1. MEMORANDUM
To: Jonathan Schiffman, Esquire
From: Moriah Taylor, Paralegal
Re: State v. Nelson
Date: October 6, 2015
ISSUE
Under the due process clause of the Fifth Amendment of the United States Constitution, is the
government permitted to involuntarily administer antipsychotic drugs to Mr. Nelson in order to
render him competent to stand trial where there is a twenty percent chance of success and when
he is likely to experience severe side effects that may prejudice him at trial?
BRIEF ANSWER
No, while the government is permitted to involuntarily administer antipsychotic drugs to non-
violent defendants for the purpose of rendering them competent to stand trial, the medication that
would be administered to Mr. Nelson is not substantially likely to be effective.
FACTS
Our client, Jason Nelson (“Nelson”), was recently charged with manslaughter. Nelson is
mentally ill and is currently confined in a mental institution. Because of his mental illness, Nel-
son cannot assist in his defense and thus is not competent to stand trial. The prosecutor in this
case has made a motion asking the court to forcibly administer antipsychotic drugs to Nelson to
render him able to stand trial. Medical experts have determined that Nelson has an approximately
20 percent chance of being competent if he receives the medication the state intends to adminis-
ter. Nelson is vehemently opposed to receiving such drugs, primarily because he has suffered

2. significant and debilitating side effects from the drugs when he has taken them in the past. The
side effects include drowsiness, lethargy, and confusion. We intend to oppose this motion vigor-
ously.
DISCUSSION
In Sell v. United States, 539 U.S. 166 (2003), Charles Thomas Sell, a dentist, had a long
history of mental illness. The essential question that the supreme court has to consider in light of
the due process clause of the Fifth Amendment was “Does forced administration of antipsychotic
drugs to render Sell competent to stand trial unconstitutionally deprive him of his ‘liberty’ to re-
ject medical treatment?” The court acknowledged that Sell, or any individual, has a significant
and constitutionally protected interest to prevent the unwanted administration of drugs. The court
held that the Constitution does allow the Federal Government to administer antipsychotic drugs
involuntarily in limited circumstances as previously established in Washington v. Harper, 494
U.S. 210 (1990), and Riggins v. Nevada 504 U.S. 127 (1992). Under this framework, three crite-
ria must be met. First, an important government issue must be at stake, which must be deter-
mined on a case-by-case basis. Second, there must be a substantial probability that the medica-
tion will render the defendant competent to stand trial. Third, the medication must be necessary
to restore the defendant’s competency with no less intrusive options available. The Supreme
Court held that the circuit court had erred in approving the use of forced medication due to an
incorrect assessment of Sell’s dangerousness and a lack of evidence regarding his competency.
They also vacated and remanded the lower court’s findings on the basis that the lower court had
not satisfied the criteria. In the case of Nelson, it is not substantially likely that he would be ren-
dered competent to stand trial therefore one of the conditions would not be met.

3. In United States v. Ghane, 392 F.3d 317 (8th Cir. 2010), the defendant, Dr. Hessam
Ghane, was arrested and charged with criminal possessions of potassium cyanide. The district
court ordered Dr. Ghane to be involuntarily medicated to become competent to stand trial, a de-
cision that was reversed on appeal. The court of appeals concluded that the government had
failed to meet the criteria set forth in Sell v. United States, supra, mainly that the medication was
not substantially likely to restore Ghane’s competence. United States v. Ghane is most analogous
to that of Nelson, that in both cases, the medication is not substantially likely to restore compe-
tence and thus cannot be involuntarily administered.
United States v. Ghane stands in contrast to United States v. Gomes, 289 F.3d 71 (2004).
In 1999, Aaron Gomes was convicted of illegal possession of a firearm by a convicted felon. The
district court ordered a psychiatric evaluation to determine if Gomes was competent to stand tri-
al. When Gomes refused the evaluation, he was committed for 30 days of mental evaluation. At a
competency hearing in 2000, Gomes was found to be delusional and lack a rational understand-
ing of the proceedings. He was committed to custody for three months to determine if there was
a substantial possibility that he could be rendered competent in the foreseeable future. During
this evaluation, doctors prescribed a course of anti-psychotic medication that Gomes repeatedly
refused.
The district court based its decision on weighing the benefits of the medication against
the risk, the medicine being appropriate, and there being no less intrusive means, supra. It was
concluded that involuntary medication is appropriate for a non-dangerous defendant if it is need-
ed to accomplish a government interest. The court found that, in the case of Gomes, the medica-
tion was medically appropriate, the side effects not overly intrusive, and there was a high likeli-

4. hood that the medication would be effective. The high likelihood of the medication being effec-
tive makes this case different than that of our client Nelson. The district court issued the order for
involuntary medication and the case went on to the court of appeals. In its discussion, the court
of appeals mainly agreed with the reasoning of the district court but remanded the case for fur-
ther proceedings.
CONSLUSION
Under certain circumstances, it is acceptance to involuntarily medicate someone to render
them competent to stand trial. First, an important government issue must be at stake. Second,
there must be a substantial probability that the medication will render the defendant competent to
stand trial. Third, the medication must be necessary to restore the defendant’s competency with
no less intrusive options available. Rendering Nelson competent to stand trial may represent a
government interest and there may be no less intrusive option to render him competent. Howev-
er, 20% does not constitute a substantial probability that Nelson will be rendered competent,
therefore the test is failed and he should not be involuntarily medicated.