Amicus Curiae Brief — ShisInday v. Quarterman, (2007) (No. 1383)

\ OM | FILED

| (%) JUN 6 - 2008

OFFICE OF T

No. 07-1383 SUPREME COURT uk

IN THE SUPREME COURT OF THE UNITED

STATES

SHOZDIJIJI SHISINDAY, a/k/a DANNY DEAN

THOMAS,

Petitioner,

v. |

NATHANIEL QUARTERMAN

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

_ BRIEF OF FORENSIC PSYCHIATRISTS DR.

- DAVID LOWENTHAL, DR. JEREMY BUTLER AND

DR. RICHARD DUDLEY AS AMICI CURIAEIN

SUPPORT OF PETITIONER

MIRANDA S. SCHILLER

(Counsel of Record)

DOTAN WEINMAN

WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue

New York, New York 10153

(212) 310-8000

Counsel for Amici "€

TABLE OF CONTENTS

TABLE OF AUTHORITIEG..............2cccsccesseee eoeeee Il

INTEREST OF THE AMICI CURIAE............00....0000 1

INTRODUCTION AND SUMMARY OF

FIR Na A ca aD ee A RR OS 2

Fg RESIS BESO RRP CSP UNNI Re 4.

m.? Use and Effect of Antipsychotic

Medication............c.::ccceceee- SE lads 4

B. The Right to Refuse Antipsychotic

ESE EEE MGS ORATOR) ay REMOTE DEY 6

C. UE DD NID sec ivsccdncnsccitesatadepeceeivas 8

D. The Circumstances of the Case at

es disighocbailadeve 9

E. The Need for a Standard

Regarding Admissibility of

Riggins Tainted Evidence ................... 11

CAT IOC EATEIRIIG ooviesicsevesessscetotne Sp St Vendio Mt het ERI BER Bren 12

TABLE OF AUTHORITIES il

Page

FEDERAL CASES

Riggins v. Nevada, 504 U.S. 127

OO. Sora RE eR Meee SCRE SOROS e Passim

Sell v. United States, 539 U.S. 166 (2003)........ Passim

ShisInday v. Quarterman, 511 F.3d 514 (5th

MMA MIN ES a ica dese dcatis te busaandec asdidcuseankedecuelvter Passim

States v. Weston, 255 F.3d 873 (D.C. Cir. 2001) ........ 4

United States v. Gomes, 289 F.3d 71 (2d Cir.

DOCKETED CASES

ShisInday v. Quarterman, Civ. No. H-06°814,

2007 U.S. Dist. LEXIS 17099 (S.D. Tex.,

inoue 9

Thomas v. Johnson, Civ. No. H-95-5236 (S.D.

a i ne 2, 8

MISCELLANEOUS

J. Ananth, S. Parameswaran, S. Gunatilake,

Side Effects of Atypical Antipsychotic

Drugs, Current Pharmaceutical Design,

Volume 10, No. 18, pp. 2219-2229, Jul. 2004 ........ 5

TABLE OF AUTHORITIES iii

(CONTINUED)

Page

Adverse Effects of the Atypical Antipsychotics,

J. of Clinical Psychiatry, 59 Supp. 12:17-22,

Developments in the Law -- The Law of Mental

IlIness, 121 Harv. L. Rev. 1121 (2008)................... 5

R. Keefe, et al, Neurocognitive Effects of

Antipsychotic Medications in Patients with

Chronic Schizophrenia in the CATIE Trial.

Arch. Gen. Psychiatry 64(6):633-47, Jun.

J. Parks, et al, Principles of antipsychotic

prescribing for policy makers, circa 2008.

Translating knowledge to promote

individualized treatment, Schizophrenia

SE GRERE OREO RE BOGE Ean st eee ae 4

Schizophrenia, U.S. Dept. of Health and

Human Services, Nat'l Inst. Mental Health,

NIH Pub. No. 06-3517 (Revised Jan. 2007)........... 5

L. Shi, et al, Characteristics and Use Patterns

of Patients Taking First-Generation Depot

Antipsychotics or Oral Antipsychotics for

Schizophrenia, Psychiatric Service 58:482-

REI MIT ai cietiais abicukals tahtohanietintnieathukadadeetesenanctinns 5, 8

TABLE OF AUTHORITIES iv

(CONTINUED)

Page

B. Veysey, et al., Costs, Control or Just Good

Clinical Practice? The Use of Antipsychotic

Medications and Formulary Decision-

Making in Large U.S. Prisons and Jails, J.

of Offendor Rehabilitation, Vol. 45, No. 1-2,

Sh, BI I, DOIN. WOO isis ceicecenssicccssececesossseses 5

INTEREST OF THE AMICI CURIAE

This brief is filed on behalf of forensic

psychiatrists Dr. David Lowenthal, Assistant Clinical

Professor of Psychiatry, Columbia University and

Director, Washington Heights Community Service

Inpatient Unit, New York State Psychiatric Institute;

Dr. Jeremy Butler, Assistant Clinical Professor of

Psychiatry, Columbia University, and Attending

Psychiatrist at Mid-Hudson Forensic Psychiatric

Center; and Dr. Richard Dudley, a psychiatrist in

private practice and previously an Adjunct Associate

Professor of Law at the New York University hool

of Law, who has testified as an expert in psych. atry

in numerous criminal cases, including capital cases,

throughout the country.! The signers have

substantial expertise on the uses and effects of

antipsychotic medication.

The recent Jecision of the United States Court

of Appeals for the Fifth Circuit (the “Fifth Circuit”),

in the matter of ShisInday v. Quarterman, 511 F.3d

514 (5th Cir. 2007), creates an exception to the rule

that this Court announced in Riggins v. Nevada, 504

U.S. 127 (1992), by allowing the state to reuse

transcript testimony from a previous trial where the

defendant was unlawfully medicated in violation of

Riggins. The f#iggins rule defines the process by

' Pursuant to Supreme Court Rule 37.6, amici curiae

affirm that no counsel for a party authored this brief in

whole or in part and that no person other than amici

curiae and their counsel made any monetary contribution

to the preparation or submission of this brief. Letters of

consent to the filing of this brief from both parties have

been filed with the Clerk of the Court.

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which a court determines whether to allow the state

to forcibly medicate a criminal defendant with

antipsychotic medication in order to render him

competent to stand trial. Forensic psychiatrics play a

central role in this process by, among other things:

(1) informing the court about the mental state of

mentally ill defendants, (2) prescribing appropriate

treatments for such defendants, and (3) explaining

how those treatments, including medications, are

likely to affect such defendants. As forensic

psychiatrists, we have a special interest in this

matter both because of the central role forensic

psychiatry plays in hearings required by Riggins and

because the Higgins rule protects the constitutional

rights of our patients.

INTRODUCTION AND SUMMARY OF ARGUMENT

This Court has declared that “an individual

has a constitutionally protected liberty ‘interest in

avoiding involuntary administration of antipsychotic

drugs’ -- an interest that only an ‘essential’ or

‘overriding’ state interest might overcome.” Sell v.

United States, 539 U.S. 166, 178-79 (2003) (quoting

Riggins, 504 U.S. at 134-35). The Riggins rule is

designed to protect the constitutionality and integrity

of the process by which courts determine whether a

state may forcibly medicate a criminal defendant

with antipsychotic medication in order to render him

competent to stand trial. Jd. This Court has

instructed ‘that when a state seeks to medicate a

criminal defendant against his will, it must make

specific showings of necessity and medical

appropriateness. Jd. at 180. That determination

be Sl ee te ee Ee,

3

requires that the court consult with psychiatrists

regarding the state of defendant’s mental health,

whether forcible medication may help accomplish the

state’s objective, the appropriate medication and

dose, and the possible side effects that the defendant

may suffer if medicated. /d. at 180-81.

Petitioner's initial conviction -and death

sentence were vacated by a federal district court,

which held that the trial court had allowed the state

to forcibly medicate Petitioner without taking the

required measures to determine whether such

medication was necessary or appropriate. Thomas v.

Johnson, Civ. No. H-95-5236 (S.D. Tex. July 2, 1997)

(Black J.). In Petitioner’s second trial, the trial court

allowed the state to admit, over the defense’s

objection, into evidence testimony from Petitioner's

first trial, despite the holding of the federal district

court that this testimony had been tainted by a

Riggins violation. ShisInday, 511 F.3d at 523.

Applying a “harmless error” analysis, the Fifth

Circuit denied Petitioner's application for a

Certificate of Appealability on this issue. Jd. at 524.

In Riggins, this Court instructed that a

defendant who is forcibly medicated without the

required findings of necessity and appropriateness

need not show harm to be entitled to a new trial.

Riggins, 504 U.S. at 137. This holding reflects the

Court’s recognition that it is impossible to measure

the harm that inappropriate medication can have on

a defendant’s trial. Jd. In addition, the fact that a

defendant does not need to show harm provides the

state with a strong incentive to comply with Riggins

requirements. The deterrent power and effectiveness

of the Riggins rule, however, will be significantly

4

diminished if trial courts allow states to admit at

subsequent trials — ordered because of a Riggins

violation — evidence that the state elicited in violation

of Riggins.

By granting certiorari to the petition at issue,

the Court can provide appellate courts with a

standard by which to review trial courts’ decisions to

admit fRigginstainted evidence. A standard that

provides that such grave constitutional violations are

never tolerated, or tolerated only in very limited and

specific circumstances, will help preserve the

integrity and effectiveness of the Riggins rule.

ARGUMENT

We do not, in this brief, take a stand on

whether the Court should ultimately hold for or

against Petitioner, if certiorari is granted. The sole

purpose of this brief is to encourage the Court to

grant the petition at issue so that the Court can

announce a standard of review that will protect the

important rule that it announced in Riggins.

A. Use and Effect of Antipsychotic

Medication

As long recognized by this Court, antipsychotic

medication plays a critical, oftex indispensable, role

in treating criminal defendants who, due to mental

illness, are dangerous to themselves or others. See

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

Antipsychotic medication also plays a central role in

restoring or maintaining the competence of mentally

5

ill defendants so they can stand trial. See Sell, 539

U.S. 166.

But “{wlhile the therapeutic benefits of

antipsychotic drugs are well documented, it is also

true that the drugs can have serious, even fatal, side

effects.” Riggins, 504 U.S. at 134. Common side

effects such as sedation or over-sedation (which can

cause a person to be sluggish or induce sleep) and

tardive dyskinesia,2 may “interfere with the

defendant's ability to receive a fair trial.” Sel/, 539

U.S. at 179 (noting Justice Kennedy concurring

opinion in Riggins).

Since this Court decided Riggins, new types of

antipsychotic medications have been introduced that

may have fewer acute side effects than the drugs

used when Figgins was decided. See United States v.

Gomes, 289 F.3d 71, 83 (2d Cir. 2002); States v.

Weston, 255 F.3d 873, 877 n.3 (D.C. Cir. 2001). .

Nevertheless, the older medications are still widely

used. J. Parks, et al., Principles of antipsychotic

prescribing for policy makers, circa 2008. Translating

knowledge to promote individualized treatment,

Schizophrenia Bul. 2008.4 Moreover, the risk of

2 “Tardive dyskinesia is a neurological disorder,

irreversible in some cases, that is characterized by

involuntary, uncontrollable movements of various

en especially around the face.” Riggins, 504 U.S. at

134.

3 See also L. Shi, et al, Characteristics and Use Patterns

of Patients Taking First-Generation Depot Antipsychotics

or Oral Antipsychotics for Schizophrenia, Psychiatric

Service 58:482-488, Apr. 2007. This is especially true in

prisons and jails, where cost considerations typically lead

to a greater use of first-generation medication. See B.

Veysey, et al, Costs, Control or Just Good Clinical

6

undesirable side effects, which may compromise a

defendant's right to a fair trial, is still considerable,

whether an individual is medicated using one of the

new antipsychotic medications or one of the older

ones. See Developments in the Law -- The Law of

Mental Illness, 121 Harv. L. Rev. 1121, 1132 (2008);

Schizophrenia, U.S. Dept. of Health and Human

Services, Nat'l Inst. Mental Health, NIH Pub. No. 06-

3517, p. 10 (Revised Jan. 2007).4 This is especially

true given the wide variation in clinical responses to

the array of available antipsychotic medications, both

in terms of the specific medication and the prescribed

dose. Jd. In other words, while one individual may

have a therapeutic response to a relatively high dose

of one medication, another individual may have an

adverse response to a relatively low dose of the same

medication.

B. The Right to Refuse Antipsychotic

Medication

This Court has declared that a criminal

defendant “has a constitutionally protected liberty

Practice? The Use of Antipsychotic Medications and

Formulary Decision-Making in Large U.S. Prisons and

Jails, J. of Offendor Rehabilitation, Vol. 45, No. 1-2, pp.

189-206(18), Jan. 2008.

4 See also R. Keefe, et al, Neurocognitive Effects of

Antipsychotic Medications _in Patients with Chronic

Schizophrenia in the CATIE Trial. Arch. Gen. Psychiatr

64(6):633-47, Jun. 2006; J. Ananth, S. Parameswaran, ef

Gunatilake, Side Effects of Atypical Antipsychotic Drugs,

Current Pharmaceutical Design, Volume 10, No. 18, pp.

2219-2229, Jul. 2004.

7

interest in avoiding involuntary administration of

antipsychotic drugs.” Sel/, 539 U.S. at 178-79

(quoting Riggins, 504 U.S. at 134-35). This right

protects the defendant’s legitimate desire to avoid the

risk of the potentially debilitating side effects, caused

by antipsychotic medication, which could “interfere

with the defendant’s ability to receive a fair trial.” Jd.

at 179. For example, an over-sedated defendant, who

is continually nodding off and fighting just to stay

awake, would have a great deal of difficulty following

the proceedings, providing assistance to his counsel,

and responding to potentially damaging testimony by

prosecution witnesses. This right also protects the

privacy and liberty of the defendant’s body, as “the

forcible injection of medication into a nonconsenting ©

person’s body [] represents a substantial interference

with that person’s liberty.” Riggins, 504 U.S. at 134

(quoting Harper, 494 U.S. at 229).

The constitutional right of a _ criminal

defendant to resist antipsychotic medication is not

without limits. There are circumstances in which

involuntary medication is permissible and

appropriate. For example, forcible medication is

appropriate where the state demonstrates “by a

medical finding” that a person in custody has a

mental disorder which is likely to cause harm to

himself or others, unless medicated with the proper

dose of antipsychotic medication. Sel/, 539 U.S. at

178 (quoting Harper, 494 U.S. at 221-22).

Involuntarily medication is also warranted when it is

the only means by which “a mentally ill defendant

facing serious criminal charges” can be rendered

competent to stand trial. Jd. at 179.

C. The Riggins Ru

The rule that this Court announced in Aiggins

is designed to ensure that a defendant's

“constitutionally protected liberty interest in avoiding

involuntary administration of antipsychotic drugs”

will only be compromised if forcible medication is

medically appropriate and is necessary to further an

overriding state interest. Se//, 539 U.S. at 178-79. In

Sell, the most recent decision by this Court to address

a Riggins issue, this Court reaffirmed that the

Constitution permits a state to involuntary medicate

“a mentally ill defendant facing serious criminal

charges in order to render that defendant competent

to stand trial.” Jd. at 179. However, in order to do so

the state must demonstrate that “the treatment is

medically appropriate, is substantially unlikely to

have side effects that may undermine the fairness of

the trial, and, taking account of less intrusive

alternatives, is necessary significantly to further

important governmental trial-related interests.” Jd.5

A defendant who suffered a Riggins violation

does not need to show harm to be entitled to a new

trial. Riggins at 137. The Riggins court explained

that:

Efforts to prove or disprove actual

prejudice from the record before us

would be futile, and guesses whether

the outcome of the trial might have

been different if Riggins’ motion had

5 A lesser standard applies where the state’s goal is to

contain or control a violent person in its custody. Se//, 539

U.S. at 181-82.

been granted would be _ purely

speculative. We accordingly reject the

dissent’s suggestion that Riggins

should be required to demonstrate

how the trial would have proceeded

differently if he had not been given

{the antipsychotic medication]

Mellaril.

Id.

D. The Circumstances of the Case at Issue

Petitioner is a death-row inmate from Texas

with a long and unfortunate history of mental illness.

ShisInday, 511 F.3d at 517, 519. During his first

capital murder trial, in 1982, Petitioner was treated

with Prolixin Decanoate,® a “highly potent behavior

modifier with a markedly extended duration of

effect.” Harper, 494 U.S at 257. Prolixin is a very

effective drug when administered properly and is still

in use today.? Petitioner argues that, as a result of

the medication, he suffered from over-sedation.

Petition for Writ of Certiorari at 7-8. Sedation is one

of the more common side effects of Prolixin and

certain other antipsychotic drugs. See Arana G. An

Overview of Side Effects Caused by Typical

Antipsychotics, J. of Clinical Psychiatry, 61 Supp.

6 See Appendix H to the Petition for Writ of Certiorari.

7 See L. Shi, et al, Characteristics and Use Patterns of

Patients Taking First-Generation Depot Antipsychotics or

Oral Antipsychotics for Schizophrenia, Psychiatric Service

58:482-488, Apr. 2007.

10

8:5-11, 2000.8 Over-sedation can be a side-effect or

the result of improper administration of the

medication.

In 1997, U.S. District Judge Norman Black of

the Southern District of Texas vacated Petitioner's

conviction and death sentence. Thomas, Civ. No. H-

95-5236. He held that the trial court had erred when

it allowed the state to forcibly medicate Petitioner

without taking measures to determine whether the

forcible medication prescribed was medically

appropriate, necessary to accomplish an important >

state objective, and whether such objective could have

been accomplished via less intrusive means. Jd.

Petitioner was retried in 1998. ShisInday, 511

F.3d at 519. During his second trial, the court

allowed, over the defense’s objection, the state to

admit into evidence testimony from Petitioner’s first

trial, despite the holding of the federal district court

that Petitioner’s first trial, including this testimony,

was tainted by a Aiggins violation. Jd. at 523. At the

end of the second trial, Petitioner was again convicted

of capital murder and sentenced to death. Jd. at 519-

20.

Petitioner then filed a habeas petition with the

federal district court on various grounds, including

the admission of the Rigginstainted evidence into the

record. (Petitioner’s application for federal habeas

corpus was not heard by the judge who had vacated

his original conviction on Aiggins grounds as Judge

Black had passed away.) Petitioner's application for

8 See also Adverse Effects of the Atypical Antipsychotics,

J. of Clinical Psychiatry, 59 Supp. 12:17-22, 1998.

1]

habeas corpus arising from his second trial was

rejected in its entirety by the federal district court,

which held that the admission of the Aiggins tainted

evidence was “harmless error.” ShisInday v.

Quarterman, Civ. No. H-06°814, 2007 U.S. Dist.

LEXIS 17099, at *53-56 (S.D. Tex., Mar. 9, 2007).

However, this Court held that the supposed

harmlessness of the error does not excuse a Riggins

violation in a capital case. See supra, p. 7. The Fifth

Circuit denied Petitioner’s request for a Certificate of

Applicability, adopting the holding of the district

court in whole. Jd. at 524.

E. The Need for a Standard Regarding

Admissibility of Riggins Tainted

Evidence

The Fifth Circuit’s decision in this case is

troubling because it indicates that a state may be

able to circumvent the purpose of the Riggins rule by

introducing evidence elicited by a Higgins violation in

a subsequent trial. In addition, the manner by which

the state and reviewing courts handled the admission

of the Rigginstainted evidence suggests a lack of

respect for the purpose and requirements of the rule

this Court announced in Higgins.

Even after Petitioner’s conviction was vacated

because of a Figgins violation, the state sought to

admit Aigginstainted evidence into the record. In

direct contravention of the federal district court’s

ruling, the trial court summarily permitted the

admission of this evidence. In its review, the Fifth

Circuit did not even address the fact that the

constitutional error committed by the trial court was

12

the precise error, involving the exact same Figgins

violation, which necessitated a second trial.

: This Court has yet to #eclare the standard by

which an appellate court should review trial errors

concerning the admission of Riggins tainted evidence.

_As psychiatrists, it is not our place to suggest to the

Court the proper standard of judicial review.

However, because the Riggins rule is critical to the

field in which we practice and to the rights of the

patients we treat, we have an interest that the

standard that this Court chooses be a rigorous one

that mandates compliance with the requirements of

Riggins.

CONCLUSION

For the reasons described above, the petition

for a writ of certiorari should be granted.

Dated: June 6, 2008

Respectfully submitted:

MIRANDA S. SCHILLER

(Counsel of Record)

DOTAN WEINMAN

WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue

New York, New York 10153

(212) 310-8000