The Supreme Court is considering the issue of Forcing Mentally Ill on Trial to Take Drugs. In an Amicus brief filed by the National Association of Criminal Defense Lawyers, a novel issue is raised:

In addition to due process and fair trial rights, Dr. Sell's supporters also raise objections under the First Amendment to involuntary mind-altering medication. A brief submitted by the National Association of Criminal Defense Lawyers tells the court that if Dr. Sell testified under the influence of medication, "his words would not be his own" but would be the government's.

NACDL's argument is this (quotes that follow are from the Amicus Brief, authored by preeminent Saint Louis defense attorney Burton Shostak, Grant Shostak and Deborah Westling):

Assuming, arguendo, the propriety of ordering that a defendant may be forcibly injected with anti-psychotic drugs for the sole purpose of restoring the defendant’s competency to stand trial, the trial court must conduct a pre-medication analysis to determine how the medication will affect defendant’s demeanor at trial and his ability to assist his attorney in presenting his defense....The involuntary medication of Dr. Sell could alleviate the very symptoms that would most likely convince a jury of his diminished capacity and thereby deprive him of a constitutionally protected defense. As Dr. Sell’s mental state at the time of the offenses charged will be at issue, a jury’s decision will certainly be guided by its observations of Dr. Sell during the trial. Any analysis performed after the medication regimen has begun may simply be too late.

Accordingly, the district court erred in not considering the effects of the medication on Dr. Sell’s demeanor at trial and his ability to assist in his defense prior to ordering his medication.

The National Association of Criminal Defense Lawyers ( NACDL) is the preeminent organization in the United States advancing the mission of America’s criminal defense lawyers to ensure justice and due process for persons accused of crime or other misconduct. A professional bar association founded in 1958, NACDL’s more than 10,400 direct members – and more than 80 state and local affiliate organizations with another 28,000 members – include private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors, and judges committed to preserving fairness within America’s criminal justice system.

NACDL promotes study and research in the field of criminal law to disseminate and advance knowledge of the law in the area of criminal practice. NACDL seeks to defend individual liberties guaranteed by the Bill of Rights and has a keen interest in ensuring that legal proceedings are handled in a proper and fair manner. Among NACDL’s objectives is promotion of the proper administration of
justice. In furtherance of that objective, over the decade, NACDL has filed approximately ten amicus briefs per year with this court on criminal justice related issues.

NACDL members volunteer their time and skills to write these briefs. We are very proud to be an officer of this wonderful organization.