Ake v. Oklahoma Motion for Leave to File and Brief for the New Jersey Department of the Public Advocate as Amicus Curiae in Support of Petitioner

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OCTOBER TERM, 1983

GLEN BURTON AKE, 
Petitioner

v.

STATE OF OKLAHOMA, 
Respondent

ON WRIT OF CERTIORARI TO THE 
OKLAHOMA COURT OF CRIMINAL APPEALS

MOTION FOR LEAVE TO FILE AND 
BRIEF FOR THE NEW JERSEY DEPARTMENT 

OF THE PUBLIC ADVOCATE AS 
AMICUS CURIAE IN SUPPORT OF PETITIONER

LAURA M. LE WINN* JOSEPH H. RODRIGUEZ
Acting Director Public Advocate
Division of Mental Department of the

Health Advocacy Public Advocate
MICHAEL L. PERLIN Richard J. Hughes
Special Counsel to the Justice Complex

Public Advocate CN 850

* Counsel of Record

Trenton, New Jersey 08625 
(609) 292-7087

THE COPY C EN T ER , INC., 615 Chestnut Street, Philadelphia, PA 19106 215-928-1900



■h
m
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mSmm

- 1 -

NO. 83-5424

IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1983

GLEN BURTON AKE, 

Petitioner, 

v.
STATE OF OKLAHOMA, 

Respondent,

MOTION FOR LEAVE TO FILE 
A BRIEF AS AMICUS CURIAE

The New Jersey Department of the 

Public Advocate1 (Department) respect­

fully moves this Court for leave to file

**■•'*•

.•Y'iv

1 The Department is specifically
empowered to "represent the public 
interest in such administrative and court 
proceedings .... as the Public Advocate 
(Footnote continued on next page)



- 2 -

the attached brief amicus curiae in this 

case. The consent of the attorney for 

the petitioner has been obtained; the 

attorney for the respondent has neither 
consented to nor opposed the Department1s 

request.
The Department, an independent and 

unique executive agency of New Jersey 

state government,. N.J.S.A. 52:27E-2, has, 

for almost ten years, litigated exten­

sively in major areas affecting "the

public interest." During this period,
(Footnote 1 continued) 
deems shall best serve the public 
interest." N.J.S.A. 52:27E-29. "Public 
interest" is defined as "an interest aris­
ing from the Constitution, decisions of 
the court, common laws or other laws of the 
United States or of this State inhering in 
the citizens of this State or in a broad 
class of such citizens." N.J.S.A. 
52:27E-30. Within the Department, the 
Division of Mental Health Advocacy 
(Division) was established to represent 
"indigent mental hospital admittees" in 
individual matters involving their admis­
sion to, retention in, or release from 
"mental hospitals," N.J.S.A. 52:27E-24, and 
to represent such persons in class actions 
on "an issue of general application to 
them," N.J.S.A. 52:27E-25.

-3-
the Department has participated in a 

wide variety of proceedings involving 

issues relating to housing, utility 

regulation, employment, the environment 

and the rights of the mentally handi­

capped. 2

2
The Division has litigated one case 

to this Court, see Rennie v. Klein 653 
F. 2d 836 (3 Cir. 1981), vacated —  U.S. 
— , 102 S. Ct. 3506 (1982), on remand 
720 F. 2d 266 (3 Cir. 1983), and has 
filed amicus briefs in three other cases 
involving mental health issues within 
its relevant experience and expertise. 
Kremens v. Bartley, 431 U.S. 119 (1977); 
Parham v. J.R., 442 U.S. 584 (1979),
Jones v. United States, —  U.S. --,
103 S. Ct. 3043 (1983).

The Office of the Public Defender 
(Office), see N.J.S.A. 2A:158A-1 et seq., 
which is administratively housed in the 
Department and provides criminal defense 
services to all indigent persons in the 
State charged with indictable offenses, 
provided representation in this Court of 
respondent in Stickland v. Washington,
—  U.S. — , 52 U.S.L.W. 4565 (1984).



-4-
The interest of the Department in

this case arises from its long-term

representation of persons charged with

crime whose mental state is at issue,

of institutionalized persons who wish to

refuse the involuntary imposition of
certain forms of powerful psychotropic 

4medications, and of persons facing
5involuntary civil commitment. The

3
See, e.g., State v. Fields, 77 N.J.

282, 390 A. 2d 574 (1978) (right of in­
sanity acquittees to periodic review of 
commitments); State v. Khan, 175 N.J.
Super. 72, 417 A. 2d 585 (App. Div. 1980) 
(right to contemporaneous competency 
determination prior to imposition of in­
sanity defense over defendant's objections) ; 
In re A.L.U., 192 N.J. Super. 480, 471 A.
2d 63 (App. Div. 1984)(further articula­
tion of periodic review rights of in­
sanity acquittees).
4 See Rennie, supra. This Court has 
recently acknowledged that the liberty 
interests of involuntarily committed 
mental patients "are implicated by the 
involuntary administration of antipsychotic 
drugs." Mills v. Rogers, 457 U.S. 291, 299 
n. 16 (1982).
5 See, e.g., In re Geraghty, 68 N.J. 209, 
343 A. 2d 737 (1975) (promulgation of court 
rule mandating appointment of counsel at 
(Footnote continued on next page)

-5-
Court's decision in the instant case will 

directly affect this Department's 

clientele on a wide range of issues in­

volving insanity defense determinations, ‘ '*

the right to effective counsel, and the 

right to be free from the unwanted im- 

position of powerful medical treatment.

The Department seeks leave to file 

its brief in order to augment the views 

presented by the parties on the central 

issues in this case, namely: (1) the 

right of an indigent criminal defendant to 

independent medical expertise in further­

ance of an asserted defense of insanity; 

and (2) the prejudicial effect to 

petitioner of the administration of nsycho-

(Footnote 5 continued)
all commitment hearings); In re Alfred,
137 N.J. Super. 20, 347 A. 2d 537 (App.
Div. 1975) (scope of right of person facing 
commitment to appointment of independent 
psychiatric evaluation at county expense).



" VI
-6- ftropic medication through the course of -l-

his trial, to an extent which affected No. 83-5424
his demeanor and ability to communicate
during his trial. IN THE

To the best of our knowledge, no SUPREME COURT OF THE UNITED STATES
other amicus or party in this case will OCTOBER TERM, 1983
deal with these matters from the same

GLEN BURTON AKE,
perspective as this Department has.

PETITIONER
For the above reasons, the Depart-

V.
ment respectfully requests leave to file

\ STATE OF OKLAHOMA,
the attached brief amicus curiae in this

RESPONDENT . .. .. . . . ; v.
case.

Respectfully submitted, ON WRIT OF CERTIORARI TO THE
JOSPEH H. RODRIGUEZ 
Public Advocate

OKLAHOMA COURT OF CRIMINAL APPEALS

. /  •> /J, - BRIEF FOR THE NEW JERSEY DEPARTMENT
B y : _ i X £ ^  Jk-MUU.yy.r-

LAURA M. LE WINN* 
Acting Director, 
Division of Mental 
Health Advocacy 
MICHAEL L. PERLIN 
Special Counsel to the 
Public Advocate

OP TvrR PUBLIC ADVOCATE AS AMICUS CURIAE

*Counsel of Record



- 1 -

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF
AMICUS CURIAE ................. 2

SUMMARY OF ARGUMENT ............ 4

ARGUMENT
I. ACCESS TO THE ASSISTANCE 

OF INDEPENDENT PSYCHIATRIC 
EXPERTISE IS INDISPENSABLE 
TO A MEANINGFUL ASSERTION
OF AN INSANITY DEFENSE ---  6

A. The Role Of Independent 
Medical Experts On 
Behalf Of Criminal 
Defendants Asserting
An Insanity Defense At 
Trial, Is Of Historical 
Origins ................ 6

B. Failure to Afford A 
Criminal Defendant An 
Independent Expert In 
Furtherance Of A Prof­
fered Insanity Defense 
Vitiates The Adversarial 
Process Which Is The 
Hallmark Of A Full And
Fair Trial .............. 1

II. THE INVOLUNTARY MEDICATION
OF PETITIONER WITH THORAZINE, 
AFFECTING HIS DEMEANOR AND 
ABILITY TO COMMUNICATE 
DURING TRIAL, VIOLATED DUE 
PROCESS AND EQUAL PROTEC­
TION RIGHTS ................ 4

-li- Page
A. The Known Properties 

Of Thorazine And Its 
Probable Effects On 
Petitioner............. 47

B. The Relevant Caselaw 
And Other Authorities 
Support Petitioner's 
Arguments Against 
His Drugging ......... • 56

.... »** .V , . *

CONCLUSION ..................... . 65



-lli-
TABLE OF AUTHORITIES

CASES Page
Adams v. United States ex rel

McCann, 317 U^S. 269 (1942) ... 21

Addington v. Texas, 441 U.S.
418 (1979) ...................  41

Ake v. Oklahoma, 663 P. 2d 1
(Okla. Ct. Crim. App.(1983)..28, 48,

63
Anderson v. State of Arizona,

663 P. 2d 570 (Ariz. Ct.
App. 1983).....................  53

Barefoot v. Estelle, —  U.S. — ,
103 S. Ct. 3383 (1983) ....... 41

Brinks v. Alabama, 465 F. 2d
446 (5 Cir. 1982), cert, den.
409 U.S. 1130 (1983), reh.
den. 410 UJ5. 960 (1983)___  24, 27

Chesney v. Adams, 377 F. Supp.
887 (D. Conn. 1974) .........  50

Commonwealth v. Louraine, 390 
Mass. 28, 453 N.E. 2d 
437 (S.J. Ct. 1983) ........ 57, 58

Davis v. Hubbard, 506 F. Supp.
915 (N.D. Ohio 1980) .......  53

Davis v. United States, 160 U.S.
469 (1895) ................. 16, 17

Eddings v. Oklahoma, —  U.S. — ,
102 S. Ct. 869 (1982) .......  28

Ellis v. United States, 484 F. Supp.
4 ’ (DIS.C? '*1975)' .7.   .......................... 50

- I V -

TABLE OF AUTHORITIES— Continued

Page

Estelle v. Smith, 451 U.S.
454 (1981) ............... 23,

38
24, ' -7.

Estelle v. Williams, 425 U.S. 
501 (1976) ............... 61

G.D. Searle & Co. v. 
Institutional Druq Dis-
tributors, 141 F. Supp. 838 
(D.C. Cal. 1955) ......... 49

Gideon v. Wainwright, 372 U.S. 
335 (1963) ................ 19

Hadfield's Case, 27 Howell St. 
Tr. 1281 (K.B. 1800) ..... 11

Hansford v. United States, 365 
F. 2d 920 (D.C. Cir. 1966 .. 56

Illinois v. Allen, 397 U.S.
337 (1970) ............... 61, 63

In re Alfred, 137 N.J. Super.
20, 347 A. 2d 537 (App. Div. 
1975) ........................ 3

In re A.L.U., 192 N.J. Super. 
480, 471 A. 2d 63 (App. Div. 
1984) ........................ 2

In re Geraghty, 68 N.J. 209,
343 A. 2d 737 (1975) ........ 3

In re K.K.B., 609 P. 2d
747 (Okla. Sp. Ct. 1980).... 53



-v-
TABLE OF AUTHORITIES — Continued

Page
In re Pray, 133 Vt. 253, 336
A. 2d 174 (1975) ........  57, 58

Jamison v. Farabee, No. C-78- 
0445-WHO N.D. Calif. (Consent 
Order filed April 26, 1983).. 53

Johnson v. Zerbst, 304 U.S. 458
(1938) ......................  19

Jones v. U.S. —  U.S. — , 103
S. Ct. 3043 (1983) .........  50

Lockett v. Ohio, 438 U.S. 586
(1978) ......................  28

Loe v. United States, 545
F. Supp. 662 (E.D. Va. 1982).. 24

Matlock v. Rose, -- F. 2d
(6 cir. April 9, 1984) ..... 37

McMann v. Richardson, 397 U.S.
759 (1970) .................. 19

Mills v. Rogers, 457 U.S. 291
(1982) .....................  2, 50,

58
M'Naghten's Case, 10 Cl. & F.

200, 8 Eng. Rep. 718 (H.L.
1843) ..................... 14, 16

Mordssette v. United States. 342
U.S. 246 (1952)    7

-vi-
TABLE OF AUTHORITIES— Continued

Page

Nogqle v. Marshall, 706 F. 2d 
1408 (6 Cir. 1983), cert, 
den. —  IKS. 104
S. Ct. 530 (1983) ..........

People v. Ackles, 304 P. 2d 
1032 (C.A. 3rd Dis. Calif. 
1956) .......................

Peters v. State, 516 P. 2d 1373 
(Okla. Cr. 1973) ..........

40

49

63

Porter v. Estelle, 709 F. 2d 944 
(5 Cir. 1983), cert, den. 
sub nom. Porter v. McKaskle,
-- U.S. 52 U.S.L.W. 3825
(1984) .....................

Powell v. Alabama, 287 U.S. 45 
(1932) ..................... 19,

42
Project Release v. Prevost, 722 

F. 2d 960 (2 Cir. 1983) . .

21,

53

Regina v. Oxford, 9 Car. & P . 525
(N.P. 1840) ................. 13

Rennie v. Klein, 462 F. Supp.
1131 (D.N.J. 1979) .........  52, 54

Rennie v. Klein, 476 F . Supp.
1294 (D.N.J. 1979) .........  53

Rennie v. Klein, 653 F. 2d 836 
(3 Cir. 1981), vacated, —
U.S. — , 102 S. Ct. 3506 
(1982), on remand 720 F. 
266 (3 Cir. 1983) .....

2d

— ' V..

2



-vii-
TABLE OF AUTHORITIES— Continued

Page

Rennie v. Klein, 720 F. 2d 266 
(3 Cir. 1983) ...............

Rivera v. Franzen, 33 Crim. L . 
Rptr. 2276 (N.D. 111.
May 27, 1983) ............

Rogers y, Commissioner of
Mental Health, 390 Mass. 489,
458 N.E. 2d 308 (S.J. Ct.

. 53, 57

Rogers v. Okin, 478 F. 
1342 (D. Mass. 1979)

Supp.
53

Ruiz v. Estelle, 503 F. Supp.
1265 (S.D. Tex. 1980), 650 F.
2d 555 (5 Cir. 1982), 666 
F. 2d 854 (5 Cir. 1982),
679 F. 2d 1115 (5 Cir. 1982), 
688 F. 2d 266 (5 Cir. 1982) , 
cert. den. —  U •S. , 103
s7~Ct. 1438 (1983) ...........

Sanders v. U.S., 373 U.S. 1
(1963) ........................

Scott v. Plante, 532 F. 2d 939 
(3 Cir. 1976)7 641 F. 2d 119 
(3 Cir. 1981), vac. and rem.
458 U.S. 1101 (1982), on remand
691 F. 2d 634 (3 Cir. 1982) ....  55

State v. Fields, 77 N.J. 282, 390
A. 2d 574 (1978) ................ 2

State v. Hamilton, 441 So. 2d 1192 
(La. S. Ct. 1988) ............ 28, 40

-viii-
TABLE OF AUTHORITIES— Continued

Page

State v. Khan, 175 N.J.
Super. 72, 417 A. 2d 585 
(App. Div. 1980) .......... 2 ■. . .* .*•

State v. Kociolek, 23 N.J.
400, 129 A. 2d 417 (1957) .. 40

State v. Maryott, 6 Wash. App.
96, 492 P. 2d 239 (1971) ... £7, 58,61

* ,A

State v. Murphy, 56 Wash. 2d 761,
355 P. 2d 323 (1960) ...... 57 58

State v. Noel, 102 N.J.L. 659, 
133 A. 274 (E.&A. 1926) ___ 27

State v. Spencer, 21 N.J.L.
196 (O.&.T. 1846) .......... 17

Stone v. Smith, Kline & French, 
No. 82-7232, slip opinion, (11 
Cir. May 14, 1984) ......... 51

Strickland v. Washington. —  U.S.
— , 52 U.S.L.W. 4565 (1984). 20, 22,

40
Suzuki v. Quisenberry. 411 

F. Supp. 1113 (D. Haw.
1976) ......................  61

'  >' •
United States v. Alvarez. 519

F. 2d 1036 (3 Cir. 1975) ... 39
United States v. Bass. 477 F.

2d 723 (9 Cir. 1975) ___ 7.. 34, 36
United States v. Brawner. 471

F. 2d 969 (D.C. Cir. 1972).. 7



-ix-
TABLE OF AUTHORITIES— Continued

Page
United States v. Caldwell,

343 F. 2d 1333 (D.C. Cir.
1975), cert. den. 423
U.S. 1087 (1976) ............. 34 , 37

United States v. Chavis, 476
F. 2d 1137 (D.C. Cir. 1973) .. 34

United States v. Currens, 290
F. 2d 751 (3 Cir. 1961) ......  16

United States v. Durant, 545 F.
2d 823 (2 Cir. 1976) .........  35

United States v. Schultz, 431
F. 2d 907 (8 Cir. 1970) ....  30, 31,

35, 36
United States v. Taylor, 437

F. 2d 371 (-4 Cir. 1971) ........  37
United States v. Theriault, 440 

F. 2d 713 (5 Cir. 1971) , 
cert. den. 411 U.S. 984 -
(1983) .......................  32, 33

36
United States v. Tucker, 716

F. 2d 576 (9 Cir. 1983) ......  23
United States v. Wilson, 471 

F. 2d 1072 (D.C. Cir. 1982) 
cert. den. 410 U.S. 957 
(1973) .......................  51

Vitek v. Jones, 445 U.S. 480
(1980) ........................  50

Washington v. Texas, 388 U.S. 14
(1967) .......................  29

Washington v. United States,
390 F. 2d 444 (D.C. Cir. 1967) .. 18

-x-
TABLE OF AUTHORITIES— Continued

Page

Whitehead v. Wainwright, 447 
F. Supp. 898 (M.D. Fla.
1978). vac. and rem.
609 F. 2d 223 (5 Cir.
1980) ....................

Wood v. Zahradnick, 430 
F. Supp. 107 (E.D. Va.
1977), aff'd 578 F. 2d 
980 (4 Cir. 1978), further 
proceedings at 611 F. 2d 
1383 (4 Cir. 1980) ......

STATUTES
18 U.S.C. §3006A(e) ........  29, 30,

-----  33, 36, 39
18 U.S.C. §4244 .............  33 • 39
P.L. 91-447, §1, Oct. 14,

1970 ......................  30
CONSTITUTIONAL PROVISIONS

United States Constitution, 
Amendment V ............. 22

United States Constitution, 
Amendment VI ...... 22 * *24

United States Constitution, 
Amendment XIV ............

20, 21, 
26, 38

19

OTHER AUTHORITIES
Ayd, "A Survey of Drug Induced 
Extrapyramidal Reactions,"
175 J-A.M.A 1054 (1961) .... 48

... •« • .-.KM A



-xi-
TABLE OF AUTHORITIES— Continued

Page
Biggs, The Guilty Mind

(1955) .....................  9

Birley, Marcus Aurelius
(1966) .....................  9

Block, "The Semantics of 
Insanity," 36 Okla L. Rev.
561 (1983) ................. 16

2H. Bracton, De Legibus Et 
Consuetudinibus Angliae 
(S. Thorne Trans. 1968) .... 8

Broom, A Selection of Legal
Maxims (London 1845) .......  9

Burt and Morris, "A Proposal 
for Abolition of the In­
competency Plea," 40 
U. Chi. L. Rev. 66 (1972) .. 61

Bushman and Reed, "Tranquilizers 
and Competency to Stand Trial,"
54 A.B.A.J. 284 (1968) ___  58, 59

Cameron and Wimer, "An Anti­
cholinergic Toxicity Reaction 
to Chlorpromazine Activated 
by Psychological Stress,"
167 J. Nerv. & Ment. Pis.
508 (1979) ................. 52

Coke, The First Part of the 
Institutes of the Laws of 
England, or a Commentary 
Upon Littleton (17th ed.
1817) ......................  9

-xii-
TABLE OF AUTHORITIES— Continued

Page
Diamond, "Isaac Ray and the 

Trial of Daniel M'Naghten,"
112 Am. J. Psych. 651 (1956) ...

Deniker, "Impact of Neuroleptic 
Chemotherapies on Schizophrenic 
Psychoses," 135 Am. J . Psych.
923 (1978) .....................

Detre and Jarecki, Modern 
Psychiatric Treatment 
(Lippincott, 1971) ....

"Developments in the Law: Civil 
Commitment of the Mentally 
111," 87 Harv. L. Rev.
1190 (1974) ................

Ennis and Litwack, "Psychiatry 
and the Presumption of Ex­
pertise: Flipping Coins in 
the Courtroom," 62 Calif.
L. Rev. 693 (1974) ........

Ferleger, "Loosing the Chains: 
In-Hospital Civil Liberties 
of Mental Patients," 13 
Santa Clara Law. 447 (1973) ..

Goldberg and Breznitz, eds.,
Handbook of Stress: Theoretical 
and Clinical Aspects
(1983)..........................

Golten, "Role of Defense Counsel 
in the Criminal Commitment 
Process," 10 Am. Crim. L .
Rev. 385 (1972) ...............

Group for the Advancement of
Psychiatry, Misuse of Psychiatry 
In the Criminal Courts: 
Competency to Stand Trial 
February, 1974) ...............



-xiii-
TABLE OF AUTHORITIES— Continued

Page
Guttmacher, The Mind of the

Murderer (1960) .............. 10
Haddox, Gross and Pollack,

"Mental Competency to Stand 
Trial While Under the 
Influence of Drugs
7 Loyola L.A.L.R. 425 (1974) .. 60

Haddox and Pollack,
"Psychopharmaceutical Re­
storation to Present Sanity 
(Mental Competency to Stand 
Trial), 17 J. For. Sci.
568 (1972) . .777777777777.....  60

1 Hale, The History of the
Pleas of the Crown (London 1736).. 9

Halleck, "American Psychiatry 
and the Criminal: A 
Historical Review," 1 Rieber 
and Vetter (eds.), The 
Psychological Foundations 
of Criminal Justice (1978) ......  11

Halleck, "The Role of the
Psychiatrist in the Criminal
Justice System,"Psychiatry
1982 Annual Review, 386 (1982) ... 17

Hartley and Couper-Smartt,
"Paradoxical Effects in 
Sleep and Performance of Two 
Doses of Chlorpromazine," 58(2) 
Psychopharmacology 201 (1978) ___  55

-xiv-
TABLE OF AUTHORITIES— Continued

Page

Hartley, Couper-Smartt and 
Henry, "Behavioral Anta­
gonism Between Chlorpromazine 
and Noise in Man," 55 
Psychopharmacology 97 (1977)..

Hawkins, A Treatise of the 
Pleas of the Crown (London 
1739) ........................

Hermann and Sor, "Convicting 
ot Confining? Alternative 
Directions in Insanity Law 
Reform: Guilty But Mentally 
111 Versus New Rules for 
Release of Insanity 
Acquittees," [1983] Brig.
Young L. Rev. 499 ...........

Hollister, "Adverse Reactions 
to Phenothiazines" 189 
J.A.M.A. 311 (1964) ......

Insanity Defense and Related 
Criminal Procedure Matters, 
H. Rep. No. 98-577, 98th“ 
Cong. 1st Sess. (1983) ....

Kinross-Wright, "The Current 
Status of Phenothiazines," 
200 J.A.M.A. 461.(1967) ...

Kolb and Brodie, Modern 
Clinical Psychiatry,
(10th Ed. 1982) ...........

,V , /



-xv-
TABLE OF AUTHORITIES— Continued

Page
McBain, "The Insanity Defense: 

Conceptual Confusion and 
the Erosion of Fairness,"
67 Marquette L. Rev. 1 (1983).. 3

National Commission on the 
Insanity Defense, Myths 
and Realities (1982) .......... 3

Perlin and Sadoff, "Ethical 
Issues in the Representation 
of Individuals in the Commit­
ment Process," 45 L. & Contemp.
Prob. 161 (1983) .............. 43

Physicians' Desk Reference
(1984 ed. ) ..................... 48

Plucknett, A Concise History 
of the Common Law (5th ed.
1956) ..........................  8

Poythress, "Mental Expert 
Testimony," 5 J. Psychiatry 
& L. 201 (1977) ........... 44, 45

Poythress, "Psychiatric
Expertise in Civil Commitment: 
Training Attorneys to Cope 
With Expert Testimony,"
2 L. & Hum. Behav. 1 (1978) ... 42

Quen, "An Historical View of 
the M'Naghten Trial," 1 Rieber 
and Vetter (eds.), The 
Psychological Foundations of 
Criminal Justice (1978) .... 15

-xvi-
TABLE OF AUTHORITIES— Continued

Page
Ray, A Treatise on the Medical 

Jurisprudence of Insanity 
(19838) ...................  15, 54

Rodriguez, LeWinn and Perlin,
"The Insanity Defense Under
Seige: Legislative Assaults
and Legal Rejoinders," 14
Rutgers L. J . 397 (1983) .... 3

Scrignar, "Tranquilizers and 
the Psychhotic Defendant,"
53 A.B.A.J. 43 (1967) ....... 58

Simon, "The Defense of Insanity,"
11 J. Psychiatry & L . 183
(1983)........................  10

Simon, The Jury and the Defense
Of Insanity (1967) ...........  10

2 The Civil Law (S. Scott ed.
1973)..........................  9

2 tJ.S. Cong. & Admin. News
2993 (1964) ................  31

Van Putten and May, "'Akinetic 
Depression' in Schizophrenia,"
35 Arch. Gen. Psych. 1101
(1978) .........................  55

Weihofen, Mental Disorder As A
Criminal Defense (1954) .......    9

Winick, "Psychotropic Drugs And. 
Competence to Stand Trial,"
1979 Am. Bar Fndtn. Res.
^  769 .(1979) .... 7.......49, 59

W  hfc9- -fib 'rr ' ’



-xvii-
TABLE OF AUTHORITIES— Continued

Page
Winsberg and Yepes, "Anti-

psychotics (Major Tranquilizers, 
Neuroleptis)" in Werry ed.,
Pediatric Psychopharmacology;
The Use of Behavior Modifying 
Drugs in Children, (1978). ... 62

Ziskin, Coping With Psychiatric 
and Psychological Testimony 
(3d ed. 1981) ............... 45, 46

- 2 -

STATEMENT OF INTEREST
The interest of the New Jersey 

Department of the Public Advocate in this 
case arises from its long-term representa­
tion of persons charged with crime whose ■***+» fm-*****. ..•*
mental state is at issue, 1 of 
institutionalized persons who wish to
refuse the involuntary imposition of *#**.^*.--•**»-.* • '

certain forms of powerful psychotropic 
medications, and of persons facing

1
See, e.g., State v. Fields, 77 N . J . 

282, 390 A. 2d 574 (1978) (right of 
insanity acquittees to periodic review 
of commitments); State v. Khan, 173 
N . J .  Super. 72, 417 A .2d 585 (App. Div. 
1980) (right to contemporaneous competen­
cy determination prior to imposition of 
insanity defense over defendant's 
objections). In re A.L.U., 192 N . J .
Super. 480, 471 A. 2d 63 (App. Div.
1984) (further articulation of periodic 
review of rights of insanity acquittees).
2 See, Rennie v. Klein, 653 F. 2d 
836 (3 Cir. 1981), vacated —  U.S. — ,
102 S. Ct. 3506 (1982), on remand 720 
F. 2d 266 (3 Cir. 1983) . This Court 
has recently acknowledged that the 
liberty interests of involuntarily 
committed mental patients "are implicat­
ed by the involuntary administration of 
anti-psychotic drugs." Mills v. Rogers, 
457 U. S.. 291, 299 n. 16 (1982).

J?*;- ‘CMpJ'lh *



-3-
involuntary civil cominitment. The

Court's decision in the instant case 

will directly affect this Department's 

clientele on a wide range of issues in­

volving insanity defense determinations,  ̂
the right to effective counsel, and the 

right to be free from the unwanted 

imposition of powerful medical treatment.

See, e.g., In re Geraghty, 68 N.J. 
209, 343 A. 2d 737 (1975)(promulgation of 
court rule appointment of counsel at all 
commitment hearings); In re Alfred, 137 
N.J. Super. 20, 347 A. 2d 537 (App. Div. 
1975) (scope of right of person facing 
commitment to appointment of independent 
psychiatric evaluation at county expense). 
4 The Department's concern for —  and 
advocacy on behalf of —  various issues 
generated by the ongoing public debate 
on the very concept of the insanity de­
fense, has been reflected on a national 
scale. See, e .g., National Commission on 
the Insanity Defense, Myths and Realities 
15 (1982); Insanity Defense and Related 
Criminal Procedure Matters, H. Rep. No, 
98-577, 98th Cong. 1st Sess., 5-6 n. 7-8, 
10-11 (1933). See also Rodriguez, LeWinn, 
and Perlin, "The Insanity Defense Under 
Seige: Legislative Assaults and Legal
Rejoinders," 14 Rutgers L. J.. 397 (1983); 
McBain, "The Insanity Defense: Conceptual 
Confusion and the Erosion of Fairness,"
67 Marquette L. Rev. 1, 4 n. 15, 7-9 
n. 29 (1983).

-4-
SUMMARY OF ARGUMENT 

In criminal trials at which the 

question of defendant's mental capacity 

at the time of commission of the alleged 

offense is raised in defense, access by 

such defendant to independent psychiatric 

experts is essential both to aid in 

presentation of the defense and to re­

but evidence which may be offered in 
opposition by the prosecution. The 

critical role played by such experts in 
these proceedings is well-established and 

has long-standing historical roots.

A defendant's right to access to 

independent experts in insanity trials 

inheres in his very ability to obtain 

effective assistance of counsel and a 

fair trial. An indigent defendant, 

therefore, is entitled to appointment of 

such an independent expert on his be­

half, by authorization of the court.

,k .uM*< ■ ii ->



-5-
The very nature of psychiatric 

expertise itself requires that parties 

to the proceedings be adequately 

equipped to subject such evidence to 

rigorous adversarial testing.

With respect to the issue of the 
administration of psychotropic medication 

during his trial, amicus contends that 

such a practice was inherently 

prejudicial to petitioner. The medication 

in question, Thorazine, affected his 

demeanor and capacity to communicate.

As such it deprived him of his ability 

to participate in his trial and to con­

trol his appearance before the jury. In 

light of these severe consequences, 
petitioner should at least be afforded 

the protection of a pre-trial hearing at 

which the need for such medication would 

be the core inquiry.

- 6-

ARGUMENT

I.
ACCESS TO THE ASSISTANCE OF 

INDEPENDENT PSYCHIATRIC 
EXPERTISE IS INDISPENSABLE TO 

A MEANINGFUL ASSERTION OF 
AN INSANITY DEFENSE

A. The Role Of Independent
Medical Experts On Behalf Of 
Criminal Defendants Asserting 
An Insanity Defense At Trial 
Is Of Historical Origins

The questions of criminal intent and 

blameworthiness form the core inquiry 

into the susceptibility to punishment of 

an individual charged with the commission 

of a crime. Consideration of criminal 

intent is based on the assumption that a 

person has the capacity to choose between 

right and wrong, that he has a sense of 

wrongdoing. "The concept of 'belief in 

freedom of the human will and of con­

sequent ability and duty of the normal

t

it, v.*i«v-£ «*•* ' ; ,«*3Plrw J

individual to choose between good and 

evil’ is a core concept that is 'universal 

and persistent in mature systems of law.'"



-7-
United States v. Brawner, 471 F. 2d 969, 

985 (D.C. Cir. 1972) , quoting Morissette 

v. United States, 342 U.S. 246, 250 

(1952) .
In this regard, the insanity defense 

has been a major component of Anglo- 

American jurisprudence for over 700 

years.^ Concomitantly, the role of expert

5
The insanity defense has been in 

existence since at least the twelfth 
century.

But what shall we say of a mad­
man bereft of reason? And of 
the deranged, the delirious and 
mentally retarded? Or if one 
labouring under a high fever 
drowns himself or kills himself? 
Quaere whether such a one commits 
felony de se. It is submitted 
that he does not,nor do such 
persons forfeit their inheritance 
or their chattels, since they 
are without sense and reason and 
can no more commit an injuria 
or a felony than a brute criminal 
since they are not far removed 
from brutes as is evident in 
the case of a minor, for if he 
should kill another while under 
age he would not suffer judgment. 
[That a madman is not liable is 
true, unless he acts under pre­
tense of madness while enjoying 
(Footnote continued on next page)

medical witnesses in insanity trials has

long-standing historical roots.

(Footnote 5 continued) 
lucid intervals].

2H. Bracton, De Legibus Et Consuetudjnibus 
Anqliae 424 (c. 1250) (S. Thorne Trans.
1968).

Before Bracton, the sources of the 
insanity defense at common law can be 
traced at least to the Roman legal 
authorities that influenced Bracton. See 
generally, Plucknett, A Concise History 
of the Common Law 261-62 (5th ed. 1956) . 
For example, in the Digests (or Pandects) 
of Justinian first published in A.D. 533, 
the following commentary on the insanity^ 
defense appears in an imperial "rescript" 
issued by the brother emperors Marcus 
Aurelius (A.D. 120-180) and Commodus 
(A.D. 161-192) during the period of their 
joint reign (A.D. 177-180);

If it is positively ascertained 
by you that Aelius Perseus is to 
such a degree insane that, through 
his constant alienation of mind, 
he is void of all understanding, 
and no suspicion exists that he 
was pretending insanity when he 
killed his mother, you can disregard 
the manner of his punishment, 
since he has already been 
sufficiently punished by his in­
sanity; still, he should be placed 
under careful restraint, and, if 
you think proper, even be placed 
in chains; as this has reference 
not so much to his punishment as 
to his own protection and the 
safety of his neighbors.
(Footnote continued on next page)

'*>•*•<£ -y%*' % ^

v J r



-9-

Like the insanity defense, 
the practice whereby the 
courts call in experts to 
advise them on matters not

(Footnote 5 continued)
If, however, as often happens 
he has intervals of sounder 
mind, you must diligently in­
quire whether he did not 
commit the crime during one 
of these periods, so that no 
indulgence should be given to 
his affliction; and, if you 
find that this is the case, 
notify Us, that We may deter­
mine whether he should be 
punished in proportion to the 
enormity of his offense, if he 
committed it at a time when 
he seemed to know what he was 
doing.

2 The Civil Law 259 (S. Scott ed.
1973) For another translation, see 
Birley, Marcus Aurelius 272-73 (1966).

The maxim derived from this Roman 
commentary —  furiosus solo furore 
punitur (a madman is punished by his 
madness alone) —  appears in numerous 
English cases and treatises on the 
insanity defense. See, e.g. Broom, A 
Selection of Legal Maxims 5 (London 1845); 
Coke, The First Part of the Institutes 
of the Laws of England, or a Commentary 
Upon Littleton 247b (17th ed. 1817).
See also, 1 Hale, The History of the 
Pleas of the Crown 29-37 (London 1736); 
Hawkins, A Treatise of the Pleas of the 
Crown, 1-3 (London 1739); Biggs, The 
guilty Mind 47-56, 81-88 (1955)7 Weihofen, 
Mental Disorder as a Criminal Defense 
(Footnote continued on next page)

- 10-

generally known to the average 
person goes back a long time: 
in Engligh courts, over four 
centuries. Initially, the 
experts were used as technical 
assistants to the court, rather 
than as witnesses. The judge 
summoned experts to inform him 
about technical matters; he 
then determined whether the 
information should be passed on 
to the jury. By the middle of 
the seventeenth century, when 
the finding of the facts had 
become the exclusive province 
of the jury, the practice of 
court-appointed experts re­
porting to the judge was abandon­
ed; instead, the experts were 
called as witnesses by the parties 
involved in the dispute- Simon,
"The Defense of Insanity" 11 
J. Psychiatry & L. 183, 193 (1983).

(Footnote 5 continued)
52-59 (1954); Simon, The Jury and 
The Defense of Insanity, 16-20 
(1967); see generally Hermann and 
Sor, "Convicting or Confining? 
Alternative Directions in Insanity 
Law Reform: Guilty But Mentally 
111 Versus New Rules for Release 
of Insanity Acquittees," (1983]
Brig. Young L. Rev. 499, 506-515.

 ̂ For an overview of the evolution of 
expert testimony in trials generally, 
see Guttmacher, The Mind of the Murderer 
109-117 (1960) (hereinafter "Guttmacher"). 
("By the last quarter of the seventeenth 
century the practice of employing partisan 
experts had become well established," id. 
at 112).

r«



- 11-

Since at least the beginning of the 
nineteenth century, "the search for 

biological explanations of deviant 

behavior has been unremitting. This is 

particularly true of that deviant be­

havior which is labelled as criminal. " 

Halleck, "American Psychiatry and the 

Criminal: A Historical Review," in 1 

Rieber and Vetter (eds..) , The Psychological 
Foundations of Criminal Justice, 8 (1978) 

(hereinafter Psychological Foundations).

This development of medical involve­

ment in issues of criminal responsibility 

is reflected in early nineteenth century 

cases such as Hadfield's Case, 27 Howell 

St. Tr. 1281 (K.B. 1800). The defendant, 

charged with high treason by virtue of 

his attempt to assassinate King George III, 

interposed a defense of insanity. Among 

the witnesses called on his behalf were:

(1) Henry Cline, esq. [sic ] , described

- 12-

by defense counsel, Lord Erskine, as 

"known to be one of the first anatomists 

in the world," id. at 1320; (2) Doctor
Creighton, "a physician . . . [who had]

applied particular attention to the 

disease of madness," id. at 1334; and 
(3) Mr. Lidderdale, described as "a 

surgeon," id. at 1335. Mr. Cline, the 
anatomist, testified to the possibility 

of brain damage sustained by the defend­

ant from head wounds received in battle, 

as a result of which, "tilt frequently 

happens . . . there is some derangement

of the understanding." Id. at 1334. Dr. 

Creighton stated: "I have not the 

smallest doubt that he [defendant] is 
insane . . . . He is not a maniac, but

he labours under mental derangement of a 

very common but particular kind." Id- 

at 1334. And the surgeon, Lidderdale, 
testified to having examined defendant

M  k  ' rlj &



-13-

some four years earlier, " [i]n the 

spring of 1796, [when defendant was] 

brought in, in a state of insanity," and 

treating him with "bleeding, blistering, 

and cathartics." Id. at 1335-36. The 

jury returned a verdict of "Not Guilty: 

he being under the influence of Insanity 

at the time the act was committed." Id. 
at 1356.

Likewise, in Regina v. Oxford, 9 
Car. & P. 525 (N.P. 1840) —  again 

involving a charge of high treason stem­

ming from defendant's attempt to assassin­

ate Queen Victoria —  "[s]everal eminent 

medical men were also called for the 

prisoner . . . .  They all gave it as their 

decided opinion that he was of unsound 
mind."7 id. at 541. Here, too, the 

7
A footnote to the opinion at the end 

of the above-quoted passage, states "no 
medical men were examined on the part of 
the prosecution, though it appeared that 
Mr. Maule, the solicitor to the Treasury 
(Footnote continued on next page)

-14-
jury found the prisoner "not guilty, he 

being insane at the time." Id. at 551.
In the landmark trial in M'Naghten'.s. 

Case. 10 Cl. & F . 200, 8 Eng. Rep. 718 

(H.L. 1843), the medical evidence —  
adduced by witnesses "called on the part 

of the prisoner" 10 Cl. & F ., supra, at 

201 —  established that the defendant

was "affected by morbid delusions" which 

carried him away beyond the power of his 

own control and left him no . . . [moral] 

perception [of right and wrong]." Id.

No less than eight medical experts 
testified as to defendant's insanity; four 

specifically testified that his disease 
deprived him of control over his actions, 

and one, Dr. E.T. Monro, described the 

"type of thinking [which] is common in

(Footnote 7 continued)
was present at an interview which those 
who were examined for [i.e ., called by] 
the prisoner, had with him in Newgate."
Id. at 541, n. (a)l.



-15-
paranoid schizophrenia." Quen, "An 
Historical View of the M'Naghten Trial," 

in Psychological Foundations, supra, at 

93-94. Defense counsel made "extensive 

and almost exclusive reference to the 

work of the American physician, Isaac 

Ray,^ in his [counsel's] attempt to 

demonstrate that legally exculpable 

insanity should include more than disease 

of the intellect." Id. at 93.^

Ray is referred to as "the leader of 
forensic psychiatry in [the United Sates]," 
in Guttmacher, supra at 121. Writing 
nearly 150 years ago, Ray stressed the 
"utmost importance" of medical testimony 
at an insanity defense trial, Ray,
A Treatise on the Medical Jurisprudence 
of Insanity (1838), §27 at 48, (Overholser 
ed. 1962) , noting it was essential that 
such testimony be "founded on extra­
ordinary knowledge and skill relative to 
the particular disease, insanity," Id.,
§28 at 50. M'Naghten's lawyer focused 
on Ray's writings on insanity in his 
summation to the jury. See Diamond,
"Isaac Ray and the Trial of Daniel 
M'Naghten," 112 Am. J. Psych. 651, 652- 
654 (1956).
9

This attempt was apparently rejected by 
(Footnote continued on next page)

-16-

The M ’Naghten trial had a gal 

vanizing effect on the medico-legal

concept of insanity:
Earlier, there was only a de­
sultory interest in the medical 
jurisprudence of insanity among 
British physicians. The legal 
and Parliamentary reaction to the 
trial focused their attention and 
concern on this subject.

*  *  *  *

In America, the M'Naghten Rules 
are still being debated. One 
result . . . [has been] the
increased attention to the neuro- 
psychiatric aspects of criminality [.] 
Id. at 96 [footnotes omitted].

While the rule of M'Naghten with
respect to the proper legal definition

of, or test for, insanity —  may have

sparked debate, see, e^g., Davis_v.
United States, 160 1^. 469, 479-80 (1895),

United States v. Currens, 290 F. 2d 751

(Footnote 9 continued)
Chief Justice Tindal, who charged the jury 
essentially in terms of defendant's cog­
nitive functioning. Quen, Psychological 
Foundations, supra at 94. See also, 
for further discussion of this point. 
Block, "The Semantics of Insanity, 3b 
Okla. L. Rev. 561, 562-65 (1983).

• c*<«- - - a t- ■ i t “■

'lit*



-17-

(3 Cir. 1961), the crucial role of

medical experts in insanity trials has

long been recognized. As at least one

commentator has noted:
Psychiatric testimony in insanity 
cases serves three purposes: 
first, it supplies the court with 
facts concerning the offender's 
illness; second, it presents in­
formed opinion concerning the 
nature of that illness; and third, 
it furnishes a basis for deciding 
whether the illness made the 
patient legally insane at the time 
of the crime under that juris­
diction's standards of insanity. 
Halleck, "The Role of the Psychiatrist 
in the Criminal Justice System," 
in Psychiatry 1982 Annual Review 
386, 391 (1982).-Lu

See, e.g., State v. Spencer, 21 
N.J.L. 196, 208 (0. & T. 1846) (cited in 
Davis v. United States, 160 U .S . supra 
at 483) , in which Chief Justice Hornblower 
acknowledged the debt owed to medical 
experts by "the administrators of criminal 
law" in insanity defense trials, to wit:

I mean no disrespect to the 
learned writers on medical juris­
prudence, or other distinguished 
men of the medical profession.
On the contrary, I consider the 
administrators of criminal law 
greatly indebted to them for the 
results of their valuable experience, 
and professional discussions on the 
(Footnote continued on next page)

-18-

As will be discussed further in 

Point IB, infra, in cases where an 
insanity defense is interposed to 
criminal charges, a defendant's access 

to independent medical expertise is, by 

now, inextricably intertwined with his 

very ability to obtain a fundamentally 

fair trial.

(Footnote 10 continued)
subject of insanity; and I 
believe those judges who care­
fully study the medical writers 
and pay the most respectful 
but discriminating attention 
to their scientific researches 
on the subject, will seldom, if 
ever, submit a case to a jury 
in such a way as to hazard the 
conviction of a deranged man.

See also, Washington, v. United States, 
390 F. 2d 444 (D.C. Cir. 1967) for a 
thoughtful analysis by Chief Judge 
Bazelon of the need " in future cases to 
ensure that the issue of responsibility( 
is decided upon sufficient information, 
id. at 451, and a discussion of how to 
render medical expert testimony more 
comprehensible to juries in criminal 
trials, ^d. at 454.

►

t* '$1.



-19-

B. Failure To Afford A Criminal
Defendant An Independent Expert 
In Furtherance Of A Proffered 
Insanity Defense Vitiates 
The Adversarial Process Which 
Is The Hallmark Of A Full And 
Fair Trial

This Court has long recognized that 

the right to counsel guaranteed by the 

Sixth Amendment to the Constitution is 

essential in order to protect a criminal 

defendant's fundamental right to a fair 

trial, Powell v. Alabama, 287 U. S. 45, 71 

(1932); Johnson v. Zerbst, 304 U.S. 458,

462 (1938) ; Gideon v. Wainwright, 372 U. S. 

335, 342-45 (1963), and that this 

fundamental right is applicable to the 

several states through the Fourteenth 

Amendment, Gideon, 372 U.S., supra at 341. 

Specifically, "[i]t has long been

recognized that the right to counsel is the 
right to effective assistance of counsel."

McMann v. Richardson, 397 U.S. 759, 771

n. 14 (1970).

- 20 -

Most recently, the standards by 

which the constitutionally adequate 

effectuation of this right should be 
measured were articulated by this Court 

in Strickland v. Washington, U^_S. ,

52 U.S.L.W. 4565 (1984). There, in 
weighing a criminal defendant's claim 

of ineffective assistance of counsel in 

a capital case, the "benchmark" for 

judging such a claim was described by 

the Court as "whether . . . the trial
cannot be relied 'upon as having produced 
a just result." Id. at 4570. The purpose 

of the Sixth Amendment guarantee was 

identified as "simply to ensure that 
criminal defendants receive a fair trial," 

and "to ensure that a defendant has the 

assistance necessary to justify reliance 

on the outcome of the proceedings, 

id. at 4571. In assessing the inter­
relationship between the various components



- 21-

which comprise a "fair trial," the Court 

stated:
Thus, a fair trial is one in which 
evidence subject to adversarial 
testing is presented to an im­
partial tribunal for resolution 
of issues defiried in advance of 
the proceeding. The right to 
counsel plays a crucial role in 
the adversarial system embodied 
in the Sixth Amendment, since 
access to counsel's skill and 
knowledge is necessary to accord 
defendants the "ample opportunity 
to meet the case of the prosecution" 
to which they are entitled.
[citing Adams v. United States 
ex reL McCann, 317 U.S. 269,
275-76 (1942); and Powell v. Alabama, 
287 U.S♦, supra at 68-69]. Id.

Referring specifically to the question of

prejudice to a defendant from counsel's

errors in the context of a capital case,

the Court stated:
When a defendant challenges a 
death sentence such as the one 
at issue in this case, the 
question is whether there is a 
reasonable probability that, 
absent the errors, the sentencer 
—  including an appellate 
court, to the extent it 
independently reweighs the 
evidence —  would have concluded 
that the balance of aggravating

- 2 2 -

and mitigating circumstances 
did not warrant death.
Id. at 4572

The Court then concluded that:
In every case the court should 
be concerned with whether, 
despite the strong presumption 
of reliability, the result 
of the particular proceeding 
is unreliable because of a 
breakdown in the adversarial 
process that our system counts 
on to produce just results.
Id. at 4573.11

It is acknowledged that the^"break­
down in the adversarial process which 
concerned this Court in Strickland, 
supra, was bottomed on a claim of^errors 
or deficiencies in trial counsel s 
performance which preiudiced the defense, 
co tt c l W supra at 4570-71, whereas,
in the* instant^case, the "breakdown" and 
"prejudice" claimed by defendant ste 
from actions or decisions of the t n a  
judge. Notwithstanding this distinction, 
the Strickland concepts of a fair tria
and "the adversarial system embodied i
the Sixth Amendment, id. at 4570, ar 
directly pertinent to a consideration o 
the claims here.

-ft. i* •.••*>̂*4 *»( « **-

- Vfftv'S'.*



-23-
In short, the inquiry on appeal should

focus broadly on whether the trial

below constituted a "reliable adversarial
testing process." Id. at 4570.

Application of these principles to

the instant case leads directly to the

conclusion that the trial proceedings at

issue fell far short of the "reliable

adversarial testing process" envisioned

by this Court. By refusing to appoint an

independent psychiatric expert to examine

defendant with respect to his mental

state at the time of the offense, the

trial court effectively precluded him

from adducing evidence of his one

ostensibly viable defense, at both the 
12 13guilt and penalty phases of trial*

12 Cf. United States v. Tucker, 716 F. 2d 
576, 580 (9 Cir. 1983)(defense counsel was 
ineffective in failing to pursue and pre­
pare adequately defendant’s "only plausible 
theory of defense [which was] readily 
apparent.")
13 See, ê cj. , Estelle v. Smith, 451 U.S. 

(Footnote continued on next page)

-24-
Criminal convictions stemming from 

trial proceedings similar to those in the 

instant case, have consistently been 

overturned on appeal. See, for

example, Brinks v. Alabama, 465 F. 2d

(Footnote 13 continued)
454, 472 (1981) ("A defendant may request
or consent to a psychiatric examination 
concerning future dangerousness in the hope 
of escaping the death penalty.")

In cases where a similar result 
ensued from error or inaction on the part 
of the defense attorney, criminal con­
victions have been reversed, on the 
grounds of ineffective assistance of 
counsel. For example, in Wood v.
Zahradnick, 430 F . Supp. 107 (E.D. Va.
1977), aff'd 578 F. 2d 980 (4 Cir. 1978), 
further proceedings at 611 F. 2d 1383 
(4 Cir. 1980), the trial lawyer's failure 
to obtain a mental examination of the 
defendant in aid of a viable insanity 
defense, was characterized by the court 
as "so below the standard of reasonable 
competence that it amounted to a 
deprivation of [defendant's] Sixth Amend­
ment right to counsel." 578 F. 2d supra 
at 982. See also, Loe v. United States,
545 F. Supp. 662 (E.D. Va. 1982); and 
Rivera v. Franzen, 33 Crim. L. Rptr. 2276 
(N.D. 111. May 27, 1983), holding that a 
defendant who claims ineffective assistance 
of counsel due to his attorney's failure 
to investigate an insanity defense, does 
not have to show prejudice stemming from 
(Footnote continued on next page)



-25-
446 (5 Cir. 1972), cert, den. 409 U.s. 

1130 (1973), reh. den. 410 U.S. 960 

(1973), a case closely analogous to the 

instant matter on the issue of a state 

judge's refusal to order a pre-trial 

sanity investigation pursuant to state 

law. The court found, based on the facts 

before it, that the trial court "exceeded 

the allowable range of its discretion" 

under Alabama law in denying a motion 

for a pre-trial sanity hearing brought by 

defendant's attorney based on evidence 

consisting of letters from lay witnesses 

and the attorney's personal opinion 

that his client "appeared to be insane." 

Id. at 447. The appellate court stated:

(Footnote 14 continued)
such failure in order to prevail on 
appeal. The court stated: "This Court 
would be awash in a sea of speculation 
were it to make a determination that a 
colorable insanity defense . . . could not 
have persuaded a jury that the petitioner 
was insane and therefore not legally 
responsible for his actions." Id. at 2277.

[A]part from his claim that 
the state arbitrarily denied him 
a sanity investigation, Brinks 
advances a second argument which 
necessitates reversing his 
conviction. Under the due process 
and equal protection provisions 
of the Fourteenth Amendment and 
the Sixth Amendment's guarantee 
of effective legal counsel,
Brinks contends that, because 
of his indigency, he was unable 
to secure expert testimony to 
present to the state court before 
it considered whether there was 
enough evidence to order a sanity 
investigation. Had he been 
affluent, or had the state provided 
him with funds, Brinks claims 
he could have introduced evidence 
which would have compelled a
sanity investigation.

*  *  *  *

Under these circumstances, we fail 
to see how Brinks could have 
received adequate representation 
from his appointed attorney. 
Moreover, the main thrust of the 
argument of petitioner's counsel 
in this court is that he could not 
adequately represent petitioner 
because of the lack of an available 
expert witness. 44 8
(footnote omitted].

Cf. Porter v. Estelle, 709 F. 2d 944 
(5 CirT~1983) , cert. den.~~sub nom.
Porter v. McKaskle, —  U*S. , 52 U.S.L .W .
3825 (1984), where Justice Marshall, 
dissenting from the denial of certiorari 
in a capital case in which the trial court 
(Footnote continued on next page)



-2b-
-27-

As noted above, Brinks is strikingly 

similar to the instant case with respect

(Footnote 15 continued)
refused to order a psychiatric examination 
to determine defendant's competency to 
stand trial, stated:

[A] substantial body of both 
medical evidence and evidence 
pertaining to petitioner's behavior 
cast doubt upon petitioner's 
ability to comprehend the proceedings 
against him. Surely the Court 
of Appeals erred in concluding that 
the cumulation of data was in­
sufficient to entitle petitioner 
to a competency exam. 52 U .S .L.W., 
supra, at 3826.

The dissent would grant certiorari 
" [e]specially because the correct answer 
to that question [i.e ., what is the 
standard for determining when a trial judge 
has a constitutional obligation to order 
a psychiatric examination to determine 
defendant's competency to stand trial] 
determines whether petitioner lives or 
dies [.]" Id. at 3825 (emphasis added).
See, in this regard, State v. Noel, 102 
N.J.L. 659, 680, 133 A. 274, 283 (E. & A. 
1926)("The law has always been zealous 
in the protection of one who has lost 
his reason . . . .To execute one bereft of
reason would afford no example to others.
It would be cruel and inhuman."
(Footnote continued on next page)

to the pre-trial insanity investigation 

request on the part of the defendant. 
The constitutional infirmities found by 

the Brinks court as inherent in the 

factual setting before it, likewise 
should be found by this Court to inhere 

in the situation under review here. Cf.

v. Oklahoma, 663 P. 2d 1, 8 (Okla. 

Ct. Crim. APP. 1983). See also, State 
y, Hamilton, 441 So- 2d 1192 ILa. Sup. 

Ct. 1983), holding that defendant's

"constitutional right to present a

(Footnote 15 continued)
See also, Eddings_v 

— U.S. — , 102 S_
Oklahoma,

C i U U J - i i H  J  w  ‘ ----------- ------------------- '

_i] s -  ,rur a. Ct. 869 (1984) , reieis-

i S T

violated the rule in Lockett v. Ohi2.
438 U.S. 586 (1978), that, in capital 
cases7~the sentencer not he precluded 
from considering "as a mitiaStiM «acto , 

nqnpct of a defendant's character or 
record^" 438 U^. , supra at 604 (emphasis 
in original) , quoted in Eddmgs, 10 
S. Ct., supra at 874.

•. ,  r>  I t r * - , v  -•



-29-
defense [citing Washington v. Texas, 388 

U.S. 14 (1967)]," id. at 1194, was

violated by the trial judge's exclusion

of "the unquestionably relevant testimony,"

id., of a psychiatrist offered by the

defense, in a case where " [d]efendant's

only viable defense was insanity," id.

Decisions by various federal courts

concerning applications for appointment

of independent experts under provisions

of the Criminal Justice Act of 1964, 18 
_ 16U.S.C. S3006A(e) are instructive here; 

in construing the scope and intent of 

that statute, these courts have articula­

ted principles and considerations which 

support petitioner's contentions

18 U.S.C. §3006A(e) currently pro­
vides, in pertinent part;

Counsel for a person who is 
financially unable to obtain 
investigative, expert, or other 
services necessary for an ade­
quate defense may request them 
in an ex parte application.
Upon finding, after appropriate 
(Footnote continued on next page)

-30-

here regarding access to independent 

psychiatric expertise in aid of his 

proffered insanity defense. See, for 

example, United States v. Schultz, 431 

F. 2d 907 (8 Cir. 1970) (the purpose of 

the statute is "to provide the accused

with a fair opportunity to prepare and 

present his case," id. at 911, an<̂
noting further that "the adversary system 

(Footnote 16 continued)
inquiry in an ex parte pro­
ceeding, that the services 
are necessary and that the 
person is financially unable 
to obtain them, the court, or 
the United States magistrate 
if the services are required 
in connection with a matter 
over which he has jurisdic­
tion, shall authorize counsel 
to obtain the services. P.L. 
91-447, §1, Oct. 14, 1970.

17 In the course of its analysis of this 
issue, the court alluded to a portion of 
the legislative history of the statute 
as follows:President John F. Kennedy, in 

transmitting proposals for this 
type of legislation to Congress 
wrote House Speaker John McCormack 
of the great need for such enactment: 
(Footnote continued on next page)

itsxl- *<■« — **“*•»*•

K̂WSS****: ■ pH1*' ^



-31-
cannot work successfully unless each

party may fairly utilize the tool of
expert medical knowledge to assist in

the presentation of this issue [mental
18competency] to the jury."

(Footnote 17 continued)
In the typical criminal 
case the resources of 
government are pitted 
against those of the 
individual. To guarantee 
a fair trial under such 
circumstances requires that 
each accused person have 
ample opportunity to gather 
evidence, and prepare and 
present his cause. Whenever 
the lack of money prevents 
a defendant from securing 
an experienced lawyer, 
trained investigator or 
technical expert, an un­
just conviction may follow.
2 U.S. Cong. & Admin. News 
p. 2993 (1964). Id. at 909, 
n. 2

18A further observation made by the 
Schultz court is particularly pertinent 
to the facts of the instant case, to 
wit:

Schultz, in fact, never 
had the benefit of any 
psychiatric examination or 
evaluation directly related 
to his defense of insanity.
True, the Federal Medical 
(Footnote continued on next page)

-32-
Both the result and the rationale 

of the Schultz decision were subsequently 

endorsed by other courts. See, e^g., 
States v. Theriault, 440 F. 2d 

713 (5 Cir. 1971), cert den. 411 U^S.
984 (1973) (trial judge could not properly 

deny appointment of an expert under

(Footnote 18 continued)
Center physicians examined 
him to determine his com­
petency to stand trial, but a 
substantial difference may 
exist between the mental 
state which permits an 
accused to be tried an 
that which permits him to be 
held responsible for a 
crime. United States v. 
Driscoll, 399 F. 2d 135 
(2d Cir. 1968). Examination 
for the purpose of 
competency to stand trial 
may require less exactness 
than those examinations 
designed to determine san­
ity for the purpose of
criminal responsibility.
Id. at 912 (citations 
omitted).

»

f' ~



“ -> *J —
-34-

18 U .S.C . S3006A(e) on the basis that an

earlier appointment had been made under
18 U.S.C. §4244 ^  on the issue of

defendant's competency to stand trial).

In his opinion concurring in the result,

Judge Wisdom stated:
I would read the statute . . . 
as requiring authorization for 
defense services when the 
attorney makes a reasonable 
request in circumstances in 
which he would independently 
engage such services if his 
client had the financial means to 
support his defenses. The 
trial judge should tend to rely 
on the judgment of the attorney 
who has the primary duty of 
providing an adequate defense.
440 F. 2d supra at 717.

19
18 U.S.C. §4244 authorizes a court, 

under certain circumstances, to compel a 
defendant to submit to psychiatric 
examination for the purpose of determining 
competency to stand trial; the results of 
such examination are reported to the court.

See also, united States v. Chavis, 476

F. 2d 1137 (D.C. Cir. 1973) (18 U-S.C.
§3006A(e) "comprehends within its

definition of 'expert witness' the
assistance of a psychiatric expert in

preparing and presenting an insanity

defense," id. at 1141, and such expert

"is intended to serve the interests of
20

the defendant," id. at 1142), and
rini +• p>d states v. Bass, 477 F. 2d 723, 725

20 cf. United States v. Caldwell, 543 
F 2d 1333 (D.C. Cir. 1975), cert, den 
423 U.S. 1087 (1976), finding no error in 
a trial judge's denial of defendant s pre 
trial motion for examination by a 
particular psychiatrist, which examination 
would have been in addition to those given 
earlier by court-appointed experts to 
assess defendant’s competency to stand 
trial. At the time of the motion, the 
only issue before the trial court was 
defendant's competency, leading the 
appellate court to conclude: When the 
trial court is satisfied that it can re­
solve the issue of competence without 
additional appointments, we cannot con 
strue the failure to do so as a denial of 
expert assistance for a substantive 
defense of insanity." Id. at 1350. 
However, the court underscored the 
distinction between appointment of 
(Footnote continued on next page)



-36-
-35-

(9 Cir. 1975) (an independent expert 

should be appointed, pursuant to the 

statute, "when the defense attorney makes 

a timely request in circumstances in 

which a reasonable attorney would engage 

such services for a client having 

independent financial means to pay for 

them.")

(Footnote 20 continued)
psychiatrists to aid the presentation of 
an insanity defense and such an appoint­
ment to assist the court in determining 
competence to stand trial." Id.

For an application of United States 
v. Schultz in another context, see 
United States v. Durant, 545 F. 2d 823 
(2 Cir. 1976), finding reversible error 
in the trial judge's refusal -- in a 
case where fingerprint evidence was 
"pivotal" —  to appoint an independent 
expert in that field on behalf of an 
indigent defendant. The Court stated: 

[T]he purpose of the [Criminal 
Justice] Act, confirmed by its 
legislative history, is clearly 
to redress the imbalance in the 
criminal process when the 
resources of the United States 
Government are pitted against an 
indigent defendant . . . .
[T]he Act must not be emasculated 
by niggardly or inappropriate 
construction. Id. at 827

As noted above, although decided in 

the context of claims under 18 U-S.C. 
§3006A(e), cases such as these articulate 

fundamental equitable principles which 

should serve to guide this Court in its 
disposition of defendant's constitutional 

claims in the instant case. The "opportun­

ity to present a meaningful defense 

based on lack of criminal responsibility," 

Schultz, 431 F. 2d, supra at 912, was 

clearly lacking here. The request for 

an independent expert was, under the 

circumstances, eminently reasonable and 

appropriate. See, Theriault, 440 F. 2d 
supra at 717 (Wisdom, J., concurring), and 

Bass, 477 F. 2d, supra at 725. In short, 
the equitable considerations which have 

led courts to a liberal construction of 
18 U.S.C. §3006A(e) —  particularly in 

insanity defense cases should lead to 

a similarly favorable construction of



-37-
the constitutional claims of a criminal 

defendant, under sentence of death, who 

had no such statutory protection avail­

able to him under the law of the State
21

in which he was tried.
Furthermore, the distinction between 

examinations by court-appointed experts 

to determine competency to stand trial, 

and examinations by independent experts 

appointed by the court at the government's 

expense to aid in a defendant's presenta­

tion of the insanity defense, as clearly 

outlined in cases such as Schultz and 

Caldwell, both supra, is pertinent here. 
Further articulation of the distinction

Z  JL See also, Matlock v. Rose. —
F. 2d —  (6 Cir., April 9, 1984) , which 
notes that "[t]he case law is still 
developing on the scope of the 
constitutional duty to supply experts," 
slip op. at 13, but states unequivocally: 
"The need for psychiatric experts in a 
case in which insanity is the only defense 
is obvious [citing United States v. Taylor, 
437 F. 2d 371 (4 Cir. 1971)] ," id. at 13, 
n. 3

-38-
can be found in United States v. Alvarez,

519 F. 2d 1036 (3 Cir. 1975), in which 

the court took great pains to delineate
the difference between the two types of ...... .

examination with particular regard to
the self-incrimination implications for

22
defendants subject to such procedures. •
22 Cf., Estelle v. Smith, 451 U.S 
supra, finding violations of both 
Fifth and Sixth Amendment privileges in 
the State's use —  at the penalty phase 
of a capital trial —  of the contents 
of defendant's disclosures made in the 
course of a court-ordered psychiatric
examination to determine competency to . . . ... ..
stand trial; defendant had introduced no 
psychiatric evidence on his own behalf at 
trial. The Fifth Amendment violation 
inhered in the State's effort to meet its 
burden of proof of defendant's future 
dangerousness by using defendant's 
statements "unwittingly made without an 
awareness that he was assisting the 
State's efforts to obtain the death 
penalty." Id. at 466. The Sixth Amend­
ment violation was found to exist in the 
denial to defendant of counsels 
assistance in "making the significant 
decision of whether to submit to the 
examination and to what end the n
psychiatrist's findings could be employed.
Id at 471. In reaching these conclusions, 
the Court noted, without elaboration, 
that "a different situation arises where 
(Footnote continued on next page)



*

-39-
The court found no violation of the 

privilege against self-incrimination in 

the government's use at trial of the 

report and testimony of the psychiatrist 

appointed pursuant to defendant's 

application under 18 U.S.C. §3006A(e), 
since —  unlike examinations ordered under 

18 U.S.C. §4244 —  defendant's disclosures 

to the §3006A(e) expert were "entirely 
voluntary." Id. at 1045. However, the 

court did find an inherent Sixth Amend­

ment violation in such a situation, inso­

far as an expert retained to assist a 

defendant may be forced to be an in­
voluntary government witness. The court 

concluded: "The effect of such a rule 
would, we think, have the inevitable effect 

of depriving defendants of the effective 

(Footnote 22 continued)
a defendant intends to introduce psychia­
tric evidence at the penalty phase."
Id. at 472, 465-66, n. 10.

-40-
assistance of counsel in such cases.

Id. at 1046. This conclusion was pre­

mised, in turn, upon the court's earlier 

pronouncement that "[t]he effective 

assistance of counsel with respect to 

the preparation of an insanity defense 
demands recognition that a defendant be 

as free to communicate with a psychiatric

expert as with the attorney he is_

assisting ." Id. (emphasis added).

Accord, Noggle v. Marshall, 706 F. 2d

1408, 1413 (6 Cir. 1983), cert, den.
23

—  ILJ3. --, 104 S. Ct. 530 (1983).
Finally, it is submitted that the 

very nature of psychiatric expertise it­

self necessitates subjecting such evidence 

to rigorous "adversarial testing" before

the factfinder. Strickland v. Washington,

See also, State v. Kociolek, 23 N.J. 
400 r 129 A. 2d 417 (1957); State v. 
Hamilton, 44150^2d, supra.

(

.A ■



-41-
52 U.S.L.W., supra at 4570. See, in 

this regard, Barefoot v. Estelle,
—  U^S. — , 103 S. Ct. 3383 (1983), in 

which this Court endorsed the validity 

of psychiatric expert testimony on 

questions of future dangerousness of 

defendants in capital cases, specifically 

relying on "the rules of evidence" and 

"the adversary system," 103 S. Ct. 

supra at 3397, to enable the factfinder 

to accord such evidence its appropriate
O  Aweight.

Rigorous "adversarial testing," in 

turn, requires that the adversaries 

themselves be equipped to handle 
effectively both the direct presentation

See, Addington v. Texas, 441 U.S. 418, 
430 (1979), in which the Court alludes 
to the "subtleties and nuances of 
psychiatric diagnosis" which "render 
certainties virtually meaningless" in the 
context of civil commitment hearings at 
which the issue is "whether the individual 
is mentally ill and dangerous . . . and
. . . in need of confined therapy.[.]

-42-
of psychiatric evidence as well as

cross-examination of any experts

offered in opposition. Thus, "the

guiding hand of counsel," Powell v.

Alabama, 287 U.S. supra at 69, itself

requires guidance from the very experts
whose testimony is elicited —  or

challenged —  by counsel. In other words,

the blame for a suspect expert 
opinion must be borne together 
by the mental health professional 
who presents it and the legal 
professionals who wittingly allow 
its uncontested presentation. 
Poythress, "Psychiatric 
Expertise in Civil Commitment: 
Training Attorneys to Cope With 
Expert Testimony," 2. L . & Hum.
Behav. 1, 18 (1978).^

It has been suggested, furthermore, 
that as a general rule:

many lawyers possess scant 
knowledge about psychiatric 
decision-making, diagnoses, 
and evaluation tools. This 
shortcoming can seriously 
impede their cross-examina­
tion of expert witnesses.
Once psychiatric testimony 
is elicited few lawyers 
have the special skills to 
evaluate such testimony.
(Footnote continued on next page)



-43- -44-

A defense attorney, in a criminal 

trial involving the insanity defense, 

who is realistically expected to fulfill 

his proper role of adducing probative 

evidence in support of his client's 
claim and in challenging the State's 

evidence, must acquire the requisite 

psychiatric expertise to accomplish that 

task. At least one commentator has 

highlighted this imperative in insanity 

trials:
Insofar as the psychiatrist's 
decision to take one side or 
the other on the responsibility 
issue is based on pragmatic 
considerations or expediencies 
and not on the objective facts 
about the illness, this raises 
serious questions about expert 
testimony on the issue of sanity/

(Footnote 25 continued)
Perlin and Sadoff, "Ethical 
Issues in the Representation 
of Individuals in the 
Commitment Process," 45 
L. & Contemp. Prob. 161, 166 
(1983).

See also, Golten, "Role of Defense 
(Footnote continued on next page)

insanity. For though it is his 
special skill and training 
which entitles him to testify 
as an expert witness, the 
psychiatrist's expert opinion 
on the issue of insanity may 
be a function of his personal 
values and his own pragmatic 
judgments, not a function of the 
defendant's mental illness in 
any objective sense. Poythress, 
"Mental Health Expert Testimony: 
Current Problems," 5 J. Psychiatry 
& L. 201, 204 (1977)

Thus, defense counsel in insanity trials 

must be prepared both to thrust and to 

parry with psychiatric expert testimony. 

"Cross-examination may suggest the 

fallibility of the opposing psychiatrist 

and the shortcomings of the psychiatric 

profession. But calling to the stand a 

psychiatrist who disagrees with the 

opposing psychiatrist is an even better 

way of forcing judges and juries to use 
their common sense." Ennis and Litwack,

(Footnote 25 continued)
Counsel in the Criminal Commitment 
Process," 10 Am. Crim. L. Rev. 385 
(1972).

'••v. i  .*'.*X*. .**v.



-45-
"Psychiatry and the Presumption of 

Expertise: Flipping Coins in the Court­
room," 62 Calif. L. Rev. 693, 746 

26(1974).

Advocacy, alone, does not suffice. 
Effective advocacy requires obtaining
75---------------------- --------

Without some knowledge of how 
to effectively cross-examine 
psychiatric expert testimony 
or some appreciation of the 
testimony of an independent 
mental health examiner [an] 
attorney . . .could offer only 
a token defense for his client. 
Poythress, 5 J.Psychiatry 
& L., supra at 214.

See, generally, Ziskin, Coping With 
Psychiatric and Psychological Testimony 
(3d ed. 1981), for an in-depth survey 
and analysis of deficiencies —  and 
resultant lack of reliability -- inherent 
in a vast array of psychological and 
psychiatric methodologies. In the 
author's own words:

It is the aim of this book 
to demonstrate that despite 
the ever-increasing utiliza­
tion of psychiatric and 
psychological evidence in 
the legal process such evidence 
frequently does not meet 
reasonable criteria of 
admissibility and should not 
be admitted in a court of law, 
(Footnote continued on next page)

-46-
meaningful assistance in asserting a 

vigorous defense. Without access to 

independent psychiatric expertise in aid 

of such a defense in insanity trials, 

the constitutionally mandated level of 

adequate representation by counsel cannot 
be met.

(Footnote 26 continued)

and if admitted, should be 
given little or no weight. 
Id. at vii, quoting "[t]he 
first sentence of the first 
issue of this book published 
in 1970," id.



-47-
II.

THE INVOLUNTARY MEDICATION OF 
PETITIONER WITH THORAZINE,

AFFECTING HIS DEMEANOR AND ABILITY 
TO COMMUNICATE DURING TRIAL, VIOLATED 

DUE PROCESS AND EQUAL PROTECTION RIGHTS

A. The Known Properties Of
Thorazine And Its Probable 
Effects On Petitioner

It is a matter of record in this 

case that petitioner was regularly med­

icated against his will with 600 mg. of 

Thorazine daily during his trial. See, 

Transcript of Trial, June 23-26, 1980, at 

469, 560-561, 574-75, 585 and 591. The 
question before the Court is the extent 

to which defendant was affected by this 
forced "drugging," andvthe degree to 

which his reaction to the Thorazine 

affected both the course and the outcome 

of his trial.
The position of amicus curiae is 

that a hearing was required on petitioner's 

mental status during the trial because

-48-
of the well-known properties of 

27Thorazine, its predictable side 
effects and its as yet unknown, but
very likely, causal relationship to a.. ;.s;, v • ,

what the Oklahoma Court of Criminal

Appeals referred to as the "'abnormal'
behavior" of petitioner throughout his 

2 9capital trial.

27 See, e .g., Kinross-Wright, "The 
Current Status of Phenothiazines," 200 
J.A.M.A. 461 (1967); see also Physicians' 
Desk Reference 1896 (1984 ed.J
2 8 —See, e.g., Ayd, "A Survey of Drug
Induced Extrapyramidal Reactions," 175
J.A.M.A. 1054 (1961); see also Hollister,
"Adverse Reactions to Phenothiazines,"
189 J.A.M.A. 311 (1964).
29 In its opinion, the Oklahoma court 
acknowledged the drugging and described 
Ake's behavior at trial in these specific 
terms:

The appellant remained mute through­
out his trial. He refused to con­
verse with his attorneys and 
stared straight ahead during both 
stages of the proceedings.
Ake v. Oklahoma, 663 P. 2d supra, 
at 6

The Court speculated that "(i)t is quite 
possible that the defense of insanity 
(Footnote continued on next page)



-49-
Far from being a new development

in psychopharmacology, Thorazine --

chemically named chlorpromazine —

was the first of the major psychotropic

drugs to be developed and has been widely

used to treat mental illness since its
30development in the early 1950 s.

In a very short time, Thorazine became

widely used and its properties quickly

came to the attention of many courts,
31 32both state and federal, including,

(Footnote 29 continued)
interposed by appellant fostered such 
behavior on his part." Id., at 7, n. 4.
30 Winick, "Psychotropic Drugs and 
Competence to Stand Trial," 1979 
Am. Bar Fndtn Res. Journal 769, 780.

31 See, e.g., People v. Ackles, 304 P. 
2d 1032 (C.A. 3rd Dis. Calif. 1956).
33 See, e.g., G.D. Searle & Co. v» 
Institutional Drug Distributors, 141 
F. Supp. 838 (D.C. Cal. 1955).

-50-
eventually, this Court. 33 It is un­
disputed that, inter alia, Thorazine is 

a powerful sedative.34 The caselaw 
description of this drug's properties

have covered a range from 1 mild
34 n „ 3 6 tranquilizer" to a "powerful,

37"potentially dangerous," and, most

Vitek v. Jones, 445 U^S. 480 (1980) ,33
Transcript of Ora±_Argument7 April 24, 
1978, p. 29; Mills v. Rogers, 457 
291,293, n. 1 (1982); Jones v. U.S., ~  
U.S. — , 103 S. Ct. 3043, 3058, n. 16 
and 3060-61
34 Phenothiazines can also be 
classified in terms of the drowsiness 
that they produce in the first week or 
two of administration. Given in thera­
peutic doses, drugs such as chlorproma 
zine and thioridazine tend to produce 
the most drowsiness (and are for this 
reason sometimes called se<3â f f  . . 
phenothiazines). Detre and JarecKi, 
Modern Psychiatric Treatment 5Jo 
(Lippincott, 1971) (emphasis m  original)

35 Ellis v. U.S., 484 F. Supp, 4,6 
(D.S.C. 1975)
36 chesney v. Adams, 377 F. Supp. 887, 
889 (D. Conn. 1974)
37 Ruiz v. Estelle, 503 If '

(S.D. Tex. 1980)* 650nP\ 2d 555 (
Cir. 1982), 666 F, 2d 854 (5 Cir. 1982), 679 F. 2d 1115 
(5 i Cir. 1982), (Footnote continued on next page)

1326

•.*4 -

*  t  F I ►'.! t1*; »: - ‘



-51-
recently "unavoidably unsafe",

„ 39"major tranquilizer.
An additional factor which this 

Court must consider —  and which should 

have been considered by the courts below—  

is that, in addition to its well known, 

predictable and intended effects 

(and its equally well known if still un­

intended side effects), Thorazine can

(Footnote 37 continued)
688 F. 2d 266 (5 Cir. 1982), cert den. 
—  U.S. — , 103 S^. 1438 (1983).
38

Stone v. Smith, Kline & French,
No. 82-7232, slip op.(11th Cir., May 
14, 1984). In that recent case, the 
manufacturer of Thorazine successfully 
defended a tort claim arising out of a 
patient's exposure to the drug by arguing 
that Thorazine was an "unavoidably un­
safe" product within the terms of Comment 
k to Section 402A of the Restatement 
(Second) of Torts.
39 U.S. v. Wilson, 471 F. 2d 1072, 1074 
(D.C. Cir. 19721 cert, den. 410 U.S. 957 (1973).

See, n. 28 supra.

-52-
also cause still other effects which vary 

widely by dosgage and from individual to 
individual, its so-called "idiosyncratic" 

responses.40 It is also now well-documen- 

t-haf the*, effects of Thorazine, like

those of Qther psychotropic drugs, can

even be further affected by the milieu or

context in which it is given, including

whether or not the drugs are taken

voluntarily or —  as in this case —  in- 
41

voluntarily. Thus, virtually every case
To "

See, e.g., Deniker, "Impact of 
Neuroleptic Chemotherapies on Schizo­
phrenic Psychoses," 135 Am. J. Psych.
923 (1978); see also Kolb and Brodie,
Modern Clinical Psychiatry 395 (10th ed. 
1982).
41 See, e.g., Rennie v. Klein, 462 
F. Supp. 1131, 1141 (D.N.J. 1979) ("E.
The Efficacy of Forced Medication) ; " see 
also, Cameron and Wimer, "An Anti­
cholinergic Toxicity Reaction to Chlor- 
promazine Activated by Psychological 
Stress," 167 J. of Nerv. and Ment. Pis. 508 
(1979); Hartley, Couper-Smartt and Henry, 
"Behavioral Antagonism Between Chlor- 
promazine and Noise in Man," 55 
Psychopharmacology 97 (1977). See also, 
as to the very high degrees of stress 
(Footnote continued on next page).

M.-

39



-53-
involving the "right to refuse" medica­

tion has specifically included Thorazine

in the list of drugs subject to its 
42

procedures.
As noted above, it is in the very 

nature of Thorazine to produce drowsiness,

(Footnote 41 continued)
associated with being charged with, 
convicted of and/or sentenced for a crime, 
Goldberg and Breznitz,eds., Handbook of 
Stress: Theoretical and Clinical Aspects 
at 340-45 (Free Press, 1983).

See, e.g., Rennie v. Klein, 476 
F. Supp. 1294, 1306 (D.N.J. 1979);
Anderson v. State of Arizona, 663 P. 2d 
570, 572 (Ariz. Ct. App. 1983); Davis 
v. Hubbard, 506 F . Supp. 915, 927 (N.D. 
Ohio 1980); Jamison v. Farabee, No. C-78- 
0445-WHO N.D. Calif., (Consent Order filed 
April 26, 1983), reported at 7 Ment. Pis. 
L. Reptr. 436 (1983); Project Release v . 
Prevost, 722 F. 2d 960, 977 n. 17 (2nd 
Cir. 1983); Rogers v. Okin, 478 F . Supp. 
1342, 1360 (D. Mass. 1979); and Rogers 
v. Comm, of Mental Health, 390 Mass. 489, 458 N.E. 2d 308,
310 n. 3 (S.J.Ct. 1983).

In addition, the Oklahoma "right to 
refuse" case, In re K.K.B., 609 P. 2d 747 
(Okla. Sp. Ct. 1980), clearly includes 
Thorazine within its term "major 
tranquilizers" although no specific drugs 
are named. 609 P. at 748.

-54-
apathy and even resistance to speaking.

Despite the state court's dismissal of
petitioner's "abnormal" behavior as

possibly "fostered by his insanity de- 
43

ferise, his demeanor and attitude 

could actually have just as likely been 
either the result of the forced adminis­

tration of Thorazine or the product of

Allegations of "faking" have been 
a standard institutional response to 
patients' complaints about the severe 
side effects of psychotropic medications. 
See, e .g ., Rennie v. Klein, 462 F. Supp. 
supra at 1140. This is hardly a new 
problem. In 1838, Dr. Issac Ray, the 
father of American forensic psychiatry, 
noted that:

[T]he supposed insurmountable 
difficulty of distinguishing 
between feigned and real insanity 
has conduced, probably more than 
all other causes together, to 
bind the legal profession to 
the most rigid construction and 
application of the common law 
relative to this disease, and is 
always put forward in objection 
to the more human doctrines.

Ray, A Treatise on the Medical Juris­
prudence of Insanity, supra. 9247. at 
243.



-55-
44his mental illness. Only a hearing

on petitioner's mental status while under

medication at the trial could even begin

to answer the question of what factors

were actually responsible for his
admittedly "abnormal" behavior at trial.
'44-----

Schizophrenic patients with post- 
psychotic depression have been 
described as "wooden" in appear­
ance, motorially "inactive or 
retarded," lacking initiative 
to perform routine tasks, ex­
periencing overwhelming fatigue 
and neurasthenic symptoms,
"hypersomnic" and "emotionally 
withdrawn." Nearly all reports 
comment on the patient's dis­
inclination to speak. All of 
these symptoms, however, can be 
manifestations of antipsychotic 
drug-induced akinesia.

Van Putten and May, "'Akinetic Depression' 
in Schizophrenia," 35 Arch. Gen. Psych.
1101 (1978) . See also, Hartley and 
Couper-Smartt, "Paradoxical Effects in 
Sleep and Performance of Two Doses of 
Chlorpromazine," 58(2) Psychopharmacology 
201 (1978); Scott v. Plante, 532 F. 2d 939, 
945, n. 8 (3 Cir. 1976), 641 F. 2d 117 
(3 Cir. 1981), vac. and rem. 458 U. S. 1101,
102 S. Ct. 3474 (1982), on remand 691 F. 2d 
634 (3 Cir. 1982).

-56-
B. The Relevant Caselaw And 

Other Authorities Support 
Petitioner's Arguments 
Against His Drugging

In a number of well-reasoned cases 

and articles, courts and other authorit­

ies have considered the impropriety of 
administering medication to defendants .

in a manner which primarily affects 

their demeanor and ability to communicate 

at trial.45

4:> Initially, courts have considered 
the drugging of defendants, particularly 
with narcotics, in the context of effects on 
intellectual and cognitive functioning 
rather than the issues of demeanor and 
communication involved here. See, e .g., 
Sanders v. U.S., 373 U.S. 1 (1963) ;
Hansford v. U.S., 365 F. 2d 920, 922-23 
(D.C. Cir. 1966). Thus, for example, in
Whitehead v. Wainwright, 447 F._Supp.
898 (M.D. Fla. 1978), aff'd on this issue, 
vac. and rem. on other grounds, 609 F. 2d 
223 (5 Cir. 1980), the issue was the 
effects of tranquilizers and other drugs 
on the defendant's cognitive ability.



-57-
Two of the leading cases 

State v. Murphy, 56 Wash. 2d 761, 355 

P. 2d 323 (1960) and State v. Maryott,

6 Wash. App. 96, 492 P. 2d 239 (1971) 

have already been extensively dis­

cussed by the parties and the court 
46below. The most recent important case 

considering the issue of the effects of 

drugging on demeanor is Commonwealth v. 

Louraine, 390 Mass. 28, 453 N .E . 2d 437 

(S. J. Ct. 1983) decided in August, 1983 

by the Supreme Judicial Court of 

Massachusetts, the same court which in 

November, 1983 decided Rogers v. 
Commissioner of Mental Health, 390 Mass. 

489 , 458 Nj_E. 2d 308 (S.J. Ct. 1983)', on 
the certification df questions from the

See also, In re Pray, 133 V t . 253, 
336 A. 2d 174 (1975)(jury should have 
been informed that defendant was heavily 
medicated, thereby affecting his be­
havior at trial) •

-58-
First Circuit after the remand from this 

Court in Mills v. Rogers, supra. In 

Louraine, the Court summarized its views

on the state of the law on the issue now u '".'i

before this Court, see 453 N.E. 2d supra 

at 442-3, and concluded, relying on
... «r~. •*. ;/> • .Murphy, Maryott and In re Pray, all supra, 

that defendant had the right to be tried 

in an unmedicated condition; on this 

basis the conviction below was reversed.

Thus, it is clear from the earlier 
decisions in Murphy, Maryott, Pray and now *■■<■■■ •

Louraine, that such courts are considering 
and criticizing the administration of 

psychotropic medication which affects de­
meanor and communication as a concern 

distinct from the issues of drugging of 

defendants vel non and competency
at trial.
47

Compare Scrignar, "Tranquilizers and 
the Psychotic Defendant," 53 A.B.A.J. 43 
(1967); Bushman and Reed, "Tranquilizers 
(Footnote continued on next page)



-59-

Similarly, other well-respected

commentators on the general subject of

drugging defendants have repeatedly

addressed the demeanor issue in terms

consistent with the holdings in Murphy,
Maryott and Louraine and with petitioner's 

48position here. In particular, the 

typical side-effects of Thorazine and 

other psychotropic drugs have been 
specifically noted as factors requiring 

regular psychiatric and judicial monitor­

ing of a medicated defendant's mental

(Footnote 47 continued)
and Competency to Stand Trial," 54 
A.B.A.J. 284 (1968).
4 8 See, ê _g. , Winick, supra at 782: 
"The fact that the defendant's com­
petence is drug induced should not dis­
qualify him from trial unless the drug 
causes side effects that materially im­
pair his ability to understand and 
participate in the proceedings." 
(emphasis added). See also, Group for 
the Advancement of Psychiatry: Misuse o_ 
Psychiatry in the Criminal Courts: 
Competency to Stand Trial, 903-4 
(February, 1934).

-60-
status during trial.49 It is worth 

noting that even earlier comments on 

the use of these drugs in trial 
specifically highlighted the problems 

that the drugs could cause by sub­
stantially altering the demeanor of the 

defendant.^

49 Specific psychiatric-legal 
inquiries on the patient- 
defendant's mental com­
petency to stand trial 
should be conducted 
regularly during the entire 
period of the patient's 
drug treatment . . . .

Haddox and Pollack, "Psychopharmaceutical 
Restoration to Present Sanity (Mental 
Competency to Stand Trial)," 17 J. For.
Sci. 568, 575 (1972). See also, Haddox 
Gross and Pollack, "Mental Competency 
to Stand Trial While Under the Influence 
of Drugs," 7 Loyola L.A.L.R. 424, 446-7 
(1974) .
50 Use of drugs, could, of course,

interfere with a. defendant's 
competency to stand trial, 
if, for example, the drug's 
effect were to give him an 
odd appearance that might 
lead a jury to misinterpret 
his courtroom demeanor: an 
unperturbed "wooden face" 
might give a jury the im­
pression that the defendant is 
(Footnote continued on next page)



/ -61-
To some extent this newly emerging

issue of altered demeanor and restricted

communication ability at trial under

forced medication can be analogized

to the historical practices of binding,
52

gagging or shackling defendants
or even to the display before the court

53of defendants in prison clothes.

To be sure, there are obvious similarit­
ies, in terms of jury prejudice and inter-

(Footnote continued)
a calculating merciless 
criminal . . . .

Burt and Morris, "A Proposal For Abolition 
of the Incompetency Plea," 40 U. Chi. L.
Rev. 66, 85-6 (1972).
51 The issue of drug-altered demeanor 
had also surfaced earlier in the context of 
state commitment hearings. See, e.g.,
Suzuki v. Quisenberry, 411 F . Supp. 1114 
(D. Haw. 1976). See also, "Developments in 
the Law: Civil Commitment of the Mentally 
111," 87 Harv. L.R. 1190, 1282-3, n. 11 (1974).

See, e.g., Illinois v. Allen, 397 U.S.
337 (1970). The analogy between drugs and 
chains is not original to any one source. See, 
e.g. , State v. Maryott, supra at 241; see 
also Ferleger, "Loosing the Chains: In- 
Hospital Civil Liberties of Mental Patients,"
13 Santa Clara Law. 447 (1973).
53 See. e.q., Estelle v. Williams, 425 U. S. 501 (1976). ----------------- --

ference with right to counsel, between

the "zombie" or "mask face" drugged
defendant and the bound, gagged and

shackled accused. Yet, even the most

extensive physical restraints can be

removed in a few moments to permit free

movement and communication, whereas

drugging with Thorazine has long-lasting
54effects on both demeanor and attitude.

A fortiori then, apart from a jury's con­

tinued memory of any physical restraints 

once they are removed, the die is cast 

once a defendant has been drugged for 

any appreciable period before or during 

trial as petitioner was in this case.
In the shackling situation, this

54 See, ejjj. , Winsberg and Yepes, 
"Antipsychotics (Major Tranquilizers, 
Neuroleptics)" in Werry ed. Pediatric 
Psvchopharmacoloqy: The Use of BehaviQr 
Modifvinq Drugs in Children, at 237-38 
1978)! See also, as to shabkles and other 
physical restraints compared to psycho­
tropic medication, Rennie v._Klein, 720
F. 2d supra at 274 (concurring opinion of 
Weis, J.)



Court has required the application of a 

careful set of increasingly restrictive 

measures before permitting the final 

step of binding, gagging and shackling.55 

Here, there was no determination at 
trial of what caused petitioner’s behavior 

or whether, in effect, he was actually 

being chemically bound, gagged and 

shackled or being forceably maintained

in a demeanor over which he could ex-
56 . .  ̂ ^ercise no control. Again, as with the

55
See Illinois v. Allen, supra.56 — ----------------  —  —
In Ake v. Oklahoma, 663 P. 2d supra 

at 7, the Court sought to distinguish 
Peters v. State, 516 P. 2d 1373 (Okla.
Cr. 1973) on the basis that Ake's medica­
ted condition was not for the sole purpose 
of facilitating his trial. Given that the 
result was the same in the eyes of the 
jury, whatever the alleged purpose of the 
medication, this seems to be a distinc­
tion without a difference.

t

-64-

issue of the effects of Thorazine 

generally, it is submitted that an 

appropriate solution would be to 

require a hearing on the demeanor- 

altering and communication-restricting

effects of defendant’s drugging at time
* . , 57of trial.

57
The need for such an inquiry in 

turn underscores the imperative of 
affording defendants in this 
situation access to independent 
psychiatric expertise in furtherance 
of a proffered Insanity defense.
See, pp- 40-46.



- 6 5 -

CONCLUSION

Based on the foregoing, amicus 

respectfully submits that the convic­

tion and sentence of death should be 

reversed and the matter remanded for 

re-trial in a manner consistent with 

the principles articulated herein.

Acting Director 
Division of Mental 
Health Advocacy

MICHAEL L. PERLIN 
Special Counsel to the 
Public Advocate

The assistance of J. Benedict Centifanti 
Law Clerk, and Patrick D. Reilly in 
preparation of this brief is gratefully

Respectfully submitted

JOSEPH H. RODRIGUEZ 
PUBLIC ADVOCATE

acknowledged

*Counsel of Record