Riggins v. State

¶1dissenting:

¶2This case is another1 in which we are faced with a novel legal issue presented by courtesy of modern medical science. It seems that the medical doctors are now quite capable of conjuring in their insane clients a sort of “synthetic sanity”2 by infusion into their brains a class of drugs, called variously “psychotropic,” “neuroleptic,” or “antipsychotic.” These drugs have been in use for perhaps thirty years and are known to act chemically on the nerve cell receptors of the brain in a manner — sometimes referred to as a “chemical lobotomy” — which rather drastically alters the thinking processes, emotional responses, behavior and appearance of those whose brains have been “seized”3 by these powerful drugs.

¶3*186So powerful are these drugs that a highly mentally disturbed insane person can be made to appear perfectly sane. These drugs so well mask underlying mental disorders that persons who are agreed by all to be mentally incompetent and thus unfit to stand trial can be drugged into a mental state in which psychotic symptoms disappear. There is, however, a price to pay for this “neurolepsis.” The synthetically sane defendant becomes mentally and emotionally inert and in a state of chemically induced tranquility.4 Wildly psychotic persons frequently become docile and apathetic. The medical literature frequently uses the word “zombie” to describe the appearance and behavior of neuroleptic patients. The synthetically sane personality is characterized by indifference to what is going on and by “boredom, lethargy, docility and purposelessness.”5

¶4My point is very simple: I do not think that these drugs should be forced down the throats of these defendants, thereby inducing an unnatural and unwanted state of consciousness, just so the state can bring them to “justice.” Riggins pleaded with the trial court to leave him alone and not allow the state to drug him into being someone he was not. I think the court erred when it refused to give Riggins protection from state mind-control by forced drugging.

¶5More and more of these kinds of cases are coming to the attention of this court. The following illustrates a representative pattern of the way in which psychotics are often treated in the criminal justice system. The procedures, which I now outline, do not necessarily fit exactly the facts of this case, but they do show the kinds of medical and legal procedures that give rise to my concern. Here is the kind of treatment that I am talking about:

Stage One: An obviously mentally disturbed person commits a crime. Police necessarily refer the person to “mental health professionals.”

Stage Two: Psychiatrists or psychologists see the arrestee and, seeing that the person is confused, out of contact with reality and suffering from delusions and vivid auditory or visual hallucinations, conclude that the person is suffering from psychosis and should be institutionalized for treatment. (At this time the doctors frequently are in agreement that the arrested person was psychotic at the time of the commission of the crime.)

Stage Three: The psychotic person is placed in confinement *187where “treatment” is instituted by administering the mentioned “major tranquilizers.” Pretty soon the “patient” is “zombified” to the extent that he or she is no longer ranting or raving and, although a little sleepy most of the time, looks to be as sane as you or I.

Stage Four: The then psychotic but synthetically sane person is sent back to the criminal justice system with a doctor’s certificate saying that the psychotic person is now sane and fit to stand trial.

Stage Five: The synthetically sane zombie sits smilingly through the trial, listening indifferently to “experts” testify that he or she is presently mentally competent and was mentally competent at the time of committing the crime. The tranquilized defendant obligingly nods assent to whatever is being said.

Stage Six: The jury understandably assumes that the defendant was as sane at the time of the crimes as he appears to be in court. The defendant is convicted. The drugs are withdrawn, and the psychotic state resumes.

¶6I am hoping that this kind of drug abuse, this kind of intrusion into the inner sancta of human personalities will be seen for what it is, oppressive and violative of the human dignity of those who are forced to submit to the demands of the white-coated syringe bearers. For those who cannot see the outrage of this kind of mind control on its face, I will proceed now to cite legal authority for putting an end to these procedures.

¶7Right to Appear and Defend

¶8Forceful administration of these mind-altering drugs (particularly upon a person who has been declared legally sane6) is an interference with one’s right to “appear and defend” against charges in a criminal case. With the use of these drugs medical science can now alter the chemical workings of the brain and radically interfere with one’s emotional and thought processes. Before the advent of these drugs the United States Supreme Court was able to observe: “Freedom to think is absolute of its own nature; the most tyrannical government is powerless to control the inward workings of the mind.” Jones v. Opelika, 316 U.S. 584, 618 (1942) (Murphey, J., dissenting), rev’d, 319 U.S. 103 (1943). That was in 1942; it is, of course, no longer true that the *188government is powerless to control the inward workings of the mind. It can control the inward workings of the mind by forced draggings. The government, in this case, forcefully and over the strongest protest, was exerting control over the inner workings of the mind of David E. Riggins. Although “1984” has come and gone, the Orwellian “Thought Police” are now within the realm of scientific possibilities. As Justice Brandéis so wisely observed in his dissent in Olmstead v. United States, 277 U.S. 438, 479 (1927), “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” The state may be telling us that it is only “treating” these people for their own good, but it seems to me that the beneficent goal of treatment is being turned into an “insidious encroachment” on the dignity and integrity of humans who ought to have the right to refuse to be drugged into an unnaturally tranquil and submissive state.

¶9The criminally accused have a fundamental right to be present at their trial and to confront witnesses against them. This right derives from the common law and is required by our sense of natural justice. Such rights are embodied in the sixth and fourteenth amendments to the United States Constitution and in article 1, section 8 of the Nevada Constitution, which provides that “the party accused shall be allowed to appear and defend in person.”

¶10That right to be present at one’s own trial necessarily means the right to be present as one really is, not as a chemically-conjured persona which bears little resemblance to the “real” person as he or she would be in the natural, undragged state. Competent persons (as Riggins was judicially declared to be) defending against criminal charges should not, in any system of criminal justice, be compelled against their will to take into their brain drags which radically alter their thinking, emotion and behavior.

¶11In a case comparable to the one now before us, State v. Maryott, 492 P.2d 239 (Wash.App. 1971), the trial court allowed the state to continue administration of librium and other “minor” tranquilizers to the defendant against his will. The Washington Court of Appeals reversed his conviction, holding that to allow the state to administer drugs against the defendant’s will was to allow the state to alter the judgment and mental capacity of its adversary. The court observed that “[o]ur total legal tradition is contrary to this.” 492 P.2d at 241. I agree.

¶12*189The Maryottcourt drew a parallel between the state’s forced use of drugs and the use of chains and torture. Both affect the ability of an accused to use freely his mental faculties at trial. The court stated that “[although drugs have not always been the subtle menace they now are in our society, action by the state which affected the reason of a defendant at the time of trial was forbidden at an early time.” Id. at 241.

¶13A criminal defendant should not be deprived of his or her right to “appear and defend” by means of the state’s forced administration of antipsychotic drugs. An accused has a right to be present at the trial in a natural state, free from the effects of modern mind meddling.

¶14Right to Present Evidence

¶15Riggins has also been denied his right to present relevant evidence, specifically, himself, in his true mental state. Where, as here, the sole issue at trial is the defendant’s mental state, the most compelling evidence available is the defendant himself. No testimony of psychiatrists, psychologists, social workers, friends or family can approach the insight a jury is afforded by the opportunity to see and hear the defendant, as is. In order to be of any real benefit to the finders of fact the defendant must be presented in his natural state, not under the influence of mind altering drugs. It is the quality of Riggins’ natural mental state that is at issue here. By distorting Riggins’ natural mental condition, the state masked evidence critical to the sole issue at trial. The state was allowed to cover Riggins’ personality with a chemical veil that prevented the jury from seeing the accused as he really was.

¶16This court has previously recognized that the conduct and demeanor of a defendant after the crime are relevant to the jury’s consideration of insanity at the time of the offense. Sollars v. State, 73 Nev. 248, 316 P.2d 917 (1957); State v. Lewis, 20 Nev. 333 (1889). The weight to be given to the defendant’s after-the-fact mental condition is a function of the jury. In Sollars, above, we quoted from 2 Wigmore on Evidence (3d. ed.) 25, § 233:

A condition of mental disease is always a more or less continuous one, either in latent tendency or in manifest operation. It is therefore proper, in order to ascertain the fact of its existence at a certain time, to consider its existence at a prior or subsequent time.

¶1773 Nev. at 261, 316 P.2d at 924.

¶18The courtroom demeanor of a defendant is the most reliable evidence of mental condition. Certainly an “expert” cannot draw *190a verbal picture of a defendant’s condition that is anywhere near as reliable as would be an observation of the defendant in an undrugged, natural state. In State v. Lewis, above, we discussed the limitations of verbal description as opposed to direct observation:

As a general rule it is undoubtedly true that it is the facts which a witness gives of the conduct, acts, manner, and conversations of the defendant which constitute the greatest value of his testimony, and that the testimony of a witness having but a limited knowledge upon these matters ordinarily has but little, if any, weight with the jury; but it is not true that a witness is bound to give, or that he can in all cases give, the glare of the eye, the wild look, the peculiar expressions, or strange demeanor of the defendant. There are many cases where the mental condition of a person depends as much, or more, upon his looks and gestures, connected with his acts, conduct, or conversation, as upon the words and actions themselves; and it would be difficult, and sometimes impossible, for the witness to intelligently give all of the details upon which his opinion is based.

¶1920 Nev. at 345-46 (emphasis added).

¶20In Washington v. Texas, 388 U.S. 14, 19 (1967), the United States Supreme Court announced that few rights are more fundamental in our jurisprudence than that of an accused to present his or her version of the facts. Here Riggins was not permitted to present his version of the facts because evidence crucial to that version was suppressed by the drugs that had permeated his brain. Throughout the trial the jury sat and watched Riggins in a controlled and to the jurors what was apparently his normal mental state. Little wonder it is that the jury concluded that Riggins was in a similar, composed state at the time of the bizarre and brutal slaying in this case.

¶21In disapproving the forceful administration of mind-altering drugs to criminal defendants, I do not mean to be understood as saying that these drugs should never be employed in a prosecu-torial context. There may be times when the defendant himself may seek the help of these drugs; and there may even be ways in which the drugs can be employed in a manner in which the defendant’s basic right to be and remain himself is not curtailed. I object only to forcing drugs upon people who do not want to be drugged.