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In  The

0 u jir m p  (Ernirt n f tljp ji^tatpja
October Term, 1983

No. 83-5424

Glen B urtonsAke,
Petitioner,Y«

State of Oklahoma,
Respondent.

On Writ of Certiorari to the 
Oklahoma Court of Criminal Appeals

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
FOR THE AMERICAN PSYCHIATRIC ASSOCIATION

The American Psychiatric Association (APA) hereby 
moves, pursuant to Rules 36 and 42 of this Court’s rules, 
to file the attached brief amicus curiae in Glen Burton 
Ake v. Oklahoma in support of petitioner. Counsel for 
petitioner has consented to the filing of this brief. Coun­
sel for respondent has advised that he will take no posi­
tion on the filing of this, or any other, amicus brief.

The APA, founded in 1844, is the nation's largest or­
ganization of qualified doctors of medicine specializing in 
psychiatry. Almost 30,000 of the approximately 35,000 
psychiatrists in the United States are APA members. 
The APA has participated as amicus curiae in numerous 
cases involving mental health issues, including Barefoot 
v. Estelle, 103 S. Ct. 3383 (1983), Youngberg v. Romeo, 
102 S. C t 2452 (1982), Mills v. Rogers, 102 S. Ct. 2442 
(1981), Estelle v. Smith, 451 U.S. 454 (1981), Parham 
v. J.R., 442 U.S. 584 (1979); Addington v. Texas, 441



ii

U.S. 418 (1979), and O’Connor v. Donaldson, 422 U.S. 
663 (1975).

The APA believes that it can make an important con­
tribution to this Court’s consideration of the issues pre­
sented in this case. In recent years, the APA has been 
actively involved in examining the role of psychiatrists 
in criminal cases. Of particular concern to the APA and 
its members is the reliance on psychiatric testimony to 
determine a defendant’s mental state at the time of the 
crime, and also to determine whether, in capital cases, a 
defendant poses a risk of “future dangerousness.” In 
addition, the APA is concerned about the appropriate 
utilization of psychotropic medications in various set­
tings, including the treatment of individuals who have 
been found incompetent to stand trial.

The attached brief focuses on three areas. The first 
concerns the importance of a psychiatric examination to 
assist a defendant in the preparation and presentation of 
an insanity defense. The second concerns the need for 
expert testimony to rebut the prosecution’s use of psy­
chiatric evidence to establish a defendant’s “future dan­
gerousness” at the sentencing phase of a capital trial. 
And the third discusses the use of antipsychotic medica­
tion to render an indicted defendant competent to stand 
trial.

For the reasons stated above, the APA respectfully re­
quests that the motion to file the attached brief amicus 
curiae be granted.

Respectfully submitted,

Joel I. Klein
Peter E. Scheer 

Onek, Klein  & Farr 
2550 M Street, N.W. 
Washington, D.C. 20037 
(202) 775-0184

June 1, 1984 Counsel for Amicus Curiae

TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES------------------ -----------iv

INTEREST OF AMICUS CURIAE............ .............. —  1

STATEM ENT------------------------------------ ......— ......— 1
Pretrial Proceedings---------- ----- ------------ -------------  2

Trial Proceedings  ---- ----- -------------------- ------------ 4

Appeal Proceedings-------- ----------------------------------  ®

SUMMARY OF ARGUM ENT------------- --------- ............ 6

ARGUMENT ...........— ......— ---- ------------ - .......... - ..... 9

I. THE CONSTITUTIONAL RIGHT TO A FAIR 
TRIAL ENTAILS THE RIGHT TO GOVERN­
MENT ASSISTANCE IN OBTAINING AN EX­
PERT EVALUATION OF A DEFENDANT’S
MENTAL STATE AT THE TIME OF THE 
OFFENSE _________________________________ 9

Nature of the R ight.................. — ------------------  9

Dimensions of the R igh t..........................................  14

II. AN INDIGENT DEFENDANT IN A CAPI­
TAL CASE IS ENTITLED TO A PSYCHIAT­
RIC EXPERT, AT STATE EXPENSE, TO 
REBUT THE PROSECUTION’S USE OF 
PSYCHIATRIC TESTIMONY TO PROVE 
“FUTURE DANGEROUSNESS” ........................  19

III. THE TRIAL COURT WAS NOT SUFFI­
CIENTLY ALERT TO THE POSSIBILITY 
THAT, ALTHOUGH PROPERLY TREATED 
WITH ANTIPSYCHOTIC MEDICATION, PE­
TITIONER MAY HAVE BECOME INCOM­
PETENT DURING TR IAL-------------- ------------ 21

CONCLUSION---------- ----------------------------------- ---------  25

(iii)



iv

TABLE OF AUTHORITIES
CASES: Pa£0

Addington v. Texas, 441 U.S. 418 (1979)----------- 11
Argersinger v. Hamlin, 407 U.S. 25 (1972)------- 10
Barefoot v. Estelle, 103 S.C t 3383 (1983) ........... .passim
Douglas v. California, 372 U.S. 353 (1963)-----6 ,9 ,1 0
Dropei v. Missouri, 420 U.S. 152 (1975)------------ - 23,24
E dneyv. Smith, 425 F. Supp. 1038 (E.D.N.Y.

1976) , aff’d loithout opinion, 556 F.2d 556 (2d
Cir. 1977).................. ........................................—.....  18

Estelle v. Smith, 451 U.S. 454 (1981 )-------------  10,18
Finney v. Zant, 709 F.2d 643 (11th Cir. 1983).... 13
Gaither v. State, 13 Md. App. 245, 282 A.2d 535

(1971) ............................... .....................- .............. —  13
Gideon v. Wainwright, 372 U.S. 335 (1963).........  10
Griffin v. Illinois, 351 U.S. 12 (1956).....................  10
Hammett v. State, 578 S.W.2d 699 (Tex. Crim.

App. 1979) _________________    13
Houston v. State, 602 P.2d 784 (Alaska 1979).... 17
Irvin v. State, 617 P.2d 588 (Okl. Cr. 1980)_____ 6
McGarty v. O’Brien, 188 F.2d 151 (1st Cir.), cert.

denied, 341 U.S. 928 (1 9 5 1 )..... ....................... .. 13
Missouri v. Carter, 641 S.W.2d 54 (Mo. 1982).... 17
Noggle v. Marshall, 706 F.2d 1408 (6th Cir. 1983).. 17,18  
People v. Edney, 39 N.Y.2d 620, 385 N.Y.S.2d 23,

350 N.E.2d 400 (1976) ....... ..................................  17
People v. Knippenberg, 66 111. 2d 276, 362 N.E.2d

681 (1 9 7 7 )__________ ______ __________ _____  17
People v. Lines, 13 Cal. 3d 500, 531 P.2d 793, 119

Cal. Rptr. 225 (1975)...... ...... ................................... 17
Pouncey v. State, 353 So. 2d 640 (FI. App. 1977).. 17
Powell v. Alabama, 287 U.S. 45 (1932)__________  9,14
Proffitt v. United States, 582 F.2d 854 (4th Cir.

1978), cert, denied, 447 U.S. 910 (1980) ............ 13
Revard v. State, 332 P.2d 967 (Okl. Cr. 1958)...... 11
Richardson v. State, 569 P.2d 1018 (Okl. Cr.

1977) ......... ...................................................................  11
Rinaldi v. Yeager, 384 U.S. 305 (1966 ).................  9
Rogers v. State, 634 P.2d 743 (Okl. Cr. 1981)__ 11
Ross v. Moffitt, 417 U.S. 600 (1974)........................ 6, 9

v

TABLE OF AUTHORITIES—Continued

Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir.), 
cert, denied sub nom. Satterfield v. Mitchell,
436 U.S. 920 (1978)---------- --------------------------

State v. Hayes, 118 N.H. 458, 389 A.2d 1379
(1978) ___...»—.— —-—......----- ------- ---------

State v. Jojola, 89 N.M. 489, 553 P.2d 1296 (C t  
App. 1976) .......

State v. Kociolek, 2 N.J. 400, 120 A.2d 417 
(1957)

Page

13

23

23

17

17

17
3

State v. Law, 270 S.C. 664, 244 S.E. 2d 302
(1978) ..................................-............... ........ - ......—■ 23

State v. Pratt, 284 Md. 516, 398 A.2d 421 (1979)..
State v. Toste, 178 Conn. 626, 424 A.2d 293

(1979) _______________ ___— ............................
Stidham v. State, 525 P.2d 1227 (Okl. Cr. 1974).... 
Strickland v. Washington, ------  U.S. ------ , 52

U.S.L.W. 4565 (May 14, 1984) ----------- ----- 10,12,13
United States v. Baldi, 344 U.S. 561 (1953)-------passim
United States v. Alvarez, 519 F.2d 1036 (3d Cir.

1975) ....................— ......- .........................................  17
United States v. Taylor, 437 F.2d 371 (4th Cir.

1971) ...—---- --------------- —.......... —---- ------------
Wood v. Zahradnick, 578 F.2d 980 (4th Cir.

1978).. ..... .......... .......... .............. ...................................

13

13

STATUTES and RULES:
18 U.S.C. 3006A (Supp. I l l  1979) ...........................  13
Okla. S tat t i t  21, § 701 ..............................................  5

OTHER AUTHORITIES:
American Bar Association, Criminal Justice—  

Mental Health Standards, First Tentative Draft
(1983) ............. ...... .................................... -  ----.........  13,15

American Psychiatric Association, Diagnostic and 
Statistical Manual of Mental Disorders (3d ed.
1980) ....................- ...............- ...... - ....................... 16



VI

TABLE OF AUTHORITIES—Continued
Page

P. Appelbaum & T. Gutheil, Rotting With Their 
Rights On”: Constitutional Theory and Clinical 
Reality in Drug Refusals by Psychiatric Pa­
tients, 7 Bull. Amer. Acad. Psychiat & Law 808
(1979)  .............. ...................-— ......--------  ------  23

W. Appelton & J. Davis, Practical Clinical Psycho­
pharmacology (1980 ).......     24

Ayd, A Survey of Drug-Induced Extrapyramidol 
Reactions, 175 J. Am. Med. Ed. Assoc. 1054
(1961) ......     24

R. Baldessarini, Chemotherapy in Psychiatry
(1977) .............................. ...........................................  22

J. Bernstein, Rational Use of Antipsychotic Drugs, 
in J. Bernstein, Clinical Psychopharmacology
(2d ed. 1 984 ).......................................................... -  25

Goldberg, Carmen & Cole, Changes in Schizo­
phrenic Psychopathology and Ward Behavior as 
a Function of Phenothiazine Treatment, 111
B rit J. Psychiatry 120 (1965) ----------  22

T. Gutheil & P. Appelbaum, Mind Control, Syn­
thetic Sanity, Artificial Competence, and Gen­
uine Confusion: Legally Relevant Effects of 
Antipsychotic Medication, 12 Hofstra L. Rev.
77 (1 9 8 3 )............ ................................................. —  22

L. Hollister, Antipsychotic Medications and the 
Treatment of Schizophrenia, in Barchas, 
Berger, Ciaranello & E lliott Psychopharmacol­
ogy: From Theory to Practice 138 (1977)........  25

National Institute of Mental Health Psychophar­
macology Service Center Collaborative Study 
Group, Phenothiazine Treatment in Acute Schiz­
ophrenia: Effectiveness, 10 Archives Gen. Psy­
chiatry 246 (1 9 6 4 ).................................................... 22

D. Klein, R. Gittelman, F. Quitkin & A. Rifkin, 
Diagnosis and Drug Treatment of Psychiatric 
Disorders: Adults and Children, (2d ed.
1980) ________ ______________ ___ ___ - ..........  23

vn

TABLE OF AUTHORITIES—Continued
Page

D. Klein & J. Davis, Diagnosis and Drug Treat­
ment of Psychiatric Disorders (1969).................  23

Note, The Indigent’s Right to an Adequate De­
fense: Expert and Investigational Assistance 
in Criminal Proceedings, 55 Cornell L. Rev. 632
(1 9 7 0 )............................ ........... .................. ................ 13

Rifkin, Quitkin & Klein, Akinesia: A Poorly Rec­
ognized Drug-induced Extrapyr amidol Behav­
ioral Disorder, 32 Archives Gen. Psychiat. 672
(1975) ____________________________ - ...........  24

Van Putten & May, “Akinetic Depression" in 
Schizophrenia, 35 Archives Gen. Psychiat 1101 
(1978)........... ...... ........................................ - ................ 24



In  The

|§ u p r m p  (E m u l o f  tljp  l u t t r i i  S t a t e s
October Term, 1983

No. 83-5424

Glen Burton A ke,
Petitioner,v.

State of Oklahoma,
Respondent.

On Writ of Certiorari to the 
Oklahoma Court of Criminal Appeals

BRIEF AMICUS CURIAE FOR THE 
AMERICAN PSYCHIATRIC ASSOCIATION

INTEREST OF AMICUS CURIAE

The interest of amicus curiae appears from the fore­
going motion.

STATEMENT

Petitioner Glen Burton Ake stands convicted by an 
Oklahoma trial court of two counts of first degree mur­
der and two counts of shooting with intent to kill. He 
has been sentenced to death by lethal injection for the 
murder counts and to prison terms of five hundred years 
each for the shooting counts. The facts pertaining to 
these crimes, essentially undisputed at trial, are set forth 
in the opinion of the Oklahoma Court of Criminal Ap­
peals. 663 P.2d 1, 4.



2

Pretrial Proceedings

Ake was arraigned before the district court of Cana­
dian County on February 14, 1980, approximately four 
months after the killings. The district court initially 
found Ake incompetent to stand trial, based on psychia­
tric evaluations conducted at the court’s direction. These 
evaluations were strictly limited to the question of Ake’s 
“present sanity,’’ i.e., his competence to stand trial. 
(P 16-171.1 No inquiry was made, and no medical opin­
ions were formulated, as to Ake’s mental condition at the 
time of the crimes.*

Ake was diagnosed as suffering from schizophrenia of 
the paranoid type. At a competency hearing on April 10, 
Dr. William Allen testified that Ake’s schizophrenia was 
“chronic” and that “in addition to the psychiatric diag­
nosis, he is dangerous.” (P 22). Dr. Allen recommended 
that, in view of “the severity of his mental illness,” the 
“intensities of his rage,” his “poor control” and his “de­
lusions,” Ake be placed in a maximum security psychia­
tric facility. Ibid.

Following the incompetency determination, Ake was 
committed to the state mental hospital in Vinita, Okla-

1 Because the parties’ joint appendix was not available at the 
time this brief was printed, all references to the record herein are 
to the separate appendices submitted with the Petition and with 
respondent’s Opposition. References to petitioner’s appendix are 
indicated by the letter “P" followed by the page number of that 
appendix. References to respondent’s appendix are prefaced with 
the letter “R".

2 A psychiatric evaluation concerning present competency is very 
different from an evaluation concerning a defendants mental state 
at the time of the charged offenses. The former involves a con­
temporary inquiry focusing on a defendant’s basic capacity to 
understand the criminal proceedings and to assist counsel. The lat­
ter involves a more subtle and complicated retrospective determina­
tion of a defendant’s mental condition and the relationship between 
that condition and the criminal behavior at issue.

3

homa for treatment. Ake remained at this facility for 
more than two months, during which time he was admin­
istered Thorazine, a widely-used antipsychotic medica­
tion* Although Ake was carefully evaluated during his 
commitment and apparently given a broad range of phys­
iological and psychological tests, the doctors assigned to 
his care again made no inquiry concerning his mental 
condition at the time of the crimes.

On May 22, Dr. R. D. Garcia, chief of forensic psy­
chiatry at the state hospital, reported to the trial court 
that Ake had improved to the point “where he would be 
able to adequately consult with an attorney and he does 
have a rational as well as actual understanding of the 
proceedings pending against him.” Dr. Garcia also ad­
vised the court that Ake was being treated with Thora­
zine and recommended that the medication be continued. 
(P 20).4 On the basis of this medical opinion, the court 
scheduled the case for trial.*

Pretrial motions were heard on June 13, at which 
time Ake’s appointed counsel requested financial assist­
ance to obtain a psychiatric evaluation of Ake’s mental 
condition at the time of the crimes. (P 23-30). Although 
the stated legal basis for this motion was somewhat 
vague, counsel made clear his view that the provision of

* Thorazine, & trade name for chlorpromazine, is one of the anti­
psychotic medications commonly used for treatment of schizo­
phrenia. See pp. 22-23, infra.

4 Dr. Garcia reported that Ake was receiving 600 milligrams of 
Thorazine daily, administered in three equal doses of 200 milli­
grams. This dosage remained unchanged through Ake’s trial.

» After receipt of Dr. Garcia’s letter to the court, defense counsel 
withdrew their motion for a second competency hearing. (R 3). 
At the time of trial, however, they advised the court that they had 
been unable to communicate with Ake, and that they had grave 
doubts as to his capacity to understand the nature of the pending 
proceedings. (R 469, 603, 608).



4

such assistance was constitutionally-compelled.* The 
court was plainly sympathetic to the request, but ruled 
that it was without discretion under state law to au­
thorize the use of public funds for defense expenses. 
(P 31).T The court also ruled that Ake had no constitu­
tional right to the requested assistance, citing United. 
States v. Baldi, 344 U.S. 561 (1953).

Trial Proceedings

Petitioner’s brief trial began on June 24, 1980 and 
ended the next day. At the guilt phase of the proceedings, 
the only significant issue—and the only asserted de­
fense—was Ake’s claim that he was legally insane at the 
time of the charged offenses. Not surprisingly, Ake had 
virtually no relevant evidence to offer on this point.

The defense called three witnesses: Dr. Allen, Dr. 
Garcia, and Dr. Jack P. Enos, a third physician who had 
evaluated Ake in connection with his involuntary com­
mitment The witnesses testified that Ake suffered from 
schizophrenia of the paranoid type, and that during 
phychotic episodes he experienced powerful delusions in 
which he saw himself as a “sword of vengeance.” (R 558). 
On cross-examination, however, each witness explained 
that he had not evaluated Ake with respect to his mental 
state at the time of the crimes, and therefore could ex­
press no valid medical opinion on that question. This 
crucial deficiency in the witnesses’ testimony was re* 
peatedly stressed by the prosecutor, both during his 
questioning of the witnesses and in his summation to the 
jury. (P 34, 36, 45, 49, 51).

•Counsel stated as follows: "Glenn Ake, indigent [with] court- 
appointed counsel, still under the constitution is entitled to monies 
for a psychiatrist as if he . . .  had the money to pay for it.” (P. 26).

T The court characterized state law in this regard as "almost 
cripplingly restrictive” (P  31), citing Stidham v. State, 625 P.2d 
1227 (Okl. Cr. 1974).

5

The sentencing phase of the trial was even more trun­
cated, consisting only of argument by counsel concerning 
mitigating and aggravating circumstances. The prosecu­
tion urged the jury to find, as one of the statutorily- 
prescribed circumstances in aggravation, that Ake “would 
commit criminal acts of violence that would constitute a 
continuing threat to society.” 21 O.S. §701.12(7). In 
support of this claim, the prosecution relied expressly on 
the testimony to this effect given by Dr. Garcia during 
the guilt phase of the trial. (P 64). Dr. Garcia had tes­
tified as a defense witness, but his prediction of future 
dangerousness was elicited by the prosecutor on cross- 
examination, (P 50).* ,

At the conclusion of the trial the jury found three ag­
gravating circumstances, including the circumstance re­
lating to future dangerousness. On this basis petitioner 
was sentenced to death.

Appeal Proceedings

On appeal, the Oklahoma Court of Criminal Appeals 
affirmed Ake’s convictions in all respects. The court 
gave short shrift to the argument that Ake was entitled 
to a psychiatric evaluation of his mental condition at the 
time of the crimes. The court viewed the issue as con-

• Although not addressed in the petition to this Court, we note 
that Dr. Garcia's testimony in this regard, and the state's express 
adoption of that testimony at the sentencing phase of the trial, may 
fall within the prohibition of Estelle v. Smith, 451 U.S. 454 (1981). 
The Court there held that, consistent with a defendant’s fifth and 
sixth amendment rights, a prosecution psychiatrist who conducts an 
examination on the question of competency may not subsequently 
testify on the issue of future dangerousness, absent appropriate 
warnings to the defendant and protection of his right to counsel. 
As far as amicus is aware, the record in this case is silent on the 
questions (1) whether petitioner's counsel was present during Dr. 
Garcia's psychiatric examinations, or (2) whether petitioner was 
given any warnings concerning the scope and purpose of the 
examinations.



6

trolled by its own decision in Irvin v. State, 617 P.2d 688 
(Okl. Cr. 1980). That case, in turn, relied on this Court’s 
decision in United States v. Baldi, supra.

The Court of Criminal Appeals also rejected Ake’s 
claim that the forced administration of Thorazine so im­
paired his competency that he was effectively denied his 
right to be present at trial and to consult with counsel. 
Although acknowledging Ake’s “abnormal” behavior at 
trial, 663 P.2d at 7 n.4, the court speculated that Ake 
was feigning in order to bolster his defense of insanity. 
Ibid. The court also concluded that Ake’s competency 
was sufficiently clear to relieve the trial judge of any 
obligation to look into the matter sua sponte.

Finally, the appeals court turned aside the suggestion 
that Ake should have been given the opportunity to re­
fuse treatment with antipsychotic medication. The court 
stressed that the Thorazine was administered not for pur­
poses of sedating Ake during trial, but to restore his 
competency so that he could stand trial. The court con­
cluded that an indicted defendant has no right to refuse 
medication given for that purpose.

SUMMARY OF ARGUMENT

This case raises important questions concerning the 
extent to which a defendant’s indigency can be permitted 
to handicap his exercise of the right to a fair trial. Al­
though the Constitution does not require “absolute equal­
ity” among criminal defendants, Douglas v. California, 
372 U.S. 353, 357 (1963), this Court has made clear that 
indigent defendants, no less than affluent defendants, 
must be provided an “adequate opportunity to present 
their claims fairly within the adversary system." Ross 
v. Moffi.lt, 417 U.S. 600, 612 (1974).

I. Consistent with these principles, we think it is 
clear that, once a defendant’s sanity has been placed in 
issue, the state is required to provide him with a psy­

7

chiatric examination to assist in the preparation and 
presentation of his insanity defense. Absent such an 
examination, it is virtually inconceivable that the in­
sanity claim will be given a fair hearing.

The assistance of a psychiatrist is crucial in both cre­
ating and interpreting highly relevant medical evidence 
bearing on the defendant’s state of mind at the time of 
the crime. Only as a result of a psychiatric examination 
does this evidence come into existence. Moreover, psy­
chiatric testimony is almost always necessary to make 
the insanity defense comprehensible to the fact-finder. 
Such testimony is needed to relate episodes of mental 
illness, whether occurring before or after the crime, to 
the relevant time period of the charged offenses. Such 
.testimony is also needed to give the jury a logical and 
coherent account of how a particular mental illness can 
affect the criminal conduct with which the defendant is 
charged.

In providing indigent defendants with a psychiatric 
examination, states should have the same flexibility that 
they have in providing indigent defendants with the as­
sistance of counsel. Thus, the psychiatric expert could 
either be appointed by the trial court or selected by the 
defense. The key consideration, we submit, is that the 
examination given an indigent defendant be no less con­
fidential than a psychiatric examination obtained by a 
non-indigent defendant at his own expense. Because of 
the importance of confidentiality to the conduct of the 
examination, the availability of this protection should not 
depend on a defendant’s economic circumstances.

II. A capital defendant must also be afforded the 
assistance of a psychiatric expert to rebut the prosecu­
tion’s use of medical testimony to establish the defend­
ant’s “future dangerousness” at the sentencing phase of 
the trial. In Barefoot v. Estelle, 103 S. C t 3383 (1983), 
the Court held that considerations of due process do not



8

bar psychiatric predictions of a defendant’s “future dan­
gerousness,” notwithstanding the extreme unreliability 
of such testimony. The decision assumed, however, that 
defendants would be able to rebut the scientific basis for 
such predictions through the testimony of their own 
medical experts. Fundamental fairness therefore re­
quires that, if a capital defendant is indigent, the state 
provide him with financial assistance to obtain his own 
psychiatrist for this purpose.

III. If a defendant is incompetent to Btand trial be­
cause of schizophrenia or some other psychotic disorder, 
the state may properly treat him with antipsychotic 
medications, whether forcibly or otherwise. Available 
evidence demonstrates overwhelmingly that antipsychotic 
drugs are effective in eliminating or reducing the symp­
toms of psychotic illness. Moreover, antipsychotic medi­
cations are competency-inducing drugs rather than 
competency-impairing drugs. To the extent antipsycho- 
tics alter mental functioning, they do so by returning the 
patient to his normal, pre-psychotic state.

Despite their general efficacy, however, antipsychotic 
medications can cause side effects, some of which may 
interfere with a defendant’s competency to stand trial. 
A trial court therefore must remain alert to the possibil­
ity that, as a result of treatment with antipsychotics, a 
defendant may be made competent at the beginning of 
trial and yet become incompetent during the course of 
his trial. When the court is presented with indications 
of such incompetency, it should immediately make an ap­
propriate inquiry into the matter.

9

ARGUMENT

L THE CONSTITUTIONAL RIGHT TO A FAIR TRIAL 
ENTAILS THE RIGHT TO GOVERNMENT ASSIST­
ANCE IN OBTAINING AN EXPERT EVALUATION 
OF A DEFENDANT'S MENTAL STATE AT THE 
TIME OF THE OFFENSE

The undisputed facts of this case show that petitioner 
was given no real opportunity to assert what might have 
been a successful defense of insanity. Although diagnosed 
as suffering from a severe mental disorder, Ake was 
never given access to a psychiatrist to evaluate his men­
tal state at the time of the crimes. Amicus submits that, 
under these circumstances, there can be little doubt that 
Ake was denied his right to a fair trial.

Nature of the Right

Petitioner’s underlying problem, of course, is his in­
digency: Oklahoma did not prohibit-Ake from consulting 
with a psychiatrist or other expert; it simply refused to 
appoint one or to provide Ake with financial assistance 
so that he could retain his own psychiatrist Nonetheless, 
this Court has long recognized that a criminal defend­
ant’s economic circumstances cannot be permitted to 
stand in the way of his right to a fair trial.

Although the Constitution does not require “absolute 
equality” among criminal defendants, Douglas v. Cali­
fornia, 372 U.S. 353, 357 (1963), it does require that the 
judicial system be “free of unreasoned distinctions,” Ri­
naldi v. Yeager, 384 U.S. 305, 310 (1966), and that “in­
digents have an adequate opportunity to present their 
claims fairly within the adversary system,” Ross v. Mof- 
fitt, 417 U.S. 600, 612 (1974). The state cannot adopt 
procedures that extend to indigent defendants merely a 
“meaningless ritual” while others in better economic cir­
cumstances have a “meaningful” opportunity to defend 
themselves. Douglas v. California, supra, 372 U.S. at 358.



10

Thus, indigent defendants must be appointed counsel 
in any case, state or federal, in which they might be sub­
ject to imprisonment. See Argersinger v. Hamlin, 407 
U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335 
(1963); Powell v. Alabama, 287 U.S. 45 (1932). An 
indigent defendant is also entitled to a trial transcript 
prepared at state expense, Griffin v. Illinois, 351 U.S. 12 
(1956), and to appointed counsel in any appeals as of 
right, Douglas v. California, supra. These and related 
guarantees have been variously founded on the Equal 
Protection Clause, the Sixth Amendment, and the Due 
Process Clause. Whatever the textual reference, however, 
the overarching consideration has always been the de­
fendant’s fundamental right to a fair trial. See Strick­
land v. Washington, -----  U .S .----- , 52 U.S.L.W. 4565,
4570 (May 14, 1984).

In Gideon v. Waimvright, supra, this Court character­
ized as an “obvious truth” the proposition that a defend­
ant “cannot be assured a fair trial unless counsel is pro­
vided for him.” 372 U.S. at 344. We believe it is equally 
obvious that, no matter how valid, a defense of insanity 
cannot be given a fair hearing unless a defendant has 
had a valid psychiatric examination on the question of his 
mental state at the time of the charged offenses. Al­
though amicus has previously argued that psychiatric 
testimony is given too much weight on the question of a 
capital defendant’s “future dangerousness,” see Barefoot 
v. Estelle, 103 S. Ct. 3383 (1983), Estelle v. Smith, su­
pra, psychiatric testimony on the question of a defend­
ant’s mental state is indispensable.

In virtually every jurisdiction in the country, proof of 
mental illness is a threshold requirement in establishing 
the defense of insanity. Because a finding of mental ill­
ness “turns on the meaning of facts which must be in­

11

terpreted by expert psychiatrists and psychologists,” A d ­
dington v. Texas, 441 U.S. 418, 429 (1979), a defendant 
must be given the assistance of qualified experts in both 
preparing and presenting his defense. Denied this as­
sistance, an indigent defendant has, at best, only a theo­
retical opportunity to seek acquittal on grounds of in­
sanity.8

A psychiatric expert performs functions that are cru­
cial to the fact-finding process. In the first place, he 
makes available to the jury relevant evidence that other­
wise would not be considered. This includes the results 
of physiological and psychological tests, information de­
rived from questioning and observing a defendant over 
an extended period of time, as well as “medical ‘impres­
sions’ drawn from subjective analysis and filtered 
through the experience of the diagnostician.” Addington 
v. Texas, supra, 441 U.S. at 430. This highly relevant 
evidence only comes into existence as a result of a valid 
psychiatric evaluation.

At the same time, the psychiatric expert performs an 
interpretive function that is essential to the jury’s delib­
erations. Although largely meaningless to a lay person, 
the data generated in a psychiatric evaluation enables the 
psychiatrist to formulate an opinion on the question of a 
defendant’s mental state at the time of the crime. The 
psychiatrist thus transforms clinical data into evidence 
that is accessible to the fact-finder. Similarly, the psy­
chiatrist’s interpretive skills are brought to bear on any 
“direct” evidence that may be available in a particular

•In  Oklahoma, as in all other jurisdictions, the defendant is 
initially presumed to be sane. Once the defendant has estab­
lished a reasonable doubt as to his sanity, the burden shifts 
to the prosecution to prove beyond a reasonable doubt that the de­
fendant was sane at the time of the crime. See Rogers v. State, 
634 P.2d 743, 744 (Okl. Cr. 1981); Richardson v. State, 569 P-2d 
1018, 1020 (Okl. Cr. 1977).



12

case, such as contemporaneous writings of the defendant 
or lay witnesses’ observations of unusual behavior. Even 
nonclinical data of this type must be subject to the care­
ful interpretation of a diagnostician.

Assuming a defendant has a valid insanity defense, it 
is hard to imagine how, absent the assistance of a psy­
chiatrist both before and during trial, he will be able to 
persuade the jury of its merits. Because of the essen­
tially retrospective nature of the sanity inquiry, it does 
the defendant little good to show only that he was seri­
ously mentally ill at some point other than the time of 
the crime. Indeed, Ake’s predicament illustrates this 
point all too clearly. In his case, and in general, psychia­
tric testimony is necessary to relate episodes of mental 
illness, whether occurring before or after the crimes, to 
the relevant time period of the charged offenses.

Psychiatric testimony is also necessary to provide the 
jury with an explanation for conduct that might other­
wise appear incomprehensible. Lay jurors may be able 
to recognize that a defendant’s actions are aberrant or 
bizarre. Only on the basis of a clinical diagnosis, how­
ever, can they seriously entertain the possibility that the 
defendant is not responsible for these actions. Psychiatric 
testimony is necessary to explain the effects of a defend­
ant’s mental disorder on his cognition or control—rele­
vant factors under the insanity tests of most jurisdic­
tions. Psychiatric testimony is also necessary to give the 
jury a logical and coherent account of how a particular 
mental illness can affect the criminal behavior with which 
the defendant is charged. This account is a crucial link 
in the defense.

That the fair trial right may entail access to a psy­
chiatrist was strongly suggested only this Term in 
Strickland v. Washington, supra. The Court there con­
sidered whether a capital defendant was denied “actual 
effective assistance of counsel” where, inter alia, his

13

court-appointed attorney failed to obtain a psychiatric 
evaluation in connection with the sentencing phase of 
the trial. Although the Court rejected the claim on the 
facts of that case, Strickland makes clear that a consti­
tutional violation would be established if the decision to 
forgo a psychiatric examination is both negligent and 
prejudicial. Accord Wood v. Zahradnick, 578 F.2d 980 
(4th Cir. 1978). The infringement of a defendant’s right 
to a fair trial would appear to be exactly the same 
whether the absence of the examination is attributable to 
attorney neglect or, as here, a restrictive state policy.

Because of the importance of psychiatric testimony on 
the question of a defendant’s sanity, the right to at least 
one impartial examination is almost universally recog­
nized. See, e.g., Finney v. Zant, 709 F.2d 643 (11th 
Cir. 1983); Satterfield v. Zahradnick, 572 F.2d 443 (4th 
Cir.), cert, denied sub nom. Satterfield v. Mitchell, 436 
U.S. 920 (1978); McGarty v. O’Brien, 188 F.2d 151 (1st 
Cir.), cert, denied, 341 U.S. 928 (1951); Gaither v. State, 
13 Md. App. 245, 282 A.2d 535 (1971); Hammett v. 
State, 578 S.W.2d 699 (Tex. Crim. App. 1979). The right 
to “services necessary for an adequate defense,” includ­
ing the services of a psychiatrist, is accorded federal de­
fendants under the Criminal Justice Act of 1964, 18 
U.S.C. 3006A(e) (1). See Proffitt v. United States, 582 
F.2d 854, 857-58 (4th Cir. 1978), cert, denied, 422 U.S. 
910 (1980); United States v. Taylor, 437 F.2d 371, 377 
(4th Cir. 1971). Similar assistance for obtaining inves­
tigative and expert services is provided by statute in 
virtually every state other than Oklahoma. Pet at 13- 
14. See Note, The Indigent's Right to an Adequate De­
fense: Expert and Investigational Assistance in Crim­
inal Proceedings, 55 Cornell L. Rev. 632, 635-37 (1970).10

10 The right to government assistance in securing & pretrial psy­
chiatric evaluation is given explicit endorsement in the current 
draft of the American Bar Association’s Criminal Justice Mental 
Health Standards. Section 7-3.3 of the draft standards states: 
"The right to defend oneself against criminal charges includes an



14

“A rule adopted with such unanimous accord reflects, if 
it does not establish, . . .  the fundamental nature of that 
right.” Powell v. Alabama, supra, 287 U.S. at 73.

In rejecting Ake’s request for a psychiatric examina­
tion, the Oklahoma courts relied on this Court's decision 
in United States v. Baldi, supra. Baldi, however, cannot 
be read so broadly. Although the Court there found no 
constitutional infirmity in the denial of a defense motion 
for a pretrial psychiatric consultation, the Court stressed 
that the defendant had already been examined by three 
psychiatrists, at least one of whom had evaluated the 
defendant on the question of his sanity at the time of 
the crime. 344 U.S. at 568. The defendant in Baldi, in 
other words, had been given precisely the examination 
that Ake was denied.

In sum, there can be little question that an indigent 
defendant is entitled to a psychiatric examination, at 
state expense, on the question of his mental state at the 
time of the charged offenses. Without it, a defendant is 
not given a meaningful opportunity to assert the in­
sanity defense; nor is the jury given a meaningful op­
portunity to consider it.

Dimensions of the Right
For purposes of deciding this case, the Court need only 

hold that, consistent with Baldi, Ake was entitled to some 
psychiatric examination on the question of his mental 
state at the time of the crimes. It should be noted, how­
ever, that the procedures used to implement this right 
pose several subsidiary issues that the Court should ad-

adequate opportunity to explore, through a defense-initiated mental 
evaluation, the availability of any defense to the existence or grade 
of criminal liability relating to a defendant’s mental condition at the 
time of the alleged crime. Accordingly, each jurisdiction should 
make available funds in a reasonable amount to pay for a mental 
evaluation by a qualified mental health or mental retardation pro­
fessional selected by defendant in any case involving a defendant 
financially unable to afford such an evaluation."

, 
-.t" \, .. —-------- 

1 ~ 
....... 

■ 1 
1 ” 

MHIJWWJ

15

dress to provide guidance to the Oklahoma courts upon 
remand. We now turn briefly to a discussion of two 
such issues.

First, under what circumstances should the right be 
triggered? It would seem fair to require a defendant to 
show that his request for a psychiatric examination is not 
frivolous. The state should not be put to the expense of 
paying for a defense psychiatrist unless a defendant’s 
sanity is genuinely in issue. On the other hand, the show­
ing required of a defendant cannot be so extensive as to 
vitiate the right itself. A defendant may have a poten­
tially valid insanity defense and yet, at the time of the 
request, exhibit few symptoms of mental illness that 
would be recognizable to counsel or the court.

We think a reasonable position is that taken in the 
American Bar Association’s proposed standards relating 
to mental health issues in criminal cases. Under the 
ABA proposal, defense counsel is required to explain to 
the Court, in an ex parte proceeding, the basis for his 
belief that a psychiatric evaluation “could support a sub­
stantial legal defense.” American Bar Association, Crim­
inal Justice— Mental Health Standards, F irst Tentative 
D raft § 7-3.3 (1983). Once this presentation is made, 
the court must “grant the defense motion as a matter of 
course” unless it determines that the motion “has no 
foundation.” Ibid.

However the standard is articulated, there can be little 
doubt that Ake’s sanity was genuinely in issue at the 
time of his request for a psychiatric examination. Ake 
was diagnosed as a paranoid schizophrenic, a diagnosis 
supported by his response to antipsychotic medication. 
Although it is certainly possible that Ake was not ac­
tively experiencing the symptoms of this disorder at the 
time of the offense, it is also possible that he was. The 
record indicates that Ake was first diagnosed as schizo­
phrenic in late February 1980, slightly more than four



16

months after the killings. We note that generally ac­
cepted diagnostic criteria for schizophrenia require a 
clinical finding of continuing signs of the illness for a 
period of six months. See American Psychiatric Associa­
tion, Diagnostic and Statistical Manual of Mental Dis­
orders (3d ed.) at page 189. Moreover, one of the 
state’s psychiatrists described Ake’s schizophrenia as 
“chronic” (P 22), a diagnosis that ordinarily is not made 
unless the illness has been evident for more than two 
years. Id. at 192.u

The second issue relates to the nature of the psychia­
tric examination that the state must provide. At one ex­
treme, it would seem clear that the state must furnish 
sufficient assistance to assure that the defendant receives 
.a valid examination. For example, if psychological and 
physiological tests are necessary, the state must be pre­
pared to pay for them. At the other extreme, it would 
seem clear that the state’s financial commitment in this 
regard cannot be open-ended. Thus, a defendant would 
have no right to undergo one examination after another, 
at state expense, until he found that particular psychia­
trist who told him exactly what he wanted to hear. Fun­
damental fairness requires only that a defendant be 
given one thorough psychiatric examination on the ques­
tion of his mental state at the time of the crimes.

As a general matter, the state should have the same 
latitude in determining how to provide an indigent de­
fendant with a psychiatric examination as it does in 
determining how to provide an indigent defendant with 
the assistance of counsel. This means the state could set

11 Although there were references to the APA’s Diagnostic and 
Statistical Manual at trial, the witnesses did not make clear 
what criteria they were applying in formulating their diagnosis. 
However, amicus is aware of no generally accepted diagnostic cri­
teria under which a diagnosis of chronic schizophrenia could be 
made without a finding of continuous evidence of the illness for a 
period substantially longer than six months.

17

up an appointment procedure, under which a defense 
psychiatrist would be selected by the trial court. Alter­
natively, the state could provide for reimbursement of 
defense counsel for the cost of an examination with a 
psychiatrist of the defendant’s choice. While obviously 
desirable from the defense standpoint, the latter proce­
dure may also be preferable to the prosecution because 
it would avoid possible litigation over the fairness and 
objectivity of the examining psychiatrist.

The crucial consideration, we submit, is that the psy­
chiatric examination given an indigent defendant must 
be treated as confidential to the same extent as an exami­
nation obtained by a non-indigent defendant at his own 
expense. Examinations of the latter type are generally 
regarded as subject to the attorney-client privilege. See 
United States v. Alvarez, 519 F.2d 1036 (3d Cir. 1975).12 
As such, all communications among the defendant, his 
counsel and the consulting psychiatrist, together with the 
psychiatrist’s findings and opinion, are shielded from dis­
closure until the privilege is validly waived. See, e.g., 
Houston v. State, 602 P.2d 784 (Alaska 1979); State v. 
Toste, 178 Conn. 626, 424 A.2d 293 (1979). Although 
there is some disagreement on the point, the clear ma­
jority of decisions construing the privilege in this con­
text have held that it is not waived until the defendant’s 
psychiatrist is called as a witness at trial.1*

12 Because psychiatric examinations in this context are not under­
taken primarily for purposes of treatment, the physician-patient or 
psychotherapist-patient privilege is generally inapplicable. See 
United States v. Alvarez, supra, 619 F.2d at 1046; Noggle v. 
Marshall, 706 F.2d 1408 (6th Cir. 1983).

11 See United States v. Alvarez, supra; Houston v. State, supra; 
State v. Toste, supra; People v. Knippenberg, 66 111. 2d 276, 362 
N.E. 2d 681 (1977); People v. Lines, 13 Cal. 3d 500, 531 P.2d 793, 
119 Cal. Rptr. 225 (1975); State v. Pratt, 284 Md. 516, 398 A.2d 
421 (1979); State v. Kociolek, 2 N.J. 400, 120 A.2d 417 (1957); 
Pouncey v. State, 353 So. 2d 640 (FI. App. 1977). But see Missouri 
v. Carter, 641 S.W.2d 54 (Mo. 1982); People v. Edney, 89 N.Y.2d



18

We believe that confidentiality is important for the 
conduct of a valid psychiatric examination on the issue 
of a defendant’s criminal responsibility. A psychiatrist 
performing such an examination will ordinarily question 
the defendant closely concerning the crimes with which 
he is charged. Whether intentionally or not, the psychia­
trist’s questioning may also elicit information pertaining 
to defenses other than insanity, or to crimes that have 
not yet been detected or with which the defendant has 
not been linked. It stands to reason that a defend­
ant will not speak freely about such matters unless he 
knows, in advance, that his statements will go no further 
than the examining psychiatrist. Just as a patient wilt 
not discuss intimate matters with a therapist unless the 
doctor-patient privilege applies, so a criminal defendant 
will not divulge all necessary information concerning his 
mental state unless he is given adequate assurances of 
confidentiality.14

We are not suggesting that a rule of confidentiality is 
constitutionally mandated.18 What we do suggest, how­
ever, is that a defendant may not be denied the benefit

620, 385 N.Y.S.2d 23, 350 N.E.2d 400 (1976) (by raising the de­
fense of insanity, a defendant waives the privilege with respect to 
any psychiatric examination, whether or not the psychiatrist is 
called as a defense witness).

14 In Estelle v. Smith, supra, this Court suggested in dicta that, 
once a defendant gives notice that he intends to introduce psychi­
atric testimony to support his defense of insanity, he may be forced 
to submit to an examination on that issue with a prosecution psy­
chiatrist 451 U.S. at 465-66. Although fairness to the government 
may require that the prosecution have “equal access" to the defend­
ant, it does not require that the prosecution have access to the in­
formation disclosed to the defendant’s psychiatrist or to the psy­
chiatrist’s findings and opinions.

18 We note that two federal courts have rejected the claim that 
the fifth and sixth amendments compel a rule of strict confiden­
tiality. See Noggle v. Marshall, supra; Edney v. Smith, 425 F. 
Supp. 1038 (E.D.N.Y. 1976), aff’d without opinion, 556 F.2d 556 
(2d Cir. 1977).

19

of a confidential examination simply because he is un­
able to afford his own psychiatrist. Because confiden­
tiality is so important to the conduct of the examina­
tion, fundamental fairness requires that, if the state 
extends confidentiality to the examinations of non- 
indigent defendants, it do the same for indigent defend­
ants.

II. AN INDIGENT DEFENDANT IN A CAPITAL CASE 
IS ENTITLED TO A PSYCHIATRIC EXPERT, AT 
STATE EXPENSE, TO REBUT THE PROSECU­
TION’S USE OF PSYCHIATRIC TESTIMONY TO 
PROVE "FUTURE DANGEROUSNESS”

Quite apart from the right of a psychiatric examina* 
tion on the question of sanity, an indigent defendant in a 
capital case must be accorded the assistance of a psy-‘> 
chiatrist or other expert to rebut the prosecution’s claim 
of “future dangerousness” at the sentencing phase of 
the trial. This separate right, we submit, should apply 
whether or not the defendant has interposed a defense 
of insanity.

In Barefoot v. EsteUe, 103 S.Ct. 3383 (1983), the Court 
held that considerations of due process do not prohibit 
psychiatric testimony on the question of a defendant’s 
future dangerousness. Although acknowledging the ex­
treme unreliability of such testimony, 103 S.Ct. a t 3397 
& n.7, the Court reasoned that the adversary process 
could be trusted to expose its deficiencies. “We are not 
persuaded,” the Court stated, “that the fact finder . . . 
will not be competent to uncover, recognize, and take 
due account of [the] shortcomings” of psychiatric pre­
dictions of future dangerousness. Id. at 3397.

In reaching this conclusion, however, the Court as­
sumed that the defense would be able to rebut such pre­
dictions through the use of its own expert testimony. The 
Court stressed that, in addition to challenging the prose­
cution’s evidence on cross-examination, a capital defend-



20

ant would have an “opportunity to present his own side 
of the case,” id . at 3398, through the presentation of 
“contrary evidence.” Id. at 3397. Indeed, the Court 
specifically noted that the defendant in Barefoot, unlike 
petitioner here, was entitled by statute to state assistance 
in retaining a psychiatric expert for this purpose. Id. 
at 3397 n.5.

The decision in Barefoot, then, presupposes that if the 
prosecution is to use psychiatric testimony to establish 
the aggravating circumstance of future dangerousness, 
the defense must be given the opportunity to challenge 
the scientific basis for such predictions through the testi­
mony of its own psychiatric expert1* Cross-examination 
alone will often be insufficient to impeach the prosecu­
tion’s psychiatrist, particularly where he purports to 
justify his prediction on the basis of a clinical diagnosis. 
In view of the grave consequences that such testimony 
can have, a defendant’s poverty should not be permitted 
to stand in the way of a full exploration of these issues. 
Fundamental fairness therefore requires that, if a capi­
tal defendant is indigent, the state provide him with 
financial assistance to retain his own expert witness.

The issue of the right to psychiatric assistance at the 
sentencing stage is fairly raised on the facts of this case. 
Dr. Garcia, the state psychiatrist who treated Ake at the

»« The role of the psychiatrist appointed or retained for this 
purpose is to be distinguished from that of the psychiatrist who 
assists a defendant in the presentation of an insanity plea. In this 
context, there may be no need for a psychiatric examination; on 
the basis of published studies alone, the defendant’s psychiatrist 
can testify concerning the unreliability of long-term psychiatric 
predictions of dangerousness. Consistent with this Court’s deci­
sion in Barefoot v. Estelle, supra, however, there may be occasions 
where a defendant is entitled to an examination—for example, 
where he seeks to contest the prosecution psychiatrist’s underlying 
diagnosis, or where the defense psychiatrist believes that he could 
render a valid prediction that the defendant will not commit fur­
ther acts of violence.

21

state mental hospital, testified at trial that, because of 
his mental illness, Ake posed a threat of continuing crim­
inal violence. (P 50). This testimony was crucial to the 
state’s case because the prosecutor had previously argued 
that, if acquitted by reason of insanity, Ake would be 
“out on the street a free man” (P 9), thus suggesting he 
was not sufficiently dangerous to warrant continued com­
mitment.

Although Dr. Garcia and the other psychiatrists were 
called as witnesses by the defense, this was obviously 
done only out of desperation. Ake was permitted no 
expert of his own, and these were the only doctors who 
had examined him for any purpose at all. Moreover, the 
record indicates that defense counsel did not question 
Dr. Garcia on the issue of future dangerousness; the 
witness’ testimony in this regard was elicited on cross- 
examination and expressly adopted by the prosecutor in 
his summation to the jury. (P 50, 64). Finally, it is 
fair to assume that the only reason the prosecution did 
not call Dr. Garcia as its witness at the sentencing phase 
is that he had already stated his prediction of dangerous­
ness at the guilt phase.

In sum, Ake’s sentence should be vacated for the sep­
arate reason that he was not given the assistance of a 
psychiatric expert to rebut the prosecution’s use of psy­
chiatric evidence to show future dangerousness.

m .  THE TRIAL COURT WAS NOT SUFFICIENTLY  
ALERT TO THE POSSIBILITY THAT, ALTHOUGH 
PROPERLY TREATED WITH ANTIPSYCHOTIC 
MEDICATION, PETITIONER MAY HAVE BE­
COME INCOMPETENT DURING TRIAL

The record in this case indicates that, after determin­
ing that Ake had been restored to competency in late 
May, the trial court made no further inquiry, before or 
during trial, as to whether he remained legally compe­
tent. At trial defense counsel several times alerted the



22

court to the possibility that Ake’s Thorazine medication 
was interfering with his ability to assist counsel and 
understand the proceedings. Counsel stated that he had 
been unable to communicate with his client at any point 
during the trial. (R. 469). He also described Ake as a 
“zombie” who had been rendered “totally and completely 
incoherent.” (R 469, 503).

At the outset, we note that there was nothing objec­
tionable about the decision to treat Ake with antipsy­
chotic medication, whether forcibly or otherwise. Widely 
used in this country since the mid-1950s,17 antipsychotics 
have been shown repeatedly to be an effective form of 
treatment for serious psychotic disorders, including 
schizophrenia. See T. Gutheil & P. Appelbaum, Mind 
Control, Synthetic Sanity, Artificial Competence, and 
Genuine Confusion: Legally Relevant Effects of A n ti­
psychotic Medication, 12 Hofstra L. Rev. 77, 100 (1983). 
These medications have been demonstrated to reduce or 
eliminate auditory and other types of hallucinations, dis­
ordered thought processes, delusions, agitation, with­
drawal and other symptoms. See, e.g., The National 
Institute of Mental Health Psychopharmacology Service 
Center Collaborative Study Group, Phenothiazine Treat­
ment in Acute Schizophrenia: Effectiveness, 10 Archives 
Gen. Psychiatry 246 (1964); Goldberg, Carmen & Cole, 
Changes in Schizophrenic Psychopathology and Ward Be­
havior as a Function of Phenothiazine Treatment, 111 
B rit J. Psychiatry 120 (1965). Although the drugs 
are not a panacea for all patients, their general utility

17 Thorazine (chlorpromazine) was one of the first antipsychotic 
drugs introduced in the United States. It is a member of the 
phenothiazine class of chemical compounds, from which most other 
antipsychotic medications have been derived. See generally R. 
Baldessarini, Chemotherapy in Psychiatry, 12-56 (1977). In recent 
years other classes of chemical compounds have been found to have 
similar clinical properties. Ibid.

23

in the treatment of psychotic disorders is, at this point, 
no longer a matter of dispute.1'

Moreover, antipsychotic medications, unlike some other 
types of psychotropic drugs, do not depend for their effi­
cacy on the sedation of the patient. They are competency- 
inducing drugs rather than competency-impairing drugs. 
By suppressing psychotic symptoms, they restore normal 
mentation, allowing the “cognitive part of the brain to 
come back into play.” State v. Jojola, 89 N.M. 489, 492, 
553 P.2d 1296, 1299 (Ct App. 1976). Accord State v. 
Hayes, 118 N.H. 458, 389 A.2d 1379 (1978); State v. 
Law, 270 S.C. 664, 244 S.E. 2d 302 (1978). Thus, tte  
“rebel,” cured of his psychosis with medications, “re­
mains the rebel . . . still.” P. Appelbaum & T. Gutheil, 
“Rotting W ith Their Rights On": Constitutional Theory 
and Clinical Reality in Drug Refusals by Psychiatric 
Patients, 7 Bull. Amer. Acad. Psychiat. & Law 308, 310 
(1979) (footnote omitted). Even when antipsychotics 
fail to eliminate all symptoms of the illness, their effect 
is to alter mental functioning in the direction of nor­
malcy.

For these reasons there is no merit to the suggestion 
that Ake should have been permitted to refuse treatment 
with antipsychotic medication, and the decision of the 
Oklahoma Court of Criminal Appeals in this regard was 
clearly correct. At the same time, however, that Court 
was too quick to conclude that the trial judge had no 
reason to question Ake’s continuing competency at trial. 
In Drope v. Missouri, 420 U.S. 152, 181 (1975), this 
Court made clear that:

i* The studies concerning the effectiveness of antipsychotics, too 
voluminous to cite here, are referenced in D. Klein, R. Gittelman, 
F. Quitkin & A. Rifkin, Diagnosis and Drug Treatment of Psy­
chiatric Disorders: Adults and Children, 88-144 (2d ed. 1980) and 
D. Klein & J. Davis, Diagnosis and Drug Treatment of Psychiatric 
Disorders, Chapter 4 (1969).



24

“Even when a defendant is competent at the com­
mencement of his trial, a trial court must always 
be alert to circumstances suggesting a change that 
would render the accused unable to meet the stand­
ards of competence to stand trial.”

The fact is that, despite their general efficacy, anti­
psychotic medications, like all drugs, can cause side ef­
fects in some patients. Thorazine, for example, can cause 
severe drowsiness, particularly during the first several 
weeks of use. See W. Appelton & J. Davis, Practical 
Clinical Psychopharmacology 61 (1980). Thorazine can 
also induce parkinsonism, a motor disorder that resem­
bles naturally occurring Parkinson’s disease. Typical 
symptoms include muscular rigidity, tremors, and a sharp 
decrease in spontaneous movement. See Ayd, A Survey of 
Drug-Induced Extrapyramidal Reactions, 176 J. Am. 
Med. Ed. Assoc. 1054, 1055-59 (1961). Although parkin­
sonism does not ordinarily affect the cognitive processes, 
the disorder occasionally evolves into “akinesia, a con-* 
dition characterized by extreme apathy, difficulty in ini­
tiating routine activities, and suppression of spontaneous 
movement and speech.1*

These side effects could very well interfere with a de­
fendant’s ability to "understand the proceedings” against 
him and to “consult with his lawyer with a reasonable 
degree of rational understanding . . Drope v. Missouri, 
supra, 420 U.S. at 170 n.7. We do not mean to suggest 
that Ake necessarily had either of these side effects. We 
do suggest, however, that there is a possibility that Ake 
became incompetent at trial, notwithstanding that he 
continued to receive his prescribed dose of Thorazine. In 
view of Ake’s evidently abnormal behavior, as well as 
defense counsel’s repeated warnings, the trial court should

i» See Van Putten & May, "Akinetic Depression" in Schizophrenia, 
35 Archives Gen. Psychlat 1101 (1978); Rifkin. Guitkin & Klein, 
Akinesia: A Poorly Recognized Drug-induced Extrapyramidal Be­
havioral Disorder, 32 Archives Gen. Psychlat 672 (1975).

25

have held a hearing to consider evidence, including the 
results of an additional psychiatric examination, on the 
question of Ake’s continuing competency.5®

CONCLUSION

For the foregoing reasons, the decision of the Okla­
homa Court of Criminal Appeals should be reversed.

Respectfully submitted,

Joel I. Klein 
Peter E. Scheer 

Onek, Klein & F arr 
2550 M Street, N.W. 
Washington, D.C. 20037 
(202) 775-01B4

Counsel for Amicus Curiae

so In the event that medication-induced side effects do cause a 
defendant to become Incompetent, this condition Is often readily 
remediable. Akinesia, for example, can be effectively treated with 
traditional anti-parkinsonian medications. Similarly, Thoraiine- 
induced drowsiness can usually be corrected by reducing the dosage 
or by dividing the total dosage into smaller amounts administered 
more frequently. L. Hollister, Antipsychotic Medications and the 
Treatment of Schizophrenia, in Barchas, Berger, Ciaranello & Elli­
ott, Psychopharmocology: From Theory to Practice 138 (1977). If 
this does not work, or if the change in dosage weakens the drug’s 
therapeutic effect, the patient can be switched to other antipsy­
chotic medications having similar clinical properties. See J. Bern­
stein, Rational Use of Antipsychotic Drugs, In J. Bernstein, Clinical 
Psychopharmacology 150-53 (2d ed. 1984).