# Reply Brief — Sell v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0684%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 166

## Text

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In The
Supreme Court of the Anited States

>
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0684%3A08. Public record. Not legal advice.