Reply Brief — Sell v. United States

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In The

Supreme Court of the Anited States

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CHARLES THOMAS SELL, D.D.S.,

Petitioner,

Vv.

THE UNITED STATES OF AMERICA,

Respondent.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

S

REPLY BRIEF OF PETITIONER

¢

FEDERAL PUBLIC DEFENDER LEWIS, RICE & FINGERSH, L.C.

NORMAN S. LONDON BARRY A. SHORT

LEE T. LAWLESS (Counsel of Record)

Suite 200 NEAL F. PERRYMAN

1010 Market Street MARK N. LIGHT

St. Louis, Missouri 63101 SANDRA F. SPERINO

(314) 241-1255 AARON L. PAWLITZ

Suite 2000

500 N. Broadway

St. Louis, Missouri 63102

- (314) 444-7600

Counsel for Petitioner

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

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

IT hd iia inate alain daliidbiaeeipinanenenninntenieinne 1

I. DR. SELLS INTEREST IN AVOIDING FORCED

MEDICATION IS FUNDAMENTAL ................ 1

A. Dr. Sell Has A Fundamental Fifth Amend-

ment Right In Refusing Forced Medication

With Antipsychotic Drugs......................... 1

B. Dr. Sell Has A Fundamental First Amend-

ment Interest In Not Having His Speech

And Thought Manipulated By The

ciate ie tiernndiacieeeenminaion 2

Il. THE GOVERNMENT'S INTEREST IN BRING-

ING DR. SELL TO TRIAL FOR NON-VIOLENT

CRIMES DOES NOT OVERRIDE DR. SELL’S

III. THE GOVERNMENT HAS NOT SHOWN

THAT THE FORCED MEDICATION OF DR.

SELL IS A REASONABLE AND LEAST RE-

STRICTIVE MEANS OF ACCOMPLISHING

SITET situenannisccssssdiscesciioccesessssenssecesese 10

IV. THE GOVERNMENT CANNOT SATISFY ITS

WES POUT BEDE oscccesccccccsscccccsessccceeees 12

A. The Government Has Not Shown That

Any Medication Will Restore Dr. Sell To

Competence Or That It Is Medically Ap-

TT cnscathuiidiuinadssdcintannddadianadédnicineosesorees 13

B. It Is Not Reasonable To Expect That Dr.

Sell, If Restored To Competency, Will Re-

ace aderainteerdsaninnaiiasges 17

SETI sinniiccenssshinciatiianiincsosoninteseunoessocessscoenesaens 20

ii

TABLE OF AUTHORITIES

Page

CASES

Addington v. Texas, 441 U.S. 418 (1979)..........:ccccceeeeeeee eee 9

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)....... 14, 15

Ashcroft v. ACLU, 122 S. Ct. 1700 (2002) ........... eee 16

Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389

(BBB). ..cccccccasconceseecesoccessesnnssueiensennnnnennnninnnnnnnnnnnnEEEE 1,6

City of Ladue v. Gilleo, 512 U.S. 43 (1994)... eeeeeee 6

Cooper v. Oklahoma, 517 U.S. 348 (1996) ............cccceeeeeeeeee 7

Davis v. Hubbard, 506 F. Supp. 915 (N.D. Ohio

29BD) .....c0vecccsccscsccensscenesocesenesnssseneniininnnnsnnnnnnnnnnnnnnnnnnEEEE 3

Ferguson v. Charleston, 532 U.S. 67 (2001) ...........ccceeeeeeeee 8

Greenwood v. United States, 350 U.S. 366 (1956).............. 7

Griswold v. Connecticut, 381 U.S. 479 (1965)...............066: 1

Hoyt v. People, 114 U.S. 488 (1885) 0.0.0... ceceeeeeeeeeeeeeees 14

Illinois v. Allen, 397 U.S. 377 (1970) ..........cccccecceceeeeees 18, 19

Lovell v. Griffin, 303 U.S. 444 (1938) .............ccseccceeeeeeeeeeees 6

Mapp v. Ohio, 367 U.S. 643 (1961) ........ccccccecsereceeeeeseeeeeees 7

New Haven Inclusion Cases, 399 U.S. 392 (1970)............. 14

Olmstead v. United States, 277 U.S. 438 (1928) ............00 3

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ........... 1

Ramdass v. Angelone, 530 U.S. 156 (2000) ..................0008 16

Reno v. ACLU, 521 U.S. 844 (1997)...........ccccccccceeseeeeeees 5, 16

Riggins v. Nevada, 504 U.S. 127 (1992) ..........ccccceeeeeeeeee ll

Rochin v. California, 342 U.S. 165 (1952) ...........cceeeeeeeeeee 2

Rock v. Arkansas, 483 U.S. 44 (1987)..........cccccceccsseeeeeeeeees 18

iii

TABLE OF AUTHORITIES — Continued

Page

Russell v. Southard, 53 U.S. (12 How.) 139 (1851)............ 14

Singleton v. Norris, No. 00-1492, 2003 WL 261795,

at °14 (6th Cir. Feb. 10, 2008) ...............0c.00sseccccccceeeeeeeee 17

Stanley v. Georgia, 394 U.S. 557 (1969) ....................00006: 3, 6

United States v. Albertini, 472 U.S. 675 (1985).................. 5

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

a _... snousnanesensoonnooosoooes 3

United States v. James Daniel Good Real Property,

I sa cessenrssncnnce 18

United States v. O’Brien, 391 U.S. 367 (1968).................... 5

United States v. Playboy Entm’t Group, Inc., 529

ae 10, 11

United States v. Reidel, 402 U.S. 351 (1971)...................... 3

United States v. Salerno, 481 U.S. 739 (1987) ................... 9

Ward v. Rock Against Racism, 491 U.S. 781 (19839)........... 5

Washington v. Glucksberg, 521 U.S. 702 (1997)................. 2

Washington v. Harper, 494 U.S. 210 (1990) ................... 2

West Virginia State Bd. of Educ. v. Barnette, 319

EET ET 3

Winston v. Lee, 470 U.S. 753 (1985)..............ccccccccceeeseeeeeeees 8

Witters v. Wash. Dep't of Servs. for the Blind, 474

ESE LL 14

Wooley v. Maynard, 430 U.S. 705 (1977) ..........cccccccccceeeeeeee 3

iv

TABLE OF AUTHORITIES — Continued

Page

STATUTES

Be Oe ee icierencncnssttnnnnnstiniiiiiiteuniisiineainiiiiiiiilaaiipsiieaithtdels 8

18 U.S.C. § 248....... siceeechitaseereciemiieadleniihieieieiabaiainadihilat teat ialiiieiiaes 8

re iterennnrerncesepdantatatstuscrinliiliammntnisnppiiciaias 8

ee Oe ie iciertccnenitiennncetisitanineneatiaieetniniitiiieataniiitiiiiaasiel 8

gr ee Ce ae nen 9

EN Se eee eS 9

a ee re inneietenssensnintneninitaittiebidinn eee 9

es Oe ee cirirencenenenccncsnicinitiniiisiainiiteinbicininiiiasieedliebiginaaeaian 8

le Se iieicericenerininecinrennneniinitttanitiaiatatiniiaiiaai iia ii 8

42 U.S.C. § 1320a-7alaX 1A) .........ccccccecececseeeeeeeeeeeeeeeees 7,11

RULES

a UN Se irnccnnietiianitieiinichiciaiiitiiaiiilatiatia i ee 7

I Bi Ge Ore Se iciiitatceictchinsciinbastctaiibiaaite einai 18

OTHER AUTHORITIES

Alan R. Felthous, et al., Are Persecutory Delusions

Amenable to Treatment, 29 J. AM. ACAD.

PSYCHIATRY LAW 461, 465 (2001)..................0000. 11, 16, 17

Linda Pendleton, Ph.D., Treatment of Persons

Found Incompetent to Stand Trial, 137 Am. J.

CN 15

v

TABLE OF AUTHORITIES - Continued

National Institute of Mental Health, Mental Health:

A Report of the Surgeon General 279-80 (1999)........

Stanley N. Caroff, et al., Movement Disorder

Associated with Atypical Antipsychotic Drugs, 63

J. CLIN. PSYCHIATRY 12, 15 (2002)...............:cccceeeeeeee

1

ARGUMENT

I. DR. SELL’S INTEREST IN AVOIDING FORCED

MEDICATION IS FUNDAMENTAL.

Whether articuiated as freedom of thought, right to

bodily integrity, right to refuse unwanted medical treat-

ment or right to privacy, the right to be free from un-

wanted physical and mental intrusions has long been

recognized as an integral part of an individual’s constitu-

tional freedom. In his opening brief Dr. Sell articulates the

constitutional and historic bases for recognizing that the

right to remain free from forced medication is fundamen-

tal.

The government recognizes that, at minimum, the

right that Dr. Sell asserts is significant. Indeed, the

government does not argue that the right to refuse un-

wanted medical treatment is not fundamental or try to

distinguish the right to refuse unwanted medical treat-

ment from other fundamental rights that this Court has

recognized. This Court recently acknowledged that “[tJhe

right to think is the beginning of freedom.” Ashcroft v. Free

Speech Coalition, 122 S. Ct. 1389, 1403 (2002). Dr. Sell’s

rights to form thoughts, to speak, and to remain free from

unwanted bodily intrusion are fundamental.

A. Dr. Sell Has A Fundamental Fifth Amend-

ment Right In Refusing Forced Medication

With Antipsychotic Drugs.

This Court has repeatedly recognized an individual's

fundamental right to “bodily integrity” and to make

“choices central to personal dignity and autonomy.” See

Planned Parenthood v. Casey, 505 U.S. 833, 851, 857

(1992); Griswold v. Connecticut, 381 U.S. 479, 485 (1965)

(recognizing right to use contraceptives is fundamental);

2

Rochin v. California, 342 U.S. 165, 171-74 (1952) (finding

government cannot force individual to take an emetic

based on suspicion that individual swallowed morphine

capsules); see also Washington v. Harper, 494 U.S. 210,

241 (1990) (dissent) (three Justices viewed the right to

refuse antipsychotics as fundamental). This right has been

deemed so important, that the Court has protected the

right, even when a state government has asserted as an

interest the protection of life. Planned Parenthood, 505

U.S. at 857. Making a determination about one’s own

psychok zy and about one’s own physical integrity are

among the most important personal decisions an individ-

ual can make. Dr. Sell’s interest in making these decisions

is even more important when the government’s intrusion

may cause serious, long-lasting side effects and the medi-

cal establishment cannot even agree on the treatment for

his psychiatric condition. See generally Amicus Briefs of

American Psychiatric Association and American Psycho-

logical Association (expressing contrary views on treat-

ment of delusional disorder, persecutory type). In light of

“our Nation’s history, legal traditions, and practices,” Dr.

Sell has a fundamental Fifth Amendment right in avoiding

forced medication with antipsychotic drugs. Washington v.

Glucksberg, 521 U.S. 702, 710 (1997).

B. Dr. Sell Has A Fundamental First Amend-

ment Interest In Not Having His Speech And

Thought Manipulated By The Government.

The involuntary druggir7 of Dr. Sell implicates First

Amendment rights separate and distinct from his substan-

tive due process rights. “Where, as here, medication which

is potentially mind altering is concerned, the threat to

individual rights goes beyond a threat of physical intrusion

——

~_

3

and threatens an intrusion into the mind.” United States v.

Charters, 829 F.2d 479, 492 (4th Cir. 1987). The makers of

our Constitution recognized the significance of man’s

“spiritual nature, of his feelings and of his intellect. [They]

sought to protect Americans in their beliefs, their

thoughts, their emotions and their sensations. They

conferred, as against the government, the right to be let

alone — the most comprehensive of rights and the right

most valued by civilized men.” Stanley v. Georgia, 394 U.S.

557, 564 (1969) (quoting Olmstead v. United States, 277

U.S. 438, 478 (1928) (Brandeis, J., dissenting)). Thus, the

protection of an individual’s right to believe and think as

he or she sees fit has long been viewed as within the

protection of the First Amendment by this Court. West

Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 641

(1943); Wooley v. Maynard, 430 U.S. 705, 713 (1977);

United States v. Reidel, 402 U.S. 351, 359 (1971) (Harlan,

J., concurring). Here, the government seeks to alter Dr.

Sell’s mind and the manner in which he forms thought

solely for prosecutorial purposes.’

The government concedes in its Brief that the First

Amendment protects “expressive and freedom-of-thought

interests” and that Dr. Sell may have a residual First

Amendment interest that is distinct from a liberty interest.

* “Such mind altering medication has the potential to allow the

government to alter or control thinking and thereby to destroy the

independence of thought and speech so crucial to a free society.” United

States v. Charters, 829 F.2d 479, 492 (4th Cir. 1987) “[TJhe power to

control men’s minds is ‘wholly inconsistent’ not only with the ‘philoso-

phy of the first amendment but with virtually any concept of liberty.’”

Davis v. Hubbard, 506 F. Supp. 915, 933 (N.D. Ohio 1980) (quoting

Stanley v. Georgia, 394 U.S. at 565-66).

4

Government's Brief at 13, 37. The government then

argues, however, that forced medication of Dr. Sell is

“content-neutial” and, therefore, application of intermedi-

ate scrutiny is appropriate. Contrarv to the government’s

assertion, the involuntary druggi:.g¢ sought in this case is

not content-neutral. The content of Dr. Sell’s thoughts is

precisely the reason the government seeks to medicate

him. The very purpose of the government’s efforts is to

change Dr. Sell’s thought and speech so that he does not

evidence persecutory delusions. Harper, 494 U.S. at 229

(recognizing that the purpose of antipsychotic drugs is to

alter the chemical balance in the patient’s brain).

Dr. Sell believes that the FBI is plotting to discredit

and/or kill him. (Record 807, 809; 1999 FPR at 6). He

believes the Branch Davidian Compound at Waco, Texas

was intentionally burned by government agents. (Record

376-77). He believes that his statements about witnessing

these events were forwarded to the FBI and that in an

effort to conceal the truth about Waco, the FBI has ar-

ranged for criminal charges to be brought against him and

might seek to kill him. (Record 377-78). While Dr. Sell’s

view of the world and political beliefs may seem unusual

in these respects, until Dr. Sell is adjudged incompetent to

make medical decisions, he must be permitted to think his

thoughts, and speak his mind, even if the government does

not like what he thinks or says. It is these thoughts the

government wishes to suppress and alter, to change the

way he thinks, so that he will appear to be competent.

An individual’s freedom of thought must not be

infringed, even if the individual is regarded as “mentally

ill.” Many noted world leaders, authors, and artists have

suffered from mental illness. Abraham Lincoln suffered from

severe and incapacitating depressions that occasionally lead

5

to thoughts of suicide. See National Alliance for the Men-

tally Ill, http:/;Awww.nami.org/helpline/peoplew.htm (identi-

fying famous individuals who suffered from mental

illness). Ludwig van Beethoven experienced bipolar

disorder. See id. Isaac Newton and Ernest Hemingway

both suffered from mental illnesses. See id. Dr. Sell does

not ask that the Court accept his views and thoughts or

even that it acknowledge any positive aspects of these

thoughts. What should be noted, however, is that society

has benefited through diverse thinking.’

Even assuming for the sake of argument that the

government's efforts were content-neutral, strict scrutiny

still must apply. The primary case upon which the gov-

ernment relies, Ward v. Rock Against Racism, deals with

the government’s ability to impose content-neutral time,

place, or manner restrictions on speech.’ 491 U.S. 781, 792

(1989). The forced medication of Dr. Sell with its potentially

serious and life-threatening side effects cannot be character-

ized simply as a time, place, or manner restriction. See Reno

v. ACLU, 521 U.S. 844, 868 (1997) (recognizing that blanket

restrictions on speech cannot be considered as a time,

place, or manner regulation). Further, this Court has

* As Emily Dickinson eloquently stated: “Much madness is divinest

sense/To a discerning eye; much sense the starkest madness. ‘TT is the

majority/In this, as all, prevails. Assent, and you are sane; Demur, -

you're straightway dangerous/And handled with a chain.” Emily

Dickinson, The Complete Poems of Emily Dickinson, Part I: Life (1924).

* The remaining cases cited by the government concern restrictions

on conduct that incidentally affect 8peech, and are thus inapposite.

Even the government does not suggest that the drugging of Dr. Sell is

aimed primarily at his conduct and would only incidentally affect his

speech. United States v. Albertini, 472 U.S. 675, 689 (1985); United

States v. O’Brien, 391 U.S. 367, 375 (1968).

6

recognized on several occasions that government efforts

that appear to be content-neutral can nonetheless be

unconstitutional if they prohibit too much speech. See City

of Ladue v. Gilleo, 512 U.S. 43, 55 (1994) (finding content-

neutral regulation of yard signs unconstitutional because

it “foreclose[s] an entire medium of expression”); Lovell v.

Griffin, 303 U.S. 444, 451 (1938) (finding ordinance

unconstitutional that prohibited distribution of all maga-

zines and pamphlets).

Here, and most importantly, Dr. Sell has an interest in

his own thought process that is separate and distinct from

his right to communicate those thoughts to others. The

government’s efforts are directed to changing the manner

in which Dr. Sell thinks. The restriction is pre-content. As

this Court has found: “First Amendment freedoms are

most in danger when the government seeks to control

thought or to justify its laws for that permissible end.”

Ashcroft, 122 S. Ct. at 1403. None of the cases cited by the

government allow it to limit what and how an individual

thinks. Rather, “[oJur whole constitutional heritage rebels

at the thought of giving government the power to control

men’s minds.” Stanley, 394 U.S. at 565. Dr. Sell has a

fundamental, First Amendment right to avoid forced

medication aimed at changing the way he thinks.

IL THE GOVERNMENT’S INTEREST IN BRING-

ING DR. SELL TO TRIAL FOR NON-VIOLENT

CRIMES DOES NOT OVERRIDE DR. SELL’S

FUNDAMENTAL RIGHT.

Once the Court determines that Dr. Sell’s right to

refuse unwanted drugs is fundamental, the government

must prove by clear and convincing evidence that its interest

is compelling enough to overcome the fundamental right and

7

that it is using reasonable and the least restrictive means to

accomplish its goal. Application of a strict scrutiny approach

ensures that the government will only attempt to drug

individuals in extraordinary cases. Under strict scrutiny, the

prosecution of an individual for a non-violent crime, involv-

ing only economic loss, must never be adjudged compelling

enough to overcome the individual’s right to refuse unwanted

drugging. Even in advocating for its own interest, the only

harm alleged and articulated by the government in the

instant case is “draining an important federal assistance

program of its limited resources.” Government's Brief at 24.

This justification for forced drugging of Dr. Sell is

unavailing. First, only six of the 63 counts of the indict-

ment regard allegations that Dr. Sell submitted improper

invoices to a federal program. Jd. at 23. The remainder

govern transactions involving private insurance compa-

nies. Jd. Second, to the extent that the government wants

to obtain a monetary award to reimburse the federal

government, it can pursue this interest by seeking a civil

monetary award. See 42 U.S.C. § 1320a-7a(a)(1)(A); FED.

R. Civ. P. 17(c). Likewise, the private insurers would pre-

sumably have civil remedies at their disposal. Although the

government certainly has an interest in protecting the

financial integrity of its institutions, this interest is not

compelling enough to justify the forced drugging of Dr. Sell.

Further, our constitutional heritage recognizes that an

individual’s liberty or other interests are often protected to

the detriment of the government’s prosecutorial interests.

Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (recognizing

that government cannot bring an incompetent individual to

trial); Mapp v. Ohio, 367 U.S. 643, 659 (1961) (finding that

exclusionary rule applies even if its application results in an

inability to prosecute); Greenwood v. United States, 350

8

U.S. 366, 375 (1956) (recognizing that “federal authority to

prosecute” is not frustrated by use of treatment and

commitment statute). This Court has likewise repeatedly

recognized that the government’s prosecutorial motives

are insufficient to justify significant intrusions into an

individual’s body. See Ferguson v. Charleston, 532 U.S. 67,

86 (2001); Winston v. Lee, 470 U.S. 753, 767 (1985); Ro-

chin, 342 U.S. at 171-74. The government interest is even

less important in the instant case, where Dr. Sell has

already served more time on the insurance fraud charges

than if he had been convicted, where there are doubts about

whether Dr. Sell will ever be restored to competency, and

when there are concerns that Dr. Sell will not receive a fair

trial if drugged into some type of synthetic competency.

The government’s suggestion that being charged with

any felony creates an interest sufficient to drug an indi-

vidual highlights why individual liberty interests need the

highest level of protection against government intrusion.

Thus, under the government approach, its interest in

prosecuting an individual for the first-time theft of a

single letter would be enough to overcome a person’s

fundamental interest. See 18 U.S.C. § 1708 (establishing a

felony for theft of mail).

Further, the government’s assertion that every felony

constitutes a crime serious enough to justify altering an

individual’s brain chemistry can be dispelled simply by

reviewing some of the felonies with which individuals can

be charged. See 18 U.S.C. § 2342 (shipment of contraband

cigarettes is a felony); § 152 (concealment of item from

bankruptcy estate assets is a felony); § 248 (second offense

of blocking entrance to abortion clinic is a felony); § 541

(misrepresenting the weight of an imported item is a

felony); § 1231 (transportation of strike breakers is a

9

felony); § 1302 (mailing of a lottery ticket is a felony);

§ 1368 (causing serious bodily injury to a police dog or

horse is a felony); § 1706 (injuring a mail pouch is a

felony). Drugging for every crime must not be sanctioned.

Importantly, the government’s interest is lessened

even further because the record establishes that Dr. Sell is

not dangerous. In supporting its argument regarding the

importance of its interest, the government has relied

almost exclusively on cases in which an individual has

been determined to be a danger or potential danger to

himself or others. See Harper, 494 U.S. at 227; United

States v. Salerno, 481 U.S. 739, 751-52 (1987). Both the

District Court and Court of Appeals below have deter-

mined that Dr. Sell does not pose such a danger. (App. 349,

363). Any attempt to imply that Dr. Sell poses a danger to

himself or others is simply unsupported by the record and

is not a valid consideration when determining the gov-

ernment’s interest in forcibly medicating Dr. Sell. (App.

349, 363). Indeed, the question posed by this Court ac-

knowledges that the government wants to medicate Dr.

Sell “solely to render him competent.”

Further, because the record indicates a strong dis-

agreement about the side effects of antipsychotic medica-

tion and whether medication is even an appropriate

treatment for delusional disorder, persecutory type, the

government's interest should not supersede Dr. Sell’s

individual rights. As this Court has recognized: “The

individual should not be asked to share equally with

society the risk of error when the possible injury to the

individual is significantly greater than any possible harm

to the state.” Addington v. Texas, 441 U.S. 418, 427 (1979).

The government has not shown that its interest is compel-

ling enough to override Dr. Sell’s fundamental right.

10

III. THE GOVERNMENT HAS NOT SHOWN THAT

THE FORCED MEDICATION OF DR. SELL ISA

REASONABLE AND LEAST RESTRICTIVE

MEANS OF ACCOMPLISHING ITS INTEREST.

Involuntarily drugging Dr. Sell is not the least restric-

tive means of accomplishing the government’s interest.‘

The government admits that, even though Dr. Sell has

been confined for five years, it has not attempted any

other method to restore Dr. Sell’s competency. At the

hearing, DeMeir testified that Dr. Sell was not receiving

any treatment for his condition and that he was being kept

in solitary confinement, which may be exacerbating his

illness. (App. 180, 188). The government’s refusal to

consider any less restrictive means is highlighted by the

anonymous, uncited authority presented in its Response

Brief, which claims that in a recent twelve-month period

285 pretrial detainees, who were deemed incompetent to

stand trial, were evaluated and treated by the Bureau of

Prisons. Government’s Brief at 27. Of these 285 individuals,

226 were voluntarily drugged and 59 were involuntarily

drugged. Thus, the government drugged 100% of the

people it evaluated. It has not tried to treat Dr. Sell as

suggested by Dr. Sell’s expert physician/psychiatrist Dr.

Cloninger. (App. 32). -

The government argues that medication is the least

restrictive means because Dr. Sell will only be medicated

for a short period of time. See, e.g., Government’s Brief at

* Even if the Court finds that drugging Dr. Sell is the only means of

accomplishing the government’s interest, this Court has recognized that

in some circumstances, even use of the least restrictive means is not

constitutionally permissible. United States v. Playboy Entm’t Group,

Inc. , 529 U.S. 803, 813 (2000).

11

33. It must be noted that once Dr. Sell is drugged, his right

to avoid the drugging has been infringed. Moreover, the

articles cited by the government recognize that severe

dyskinesia sometimes results from the withdrawal of

antipsychotic drugs. Stanley N. Caroff, et al., Movement

Disorder Associated with Atypical Antipsychotic Drugs, 63

J. CLIN. PSYCHIATRY 12, 15 (2002). Studies have also shown

that short treatments with antipsychotic drugs may not be

sufficient to effectuate changes in patients with delusional

disorders. Alan R. Felthous, et al., Are Persecutory Delu-

sions Amenable to Treatment, 29 J. AM. ACAD. PSYCHIATRY

LAW 461, 465 (2001). Ironically, the government’s proposed

“least restrictive alternative” contemplates that if the

drugs given to make Dr. Sell competent create prejudicial

side effects, then he should be subjected to further un-

wanted medication to counteract those side effects. See,

e.g., Government’s Brief at 33. This never-ending cycle of

medication is not reasonable. Here, the “least restrictive”

method is also the most restrictive; Dr. Sell’s rights and

the government’s stated interest cannot co-exist.

The inquiry is whether the government’s proposed

action is the least restrictive means of accomplishing the

government's interest. Playboy Entm’t Group, 529 U.S. at

813. The government’s interests can be met in several,

other less restrictive ways. As Justice Kennedy recognized

in Riggins, the government can attempt to civilly commit

Dr. Sell until he is competent to stand trial. Riggins v.

Nevada, 504 U.S. 127, 145 (1992). Given the economic

nature of the crimes, the government may also seek civil

penalties and damages for any claimed monetary losses.

See 42 U.S.C. § 1320a-7a(a)(1)A).

The government must prove by clear and convincing

evidence that its proposed solution will accomplish the

12

government’s goals. Even if the government’s statistics are

to be believed, there is a 24% chance that Dr. Sell will not

be restored to competency. As discussed in section IV(B),

infra, even if Dr. Sell were made competent, the govern-

ment has not shown that the side effects of the drugs will

not impermissibly interfere with Dr. Sell’s constitutional,

fair trial rights. The government has not shown that

medicating Dr. Sel! *s the least restrictive means of ac-

complishing its objective or that the medication of Dr. Sell

will accomplish the government’s goal of bringing him to

trial.

IV. THE GOVERNMENT CANNOT SATISFY ITS

OWN FOUR-PART TEST.

The four-part test proposed by the government does

not pass constitutional muster because it does not comport

with the dictates of strict scrutiny. However, even if it

were constitutionally appropriate to adopt the four-part

test proposed by the government, it has failed to meet the

elements of its own test. From the outset, the government

cannot establish that drugging Dr. Sell is an essential

state interest. In any case, the government suggests that

forced medication of a pretrial detainee is appropriate

when the government can demonstrate that (1) the medi-

cation has a substantial probability of restoring compe-

tence; (2) the medication is medically appropriate; (3)

there is no reasonable and less intrusive alternative;’ and

(4) it is reasonable to expect that the defendant, if restored

* As discussed in section III, supra. the government is unable to

establish that its decision to drug Dr. Sell is reasonable and that it is

the least intrusive way to accomplish its objectives.

13

to competency, will receive a fair trial. Government’s Brief

at 15. These factors are not met in this case.

A. The Government Has Not Shown That Any

Medication Will Restore Dr. Sell To Compe-

tence Or That It Is Medically Appropriate.

The government has not shown by clear and convinc-

ing evidence that “the medication” or any medication has a

substantial probability of restoring Dr. Sell to competence

or that such medication is medically appropriate. As a

matter of fairness, such findings require, at a minimum,

that the government provide Dr. Sell and the court with

the medications with which it plans to medicate him.

Without this information, Dr. Sell is left to rebut the

government’s vague and generalized assertions about the

effects of dozens if not hundreds of antipsychotic drugs on

a myriad of different psychiatric conditions, which are

unlike Dr. Sell’s rare psychiatric condition.

Recognizing that the government’s evidence regarding

the efficacy and medical appropriateness of non-specific

medication was tentative at best, the government now

floods the Court with facts, statistics, and non-legal

authorities not found in the Record. See, e.g., Govern-

ment’s Brief at 27, 28 n.8, 29-34, 34 n.9, 35, 39-41, 45-46.

At times, the government relies upon facts and statistics

without citation. See, e.g., Government’s Brief at 27, 39.

For example, while arguing that antipsychotic medication

will restore Dr. Sell’s competency, the government relies

upon statistics emanating from “the experience of the

Bureau of Prisons” without citation. Government’s Brief at

27. Moreover, many of the authorities the government

cites did not even exist at the time of the involuntary

medication hearing. See, e.g., Government’s Brief at 27, 30,

14

32, 34, 34 n.9, 35, 39, 41, 45 (relying upon authorities

dated 2000, 2001, or 2002). This Court should not enter-

tain such material, as Dr. Sell had no opportunity to rebut

any of this material and none of this information was

presented to any lower court for consideration.*

Instead of allowing the government to submit to this

Court information outside the Record, “the lawfulness of

[the lower court’s actions regarding] the defendant is to be

determined by the formal record....” Hoyt v. People, 114

U.S. 488, 491 (1885) (emphasis added) (rejecting affidavit).

It has been this Court’s practice to reject information

which is unaccounted-for and to which the opposing party

has not been able to respond. See Adickes v. S.H. Kress &

Co., 398 U.S. at 157-58 n.16 (1970); see also Russell v.

Southard, 53 U.S. (12 How.) 139, 158-59 (1851) (Taney,

C.J.) (rejecting motion to receive affidavits of newly-

discovered evidence). This Court must rule “upon the case

as it appears in the record ... [and] cannot look out of

....” Id. at 159; see also Witters v. Wash. Deptt of Servs.

for the Blind, 474 U.S. 481, 486-87 n.3 (1986) (noting

importance of “factual development in earlier proceed-

ings”); New Haven Inclusion Cases, 399 U.S. 392, 450 n.66

(1970) (“None of this is record evidence, and we do not

consider it.”). In Adickes, the respondent lodged with this

Court an unsworn statement, but this Court recognized

the impropriety of such a maneuver, since “the statement

itself is not in the record of the proceedings below and

* The government's uncited reference to such statistics is addition-

ally deficient due to the otherwise vague manner in which the govern-

ment refers to them, since the government has provided no identifying

Government's Brief at 27 (“Over a recent twelve month period”).

15

therefore could not have been considered by the trial

court.” 398 U.S. at 157-58 n.16. The government’s reliance

upon non-legal authorities not before the lower courts is

likewise improper.

Importantly, the bulk of the new sources the govern-

ment attempts to interject are not helpful to the considera-

tion of the case because these sources deal with the

appropriateness of medication for schizophrenia.’ Schizo-

phrenia is a separate and distinct condition from delu-

sional disorder, the affliction from which Dr. Sell’s suffers.

(App. 257; Record 766). At points in its Brief, the govern-

ment weaves into its discussion of Dr. Sell’s condition,

delusional disorder, (App. 226), specific references to

schizophrenia and suitable treatment therefor. Govern-

ment’s Brief at 30 (“[s]chizophrenia is characterized by

profound disruption in cognition and emotion”) (citation

omitted). At other points in its Brief, the government’s

efforts are more subtle, such as where it indicates Geodon

— a drug the FDA approved only for schizophrenia, see

Federal Drug Administration, FY 2001 User Fee NME

Approvals as of September 30, 2001, http://fda.gov/cder/rdmt/

FYUFNME2001Rel. htm. — would be suitable for treating ©

Dr. Sell’s delusional disorder. Further, the government’s

own sources recognize that it is improper to assume that

” Stanley N. Caroff, et al., Movement Disorder Associated with

Atypical Antipsychotic Drugs, 63 J. CLIN. PSYCHIATRY 12, 12 (2002)

(stating atypical drugs are a significant advance in treatment of

schizophrenia); Linda Pendleton, Ph.D., Treatment of Persons Found

Incompetent to Stand Trial, 137 Am. J. PSYCHIATRY 1098-99 (1980)

(noting 90% of patients in 1978 study group had schizophrenia);

National Institute of Mental Health, Mental Health: A Report of the

Surgeon General 279-80 (1999) (pages cited in Government's Response

concern schizophrenia).

16

patients with delusional disorder will respond to medica-

tions in the same way as those with schizophrenia.

Felthous, supra, at 463 (2001) (recognizing “paranoid

patients are usually very sensitive to all side effects of

drugs” (citation omitted)).

The government’s repeated references to and heavy

reliance upon facts, statistics, and authorities not in the

Record attempt to indicate a well-developed body of

literature regarding antipsychotic drugs’ appropriateness

in treating delusional disorder.’ As demonstrated by the

amicus briefs, there remains medical debate between the

nation’s largest organization of psychiatrists and the

largest organization of psychologists about whether

medication is appropriate treatment for delusional disor-

der, persecutory type. In its amicus brief, the American

Psychological Association stated: “At present, there is no

consensus among researchers that delusional disorder,

persecutory type will respond favorably to antipsychotic

drugs... .” American Psychological Association Brief at 17

(citing sources). Likewise, the District Court recognized

* Even were the alleged developments upon which the government

relies certain to occur following the involuntary medication hearing,

this Court cannot lend serious weight to the claim that the lower courts

should have predicted such changes and acted according to events not

on the record. See Ramdass v. Angelone, 530 U.S. 156, 178 (2000)

(denying habeas relief due to record before court at time of sentencing

and rejecting argument that subsequent developments that might have

altered jury verdict were “inevitable” at time of sentencing). This Court

has previously evaluated the status of science from the time the case

was before the district court, see Reno, 521 U.S. at 876-77 (evaluating

occurred, see Ashcroft v. ACLU, 122 S. Ct. 1700, 1704 (2002).

17

the current debate among experts about whever medica-

tion is effective to treat delusional disorder, persecutory

type.” Even the sources cited by the government recognize

“(tJhere have been no controlled studies of specific agents

in the treatment of delusional disorder.” Felthous, supra,

at 461. Given this debate and the government’s refusal to

name the medications and dosages it plans to use, the

government cannot establish by clear and convincing

evidence that Dr. Sell will be restored to competence or

that medication is medically appropriate.

B. It Is Not Reasonable To Expect That Dr.

Sell, If Restored To Competency, Will Re-

ceive A Fair Trial.

The government argues that, before medicating Dr.

Sell, it should be required to prove that it is reasonable to

expect that the defendant, if restored to competency, will

receive a fair trial. The government ignores that it was not

required to make this showing before either the District

Court or the Court of Appeals. The District Court found

that consideration of the issue was premature. (App. 352).

Further, the Court of Appeals did not ask whether Dr. Sell

would receive a fair trial. Rather, the Court of Appeais

* In a recent en banc opinion, four members of the Eighth Circuit

Court of Appeals, two of whom were on the three judge panel in United

States v. Sell, found that drugging with antipsychotic drugs produces a

synthetic sanity, which is temporary and unpredictable and that

“receiving treatment is not synonymous with being cured.” Singleton v.

Norris, No. 00-1492, 2003 WL 261795, at *14 (8th Cir. Feb. 10, 2003)

(Heaney, J., dissenting). These judges also recognized that “[a)ntipsy-

chotic drugs merely calm and mask the psychotic symptoms which

usually return to debilitate the patient when the medication is discon-

tinued.” Jd. (citation omitted).

18

considered only whether Dr. Sell would be able to partici-

pate in a trial, given the effects of the medication. The

Court of Appeals, therefore, did not consider whether the

medication would effect Dr. Sell’s trial rights, including

the right to present a diminished capacity defense, see

FED. R. CRIM. P. 12.2(b), the right to not have the govern-

ment manipulate his appearance in a way that prejudices

him before the jury, and the right to testify and “present

his own version of events in his own words.” Rock uv.

Arkansas, 483 U.S. 44, 52 (1987); see also Illinois v. Allen,

397 U.S. 377, 345 (1970); Fep. R. CRIM. P. 12.2(b).

Further, the lower courts could not have made a

determination that there is a substantial probability that

Dr. Sell will receive a fair trial. The government has not

provided Dr. Sell or the lower courts with the medications

or dosages it intends to use with Dr. Sell. A general review

of the effects of non-specific medications on individuals

who suffer from a wide-range of psychological conditions is

not sufficient to protect Dr. Sell’s rights.

Importantly, our nation’s constitutional heritage does

not countenance the drug first, hold a hearing second

approach advocated by the government. Rather this Court

has made clear that due process requires at a minimum

that, when possible, an individual be given notice and the

right to a hearing before the deprivation of a right. United

States v. James Daniel Good Real Property, 510 U.S. 43, 57

(1993). If the forced medication of a non-dangerous indi-

vidual is even constitutionally permissible, due process

requires that the Court consider the full effects of a depri-

vation on the defendant’s trial rights before the right is

taken away, not afterward.

Given the numerous effects medication will have on

Dr. Sell’s trial rights, the government cannot show that

19

forced medication would constitute harmless error. Con-

trary to the government’s suggestion, Dr. Sell has never

argued that he has a right to appear incompetent at trial.

Rather, Dr. Sell has a right to appear at trial in a state

that is unmanipulated by the government. Defendants

may not be required to appear before the jury in prison

garb, in shackles, or in an unkempt state, absent the most

compelling interest. Allen, 397 U.S. at 344 . Likewise, the

government may not inject Dr. Sell with antipsychotic

drugs, then inject him with another round of drugs to

counteract the antipsychotic drugs, and then place him

before the jury in a state of synthetic sanity.

Further, Dr. Sell is the best witness regarding the effects

of the drugs on his thinking and demeanor. Once the gov-

ernment manipulates Dr. Sell’s brain, Dr. Sell loses his best

witness regarding the effects of the medication on his ability

to think and communicate. Dr. Sell has no way of preserving

his pre-medication demeanor or beliefs in a manner that

would be accepted as evidence by the court without waiving

his right to take the Fifth Amendment. Dr. Sell will be faced

with a Hobson’s choice: waive his Fifth Amendment right to

attempt to explain to the jury the effects of the forced medi-

cation or refuse to testify and risk that the jury is still

improperly affected by these same considerations.

Importantly, a predeprivation review of Dr. Sell’s Fifth

and Sixth Amendment trial rights is vital to the considera- _

tion of whether the government’s interest in overriding Dr.

Sell’s First and Fifth Amendment rights is compelling.

Since it is unlikely that Dr. Sell will both regain compe-

tence and then have a fair trial after being medicated, the

government’s interest in drugging Dr. Sell is severely

diminished and cannot be deemed compelling.

¢

20

CONCLUSION

For the foregoing reasons, Dr. Sell respectfully re-

quests that the Court rule that forced administration of

antipsychotic drugs for the sole purpose of prosecuting him

for a non-violent crime violates his First, Fifth, and Sixth

Amendment rights.

Respectfully submitted,

LEWIS, RICE & FINGERSH, L.C.

BARRY A. SHORT

(Counsel of Record)

NEAL F. PERRYMAN

MARK N. LIGHT

SANDRA F. SPERINO

AARON L. PAWLITZ

Suite 2000

500 N. Broadway

St. Louis, Missouri 63102

(314) 444-7600 telephone

(314) 241-6056 facsimile

and

FEDERAL PUBLIC DEFENDER

NORMAN S. LONDON

LEE T. LAWLESS

Suite 200

1010 Market Street

St. Louis, Missouri 63101

(314) 241-1255 telephone

(314) 421-3177 facsimile

Appointed Attorneys for

Petitioner Charles

Thomas Sell, D.D.S.