143 Am. J. Psych. 256 (1986).

28. Ananth & Lin, *‘SIADH: A Serious Side Effect of Psychotropic

Drugs,”* 16 /nt'l J. Psych. Med. 401 (1987) .

29. Zammit & Sullivan, *‘Thioridazine and Neuroleptic Malignant Syn-

drome,"* 22 Biol. Psych. 1296 (1987) (letter); Moore, MacFarlane &

Blumhardt, *‘Neuroleptic Malignant Syndrome,” 53 J. of Neurology, Neu-

rosurgery, & Psych. 517 (1990)

30. See, e.g. Kelly, Fay & Laverty, *‘Thioridazine Hydrochloride (Mel-

laril): Its Effect on the Electrocardiogram and a Report of Two Fatalities

with Electrocardiographic Abnormalities,’ 89 Can. Med. AJ. 546

(1963). But see Wendkos,**Thioridazine and Electrocardiographic Abnor-

malities," 89 Can. Med. AJ. 1297 (1963). For other early warnings

about this drug, see also Barancik, Brandborg & Albion,**Thioridazine-

Induced Cholestosis,’" 200 JAMA 69 (1967); Davidorf, Thioridazine Pig-

mentary Retinopathy,’* 90 Arch. Opthalmol. 251 (1973); Kotin, Wilberg,

Verbert & Solinger,’*Thioridazine and Sexual Dysfunction,’ 133 Am. J.

Psych. 82 (1976); Haberman, **Malignant Hypothermia: An Allergic

Reaction to Thioridazine Therapy,’* 138 Arch. Internal Med. 800 (1978);

Hussain & Murphy,*‘Thioridazine-induced toxic psychosis," 104 Can

Med. A.J. 884 (1971); Rothstein,**Allergic Reactions to Thiondazine,”’

290 N. Eng. J. Med. §21 (1974); Gonzalez,** Disadvantages of Prescribing

Thioridazine,”’ 138 Am. J. Psych. 1131 (1981)

31. See Giron, **Tardive Dystonia after a short course of Thiondazine,”’

34 J. Fam. Prac. 405 (1987); Koschlo, Dolor & Lipper, **Delayed Onset

of Neuroleptic Malignant Syndrome after Discontinuation of Thiorida-

zine,’ 10 J. Clinical Psychopharmacology 146 (1990), Hitri, Carter,

aspects of Mellaril appear to be idiosyncratic to this drug, they only

differ slightly in kind or degree from the effects equally well known

and documented side of the other phenothiazine drugs of the same

‘*family’’ as Mellaril.** Indeed, it is just these disabling, stigmatiz-

ing side effects and questions about efficacy** that have resulted in

the widespread demand for access to newer, altemative drugs by

mental health consumers, their families and advocates.*4

Shoh, Borison & Diamond, ‘‘Neuroleptic Blood Levels and Tardive

Dyskinesia,”’ in Chronic Treatments in Neuropsychiatry (1985).

32. See, e.g., Alexander, “‘Cardiotoxic Effects of Phenothiazine and

Related Drugs,”’ 38 Circulation 1014 (1968); Leetsma & Koening **Sud-

den Death and Phenothiazine,”’ 18 Arch. Gen. Psych. 137, 147 (1968)

(“Recent experimental work indicates that the phenothizines (Thiorida-

zine and to a lesser extent Chlorpromazine) have many potent and often

unpredictable actions on the cardiovascular system, that many of the cases

of sudden unexplained deaths have apparently died cardiovascular

deaths ... The authors feel there is a real entity of sudden death caused by

phenothizines’’).

33. One researcher cautioned those administering these drugs:

After decades of pharmocokinetic and pharmacodynamic research,

the therapeutic outcome of neuroleptic treatment is still largely

unpredictable in the individual case. While most patients respond

rapidly to carefully controlled and individually adjusted dose and

serum drug concentrations, some require considerably longer treat-

ment periods for complete recovery and others improve only par-

tially or not at all. A symptom that is efficiently erased in one

patient may thus resist optimal treatment with the same neuroleptic

drug in another case.

Axelsson & Ohman, ‘Patterns of response to neuroleptic treatment: Fac-

tors influencing the amelioration of individual symptoms in psychotic

patients,’’ 76 Acta Psych. Scand. 107 (1987)

34. See, e.g. Blackburn, *‘New Directions in Mental Health Advocacy?

Clozapine and the Right of Medical Self- Determination’’ 14 ABA Mental

& Physical Disability L. Rep. 453 (1990); Green & Salzman **Clozapine:

Benefits and Risks,"’ 41 Hospital & Community Psych. 379 (1990);

Winslow, *‘Courts Consider Schizophrenia Drugs Access,’* Wall St. J.,

B1 (Oct. 5, 1990).

2. Any ‘“‘Balancing’’ of Interests Here Favors

Petitioner’s Interest in Not Being Involuntarily

Drugged at Trial

In this Court’s recent opinion on forced drugging of prisoners,

Washington v. Harper, 494 U.S. 210 (1990), this Court applied a

balancing test and balanced the prisoner’s liberty interest in not

being drugged as against the state's interest in combating the danger

posed to himself and others by a violent, mentally ill inmate under

the ‘‘reasonable relation’’ test of Turner v. Salfey, 483 U.S. 78

(1987). The Court held:

We hold that, given the requirements of the prison environ-

ment, the Due Process Clause permits the State to treat a

prison inmate who has a serious mental illness with antip-

sychotic drugs against his will, if the inmate is dangerous to

himself or others and the treatment ts in the inmate's medi-

cal interest.

494 U.S. at 225-27 (emphasis added, citations omitted). Here, there

was no evidence that Riggins was dangerous to himself or others at

the time of tnal. Therefore, Riggins’ liberty interest in not being

drugged outweighs the State’s interest in drugging him.

Given the foregoing analyses of the known, intended effects of

Mellaril (Part III A) as well as the unintended, *‘side’* effects of the

drug (Part III B 1), in order to justify drugging there must first be at

least a showing that Mr. Riggins’ “‘medical treatment needs”

required the drugging. As one leading federal coun noted, how-

ever:

Medical treatment is designed to ensure that the condition of

pretrial detention does not amount to the imposition of pun-

ishment. This constitutional requirement cannot be tumed

on its head to mean that if a competent individual chooses

not to undertake the rules and pain of potentially dangerous

treatment, the jail may force him to accept it. ... {Although

the state undoubtedly has an interest in bringing to trial

those accused of a crime, we question whether this interest

could ever be deemed sufficiently compelling to outweigh a

criminal defendant's interest in not being forcibly medicated

with antipsychotic drugs.... Bee does not dispute that forci-

ble medication with antipsychotic drugs may be required in

an emergency. Absent an emergency, we do not believe for-

cible medication with antipsychotic drugs is *‘reasonably

related”’ to the concededly legitimate goals of jail safety and

security. Bee v. Greaves, 744 F.2d 1387, 1395 (10th Cir.

1984) cert. denied, 469 U.S. 1214 (1985) (emphasis added).

See also, Large v. Superior, 714 P.2d 399, 408 (Ariz. 1986) (‘‘for-

cible medication with dangerous drugs should be limited to specific

emergencies under procedural safeguards”’).

The apparently conflicting opinion in United States v. Charters,

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

1317 (1990), simply does not control a case such as that presented

here. First—and foremost— Charters was not medicated at the

time of the elaborate review process outlined in Charters, 863 F.2d

at 304, 305,*° whereas here Riggins was medicated even before the

inverted, post-hoc judicial hearing on the drugging. Because of his

ongoing drugging, there was simply no evidentiary basis— other

than pure psychiatric speculation— for finding that Riggins was

potentially incompetent or disruptive, or in any other disabling or

dangerous condition without a termination of his drugging. Indeed,

Dr. Quass, the only psychiatrist to see Riggins in an undrugged

condition, testified that he was competent without the drugging. R.

443, 449-50. That fact alone should have justified granting Rig-

gins’ Motion to Terminate Administration of Medication.

Without that *‘drug holiday,”’ the trial court tumed Charters on

its head by holding its hearing after the drugging, and its intended

35. See also Application for a Stay in Charters v. United States, stay

granted, (A. 88-628) 57 U.S.L.W. 3545 (U.S. Feb. 14, 1989), at 1 and

Peution for Certiorari (No. 88-6525) (Mar. 5, 1990) in Charters v. United

States, cert. denied, 110 S. Ct. 1317 (1990). .

sedation and other cffects, were already taking place. Nothing in

Charters justifies that bizarre result. Indeed, none of the leading

cases and authorities on the proposition seem to countenance allow-

ing the drugging to proceed before whatever process is due. See Jn

re Pray, 133 Vt. 253, 336 A.2d 174, 177 (1975) (‘In fact, it may

well have been necessary... to expose the jury to the undrugged,

unsedated [defendant] at least insofar as safety and trial progress

might permit’’); State v. Maryott, 6 Wash. App. 96, 492 P.2d 239,

243 (1971) (“‘[NJo control should be imposed until its need has

been demonstrated ....’*).

Thus, there is simply no authority in Harper, Charters or Bee or

any of the leading state cases for the inverted, post hoc procedure

followed here. None of the psychiatric predictions of dangerous-

continued drugging over Mr. Riggins’ desire to proceed unmedi-

cated, particularly in this truly life or death setting.*’ As this Court

noted in Gardner v. Florida, 430 U.S. 349, 357 (1977) *‘death is a

different kind of punishment from any other which may be imposed

in this country.”’

The insanity defense imposes a unique set of different issues on

trials, courts and advocates involved in cases where it has been

raised.*® With both ‘‘different’’ aspects involved here, the balancing

of Riggins’ interest in not being medicated during his capital trial

36. See, as to the imprecision of such predictions, Ennis & Litwack,

**Psychiatry and the Presumption of Expertise,’ Flipping Coins in the

Courtroom,”’ 62 Calif. L. Rev. 693 (1974); Slobogin, **Dangerousness

and Expertise’’ 133 U. Pa. L. Rev. 97 (1984).

37. See Part Ill A above, regarding the need for a justification for res-

traint under //linois v. /''en,; Poythress & Stoch, *‘Competency to Stand

Trial: A Historical Review and Some New Data,”’ 8 J. Psych. & L. 131

(1980).

38. See, e.g., Perlin, ‘Unpacking the Myths: The Symbolism Mythology

of Insanity Defense Jurisprudence,” 40 Case W. Res. L. Rev. 599, 721

(1990).

surely takes on some of the characteristics as well of Perry v.

Louisiana, US. , 111 S. Ct. 449 (1990), last Term’s death

row ‘‘right to refwse’’ case.*? Here, as in Perry, the State’s interest

in drugging Riggins— is hardly a truly ‘‘healthy’’ interest in his

long-term welfare. Here the State’s current interest in Riggins is

but one level removed from Louisiana’s fatal ‘‘interest’’ in Perry.

If Riggins’ conviction and sentencing while being drugged with-

stands this appeal, the ultimate issue will then become that of drug-

ging on death row, as in Perry.

The balancing here seems just as clear as in Perry: there can be

no continuation of drugging without a proper justification of medi-

cal necessity. In Harper that justification tumed on ‘*whether the

inmate suffers from a *‘mental disorder’; and second, whether, as a

result of that disorder, he is dangerous to himself, others or their

property.’” Harper, 110 S. Ct. at 1042. Here, before trial there was

no proof of any current propensity toward dangerousness™ and lit-

Ue, if any, evidence of any current mental disorder other than

some-months-old past history. Using the Harper analysis therefore,

39.On remand, Perry v. Louisiana has recently been granted review by

the Supreme Court of Louisiana, where again the issue is whether the

State’s interest in executing him overrides his right to refuse. *‘The State

has admitted in this case that the sole purpose of seeking to medicate

Michael is to execute him.”’ Original Application on Behalf of Michael

Owen Perry, State of Louisiana v. Michael Owen Perry, (La. Sup. Ct.

June 10, 1991), (No. 9IKP1324) at 25; rev. granted, (Sept. 20, 1991).

Argument has been scheduled for Dec. 5, 1991.

40.For once, all of the usual sly suggestions by prosecutors of

defendant's possibly *‘faking’’ mental illness tum against the State in this

context. See, e.g., R. 724. If Mr. Riggins were **faking’’ mental illness,

then he stood a better chance of being detected if he had nos been receiv-

ing large doses of Mellaril. See, generally: Perlin, supra n. 38, 40 Case

W. Res. L. Rev. at 713-720. See also, for some background on similar

claims of *‘faking,’’ Geller, Erlen, Kaye & Fisher, **Feigned Insanity in

Ninteenth-Century America: Tactics, Trials and Truth,”’ 8 Beh. Sci. & L.

3 (1990)

in the absence of any proof of current mental illness*' and of

dangerous acts, Mr. Riggins should have been pemnitted to *‘Just

Say 'No’’’ and then been allowed to proceed to trial without the

drugging he sought to refuse. Only if trial were demonstrated not to

be possible without disruption, could the trial court then proceed

with its analysis under //linois v. Allen.”

In Washington v. Harper, this Court made clear that *‘some kind

of hearing’’ on the issue was due before even a convicted and sen-

tenced prisoner was forcibly drugged with psychotropic medication.

494 U.S. at 228. The guiding standard to be applied in such process

required under Harper was whether the prisoner was a danger to

himself or others in the prison setting. That holding was consistent

with the Court's earlier holding touching on this issue in Vitek v.

Jones, 445 U.S. 480 (1980)** and with other courts that have

41. See, generally, Fentiman, *‘Whose Right Is It Anyway? Rethinking

Competence to Stand Trial In Light of the Synthetically Sane Insanity

Defendant,’’ 40 U. Miami L. Rev. 1109,1165 (1986)

42. See also Jones v. United States 463 U.S. 387 (1983) (Brennan, J.

dissenting):

Administration of psychotropic medication to control behavior is

common. Although this Court has never approved the practice, it

is possible that an inmate will be given medication for reasons that

have more to do with the needs of the institution than with indivi-

dualized therapy. See Mills v. Rogers, 457 U.S. 291, 303, 102

S.Ct. 2442, 2450, 73 L.Ed. 2d 16 (1982); Rennie v. Klein, 653 F.2d

836, 845 (3d Cir. 1981) en banc.

43. Vitek actually involved the attempted administration of Thorazine as

part of a behavior management program. See Vitek, 445 U.S. at 493-94:

A criminal conviction and sentence of imprisonment exinguish an

individual's right to freedom from confinement for the term of his

sentence, but they do not authorize the State to classify him as

mentally ill and to subject him to involuntary psychiatric treatment

without affording him additional due process protection.

(Emphasis added.)

While Vitek was decided two years before Mills v. Rogers and Rennie v.

Klein reached this Court, the briefs and the transcript of the oral argument

before this Court in Vitek demonstrate that forced drugging was a subtext

addressed the issue of forced drugging in similar contexts. See,

e.g., United States v. Watson, 893 F.2d 970, 982 (8th Cir. 1990).

Because of Harper, Vitek and the other precedents applying due

process to convicted and sentenced prisoners, it is clear that a for-

tiori at least equivalent — if not, additional — procedures should be

required in the context of a pre-trial defendant. Indeed, the few

federal court opinions in this issue support a careful “‘right to

refuse’ judicial review procedure. See, e.g., Bee v. Greaves, 744

F.2d 1387 (10th Cir. 1984). cert. denied, 469 U.S. 1214 (1985).

See also United States v. Charters, 863 F.2d 302, 313 (4th Cir.

1988), cert. denied, 110 S. Ct. 1317 (1990). In this case, however,

the trial court's hurmied review of the Petitioner's need for the medi-

cation, R. 438, failed to meet the standard set by this Court in

Harper.

in that case. See, ¢.g., Brief of Appellee, Larry D. Jones, at 7 (when

such transfer will submit him to chemotherapy’’); at 16 (‘Once

transferred he was forced to take Thorazine, his prescribed medication.

When he refused, he was injected with the medication. . ."’); at 20 (regard-

ing “‘the common use of chemotherapy in mental hospitals’’ as a danger

to transferred prisoners); and Transcript of Oral Argument, Dec. 5, 1979,

at 19-20 (prisoner's ‘right to refuse"’ medical treatments).

44. In Watson, 893 F.2d at 972 the court held that Holmes, one of the two

prisoners, could not be medicated against his will without additional due

process (*‘No such hearing has been held with respect to Holmes. No

interest would be served in speculating as to whether Holmes presents a

danger to his community at this time. We simply hold that if Holmes is

presently functioning adequately in the prison setting and does not present

a danger to himself, other inmates, or prison staff, the government may

not forcibly administer antipsychotic medications’).

45. In Winston v. Lee, 470 U.S. 766, (1985) this Court barred a minimal

surgical procedure to obtain evidence, holding: **The medical risks of the

operation, although apparently not extremely severe, are a subject of con-

siderable dispute; the very uncertainty mitigates against finding the opera-

tion to be “reasonable.” Here, similarly, the dispute over the drugs and

their effects is longstanding and ongoing. See Parts Ill A and B above.

See Harper, 494 U.S. at 226, **There is considerable debate over the

potential side effects of antipsychotic medications ....°' See also Harper

494 U.S. at 229 “‘[I]}t is also true that the drugs can have serious, even

fatal side effects.”’

C. Forced Drugging Interfered with Petitioner’s Right to

Present an Insanity Defense Because The Jury Was Unable

To See His Natural Demeanor and Instead Medication

Rendered His Demeanor Sedated and Emotionless

The principal issue at trial was Petitioner's defense that he was

insane at the time of the crime. There was no evidence that Peti-

tioner was on antipsychotic medication at the time of the crime. At

trial he was drugged with medication known and intended to sedate

him and deaden his emotions. The drugging interfered with his

night to present his own defense, by altering both Mr. Riggins’

demeanor and behavior before the court and resulting in the presen-

tation of misleading evidence that totally undermined his insanity

defense before the jury.

Demeanor is particularly important in an insanity defense.

Courts have universally recognized that, when sanity is at issue,

demeanor is of probative value to the trier of fact, which was the

jury in this case. See, e.g., Commonwealth v. Louraine, 398 Mass.

28, 453 N.E.2d 437, 442 (1983). Thus, in State v. Maryott, 6 Wash.

App. 96, 492 P.2d 239 at 242, the court, *‘ When mental competence

is at issue, the right to testimony involves more than mere verbaliza-

tion.’ The Massachusetts Supreme Court explained the importance

of demeanor testimony and the effects of drugging:

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 appre-

ciate the wrongfulness of his conduct or to conform his con-

duct to the requirements of the law. This tendency may

render also valueless the defendant's right to testify on his

own behalf.

453 N.E.2d at 442 (citations omitted).”

46. See also State v. Maryott

If the state may administer tranquilizers to a defendant who

Objects, the state then ts, in effect. permitted to determine what the

There can be little dispute that what the jury saw of Petitioner in

this case was not what the jury heard about from the various

witnesses. Instead of a person demonstrably suffering from a major

mental illness, see Part III A above, as repeatedly described to them,

R. 534-35, 711-15, 747, 753, 765, 964-66, what the jury in fact saw

here was someone who earlier had been nodding off in cour. R.

429-30, 432.

The vital importance of demeanor testimony was demonstrated in

a recent study of jurors in death penalty cases.” The juror who

attached the most significance to a defendant's demeanor im Ses

study described his demeanor at trial as callous and indifferent. in

another capital case investigated by this study, jurors influenced by

the defendant's demeanor described him as ‘‘indifferent to the

proceedings’’ ‘‘passive’’ ‘‘emotionless’* **no remorse — no any-

thing.’”*”

jury will see or not see of the defendant's case by medically alter-

ing the attitude, appearance and demeanor of the defendant, when

they are relevant to the jury's consideration of his mental condi-

tion.

492 P.2d at 242. |

47.Geimer & Amsterdam, **Why Jurors Vote Life or Death: Operative

Factors in Ten Florida Death Penalty Cases,"’ 15 Am. J. Crim. L. 1 (1987-

88). About one-third of the jurors interviewed said that the defendant s

demeanor was a contributing factor in the sentence recommendation, and

one juror attributed the verdict entirely to the defendant's demeanor. /d.

at 51.

48. She said, ‘Nobody saw a heartbeat of regret. He didn’t move a mus-

cle except for crossing his legs. By the time of the penalty phase, the jury

was not inclined to feel sorry for him. Minds were already colored.”” /d

at 52.

49. /d. at §2.

Passiveness, indifference, and lack of emotion on the pant of a

defendant are clearly influential in a jury’s determination. The

scientific literature, discussed supra, confirms that Mellaril, espe-

cially at the 800 mg. dosage that Petitioner was receiving at trial,

has the effect of sedation and flattening of affect and emotional pas-

Sivity. In this case, Mellaril had the effect of sedating petitioner and

flattening petitioner's affect and making him emouonally passive at

evidence and presumption of innocence is that, by presenting him at

tral in such a heavily drugged condition, the State improperly

benefitted from making him *‘look’* guilty and unremorseful to the

jury, while not permitting him to present freely his own most effec-

tive evidence and argument as to the key issue of his mental condi-

tion in contradiction of this Court's holdings in such cases as

50. There is substantial evidence that Mellaril and other related drugs

affect intellectual function. Thus, the immediate past administrator of the

National Institute of Mental Health has said:

The findings of this study were ... chronic schizophrenics on

thioridazine when compared to placebo subjects showed a definite

dampening of peripheral indicators of automatic reactivity. In

addition, there was a significant reduction to the number of remote

and bizarre associations to the word association test in the drug

group and an increase in the placebo group. Also, the schizo-

phrenic on drugs showed much less avoidance of threatening ver-

bal stimuli in the perceptual defense battery than did those subjects

on placebo.

Judd, Goldstein, Rodnich & Jackson, ‘“‘Acute Schizophrenia and

Phenothiazine’’ in Psychopharmacology and the Individual Patient 83

(1970) (emphasis added). Researchers who have argued that the drugs

have no effect on intellectual functioning and cognition have not focused

on the issues of sedation and lack of affect. See, e.g, Gutheil &

Applebaum, ***Mind Control’, ‘Synthetic Sanity’, Artificial Competence’

and Genuine Confusion: Legally Relevant Effect of Antipsychotic Medi-

cation, 12 Hofstra L. Rev., 77, 91, 203 (1983) (focusing primarily on stu-

dies of *‘the effects of medication on memory, learning and cognition"’

rather than sedative effects which are barely even addressed).

Morrisette v. United States, 342 U.S. 246, 275 (1952) (*(T)his

{conclusive} presumption would conflict with the overriding

presumption of innocence which the law endures the accused and

which extends to every element of the crime’’) (emphasis added).

See also, Sandstrom v. Montana, 442 U.S. 510, 520-523 (1979).

By altering Petitioner's demeanor and behavior by drugging him at

trial, the State undercut both the presumption and improperly

shifted its burden of proving the requisite mental element for the

crime. Cf. Sandstrom, 442 U.S. at 524; Medina v. California, cert.

granted, 60 U.S.L.W. 3330 (U.S. Oct. 21, 1991) (No. 90-8370).

Studies suggest that evidence actually put on “‘live’’ before the

jury has a much more persuasive effect than mere expert testimony

or other similar *‘cold”’ presentation.>! In the language of social SCi-

ence, this is the so-called *‘vividness’’ effect.°* More colloquially,

seeing is believing. Studies of vividness demonstrate how the drug-

ging hampered Mr. Riggins in the critical task of persuading the

51. See, e.g., Bell & Loftus, ** Vivid Persuasion in the Courtroom”, 49 J.

Personality Assessment 659 (1985) “One quality of information that

determines its persuasive impact is its vividness. Information can be

characterized as vivid to the extent it is ‘(a) emotionally interesting, (b)

concrete and imagery-provoking and (c) proximate in a sensory, temporal

or spatial way"’ (quoting from Nesbett and Ross Human inference, stra-

tegies and shortcomings of social Judgment (1980); Saks and Kidd,

**Human Information Processing and Adjudication: Tnal by Heunstics,’

Law & Soc. Rev. 121, 138 (1980-1) (“[WJe would predict that the quanti-

tative data of the sociologist would have been Jess persuasive [at tal]

than the anthropologist’ anecdotai report, because the iatier would gen-

erally be more concrete and salient, and therefore more accessible’).

52. Taylor & Thom . “Stalking the Elusive ‘Vividness’ Effect,’’ 89

Psych. ion 155 (1982) See also Shedler & Manus, “Can the Availability

Heuristic Explain Vividness Effects?’* 51 J. Personality and Soc. Psych.

2635 (1986) (**Vividness affected (a) our respondents recall of material

that had previously been presented and (b) their subsequent judgments. °*),

Reyes, Thompson and Bower, *‘Judgmental Biases Resulting from nore

ing Availabilities of Arguments,’ 36 J. Personality & Soc. Psych. 2

(1980).

jury that he was not guilty because he was insane at the time of the

crime. Just as with ‘‘vividness”’ generally, the great body of

authority on the issue of the insanity defense confirms that juries

need to be ‘‘shown’’ rather then just told about the defendant's

mental illness. In general, public reactions to mental illness are

known to be negative*’ and disbelieving and, in particular, there is a

wealth of research showing skepticism to, if not Outright rejection

of, the insanity defense.*4 Given that pre-existing resistance to the

fact of mental illness and the claim of exculpation on that basis,

there is a particular need for every bit of persuasive ‘‘vivid"’ evi-

dence in such cases.*°

53. It is particularly disturbing that this negative attitude continues

despite all of the evidence to the contrary. See, e.g., National Institute of

Mental Health, Schizophrenia: Questions and Answers, (Pamphlet, 1986)

at 6:

Although news and entertainment media tend to link mental illness

and criminal violence, studies tell us that if we set aside those per-

sons with a record of criminal violence before hospitalization,

mentally ill persons as a whole are probably no more prone to

criminal violence than the general public. Certainly most schizo-

phrenic individuals are not violent: more typically, they prefer to

withdraw and be left alone.

54. See, e.g., Perlin supra, n. 38, 40 Case W.L. Rev. at 728 (“The

public’s hostility to mental illness and the mentally disabled offender

arses from a complex combination of sources... .”’) See also Friedman,

‘The Concept of Self in Legal Culture,”* 38 Clev. St. L.R. 5 17, 528 (1990)

(*‘The insanity defense looked to many people like a loophole... ."*).

55. See, ¢.g., Fentiman **Whose Right Is It Anyway? Rethinking Com-

petence to Stand Trial in Light of the Synthetically Sane Insanity Defen-

dant,’’ 40 U. Miami L. Rev., 1109 (1986). In Commonwealth v. Louraine,

398 Mass. 28, 453 N.E.2d. 437, 442 (1983), the court held that, **The abil-

ity to present expert testimony describing the effect of medication on the

defendant is not an adequate substitute." The court explained:

At best, such testimony would serve only to mitigate the unfair preju-

dice which may accrue to the defendant as a consequence of his con-

trolled outward appearance. It cannot compensate for the positive

value to the defendant's case of his own demeanor in an unmedicated

condition. /d.

Here the result of Mr. Riggins’ drugging was the very antithesis

of ‘‘vividness,’’ the drugging — as it is intended to do — produced a

narrowed range of emotional responses and reactive behavior. See,

e.g., the research studies regarding the effects of Mellaril, Part III A.

Like Sherlock Holmes’ famous dog that did not bark, perhaps the

best evidence here that Mr. Riggins was not himself at trial is that

there is so little commentary in the record on his behavior or reac-

tion during trial. See State of Nevada's Brief in Opposition to the

Petition for Writ of Certiorari, at 17. "

The drugging’s creation of a defendant who was ‘‘present’’ in

body, yet ‘‘absent’’ in vital elements of his personality and mental

activity, renders the judgment below constitutionally infirm.

56. **Silver Blaze’’ in Doyle, The Complete Sherlock Holmes (1970).

CONCLUSION

For the reasons stated herein, amicus curiae Coalition for the

FREE respectfully urges this Court to reverse the judgment below.

WILFREDO CARABALLO PETER MARGULIES*

Public Advocate Visiting Professor

of New Jersey. City University of New York

Department of the Law School at Queens College

Public Advocate 65-21 Main Street

Of Counsel Flushing, New York 11367

and on the Brief (718) 575-4386

PATRICK REILLY ELLEN SAIDEMAN

Deputy Director HERBERT SEMMEL

Division of Mental New York Lawyers for

Health Advocacy the Public Interest,

CN 850 30 West 21st Street

Trenton, New Jersey 08625 New York, New York 10010

(609) 292-1780 (212) 727-2270

* Counsel of Record

Counsel gratefully ack-

nowledges the assistance

on this brief of Angela

Moody, paralegal, and

Scott Shughart, advocate.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.