Brief Bank # B-971 (Re: F 4.00 n1 [Medication Of Defendant At Trial].)
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IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff-Respondent,
v.
JOHN DOE,
Defendant-Appellant.
_________________________________________/
SUPPLEMENTAL APPELLANT’S OPENING BRIEF
Appeal from Final Judgment of Conviction
Superior Court, County of San Mateo
The Honorable Judith Whitmer Kozloski
Presiding Judge
S. Michelle May
State Bar No. 111072
1800 Market St. # 38
San Francisco, CA 94102
(415) 585-5907
Conrad Petermann (SBN 51907)
8306 Wilshire Blvd. Suite 797
Beverly Hills CA 90211
Tel.: (805) 653-4779
Fax: (805) 653-2579
Counsel for Appellant John Doe
Under Appointment by the Supreme Court
IV. The Merits Of Arguments III And XV Of The Appellate Briefing Are Further Supported By U.S. Supreme Court Authority Issued After The Reply Brief
On June 16, 2003, shortly after the Appellant’s Reply Brief was filed, the U.S. Supreme Court issued its opinion in United States v. Sell (U.S. June 16, 2003) 539 U.S. ___ [123 S.Ct. 2174].) Sell further supports appellant’s contention that the State may not constitutionally ‘medicate a person into competence’ without his informed and voluntary consent, at least absent court findings on compliance with strict criteria which didn’t exist here.
Sell cited two U.S. Supreme Court cases, Washington v. Harper (1990) 494 U.S. 210 and Riggins v. Nevada (1992) 504 U.S. 127, in holding that as a matter of federal constitutional law:
Harper and Riggins indicate that the Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if 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.
(Sell, 539 U.S. at p. ___ [123 S.Ct. at p. 2183].) Appellant relied extensively on Harper and Riggins in his own briefing. (See AOB lix [noting appellant’s citations to Riggins at AOB 104, 214, 221, 222, 226, 243, 257, 258, 261, 264, 268, 292, 371]; AOB lxx [noting appellant’s citations to Harper at AOB 107, 113, 115, 243].)
Sell further held that this would be a difficult standard to meet: “This standard will permit involuntary administration of drugs solely for trial competence purposes in certain instances. But those instances may be rare.” (539 U.S. at p. ___ [123 S.Ct. at p. 2173].) Appellant’s case clearly was not such an instance, because the findings required by Sell were not made.
Most importantly, Sell held that the trial court must make findings on four specific issues, before a case might qualify as one of the “rare instances” where antipsychotic drugs might be given on a nonconsensual basis for purposes of creating trial competence. Appellant even anticipated this holding in Sell to some extent in his prior briefing, since he had a separate subargument specifically addressing the fact that if there were some conditions under which a person could be tried while nonconsensually drugged, this case didn’t fulfill them. (See AOB 242-245.)
Here, the trial court made findings on none of those four factors. (At least two and possibly three of the factors strongly militated in appellant’s favor in any event, so such a finding would have been unlikely even if the trial court had set out to make one, as is discussed further below.)
Not only did the trial court not make any such findings, its only ruling on the issue was that it didn’t have to make any such findings at all; its first competency hearing verdict was that appellant could be found competent even if it required the administration of antipsychotic drugs, with no more findings than that. (See AOB 357.) But even apart from that, Sell plainly required certain findings before the State could assert lawful power to nonconsensually administer antipsychotic drugs for trial ‘competence.’ None were made here.
Because the trial court made no findings on any of the Sell factors, the U.S. Constitution’s prohibition was absolute: Appellant could not be nonconsensually given antipsychotic drugs for purposes of creating trial competence. And as is discussed frequently in the main briefing, appellant repeatedly and continuously objected to being given antipsychotic drugs at all, when he had a voluntary choice (i.e., whenever he was housed in the jail).
Sell applies with full retroactivity to this case, because appellant’s judgment was on direct appeal when Sell was issued. (Griffith v. Kentucky (1987) 479 U.S. 314, 322-323; People v. Ashmus (1991) 54 Cal.3d 932, 991; People v. Guerra (1984) 37 Cal.3d 385, 399-400.) It is thus enough to say the law requires Sell‘s application here, even though appellant’s competency trials were in 1988 and 1989.
Having said that, Sell is based on principles established long before appellant’s competency trials. It is rooted in society’s recognition of the individual’s strong interest in making judgments respecting his own bodily integrity, and the severe restrictions on the Government if it wishes to truncate that interest. These principles have been basic to the Anglo-American legal tradition through the history of our Nation. (See, e.g., Thor v. Superior Court (1993) 5 Cal.4th 725, 735-736.) They were reiterated in two seminal opinions on protection of individuals against nonconsensual administration of psychotropic drugs, which preceded both of appellant’s competency hearings. (Keyhea v. Rushen (1986) 178 Cal.App.3d 526 [cited in AOB 189, 220, 221, 225, 228, 236, 261, 525, 526, 530 and ARB 55, 374]; Riese v. St. Mary’s Hospital & Med. Center (1987) 209 Cal.App.3d 1303 [cited in AOB 220, 222, 224, 228, 237, 239-241, 252, 258, 260].)
Here, the trial court made no effort to protect or even take into account appellant’s basic right of bodily integrity. To the contrary, its verdict in the first competency hearing made express its approach of rendering any such right completely subservient to the State’s interest in ‘making appellant competent’ so it could try him. Its instructions in the second competency hearing, where ‘making appellant competent’ was the subject of extensive psychiatric testimony, also followed that approach. That was also what the prosecution advocated. (1 CRT 4:9-22.) But the trial court’s approach was not only contrary to Sell, it was also contrary to basic long-standing jurisprudence predating the competency hearings, based on the same right of bodily integrity that all of these decisions were issued to safeguard. Having said that, Sell applies fully to this case in any event.
Although it shouldn’t matter here due to the absence of court findings, appellant briefly comments on the four factors in Sell:
1. “A court must find that important governmental interests are at stake.” (123 S.Ct. at p. 2184, italics in original.) Obviously, “[t]he Government’s interest in bringing to trial an individual accused of serious crime is important . . . whether the offense is a serious crime against the person or a serious crime against property.” (Id.) Appellant agreed with that from the very start. (AOB 230.)
However, courts must also consider the factors of each individual case in evaluating the Government’s interest in prosecution, and “[s]pecial circumstances may lessen the importance of that interest. The defendant’s failure to take drugs voluntarily, for example, may mean lengthy confinement in an institution for the mentally ill–and that would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime.” (Id.) So too for appellant, who, if found incompetent to be tried, would certainly have qualified as gravely disabled under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § Welfare and Institutions Code § 50085008, subd. (h); see AOB 238); and thus subject to civil commitment, a direct means of protecting the public from a person’s future dangerousness. (See AOB 231-232, 238-240 & fn. 72.)
2. “[T]he court must conclude that involuntary medication will significantly further those concomitant state interests. It must find that administration of the drugs is substantially likely to render the defendant competent to stand trial. At the same time, it must find that administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair.” (123 S.Ct. at pp. 2184-2185 [italics in original, underscoring added]. This second criterion relied on Justice Kennedy’s concurring opinion in Riggins v. Nevada, supra. Appellant relied on and adopted Justice Kennedy’s Riggins concurrence for the same point (see AOB 226, 257, 258, 261), and more generally — and in light of Sell, correctly — assigned this second criterion in support of his argument in his (pre-Sell) appellate briefing. (See AOB 220-226, 254-261.)
There was ample evidence, even on this record, to indicate the State would have had difficulty meeting this standard had it tried, since appellant did suffer serious side effects from the drugs. (See AOB 259, fn. 74.)
3. The court must find that nonconsensual medication is necessary to further those interests, and that any less intrusive treatments are unlikely to achieve substantially the same results. (123 S.Ct. at p. 2185.) This is the criterion the State might have had the greatest likelihood of meeting in appellant’s case, since all of the evidence was that if appellant was mentally ill, he was so ill that he required antipsychotic medications for there to be any significant possibility of ‘creating competence.’
4. The court must conclude that administering the drugs is medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition. (Id.) In appellant’s case, this criterion could not have been met. It could only be met had the State kept appellant on a long-term care regimen truly aimed at his medical condition for the time appellant was or would be in its custody. However, on this record, that wasn’t done in 1989; appellant had the right to refuse antipsychotic medications and did so continuously whenever he had a choice, which was at all times while he was housed in the jail. No effort was made to institute conservatorship or similar proceedings (other than appellant’s WIC § Welfare and Institutions Code § 51505150 commitments, which lasted no more than two weeks at a stretch). Thus, on this record, there would have been no basis for the trial court to make this essential Sell finding.
Although Sell might at first blush appear more restricted than the position appellant took in his briefing, it is actually very close to what appellant argued. Appellant’s briefing was written from the perspective of this record, in which appellant (i) repeatedly and continuously refused antipsychotic medications when he was given a choice; (ii) was not shown to be subject to any conservatorship or other orders supplanting his right to make basic medical decisions on his own body (and the only evidence is that he maintained that right throughout); (iii) was not shown to be on any ongoing medication regimen including the use of antipsychotic drugs (and the only evidence is that he wasn’t, because he refused those drugs when he could); and (iv) was not shown to be subject to any Washington v. Harper-type orders on nonconsensual medication for institutional security.
In those particular circumstances, Sell indicates that it would only rarely–and possibly never–be appropriate to permit authorities to administer antipsychotic drugs nonconsensually for the purpose of ‘creating’ trial competence. Indeed, that is a situation where the nonconsensual use of drugs cannot be medically appropriate, because it is not being used as part of a bona fide regimen of medical care toward the patient’s long-term betterment. That was the point appellant made in his briefing.
Accordingly, appellant also relies on Sell in support of the arguments made in Parts III and XV of his briefing. Although respondent does not appear to have contested appellant’s argument on the merits anyway (its arguments were confined to procedural matters), appellant is nonetheless compelled in this capital appeal to ensure that the governing U.S. Supreme Court authority which supports his position is presented.
