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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1432%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007

## Text

\ 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1432%3A4. Public record. Not legal advice.