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Case 4:11-cr-00187-LAB Document 232

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Judy Clarke Clarke and Rice, APC 1010 2nd Avenue, Suite 1800 San Diego, CA 92101 (619) 308-8484 Mark Fleming Law Office of Mark Fleming 1350 Columbia Street, #600 San Diego, CA 92101 (619) 794-0220 Reuben Camper Cahn Ellis Johnston III Janet Tung Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101 (619) 234-8467 Attorneys for Defendant Jared Lee Loughner UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, Plaintiff, v. JARED LEE LOUGHNER, Defendant. ) ) ) ) ) ) ) ) ) )


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On May 27, 2011, undersigned filed a request for notice of intention to administer psychotropic medications to Mr. Loughner. [Dkt. 222]. The Court construed this request to imply a requirement that FMC staff provide counsel with advance notice of any voluntary decision to take anti-psychotic medications, denied the request, and directed that if a supplemental motion is filed, it must outline the legal theory supporting such a right. [Dkt. 227]. This supplemental request follows. Counsel filed the request for advance notice of intention to administer psychotropic medication for the simplest of reasons so that there would be an opportunity for counsel to evaluate whether any action should be taken to involve the court.

Case 4:11-cr-00187-LAB Document 232

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Mr. Loughner is unable to communicate rationally with counsel not only about his case, but also about information provided to him by FMC Springfield staff. Indeed, both court ordered evaluations concluded that Mr. Loughner suffers from a serious mental illness which renders him unable to have a rational understanding of the proceedings and unable to assist counsel in his defense. Because of the pervasive nature of Mr. Loughners illness and its severe impact on his rational understanding and ability to communicate, counsel resolved that making a basic and straightforward request of the court for notice was appropriate, and needed no further justification. With notice, counsel can then determine whether there is a need to take action to engage the Court in protecting Mr. Loughners rights. We agree with the Court that any attempt to forcibly medicate Mr. Loughner must first be sanctioned by this Court, see Sell v. United States, 539 U.S. 166 (2003). However, we are also advised that the FMC Springfield will likely conduct an administrative hearing under 28 CFR 549.43 (Involuntary psychiatric treatment and medication). With adequate notice, counsel may be able to assist in that review, or provide information to the staff representative who will participate in any such hearing. See 28 CFR 549.43 (a)(2) (Staff shall inform the inmate of the right to appear at the hearing, to present evidence, to have a staff representative, to request witnesses, and to request that witnesses be questioned by the staff representative or by the person conducting the hearing. If the inmate does not request a staff representative, or requests a staff representative with insufficient experience or education, the institution mental health division administrator shall appoint a staff representative. ...). Finally, it is our understanding that FMC Springfield staff will encourage Mr. Loughner to take psychotropic medications, many of which have serious and possibly permanent side effects, as well as the potential for far reaching impact on Mr. Loughners ability to assist in his defense. See Riggins v. Nevada, 504 U.S. 127 (1992)(Kennedy, J, concurring)(More relevant to this case are side effects that, it appears, can compromise the right of a medicated criminal defendant to receive a fair trial. The drugs can prejudice the accused in two principal ways: (1) by altering his demeanor in a manner that will prejudice his reactions and presentation in the courtroom, and (2) by rendering him unable or unwilling to assist counsel.). While we certainly

Case 4:11-cr-00187-LAB Document 232

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appreciate that a medical professional has the obligation to discuss the risks and benefits of psychotropic medication with a patient prior to administering medication to a consenting individual, the question of Mr. Loughners ability to provide informed consent looms large, and may require the Court to make a substituted judgment regarding any consent. See Terhune v. Benson, 304 F.3d 874 (9th Cir. 2002) (considering whether agreement to take medication was knowing and voluntary). Reasonable notice provides counsel the opportunity to discuss the question of informed consent with the medical professional(s), or alternatively to bring the question to the attention of the Court. CONCLUSION In order to allow counsel to make a reasoned judgment whether involvement of the Court in these questions is appropriate and necessary, undersigned counsel seek notice of (1) the intent to convene an administrative hearing under 28 CFR 549.43, including the date of such hearing and identity of the staff representative assigned to Mr. Loughner; and (2) any intention to administer psychotropic medications, either voluntarily, or involuntarily as a result of the administrative hearing, including advance notice of the type, dose and frequency of administration of the intended drug. Respectfully submitted,
/s/ Judy Clarke

DATED: June 9, 2011 JUDY CLARKE MARK FLEMING REUBEN CAMPER CAHN Attorneys for Jared Lee Loughner

Copies of the foregoing served electronically to: Wallace H. Kleindienst, Beverly K. Anderson Christina M. Cabanillas, Mary Sue Feldmeier