William H. Rehnquist: We'll hear argument first this morning in No. 80... pardon me, in No. 90-8466, David Riggins v. Nevada. Mr. Yampolsky.
Mace J. Yampolsky: Mr. Chief Justice, and may it please the Court: The main issue in this case is is it constitutional for a State to forcibly medicate a defendant on the claim that he would become incompetent, when there is scarcely any evidence to show that he would become incompetent without the medication, and when his best defense is, in fact his only defense, was that he was insane at the time of the crime. This case also raises the related issue whether it is constitutional for a State to forcibly medicate a capital defendant in the sentencing phase when the two mitigating factors that he was going to present were the fact that (1) he suffers from a mental disease or defect, and (2) whether he shows any remorse. And if it is constitutional to forcibly medicate this defendant, did the State use the least restrictive alternative available? David Riggins, 10 months prior to the offense, was found wandering the street of Glendora, California, in his underwear at 2:00 a.m. When he was hospitalized, he stated that he was the son of John F. Kennedy and Marilyn Monroe, and that the mafia was seeking him because he had stock in IBM. At that time, he was diagnosed as paranoid schizophrenic. He left the hospital against medical advice. Ten months later, he committed the crime in the case before us. Mr. Riggins was examined for competency by three psychiatrists. The court found that he was competent. At that time, he was ingesting 450 milligrams per day of Mellaril. Approximately 16 weeks prior to the trial, Mr. Riggins moved to terminate the administration of medication. At the hearing there was testimony by three psychiatrists, and the court, without any findings, denied the motion.
Anthony M. Kennedy: Is there any explanation for why he initiated the proceeding for an order to terminate the medication? There had never been an order to begin it, to give the medication at the outset. Why was it necessary for him to move to terminate the medication? Is there something in the record that shows that they threatened that they were going to force it on him?
Mace J. Yampolsky: Justice Kennedy, Dr. Quass, who was the State's psychiatrist, the prison psychiatrist, initially prescribed 100 milligrams of Mellaril for Mr. Riggins because he was having trouble sleeping and he was hearing voices. Dr. Quass gradually increased the dosage until it got to be 800 milligrams, which some psychiatrists say is an almost toxic dose.
Antonin Scalia: Did he increase it or did Riggins himself increase it? I thought that there was something in the statement here that suggested that Riggins himself decided he wanted to take more.
Mace J. Yampolsky: Mr. Riggins initially asked for Mellaril, and then the dosage was gradually increased by Dr. Quass until it reached the 800-milligram level.
Antonin Scalia: At Riggins' request or not at Riggins' request?
Mace J. Yampolsky: Mr. Riggins had requested that the dosage be increased.
Antonin Scalia: He had.
Mace J. Yampolsky: He went back to Dr. Quass, increasing... still complaining of hearing of voices and the fact he could not sleep.
Antonin Scalia: You can't really say that it was... that the increased was forced upon Riggins by the physicians here?
Mace J. Yampolsky: No, the increase was not forced upon Mr. Riggins. However, when Mr. Riggins wanted to stop the medication, he was judicially prevented from stopping the medication. Does that answer your question?
Sandra Day O'Connor: Now, do we assume on this record that the use of the Mellaril was medically appropriate?
Mace J. Yampolsky: I don't believe there was ever any finding that the use was medically appropriate. In fact, in the testimony--
Sandra Day O'Connor: Well, did Riggins ever challenge that below or make an issue of that?
Mace J. Yampolsky: --The only time it was challenged was at the hearing of the motion to terminate medication. At that time, according to Dr. Quass' testimony, Mr. Riggins asked for the Mellaril, and he had the same problems, so Dr. Quass continued the dosage without ever having a finding of what was medically appropriate.
Sandra Day O'Connor: Well, I thought that the petitioner wanted it stopped in order that he could appear before the jury in his natural state, whatever that was.
Mace J. Yampolsky: That's correct.
Sandra Day O'Connor: Not on the basis that the giving of the medication was medically inappropriate for his symptoms.
Mace J. Yampolsky: Well, at the hearing for the termination of administration of medication, there was testimony from Dr. Quass, who initially prescribed the medication, Drs. O'Gorman, Dr. Masters for the State; and Dr. Jurasky's report was taken into account. There was never any finding by any judge or any doctor that it was medically appropriate. In fact, Dr. Master testified that it seems like Mr. Riggin is groggy... I believe I'm paraphrasing, but he was closing his eyes, which could suggest that perhaps the dosage he was receiving was not medically appropriate.
Sandra Day O'Connor: Well, we have to decide this case on the basis of the record below us... below. And I assumed that we would have to consider that whatever was given was at least medically appropriate. That doesn't answer the ultimate legal question here of whether, nevertheless, the petitioner could have a right to have it stopped.
Mace J. Yampolsky: Well, according to this Court's decision in Washington v. Harper, there must be a finding for forcible medication that, one, it was medically appropriate, and two, that there was a finding of dangerousness. In addition, in Washington v. Harper, there was a procedural set of circumstances that was set up where one psychiatrist would prescribe the medication, and then there would be a peer review. There were no such procedural safeguards in this case.
William H. Rehnquist: Mr. Yampolsky, I don't thing you've answered Justice O'Connor's question, which is did the petitioner in the Nevada District Court challenge the giving of this dosage as being medically inappropriate? Yes or no?
Mace J. Yampolsky: The answer would be no.
David H. Souter: Mr. Yampolsky... I'm sorry, I didn't mean to interrupt you.
Mace J. Yampolsky: That's okay, Justice Souter.
David H. Souter: I was going to say maybe I missed the point, but I'm not sure of your answer to Justice Kennedy's question. Prior to seeking the court order to terminate, did the defendant ever say to his doctors, I don't want anymore medicine, or I won't take it?
Mace J. Yampolsky: I don't believe that ever happened.
David H. Souter: So prior to his going into court, there was no act of the State forcing it upon him.
Mace J. Yampolsky: That's correct. However, after the court's decision, there was a judicial decision that forced the medication upon him at the dosage of 800 milligrams, which in the brief of the American Psychiatric Association, says is an extremely high dose, and according--
Anthony M. Kennedy: Well, did the court order say to the doctors you are hereby directed and instructed to forcibly medicate him?
Mace J. Yampolsky: --No, the court order said the motion to terminate administration of medication is denied. There were no findings of facts, no--
Anthony M. Kennedy: Well, why do you need a motion to terminate? Why can't you just tell your doctor, I don't want this medicine?
Mace J. Yampolsky: --I'm unclear, Your Honor.
Anthony M. Kennedy: Does every prisoner in the State of Nevada have to go to the court before he can tell his doctor not to give him medicine?
Mace J. Yampolsky: I don't believe--
Anthony M. Kennedy: Is the inference here that he was not competent to tell the doctor?
Mace J. Yampolsky: --No, Your Honor, as a matter of fact, he was found competent. However, in this case, Mr. Riggins' only defense was insanity, and it appeared that the high level of the Mellaril would be counterproductive, in view of the fact... as a trial lawyer I was trying to show him in the natural demeanor as he was at the time of the crime... the fact that he was suffering from a mental disease or defect, in our opinion, which was enough that he didn't understand the difference between good and evil and he didn't understand the nature and quality of his act. However, he was precluded from presenting this defense by virtue of the forced medication.
David H. Souter: But did the court ever go further than saying I will not order the State to stop administering the medication? Did, to put it another way, did the court order go further and say you must take so much Mellaril a day? Wasn't the court order of the former variety? It simply said I... in effect, I won't intervene and enjoin the administration of this medication?
Mace J. Yampolsky: Yes, the court order said the motion to terminate administration of medication is denied.
David H. Souter: So if he had then said, well, I'm not going to take it, he wouldn't be in violation of the court order? Would not have been in violation of the court order.
Mace J. Yampolsky: Apparently not.
Byron R. White: Well, certainly the State knew and the doctors knew that he wanted the... when he made the motion, they knew perfectly well that he wanted the medication stopped.
Mace J. Yampolsky: Correct.
Byron R. White: And they nevertheless continued to give it to him.
Mace J. Yampolsky: That's correct also.
Byron R. White: And it may be that they were justified in doing it if he was a danger to himself or others, and it was medically appropriate.
Mace J. Yampolsky: Well, that's correct, however, that is the precise issue. There was never ever any finding that he was a danger to himself and others in the prison system.
Antonin Scalia: Mr. Yampolsky, as I understand it, just as you did not argue below, and certainly did not argue in your petition, that the administration was medically inappropriate, so also Nevada did not argue below that... or in its response to the petition that he could have simply declined to take it on his own. They never made that argument, did they?
Mace J. Yampolsky: That's correct.
Antonin Scalia: I certainly don't recall. I assume that the case is here on the assumption that the drugs were medically... appropriately medically prescribed... on the assumption, whether it's true or not, that they were medically prescribed and that the prescription was appropriate, and that he had no choice but to take them. I assumed that that was what we were going to talk about this morning.
Mace J. Yampolsky: Well, they were prescribed by a doctor, psychiatrist, Dr. Quass. It's unclear from the hearing what medical decision making went into the process of elevating the dosage, but it certainly was elevated. And--
Antonin Scalia: But you never made that argument before. I mean, the question presented says whether the forcible... forcible, and they never denied forcible... whether the forcible administration of anti-psychotic drugs to an insanity defendant during trial violates the defendant's rights under the due process clause. You never say anything about the forcible administration of unnecessary or inappropriate anti-psychotic drugs. You just... that's not the point you made in your petition.
Mace J. Yampolsky: --That's not the point. However, according to this--
Antonin Scalia: Well, what do you want to introduce it now for?
Mace J. Yampolsky: --Well, according--
Antonin Scalia: It's not a very interesting question. Of course you can't force somebody to take inappropriate drugs, whether he's a prisoner or not. I mean, that's not a hard legal question at all.
Mace J. Yampolsky: --Well, Your Honor, or Justice Scalia, that's the very question that needs to be addressed. Was it medically appropriate for Mr. Riggins to be given 800 milligrams of Mellaril for him to be competent as the State says.
Antonin Scalia: I read your question presented again. Was the forcible administration of antipsychotic drugs to an insanity defendant during... whether the forcible administration violates the defendant's rights. There's not a suggestion in the question presented that this was inappropriate medication. I thought your whole point was it was appropriate to calm him down, but he didn't want to be calmed down. He wanted to appear insane. I thought that was the question we were going to talk about.
Mace J. Yampolsky: That is the question--
Antonin Scalia: Well, let's talk about it.
Mace J. Yampolsky: --Well, to talk about that, Justice Scalia, it appears that we need to decide, one, is the medication forcible because the judge ordered it and we were attempting to stop it. It is forcible. And then, was it medically appropriate. It does... there's no finding, absolutely any finding by a court, there is not testimony by any psychiatrist saying that 800 milligrams of Mellaril were medically appropriate in this case.
William H. Rehnquist: But Mr. Yampolsky, the forcible issue is raised in your petition for certiorari. The medically appropriate issue isn't.
Mace J. Yampolsky: Your Honor, the medically appropriate issue is consumed by the forcible medication. If it was medically inappropriate that would be a separate issue. And that's what we're attempting to show that maybe it is medically appropriate, maybe it's not. However, we don't know from the record below us.
William H. Rehnquist: You have half an hour to argue your case, and surely the main thrust of it is the point that the medication was forcibly administered against his wishes, so why don't you get on with that.
Mace J. Yampolsky: Your Honor, Mr. Riggins had been suffering from paranoid schizophrenia. He moved the court to terminate the medication. The court denied his motion. On that basis he was medicated against his will, and that's why we're here. Mr. Riggins' demeanor was an important part of his testimony. As the trial counsel, an insanity defense is typically difficult to win. However, that was the only defense that was viable in this case. And my decision, after discussing it with Mr. Riggins, was that it would be in his best legal interest to appear in his natural demeanor. However, he was deprived of this opportunity by virtue of this ruling, without any findings that it would be medically appropriate to medicate him because if we take him off he will be incompetent. That is a possibility, but we never reached that possibility.
Sandra Day O'Connor: Well, let me put it this way, if it were medically appropriate, would you be here at all? It's still ordered, the motion was denied, but it's medically appropriate. Would you be here nevertheless arguing a constitutional violation?
Mace J. Yampolsky: If it was medically appropriate--
Sandra Day O'Connor: Yes.
Mace J. Yampolsky: --and Mr. Riggins had the right to deny the medically appropriate medication, and by virtue of his--
Sandra Day O'Connor: Well, that's the issue.
Mace J. Yampolsky: --Correct.
Sandra Day O'Connor: Would you still be here arguing that he had the right to deny, even if it were medically appropriate that he be given it?
Mace J. Yampolsky: Yes, I would be arguing that. Many defendants can waive many constitutional rights: to go to trial, the right against self incrimination. And what's analogous here, the Faretta decision, where it may not be the wisest choice to act as one's own lawyer, but if a defendant is shown the pitfalls of possibilities, and he chooses--
Sandra Day O'Connor: Do you say that the right not to be tried while incompetent is a waivable right under the Constitution?
Mace J. Yampolsky: --I have two responses to that. One, if this Court recognizes the right to waive one's competence, then yes. If this Court--
Sandra Day O'Connor: Well, I'm asking you what your position is as to the law. Is it a waivable right?
Mace J. Yampolsky: --I believe it is a waivable right in the following Faretta line of cases, that as long as the competent defendant is given a full and fair hearing in which the pitfalls, the problems which could occur are set forth. And at that time, if he is competent and chose to waive his right to be tried while competent, I believe he can. However, if the court decides that the defendant does not have the ability to waive his right to be tried while competent, then the inquiry must shift gears to show well, what is the level... the lowest level which is appropriate... the lowest level of Mellaril that Mr. Riggins had to ingest to be tried while competent. Because it's not 800 milligrams because the competency hearing... I say the hearing, but the competency decision by the court was made when he had 450 milligrams. And perhaps there would be a lesser amount, let's say 200 milligrams, where he would be competent. But because of the way the proceeding below has taken place, we'll never know.
Antonin Scalia: Where is this in your question presented, again? I don't see it. I thought we were going to talk about not whether they gave him too much or too little, but whether, if he doesn't want to take any, he can simply... even if he needs it, even if it's medically appropriate, he can simply say I don't want to accept any forcible administration. That's the only thing that's in your question presented.
Mace J. Yampolsky: Justice Scalia, I don't believe we ever had a finding on whether or not it was medically appropriate.
Antonin Scalia: I'm not talking about what the finding was, I'm talking about what you came to this Court presenting us to decide, and on the basis of which we accepted this case. Now the case gets here, and you want to talk about something different. Are the questions presented in your brief the same questions you presented in your petition for cert?
Mace J. Yampolsky: The petition for cert was based on the constitutional infirmity, or our position was, on the fact that--
Byron R. White: Well, just yes or no. Are these questions you stated in your brief the same questions you raised on... in your petition for cert? Yes or no?
Mace J. Yampolsky: --Yes. They're expanded upon, but they are basically the same questions talking about the constitutional rights which were violated below.
Byron R. White: Okay.
Mace J. Yampolsky: And they were broken up in the questions presented to the trial phase and then resentencing phase, which is why we had the two questions. However, they encompass the same due process right.
Byron R. White: Well, it sounds to me like, as I read the court of appeals' opinion, or the State, the Supreme Court in Nevada opinion, the only question they decided was that you didn't have a constitutional... a special constitutional right to discontinue these drugs so that you could appear in your natural state at trial. And they said no.
Mace J. Yampolsky: And that's why--
Byron R. White: That was the only thing they decided.
Mace J. Yampolsky: --And that's why we filed the petition to this Court.
Byron R. White: Right. And is... the constitutional issue you want us to decide is whether you have a special constitutional right to have the drugs terminated so that you can appear in your natural state at trial. Is that the question? Is that it or not?
Mace J. Yampolsky: I don't believe that's exactly accurate. It's not a special--
Byron R. White: It's the only issue the court of appeals decided.
Mace J. Yampolsky: --Well, it's not a special constitutional right.
Byron R. White: I mean the supreme court decided.
Mace J. Yampolsky: We believe that it is a constitutional right, but not a special constitutional right. And the constitutional right to have a fair trial--
Byron R. White: Well, I know, but you would argue, I suppose, that even if in normal circumstances, you might be dangerous to yourself or others, and this is medically appropriate, you nevertheless should be able to refuse the drugs because you're going to go to trial and you want to appear in your natural state at trial.
Mace J. Yampolsky: --There's the fundamental right of a defendant, which is being infringed upon here. Of course the State has interest to have... to try competent defendants. However, there's another State interest to have fair and accurate verdicts. And it appears that the jury, having only seen Mr. Riggins in his calm, remorseless, apathetic, disinterested state, was given the wrong impression of who Mr. Riggins was. It would have been better from a defense standpoint, it would have been a fairer trial if Mr. Riggins was able to display his natural demeanor, but he was precluded from doing so by the State. And that is why we're here.
David H. Souter: Well, Mr. Yampolsky, are you saying now, in effect, that the answer to the questions that you have raised is something like this: yes, with appropriate findings of necessity, the State can administer these drugs forcibly, even though it will compromise what he would regard as compromising his demeanor. But that the constitutional defect here is that the State has not predicated, or the court did not predicate its order on adequate findings of necessity. Is that a fair statement of the position that you take now?
Mace J. Yampolsky: That is a fair statement.
David H. Souter: All right. Was that the position that you took in the State court, or did you say in the State court, regardless of the findings, you may not forcibly administer this medication under... given the charges against him and his insanity defense?
Mace J. Yampolsky: No, we have never taken the position that forcible medication is always inappropriate and always constitutionally infirm. Our position has been, in these circumstances, in view of this situation, when an insanity defendant with the fact that demeanor is our most powerful form of evidence, the fact that he was mediated at such a high dose without a finding of medical necessity and dangerousness, because of that, that there is a constitutional defect.
David H. Souter: Excuse me. Your question is perhaps broader than you need it to be, but you're really saying that your position is comprehended with... or the issue that you raise is comprehended within that broad statement of the issue in the cert petition.
Mace J. Yampolsky: That's correct.
David H. Souter: Okay.
Mace J. Yampolsky: If the Court wants to narrow the issue, it could be what would be constitutional for an insanity defendant. However, it appears that the same constitutional protections that will protect Mr. Riggins will also protect other criminal defendants. And when is the finding of dangerousness? If there is any violent crime, could the court just say he was dangerous, he committed a violent crime, why don't we medicate him? And that's not what we're here on. It's... on this specific set of facts.
David H. Souter: Well, don't you want to rest on the need to medicate for competence rather than the need to medicate for safety?
Mace J. Yampolsky: Well, this case wasn't predicated from the petitioner's standpoint on competence. He was already adjudicated competent by the trial court.
David H. Souter: I see. Yes, yes. Okay.
Mace J. Yampolsky: The issue is insanity and how is he present... prevented from--
David H. Souter: I've got the point. Mr. Yampolsky, you stated a moment ago that the defendant was in this listless, disinterested... and I think in your brief you say zombie-like state. Is that a factual finding below, or is that just your assertion? Is there any finding in the lower courts that that was indeed the situation?
Mace J. Yampolsky: --There was no actual finding. However, in the termination hearing, Dr. Master said that he, Mr. Riggins, is groggy and he's closing his eyes, and there was some colloquy between myself and the court pointing to the fact that look at the condition he's in, how can I present this to a jury.
Antonin Scalia: There was no finding below. Did you ask for a finding? I mean, as far as I'm concerned, I don't know whether these drugs did anything except make a defendant who would otherwise appear insane appear sane, which is perhaps bad enough. I thought that was the point you wanted to argue. If you give somebody medication so that whereas he would appear insane to the jury, he appears sane. He doesn't appear zombie-like, necessarily, or indifferent, necessarily... or remorseless, necessarily... but he just appears sane. I thought that that was your objection. He should be able to appear insane if indeed he is. Isn't that your point?
Mace J. Yampolsky: Yes, Your Honor... and to... Justice Scalia. And to answer your question, there were absolutely no findings, which is part of the problem. The amicus brief by the American Psychiatric Association states that the effects of this drug are to make one feel... I mean, make one appear cold, unfeeling, apathetic. I'd like to reserve the rest of my time.
William H. Rehnquist: Very well, Mr. Yampolsky. Mr. Tufteland, we'll from you.
James Tufteland: Mr. Chief Justice, and may it please the Court: The way this issue was initially presented to the trial court was really a question of trial strategy. There was never an indication in this case that Mr. Riggins was a Harper-type defendant who did not want to be medicated. The testimony at the evidentiary hearing reveals that Mr. Riggins was admitted into the county jail right after his arrest. Shortly after being incarcerated, he complained of hearing voices and having trouble sleeping. And on the basis of that interview with the jail psychiatrist and... at which time he took a short medical history from the defendant... at which time he learned that Mr. Riggins had previously been medicated with Mellaril some 6 years earlier by Dr. O'Gorman and that the drug had worked effectively for him. The psychiatrist then prescribed a moderate dose of Mellaril, which was primarily designed to control anxiety. Over the course of the next several months, the dosage was increased four or five times. Dr. Quass saw him two or three times after that. Riggins himself did request an increase in the dose because he continued to hear these voices. The whole purpose of the medication was medical treatment. At no time did the trial court--
Sandra Day O'Connor: Well, was there ever a motion by the defendant in court to stop the medication for purposes of letting him go to trial without being medicated?
James Tufteland: --That was--
Sandra Day O'Connor: I thought there was such a motion.
James Tufteland: --Mr. Yampolsky filed that motion in July or June of '88.
Sandra Day O'Connor: All right. And at that point he was still being medicated.
James Tufteland: That's true.
Sandra Day O'Connor: And the motion made clear that he didn't want to be medicated anymore. Is that right?
James Tufteland: The... well, the--
Sandra Day O'Connor: For purposes of the trial?
James Tufteland: --The motion itself did not, for instance, have an affidavit from the defendant indicating he had some sort of a liberty interest in not being medicated.
Sandra Day O'Connor: Well, I thought we had the case on the assumption that there had been a motion to terminate the medication.
James Tufteland: That's correct. A motion like that was filed.
Sandra Day O'Connor: And the State's position is that, or was that it could continue to medicate.
James Tufteland: The State's position... the State's concern at that point was maintaining defendant's competency to stand trial. I don't believe the trial attorney at the time cared one way or the other whether the defendant's unmedicated demeanor came before the jury. Our concern was will we have a competent defendant to take to trial, because in Nevada that's a jurisdictional requirement.
Sandra Day O'Connor: The court made no findings on that question of whether he would remain competent. Is that right?
James Tufteland: The court had entered a... order of competency some months earlier. Prior to the preliminary hearing in this case, Mr. Yampolsky filed a motion to have a competency determination made by the district courts. In Nevada, then the case is transferred up to the district court for the appointment of psychiatrists. And that's the time when the additional psychiatrists came in to interview the defendant. Based on the reports, and there were two reports... actually three reports that went to the court. Two of them said he was competent to assist counsel at trial, and Dr. Jurasky's report indicated that he was a paranoid schizophrenic, that he was incompetent, and that he was... well, he was incompetent for that purpose. Based on the reports, the court issued an order declaring him to be competent and then remanded for preliminary hearing. So there had been a judicial finding of competency about 4 months before the motion to terminate.
Sandra Day O'Connor: Yeah, but there was no finding, I take it, after he filed his motion to terminate the medication. There was no finding as to what that would do--
James Tufteland: That's correct.
Sandra Day O'Connor: --to his competency. Do you think that's required?
James Tufteland: I don't believe so. The court had already determined that he would be competent, and it was just a matter of eventually going to trial. All that was before the court was the defense motion to terminate the medication, not because of liberty interests like in Harper, but simply to present this trial defense of an unmedicated demeanor evidence.
John Paul Stevens: Yes, but counsel, regardless of the reason for the motion, you don't challenge the authority of the attorney to speak on behalf of his client at that point, do you?
James Tufteland: No. No, I don't.
John Paul Stevens: So isn't it true that you had the equivalent of a statement by the defendant, I don't want any more medication at this time?
James Tufteland: Well, I think you've got a more detailed statement than that, though. It's not... he's not making a statement like Harper did.
John Paul Stevens: Maybe the reasons are different, but is it not fair to say that he did at least request that the medication be terminated?
James Tufteland: That's true.
John Paul Stevens: And then the question arises is who has the burden of determining what facts will justify continuation of the medication. You say it's his burden to give reasons for discontinue other than simply saying I don't want any more. You say he has an additional burden.
James Tufteland: If we assume that the Washington v. Harper liberty interest applies to this defendant in this circumstance--
John Paul Stevens: Whether you assume that or not, whether you assume that or not.
James Tufteland: --Yeah--
John Paul Stevens: Whatever his reason. Whether he wants it because he just does... he wants to take a chance on seeing how he'll feel without it, he wants to disagree with doctors, he wants to look different to the client, is it his burden to convince the judge that he has an adequate reason, or is it the State's burden to convince the judge they have an adequate reason to continue. Which is your view?
James Tufteland: --I frankly think it would be his burden to show that it shouldn't be continued.
John Paul Stevens: And just simply saying I don't want it should not weigh in the scale at all?
James Tufteland: Yeah, based on the motion, then... based on the motion, the court conducted an evidentiary hearing, and primarily the decision... the concern of the court was what should my decision be. Do we continue to medicate this person? He wanted to find out if we terminate the medication, what's the possibility of the defendant becoming incompetent, because if that happens, the trial goes off calendar and we don't know when it would ever be re-calendared. They had the hearing and based on the evidence adduced, the court concluded that the safest course, and the most prudent course, was to continue the medication because the evidence presented by the psychiatrists indicated that he actually handled that dose quite well, even though it was a large dose. And he did that because he had used Mellaril--
John Paul Stevens: And the fact that he doesn't want to take the medication anymore just doesn't carry weight in the argument?
James Tufteland: --Well, he's the moving party.
John Paul Stevens: I understand.
James Tufteland: I think he's got the burden to convince the court to grant what he's requesting.
David H. Souter: Why... is that reason he has the burden, simply because he's the moving party on the motion?
James Tufteland: Well, that sounds like a good reason to me.
David H. Souter: Well, if we assume for the sake of argument it's not a good reason, do you have another reason? I mean, do you take the position, for example, that the State is... he's in custody, the State has a parens patriae right to do whatever it thinks is appropriate for the... for his physical or mental welfare? Are you resting on some theory like that?
James Tufteland: No such theory was advanced at the time because it wasn't really raised. Obviously, I think the State does have that kind of an interest. The man is--
Byron R. White: Well, the way you put it awhile ago, it sounds to me like... you say the court decided that it was necessary to maintain his competence to treat him. Is that what the court decided?
James Tufteland: --The court... the court's concern, I think was that if the medication was terminated, there was at least a--
Byron R. White: So whose ever burden it was... if it was the State's burden, you suggest that the court found it was satisfied.
James Tufteland: --Yes.
Byron R. White: Except there was no-- --He didn't say that, did he?
James Tufteland: Well, it was a rather short form of the order.
Byron R. White: He said the most prudent course: I don't want to take the risk.
James Tufteland: That was about the nature of his rationale.
Byron R. White: Don't want to take the risk of having to postpone the trial. Should the court make findings as to whether or not the medication will affect the demeanor of the defendant, or is that irrelevant?
James Tufteland: Well, the question of the demeanor evidence, I don't think was ever really addressed by the courts.
Byron R. White: Well, I think it was raised by counsel, wasn't it?
James Tufteland: It was raised. That was the thrust of his--
Anthony M. Kennedy: So that's an irrelevant consideration of the court?
James Tufteland: --No, it's a constitutional claim. The court... what I'm saying is the court never vocalized an opinion as to whether demeanor evidence was relevant evidence.
Anthony M. Kennedy: Well, he didn't vocalize the opinion? He made no findings at all on the point, did he?
James Tufteland: Well, no, he didn't. It was just a--
Anthony M. Kennedy: And you've admitted that they're relevant to the consideration?
James Tufteland: --Am I admitting that?
Anthony M. Kennedy: Are they relevant to the consideration of the trial court?
James Tufteland: No.
Anthony M. Kennedy: Why?
James Tufteland: The trial court's decision was simply whether or not termination of medication would render the defendant incompetent. The question of whether the demeanor evidence is relevant or not, I think, goes to the weight it would have on the jury, not so much to its admissibility.
Sandra Day O'Connor: Well, assuming that a particular drug is being administered, and assume for a moment that the drug would create a zombie-like appearance in the person taking the drug so that the person would appear disinterested in the proceedings going on and as though they had no effect on him one way or another. Now do you think that a defendant has a right to avoid that kind of appearance if he's going to appear before the jury and indeed testify in the trial?
James Tufteland: Not if terminating the medication is going to make him incompetent to go to trial. I think that the medication can be terminated, but he can maintain competency, I see no problem with that kind of evidence coming before the jury.
Sandra Day O'Connor: But there was no finding below as to whether he would maintain his competence, was there?
James Tufteland: Well, there was no explicit finding by the court.
Sandra Day O'Connor: No.
James Tufteland: The court merely entered an order saying the motion to terminate is denied.
Antonin Scalia: Mr. Tufteland, there was no finding, but perhaps there was no finding because his motion wasn't based on that. He didn't say, I don't want to take any more medication because I don't need it to remain competent. He didn't say I could take much less or I could take none at all and still remain competent. As I understood his motion, it was whether or not I will be incompetent, I want you to order the medication stopped.
James Tufteland: That's correct.
Antonin Scalia: Had he come in and said, I will... I can be perfectly competent even without it, then the judge might have felt the need to make such a finding, but that wasn't his argument, was it?
James Tufteland: No.
Antonin Scalia: It was competence or noncompetence doesn't matter, I have an absolute right--
James Tufteland: That's right.
Antonin Scalia: --not to take the medication.
James Tufteland: That's correct.
Antonin Scalia: I understood what went on. I understood Mr. Yampolsky to say in answer to my question that in the court, in the State court, at least in arguing to the State court, he never went so far as to adopt the position that even if it did render him incompetent, he would have a right to refuse the medication in order to, in effect, project his genuine demeanor. I take you're simply contradicting him on that point.
James Tufteland: At the evidentiary hearing, he stipulated that competency was a jurisdictional requirement and it could not be waived.
David H. Souter: Well, was that the equivalent of saying therefore, I do not claim that even at the risk of incompetency the medication should be stopped? I mean, was that a way of saying yes, I don't go the whole hog here, all I'm really asking for is an order to stop the medication or reduce the medication consistent with competency?
James Tufteland: I'm not sure what he intended by that statement. I just noted that it was in the record. The thrust of his motion was that he had a constitutional right under the due process clause to appear before the jury in an unmedicated condition.
Antonin Scalia: He at least... I'm sorry. Mr. Tufteland, given the existing state of the record at the time this motion was filed, supposing that Mr. Riggins had simply stopped taking the drug on his own and walked into trial on the trial date without having taken it. Would he have been in violation of any court order?
James Tufteland: No. There was no court order ever requiring him to be medicated. And the only court order entered in this regard was the motion to terminate medication, which was simply denying a defense counsel's motion. Had he done that, presumably, unless the jail authorities brought it to the court's attention or somebody's attention that he was refusing medication, then something might have occurred. But had he been able--
Byron R. White: Yeah, but the case went to the court of appeals... to the Supreme Court of Nevada on the basis that he was being involuntarily treated. Do you deny that? These... that was the way the issue was being framed, that he was being forcibly treated.
James Tufteland: --Well, there's nothing in the record that actually supports the idea that he didn't continue to voluntarily consume the medication.
Byron R. White: Well, the court of appeals talked as though, or the supreme court of the State talked as though he... they decided it on the basis that he was being involuntarily treated.
James Tufteland: I think they addressed the question pretty much as it was presented in the briefs as to whether or not there was this constitutional right to appear unmedicated. I'm assuming that they just assumed for the sake of their decision that the medication was forcibly administered.
Byron R. White: Was he ever... why was he... after he was arrested, wasn't he sent to a mental treatment place? Was he?
James Tufteland: He was... as far as I know, he was in the Clark County jail. They do have a medical section within the jail.
Byron R. White: Yes.
James Tufteland: And he may have been there. I'm not real sure.
Byron R. White: Was there some question about his competence at that time?
James Tufteland: Well, Mr. Yampolsky raised that issue within a couple of weeks of the arrest.
Byron R. White: Yes. And what happened?
James Tufteland: He filed the motion to have psychiatrists appointed for interviews, and the lower court--
Byron R. White: Granted it.
James Tufteland: --Well, they transferred the case up to the district court, the district court appointed the psychiatrists who interviewed him. They submitted their reports, and then based on those reports, the court entered an order declaring him to be competent to stand trial.
Byron R. White: When did he do... when was that entered?
James Tufteland: The psychiatric interviews occurred... two of them are in February of '88, and the other, I believe, was in early March of '88.
Byron R. White: And did it appear that the reason he... did it appear that he had been incompetent but that the drugs made him competent? Was that--
James Tufteland: Well--
Byron R. White: --Was that it or not?
James Tufteland: --The motion of Mr. Yampolsky simply asserted that in dealing with his client he felt that he... there were concerns about his competency based on conferring with him. And he wanted the question resolved. So obviously there were some behavioral signs to defense counsel that spurred him to file the motion.
Anthony M. Kennedy: But your position was that after the court's ruling you could forcibly medicate him if you chose?
James Tufteland: Our position would have been if the... it was necessary to maintain competency for trial, we could have forcibly medicated him.
Byron R. White: How would you know that?
James Tufteland: Well, that's why they had the evidentiary hearing.
Byron R. White: Well, I know, but it's a... there didn't sound like as much of a finding. You say, I just don't want to take the risk, that's sort of a 50/50 toss up. It depends on who has to prove it.
James Tufteland: Well, I think that the court entertained the opinions of the three psychiatrists who testified plus the reports of the other two psychiatrists whose reports were before the court. Dr. Patel, who had examined the defendant in January of '87, had diagnosed him as being paranoid schizophrenic. And based on the testimony that came before the court, that type of diagnosis indicated that if the medicated was terminated, he'd become incompetent. Dr. Jurasky also found him to be paranoid schizophrenic--
John Paul Stevens: Yes, but this is testimony before the hearing in response to his motion, isn't it? There was a hearing in response to his motion, wasn't there?
James Tufteland: --To terminate? Yes.
John Paul Stevens: Yeah. And what was the testimony at that hearing on the issue of competence to stand trial if the medication were discontinued? Didn't they basically say we're really not sure?
James Tufteland: Dr. O'Gorman was not sure. He basically would not volunteer an opinion one way or the other because he had never interviewed the person when not medicated. Drs. Quass and Master felt... their diagnosis was that he was a paranoid personality, but they didn't believe he suffered from schizophrenia. They felt that... based on--
John Paul Stevens: What did they say on the question of whether they thought he would be competent if the medication were discontinued?
James Tufteland: --Most likely they thought he would remain competent.
John Paul Stevens: So... then you're saying that we have to assume that the judge accepted their testimony. In other words, the judge's finding would be that he would have still been competent without the medication. Because he didn't say it in so many words, we presume he believed the experts. I think that's what you said is the way to interpret his ruling.
James Tufteland: Well, I think the way to interpret it is that if you look at defense counsel's statement at the end of the hearing, he said the evidence before the court is conflicting and basically no one knows what will happen if the medication is terminated. The nature of the--
John Paul Stevens: So you assume he believed or disbelieved the experts?
James Tufteland: --Well, I think he pretty much believed them, but there were conflicting opinions.
John Paul Stevens: If he believed them, then you had to come down on the side of competence, didn't he?
James Tufteland: There were conflicting opinions.
John Paul Stevens: Well, two said he would... they thought he'd be competent and one said he wasn't sure.
James Tufteland: And then there--
John Paul Stevens: Which is the weight of the evidence, then?
James Tufteland: --Well, there were two reports submitted in addition to those, Jurasky and Patel. There were five psychiatrists who had input with the court on this motion.
Byron R. White: That isn't quite enough psychiatrists, is it? [Laughter] Nobody said he would be competent. Some of them said he most likely would be competent.
James Tufteland: Right.
Antonin Scalia: They were asking the judge to take a chance and the judge said--
James Tufteland: Right.
Antonin Scalia: --it's, you know, this thing has come along too far at this stage, we're close to trial, I'm not going to take this... the chance at this point.
James Tufteland: I think that was the rationale basically. The test... even though they said they thought in their medical judgment he would remain competent, they said there was... existed the possibility that he wouldn't.
Sandra Day O'Connor: Mr. Tufteland, let me ask you another question. Suppose we had a defendant who had been determined to be competent at the time because of the medication. Does the defendant have a right to refuse further medication, even though he would become incompetent at trial?
James Tufteland: Our position would be--
Sandra Day O'Connor: Is it waivable?
James Tufteland: --We don't believe it is.
Sandra Day O'Connor: Aren't most constitutional rights waivable?
James Tufteland: Yes.
Sandra Day O'Connor: And why isn't that one?
James Tufteland: I think because in this kind of a case, this situation where in Nevada where competency is jurisdictional and this Court in a number of cases has indicated that due process requires a person to be competent when they go to trial.
Sandra Day O'Connor: I don't think we've ever decided, have we, whether it's waivable?
James Tufteland: No, you have not. But I think that the State's interest in trying people who are competent is so compelling that it should be deemed a right that is not waivable. Basically, when a person goes to trial, we are trying to adjudicate people in a fair proceeding so that we get verdicts that are reliable and verdicts in which the public has confidence. And we want verdicts in which the guilty are found guilty, and innocent people are acquitted. And if you're trying people who--
Sandra Day O'Connor: Well, does your case rest on the position that it's not waivable? What if we were to decide or assume that it is waivable? Then what's the State's interest here?
James Tufteland: --Well, I mean our interest is the same regardless, and if you hold that it's waivable, then that's your opinion. The issue itself never came before any court in this case. So in a sense it's an academic inquiry. Mr. Yampolsky had stipulated that it was not waivable, and so it never became a decision for the Nevada judge to make.
Antonin Scalia: Mr. Tufteland, did the defendant appear in the trial at any stage of the trial?
James Tufteland: He testified at the guilt phase.
Antonin Scalia: What did he say at the guilt phase?
James Tufteland: He testified about his background, explaining when he began hearing voices at the age of 4, and about an abused childhood, about his delusional episodes over the course of his life. He testified as to his account of the crime, which contained elements of self-defense and elements of basically insane testimony, if you will.
Antonin Scalia: Insane testimony? Such as what?
James Tufteland: Well, he... claiming that the victim was trying to put AIDS-infected blood on his cocaine to kill him, and that he tried to put fiberglass in his water to kill him. Very delusional thinking indicated at the time of trial in his testimony.
Antonin Scalia: And he said that during the trial?
James Tufteland: He testified to the jury in that fashion. He did not testify at the penalty phase.
Antonin Scalia: He didn't say anything about the abused childhood story about Marilyn Monroe and--
James Tufteland: That was brought out by defense counsel, and he acknowledged that he had told a prior therapist about that.
Antonin Scalia: --But he didn't repeat that at trial?
James Tufteland: He did in a sense. I mean, it was brought... he was asked that question by defense counsel and he acknowledged that he had indeed told a prior therapist about that incident. So the jury was actually well informed, I think, regarding his mental state, through his own testimony and through the testimony of Dr. Jurasky. And in the State's case in chief, there were about four witnesses who provided testimony relative to Mr. Riggins' demeanor at or about the time of the crime. In fact, there was an individual that actually drove him to the crime scene and back. I mean, that's about as close to having an independent witness of demeanor as you can get.
Antonin Scalia: What do you think the record shows about his zombie-like state or anything of that sort?
James Tufteland: Well, there's nothing that I can find in the record that supports that kind of a characterization. It would seem to me that--
John Paul Stevens: Well, the dissenting judged in the Nevada Supreme Court used... was the one that first used the term. Where did he get the idea?
James Tufteland: --I don't know. There was nothing that I've seen in that record that comes close to supporting a characterization--
John Paul Stevens: The jury was informed that he was on medication.
James Tufteland: --Yes, they were.
John Paul Stevens: And how much.
James Tufteland: Oh, yes.
John Paul Stevens: And why he was. That's right. There was a lot of testimony in that regard and the effects of Mellaril and the side effects. And they explained why he was able to accommodate such a large dosage. And I think essentially nothing was held back except this claimed unmedicated demeanor evidence, which in our view, as we've expressed in our brief, and as the American Psychiatric Association brief agrees, is not particularly relevant evidence. Of course there are State courts that take another view on that issue, aren't there?
James Tufteland: That's correct. I mean, the case law comes down both ways. I think the APA brief does an excellent job, though, of debunking that kind of evidence as being reliable. And I had planned even to discuss that, but I don't think I really need to. Unless the Court has other questions, I will submit it.
William H. Rehnquist: Thank you, Mr. Tufteland. Mr. Yampolsky, you have 3 minutes remaining.
Mace J. Yampolsky: Thank you, Your Honor. I'd like to address the State's burden at the termination hearing. This was Mr. Riggins' desire to stop unwanted medication. And he has a liberty interest in stopping unwanted substances, plus it's his desire to present his unmedicated demeanor as a fundamental right. This hearing was not about competency. Competency was determined, however, while discussing with the judge I submitted what I believe is a less restrictive alternative. Well, if that's the way the court feels, they're worried about his competence, we have time before trial, why don't we take him off the medication and see. And the court denied it. There were 10 weeks at the time of the hearing. As it turns out, there were 16 weeks prior to trial because of a conflict I had in another case.
William H. Rehnquist: Resulted in a continuance?
Mace J. Yampolsky: Correct. This trial was continued for 6 weeks. At the hearing, I don't believe I actually stipulated that... regarding the competence, however, I did say well, in that situation, Your Honor, why don't we try this. I was trying to work out alternatives to see if in fact Mr. Riggins could be presented to the jury in his unmedicated demeanor. And it was a reasonable request and it was denied.
Antonin Scalia: I don't see how that... I mean as far as the demeanor goes, I don't see how that gets you anywhere unless his demeanor would show that he's incompetent. I mean, isn't your demeanor argument tied to the fact that you wanted this man to be able to demonstrate himself to the jury as a madman? That was your whole point in your brief, I thought. But now you're saying, well, no, of course we didn't want him to be incompetent. But if he didn't appear incompetent, it wouldn't have had any effect on the jury.
Mace J. Yampolsky: Justice Scalia, I did want him to appear insane, not incompetent. Competent had already been decided. I wanted him to testify about hearing the voices. Maybe on the stand if he was unmedicated he could have heard the voices, he could have had a colloquy with Satan and Satan's assistant so the jury could have seen him so they could make that determination that yes, he was insane. But he was prevented from doing this due to the high dose of the Mellaril. And that is the problem.
Antonin Scalia: Would he have a right if his insanity pushes him in that direction, to come in with a clown hat on and his face painted yellow in order to demonstrate by his demeanor that he is indeed insane? Does the court have to permit that?
Mace J. Yampolsky: I don't believe the court has to permit that. The court has... the State has an interest, and does the court, in orderly proceedings--
Antonin Scalia: There's nothing disorderly about his coming in dressed as a clown. It's just his natural demeanor. He wants to demonstrate it to the jury. He wants to show the jury he's crazy. Does the court have to permit that?
Mace J. Yampolsky: --I don't believe the court has to permit that, Justice Scalia.
Antonin Scalia: Well, I don't see any difference between that and what you're arguing.
Mace J. Yampolsky: It's qualitatively different. Here we're using extraneous outside influences to show the manifestations of one's personality. What we want to show are the actual person, the manifestations of his insanity, of his delusions, brought forth from his own testimony.
William H. Rehnquist: Thank you, Mr. Yampolsky. The case is submitted.