Oregon Supreme Ct - March 20, 2014

by: Abassos and Megha Desai • March 20, 2014 • no comments

Sell Orders - A Judge May Order a Defendant Involuntarily Medicated to Restore Competence

In this mandamus action, the court finds that a judge has the authority to order a defendant involuntarily medicated for the purpose of restoring competence. ORS 161.370 impliedly grants that authority because it gives trial courts and hospitals together the power to commit and treat defendants so that they will be able to aid and assist at trial. However, the judge's order of involuntary treatment in this case did not comply with the due process requirements of the federal constitution, as articulated in Sell v. United States, 539 US 166 (2003). The order in this case fails because there is no indication that the judge evaluated the evidence to determine if it was clear and convincing. "Because of the important liberty interests at stake, to comport with due process an order compelling involuntary administration of antipsychotic medication requires 'thorough consideration and justification' and 'especially careful scrutiny,' and must be based on 'a medically-informed record.' The court then discusses at length each of the Sell requirements for an order to involuntarily medicate, noting specifically that they are independent requirements, not a balancing test:

• Important state interests are at stake in prosecuting the defendant

Step 1: Is the crime serious? To be serious, courts generally look to the maximum length of potential incarceration. Some include the guidelines and some do not. Here, it was not legal error for the trial court to find that a C felony sex crime was serious because it subjected a child to a substantial risk of harm.

Step 2: Are there special circumstances that lessen the government's interest? For example, has the defendant already spent a significant amount of time in custody compared to what he would likely receive as a sentence. Or, alternatively, is there a likelihood that the defendant would be civilly committed? Here, defendant had served more than he could get as a sentence. Despite the fact that the government might have an interest in sex offender registration or probation the court finds that "neither the trial court's order nor the record demonstrates that, after having arrested, treated, and confined relator for more than 18 months, the state's continuing interest in restoring relator's competence and potentially convicting him are so important that they justify relator's involuntary medication."

• Medication will significantly further those important state interests

Step 1: The medication is substantially likely to restore the defendant to competency

Step 2: The medication is substantially unlikely to cause side effects that will impair the fairness of the trial

Here, the court takes no position on the trial court's order because it has already found that the first Sell requirement was not met and that mandamus is required. However, the court does note that the record in this case, demonstrating a 30-40% likelihood of the medication's success "gives us pause". There is a cognizable difference between what is medically "worth trying" and the substantial likelihood of success required by Sell.

• Medication is necessary to further those important state interests, because there are no less intrusive treatments that would produce the same results
• Administration of the medication is medically appropriate, because it is in the patient's best medical interest in light of his medical condition

The court does not discuss the last two criteria except to point out that, like the other Sell requirements, the record does not establish that the trial court evaluated the relevant evidence.

State v Lopes, 355 Or ___ (2014).

PCR – An Extensive Mitigation Case is Not Constitutionally Inadequate Because of an Isolated Failure to Present Evidence of Sexual Abuse

In a PCR claim for mitigation-related ineffective assistance of counsel, the US Supreme Court has held that any investigation that fails to discover and present readily available mitigating evidence is proof of inadequate counsel. Wiggins v. Smith, 539 U.S. 510 (2003). However, "the decision in Wiggins did not turn on an isolated failure to present evidence concerning a defendant's sexual abuse as one part of a comprehensive mitigation case. It turned,rather, on the fact the defendant's trial counsel had 'abandoned their investigation of petitioner's background after having acquired only rudimentary knowledge of his history from a narrow set of sources." Here, petitioner’s former counsel presented an extensive mitigation case utilizing multiple prominent experts and focusing on all available evidence including petitioner’s difficult childhood, PTSD, and substance abuse. The fact that a different investigation might have tracked down evidence of sexual abuse is insufficient to establish the inadequacy of counsel. The evaluation of the reasonableness of counsel’s representation is from the counsel’s perspective at the time of the alleged error. Montez v. Czerniak,355Or ___ (2014).