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July 19, 2011

Medicating to Competency: Procedure or Substance?

What can the Government do to try a severely mentally ill person? Jared Lee Loughner, charged with killing six people, including a federal judge, and wounding others, including Congresswoman Gabrielle Giffords, is undeniably severely mentally ill and his mental state in the shooting will be the principal issue at any trial. No defendant can be tried unless he is mentally competent to stand trial, and within weeks of obtaining the 49 count indictment for capital murder, attempted assassination of a Congressperson, several other attempted murders and dozens of potentially lethal assaults and weapons crimes, the Government sought to have Loughner’s competence to stand trial evaluated. Whether Loughner can ever be tried will depend upon the legal framework the Court adopts for his case – which may answer the question whether the Government can force a person to become competent for the express purpose of seeking his conviction and possible execution.

Severely mentally ill people pose a tremendous, and growing, problem for the criminal justice system, comprising an estimated 16% of adult state prison inmates and jail detainees according to a 1999 US Justice Department Study. When convicted and imprisoned, seriously mentally ill inmates may be treated – even against their will – if they present a danger to themselves or others because of their mental illness. The US Supreme Court confirmed in Washington v. Harper, that a prison’s interest in security and safety was paramount, and permitted involuntary medication of a seriously mentally ill inmate when treatment is in his medical interest. The required process was an administrative, rather than judicial, proceeding before physicians without a right to counsel for the inmate.

On March 21, US District Judge Larry Alan Burns sent Loughner to a US Bureau of Prisons “Medical Referral Center” in Springfield, Missouri for evaluation of his competence to stand trial, and even the Government’s experts soon concluded he is not competent, because of his schizophrenia and – significant for analysis under Harper – that he posed a danger even within a secure mental facility. Government mental health professionals concluded psychoactive drugs are medically appropriate so, given Harper, it would seem he could be medicated, with or without his consent. BOP staff began medication in mid-June.

But medication of a seriously mentally ill inmate to reduce his dangerousness isn’t legally the same as medication to render a defendant competent to stand trial. Loughner isn’t a prison inmate yet – he’s a pretrial detainee, so there are other considerations relating to his being involuntarily medicated. These, under a different legal framework the Supreme Court set out in Sell v. US, need to be assessed by a judge – not by doctors. These require (1) important governmental interests at stake, (2) that involuntary medication will significantly further, considering any less intrusive measures, (3) which medication is necessary to further these interests, and (4) that drugs are medically appropriate.

That’s why on July 14 the Ninth Circuit Court of Appeals ordered a halt to involuntary medication and briefing on the appropriateness of involuntary medication. This appellate dispute will focus on whether the medication decision can be made a doctor, after a limited administrative hearing, or must be made by a judge, after a full adversarial proceeding. But underlying this question is whether Loughner will be considered first and foremost a dangerous inmate needing drugs to reduce his dangerousness, or a criminal defendant, charged with capital crimes, whose interests in decision-making about his case require greater process to protect. And underlying these process questions lays the ultimate question: how far may the Government go to try someone?

David Siegel

July 18, 2011

Misunderstanding the Governor’s Power to Appoint Judges Under the Massachusetts Constitution

As reported in the Boston Globe last week, the justices of the Massachusetts Supreme Judicial Court asked Governor Deval Patrick for a moratorium on judicial appointments. The recent budget cuts have severely undermined the ability of the courts to administer justice in the Commonwealth, and, as Associate Justice Robert J. Cordy put it, the system “can’t even support the judges we have in our courts now.”

The reaction from the Governor’s office was defensive and critical. The governor’s legal counsel, Mark Reilly, admonished the SJC for “this attempt to constrain the governor’s constitutional authority,” while Lieutenant Governor Timothy P. Murray stated that, despite the request by the justices, the governor would continue to make judicial appointments.

The Governor’s representatives—and perhaps the Governor himself—appear to be laboring under a misunderstanding about exactly what authority the Massachusetts Constitution provides the executive when it comes to judicial appointments.

Under the Massachusetts Constitution, the governor has the power to nominate and to appoint all judicial officers, with the advice and consent of the council. Importantly, nowhere does the constitution say that the governor is obligated to appoint judges when positions are vacant; rather, the constitution simply makes clear that the governor has the authority to fill vacancies in his discretion.

What this means, of course, is that the governor may choose not to use this authority, and to leave some judicial positions empty. The justices of the SJC were asking the governor to do just that, and for good reason: it makes no sense to fill judicial vacancies when the Massachusetts court system is in a state of fiscal crisis.

As recently reported, the court system’s funding has been reduced by 16 percent in the past three years. The system has lost more than a thousand employees in that time and now is faced with the prospect of shuttering almost a dozen courthouses in order to operate within its budget. Each new trial judge appointed will result in the court system laying off three staff members.

Neither the legislature nor the governor appears to recognize that the court system is not just another state agency. Rather, it is a co-equal branch of government charged with constitutionally-mandated tasks—namely, “the impartial interpretation of the laws, and administration of justice.” When the ability of courts to perform these core functions is severely threatened, the judiciary is not without recourse: it has long been understood that, as a constitutional matter and in appropriate circumstances, the courts have the power to prevent the impairment of their core functions due to inadequate facilities or resources.

At the moment, that power remains untouched. It is understandably a last resort, and the request that the governor suspend judicial appointments until the crisis has been resolved can be seen as an effort by the SJC to ensure that it remains a last resort. That the governor views this reasonable request as a threat to his authority to make judicial appointments is not just legally mistaken, it is short-sighted. Now is the time when the governor should be leading the effort to resolve the funding crisis, so that sooner rather than later he can resume making judicial appointments without further undermining an already overburdened court system.

Lawrence Friedman

July 15, 2011

Roger Clemens, Casey Anthony, and the (Antiquated?) Notion of the Special Role of Prosecutors

In the wake of several high-profile criminal trials, a whole lot of Monday morning quarterbacking is going on. Talking-heads are lambasting the lawyers in the Casey Anthony trial, and sports radio personalities are speculating that Major League Baseball covertly paid off Justice Department lawyers to tank the case against Roger Clemens.

As a former prosecutor, I know that the vast majority of such criticism is issued by “experts” who lack sufficient knowledge of the circumstances to judge. Therefore, I do not mean in this post to add my opinion to this growing pile of speculation, bombast, and preening. But, I fear that a public perception seems to be developing as a result of these incidents that prosecutors are nothing more than hired guns employed by the government, and their alleged role (to win at all costs) is indistinguishable from that of any other lawyer in the justice system.

Such a public perception is a terrible shame, and it’s time to remind the public and prosecutors of exactly what prosecutors ought to be.

I vividly remember the first lesson taught in my month-long orientation when I became a prosecutor. The First Assistant State Attorney recounted for us the mantra of Attorney General Janet Reno who, until just a few years before my start-date, had served as the State Attorney for the jurisdiction in which I served. That mantra was: “Our first goal as prosecutors is to ensure that the innocent are never prosecuted, and our second goal is to ensure that the guilty are punished to the full extent that they deserve punishment.”

That message stuck with me even when it became clear that a few of my colleagues, and even some supervisors, hadn’t fully digested the import of those words. But, I was lucky to have “grown up” as a prosecutor observing some of the most forthright lawyers I would ever meet. From them, I gleaned the nature of the special role of prosecutors.

Being a prosecutor means being the lawyer who is always in the right. By that, I don’t mean that the accused is always guilty or that defense attorneys are always in the wrong. Far from it. Instead, I mean that the special role of the prosecutor in our justice system is defined by the fact that prosecutors can choose their own cases. If they cannot prove their case beyond a reasonable doubt, they can (and must) drop it. As a result, until the day of trial, prosecutors must objectively assess the evidence against the accused with an eye toward ensuring that, come trial day, they are sure they are advocating on the side of justice. That is a unique and liberating role for a lawyer to fill.

Being a prosecutor also means conducting oneself in a way that demonstrates objectivity and respect, even to those who might not deserve it. Atticus Finch was a criminal defense attorney, but he serves ably as a role model for prosecutors: completely unassailable in terms of credibility, veracity, and dignity. I remember once watching a trial conducted by a legendary capital prosecutor in my office, who I respected deeply. As the jury was being led to lunch and the defense witness was getting up to stretch his legs, the prosecutor and the witness nearly bumped into one another. The witness gave the prosecutor a malevolent glance, while the prosecutor concurrently and spontaneously said “Oh, pardon me, Sir.” I happened to see that two of the jurors, waiting to exit the jury box, witnessed the incident, commented to each other quietly about it, and seemed to recognize the dignity the prosecutor accorded to the man who clearly saw him as an enemy. That reaction gained the prosecutor credibility with the jurors because they could tell that his advocacy was not fueled by personal animosity but by a genuine, detached search for justice.

By contrast, just about everyone with a television recently witnessed a prosecutor laughing openly in a court of law, blatantly and disrespectfully mocking the closing argument of defense counsel in the Casey Anthony prosecution. Just yesterday, the nation learned that the federal judge assigned to the Roger Clemens trial severely upbraided federal prosecutors for repeatedly violating pre-trial orders and making errors that “even a first year law student” would know not to make. Prosecutors, like all other attorneys, are humans who may make mistakes and should be accorded a degree of leniency for excusable gaffes, especially newer lawyers. Nonetheless, intentional or mean-spirited malfeasance, especially at the hands of seasoned veterans, constitutes conduct utterly unacceptable for a lawyer representing the People, the State, the Commonwealth, or the United States of America.

Most prosecutors serve in their roles admirably. But, these latest examples of prosecutorial conduct should serve as object-lessons by which to teach young prosecutors that their role in the justice system is unique. Their responsibility to objectivity transcends the innate tendency to compete for the sake of competition.

In short, prosecutors have no client other than justice. This ideal should be paramount.

July 5, 2011

Privacy v. Free Speech in Florida

With a majority of the U.S. Supreme Court in recent years supporting a robust understanding of the First Amendment’s protection of the freedom of expression, it’s interesting to see that some state legislatures remain unbowed. In the term just ended, for example, the Court struck down state regulations limiting the sale of violent video games to children, as well efforts to publicly fund election campaigns and to prevent data mining of physician prescription records.

And now comes Florida and its new law aimed at protecting the privacy of firearm owners. Signed into law last month by Governor Rick Scott, the law prohibits physicians from inquiring of their patients about such matters as “the ownership of a firearm or ammunition by the patient or by a family member of the patient,” or “the presence of a firearm in a private home or other domicile of the patient or a family member of the patient.” (An exception may be made if the doctor “in good faith believes the information is relevant to a patient’s medical care or safety, or the safety of others.”)

In addition, the law prohibits doctors from entering into a patient’s medical records information about the subject of gun ownership, if that information “is not relevant to the patient’s medical care or safety, or the safety of others,” and it prohibits doctors from “unnecessarily harassing” patients in the subject of “firearm ownership.” Violations of these provisions may expose a physician potentially to revocation of the license to practice, administrative fines in the thousands of dollars, and letters of reprimand.

Unsurprisingly, this law is vulnerable to a First Amendment challenge—and it has already been challenged by several physicians and medical organizations. The prohibition is an express, content-based restriction on the speech of qualified medical professionals seeking to make determinations within their realm of expertise about how best to care for their patients. The critical question will be whether the state can assert an interest sufficiently compelling to justify the speech prohibition.

The U.S. Supreme Court’s decision last month in a case called Sorrell v. IMS Health may be particularly instructive on this question. Sorrell concerned a Vermont law enacted to restrict the sale, disclosure, and use of pharmacy records that revealed the prescription practices of individual doctors. The Court concluded that, because the state allowed such records to be made available for other reasons, the law discriminated against certain speakers—namely, the data miners who sought the prescription record information for commercial purposes. Among the interests the state asserted as justifying the law was the privacy of the doctor-patient relationship, but the Court was unconvinced that the restriction sufficiently promoted this interest.

In light of Sorrell, it’s not clear that protecting the privacy of firearm owners would be deemed so important as to convince a court to uphold the Florida law. The expression the Sorrell Court deemed protected was commercial speech, traditionally subject to broader regulation than other forms of expression. If privacy was not a sufficient justification for restricting commercial speech, it is probably not a sufficient justification for restricting speech, like a doctor’s legitimate medical inquiries, that traditionally has received more protection under the First Amendment.

This is not to say that privacy is not an important value. But many cases involving constitutionally protected individual rights present a choice between competing and important interests, and it falls to the courts to determine which interest should prevail in a given instance. As recent cases have demonstrated, the Roberts Court almost always values free speech over other interests. Whether the Court will someday encounter an obstacle on its free speech campaign remains to be seen, but it is not likely to be the Florida law protecting the privacy of firearms owners.

Lawrence Friedman