Appeals court weighs continued forced medication for Loughner

Should accused Jan. 8 shooter Jared Lee Loughner continue to be medicated against his will, even though no court has ordered him forcibly drugged? The Ninth Circuit Court of Appeals heard arguments on that question Tuesday.

Defense lawyers argued before a three-judge panel that Loughner should not be compelled to take antipsychotic drugs without a court hearing, and that side effects from the drugs may make him unable to stand trial, and possibly more dangerous.

Loughner's defense team asked the judges to order a court hearing to determine if Loughner should continue to be drugged, now that he is no longer being examined, but is undergoing treatment to restore his ability to stand trial.

Prosecutors told the judges that Lougher, now 23, was declared a danger to himself by prison staff, and that the medications are improving his health.

No hearing is needed, because prison officials can order medication if a prisoner is a danger to himself or others, prosecutors said.

The hearing, which lasted just over an hour, saw the judges—Marsha S. Berzon, J. Clifford Wallace and Jay S. Bybee—sharply question both sides on the issue of a court's role in ordering medication for a mentally ill patient who is being restored to competency.

"What is the effect of the drugs on the likelihood of achieving a fair trial? That is what the court has to address," defense attorney Ellis Johnston told the panel.

Wallace asked why the question shouldn't be considered after Loughner completes another four month of treatment.

The court must question whether the medication creates a substantial chance of endangering Loughner's right to a fair trial, Johnston said.

The regimen of antipsychotic drugs are not making Loughner "less dangerous, and they may be exacerbating his dangerousness," even if they are treating his schizophrenia, he said.

The drugs may be worsening his depression, he said.

Johnston blamed the drugs for the expressionless demeanor Loughner showed at his last court appearance. That flat affect could hurt his fair trial rights, he said.

"It's even worse if the side effects of those drugs will prohibit him from expressing himself appropriately at trial," he said.

Continued forced medication could lead to an "erroneous deprivation of his rights," Johnston said.

"Assuming the drugs are appropriate for dangerousness, what are their effects on a trial?" he asked the judges.

Prosecutors pushed back at the defense's contentions.

Loughner "could revert to being a danger to himself" if the drugs are halted, said Assistant U.S. Attorney Christina Cabanillas.

The defendant is being drugged because he's shown he's a danger to himself, and it is "his mental illness that is the cause of the danger in the hospital setting," she said.

Prison doctors, not judges, are in the best position to determine which medications can make Loughner fit for trial, she said.

Wallace told Johnston that the court needs to "deal with reality rather than speculation," asking him if it wouldn't be better to "wait and see if restoration works."

Berzon and Wallace pointed to a bit of circular reasoning that applies to Loughner's situation: Loughner was sent by a judge to a prison hospital to be made competent to stand trial, but the drugs that may make him competent are being given because he's been determined to be a danger to himself in prison, not because a judge ordered them to make him competent.

"He's only getting the medication because he's committed, and he's committed because he's getting the medication," Berzon said.

"He has no business being there except to get the medication," she said.

"The purpose of the incarceration has changed" after Loughner was ordered back to the hospital, Wallace said.

Competency

U.S. District Court Judge Larry Burns, the San Diego judge handling the Jan. 8 shooting case, found Loughner incompetent to stand trial in May, and sent him to a Springfield, Mo., prison hospital for evaluation.

In order to stand trial, defendants must be able to understand the charges against them, and be able to effectively assist their lawyers in their defense.

In September, Burns extended Loughner's stay after the government presented evidence that Loughner could be made competent for trial with further treatment.

About 20 spectators were scattered about the large jury assembly room at the federal courthouse in Tucson, where the hearing could be seen on a closed-circuit TV hookup Tuesday afternoon.

The judges didn't indicate when they will issue a ruling. Earlier rulings in the case have been within two weeks of arguments.

Charges

Loughner is charged with killing six and wounding 13 others, including U.S. Rep. Gabrielle Giffords, on Jan. 8 at a "Congress On Your Corner" meet-and-greet with constituents.

Loughner faces 49 federal counts in the shooting; 14 could result in the death penalty.

Prison officials have been giving Loughner anti-psychotic and other medications against his will, after holding non-judicial hearings that determined he is a danger to himself.

Loughner's defense team has argued that forcing drugs on Loughner without a court hearing is a violation of Sell vs. United States, which requires a judge's ruling that a defendant be involuntarily medicated for the purposes of making him competent for trial.

Burns denied that move last Tuesday, ruling that "Sell does not apply when, as here, the decision to involuntarily medicate a defendant is made by prison doctors to abate that defendant’s dangerousness."

Defense attorneys asked the Ninth Circuit Court of Appeals last week to halt the forced medication.

Burns ruled Sept. 28 that Loughner must spend another four months in a federal prison hospital as doctors work to make him fit to stand trial.

"He understands that he's murdered people," a prison doctor testified, and no longer believes that U.S. Rep. Gabrielle Giffords was killed in the shooting rampage.

Loughner has refused to voluntarily take prescribed psychtropic drugs, but acquiesces and takes oral medication when informed that prison officials will otherwise forcibly inject the drugs.

Prison officials have determined in non-judicial hearings that Loughner is a danger to himself, and he remains on a suicide watch that was imposed July 8.

The drugs, including the anti-psychotic Risperidone, antidepressant Wellbutrin and sedative Lorazepam, have increased Loughner's functioning, testified prison psychologist Dr. Christina Pietz.

There is a "substantial probability" that Loughner will be restored to competence and be able to stand trial with more treatment, Burns ruled last month, after hearing testimony from a prison psychologist and an expert witness.

Burns determined in May that Loughner was not capable of cooperating with his lawyers or understanding the trial.