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 trial judge has the implied authority to order a defendant involuntarily medicated for the purpose of restoring competence. ORS 161.370. However, the judge's order of involuntary treatment in this case did not sufficiently evaluate the evidence to make sure it met the following constitutional Sell requirements by clear and convincing evidence:

• 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. 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).

Ineffective Assistance of Counsel - Isolated Failures in A Capital Case Do Not Spoil Extensive Mitigation Investigation

Isolated failures in a capital case to discover even readily available mitigating evidence will not render ineffective an attorney’s assistance if the attorney, as he did here, presents an extensive mitigation case utilizing multiple prominent experts and focusing on all available evidence including petitioner’s difficult childhood, PTSD, and substance abuse. Though a different investigation might have revealed evidence of sexual abuse, such failure was insufficient to establish inadequacy of counsel. Montez v. Czerniak, 355 Or ___ (Mar. 20, 2014). Montez v. Czerniak,355Or ___ (2014).