State v. Joseph G. Green, 2021 WI App 18; case activity (including briefs)
SCOW recently declared parts of §971.14 unconstitutional. See State v. Fitzgerald, 2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165 and our post here. The statute allowed the government to administer unwanted antipsychotic medication to a defendant to render him competent for trial in violation of Sell v. United States, 539 U.S. 166 (2003). Here in Green’s case the court of appeals describes the evidence the State must present, and the findings the circuit court must make, before ordering involuntary medication. It also clarifies the procedures involved in appealing an involuntary medication order.
Recall that under §971.14 circuit courts could declare a defendant incompetent for trial and incompetent to make medication decisions and then send him off to a mental institution where DHS could attempt to restore a defendant’s competence however it wanted. Fitzgerald held that this procedure violated the 14th Amendment as interpreted by Sell.
Sell held the government may not administer antipsychotics to a defendant to restore his competency unless it first proves that:
- An important government interest is at stake;
- Forced medication will “significantly further” the government’s interest and be “substantially likely” to render the defendant competent and “substantially unlikely” to have side effects that interfere with the defense;
- Forced medication is necessary to further the government’s interest in that there are no less intrusive effective alternatives; and
- The proposed medication is “medically appropriate” for the defendant–i.e. in his best interest. Opinion, ¶16.
The State charged Green with 1st-degree intentional homicide. Defense counsel raised competency, and a court-appointed psychiatrist diagnosed Green with “other specified schizophrenia and other psychotic disorder.” According to the doctor, Green had an extensive delusional belief system, did not believe that he was mentally ill, and did not want medication. The circuit court ordered involuntary medication. Green immediately appealed and now the court of appeals holds that the circuit court bungled its application of the 4 Sell factors.
The parties did not dispute the 1st Sell factor. The government has an important interest in prosecuting a person charged with 1st-degree intentional homicide.
The court of appeals sided with the State on the 3rd Sell factor. The State’s doctor testified that there was no way other than forced medication to restore Green’s competence. Opinion, ¶30.
However, the State failed to carry its burden of proof on the 2nd and 4th Sell factors. The State’s psychiatrist simply testified that on paper Haldol would be an appropriate treatment for a person having Green’s diagnosis. The doctor did not consider Green’s individual circumstances–what his individual response to the drug would be, how likely it would render him competent, and whether the drug would have side effects that might impair his ability to participate in his defense. The doctor did not review Green’s medical history or treatment records or even evaluate Green for the purpose of prescribing medication. Opinion, ¶32. The doctor could not even say that the State’s generic treatment plan was medically appropriate for Green. Opinion, ¶¶40-41.
Note the sharp contrast with §971.14. Under Sell, the circuit court (not DHS) must decide the medication, dosages, and length of treatment for the defendant. Opinion, ¶¶34-35. Because the State must file a detailed treatment plan, the defense must read up on medications and treatments for the defendant’s condition and be prepared to poke holes in the State’s plan. Click here to see a transcript from a Sell hearing where the defense successfully undermined the government’s plan for treating “delusional disorder.”
The court of appeals decision is important for several additional reasons. Green exercised his right to appeal and demanded an automatic stay of involuntary medication while his appeal played out. See State v. Scott, 2019 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141 (establishing the right to appeal and an automatic stay). The State only gets a maximum of 12 months to restore a defendant’s competency under §971.14(5)(a)(1). If it fails to restore, it must discharge the defendant from the commitment and release him. Ever since SCOW issued Scott , the State has been arguing that if a defendant exercises his right to appeal an involuntary med order, the time period for restoring competency is tolled. This, of course, allows the defendant’s commitment to exceed the statutory maximum.
The court of appeals put the kibosh on the State’s argument. It refused to read a tolling provision into §971.14 and noted that the State’s strategy raised profound due process concerns under Jackson v. Indiana, 406 U.S. 715, 738 (1972). Opinion, ¶57.
The court of appeals addressed another on-going debate regarding the appeal of an involuntary med order. While Scott holds that these orders are automatically stayed pending appeal, it also holds that the State may move to lift the stay. Citing Scott itself, defendants have been arguing that the State must file the motion to lift in the court of appeals because otherwise the circuit court imposes the automatic stay and 2 seconds later lifts it, making the stay largely worthless. In this decision, the court of appeals holds that the State must file motion to lift in the circuit court. Opinion, ¶¶69-74. Expect more litigation on this issue
There’s a lot more to this decision than can be summarized here. Lawyers raising competency or appealing involuntary med orders should read it carefully.
