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Drug case could set precedent

A 21-year-old inmate at the regional jail is the subject of a local criminal case involving forcible medication that may end up setting legal precedent for the state.

Wasco County Circuit Judge Janet Stauffer wrote an order Dec. 4 authorizing the use of anti-psychotic drugs on Cesar Valencia of The Dalles. At the current time, he has been deemed unable by mental health experts to assist in his own defense and communicate with his attorney, Rob Raschio.

Valencia was arrested Jan. 18, 2012, for allegedly robbing the dental office of Dr. Mark N. Keilman with a loaded shotgun. He was tracked to his nearby home by footprints in the snow and ended up in a five hour standoff with law enforcement officials before being taken into custody.

The defendant has spent most of his time since the arrest at the Oregon State Hospital undergoing a mental health evaluation. He was recently moved to the Northern Oregon Regional Correctional Facilities to await the outcome of the medication arguments.

According to court reports, Valencia had been on probation for a third-degree robbery conviction at the time of his 2012 arrest.

Raschio, of the gorge firm Morris Smith Starns Raschio and Sullivan, has asked Stauffer to put medication of his client on hold for the immediate future. He wants to wait until the Oregon Supreme Court ruling on the State versus James Michael Francis Lopes case is given — probably sometime this month — before further action is taken at the local level.

He said if the issues involved in the Valencia case are not addressed by that ruling, his firm has enlisted attorney Laura Graser, a Portland attorney who specializes in litigation and appeals, to represent Valencia before the Supreme Court.

“Clearly, we believe the judge’s order isn’t supported by current Oregon law and we are asking the Supreme Court to review it to prevent the forced medication of Mr. Valencia,” said Raschio.

The justices heard oral arguments Dec. 4 on an appeal of forcible medication ordered by a Multnomah County judge for Lopes, who has been diagnosed with a delusional disorder and is accused of sexual abuse in 2012. That decision will help establish case law in Oregon, a state that has little legal precedent to draw upon.

In November, District Attorney Eric Nisley used a U.S. Supreme Court case from 2003 as the basis of his request to have Valencia medicated against his will.

The State v. Thomas Sell that was brought to the justices involved a physician from Missouri who was accused in 1997 of Medicaid fraud and money laundering. Dr. Thomas Sell had a history of mental illness and had been diagnosed with “delusional disorder of the persecutory type” that mental health experts believed made him a danger to himself and others.

In a 6-3 ruling, the nation’s highest court ruled that drugs could be used without consent in “limited circumstances” when cases involve serious but non-violent crimes. They gave two allowable reasons for drugging a defendant without permission:

• The medication will effectively allow the person to communicate with his or her attorney to plan and execute a defense.

• The government has demonstrated a strong need, meaning that no other alternatives will work and the harm against the victim is serious enough to warrant forcible action.

Nisley contends that three victims of the robbery have been waiting almost two years for justice to be served. And there is no other way for court proceedings to get under way because psychiatrists have testified that Valencia has not responded well to other forms of treatment.

Forcible medication has been legally allowed in Oregon for decades if an allegedly mentally ill person is civilly committed as a danger to himself or others, or cannot care for him or herself. Drugs can also be administered if the person has previously been committed and exhibited the same symptoms.

Changes in the law in the 1970s have made it nearly impossible to get someone involuntarily placed in an institution for treatment through a civil process unless he or she poses some kind of a threat.

“Forcibly medicating someone against their will is something the government should only be allowed to do under extreme circumstances and we believe this is one of those cases,” said Nisley.

Stauffer granted his request to have Valencia first offered 600 milligrams of Clozaril, the drug was recommended by physicians because it has the lowest potential for side effects. That medicine has also previously been used in the defendant’s treatment.

If Valencia refuses to take that drug, the district attorney wants him forcibly medicated with either Abilify or Geodon at the state hospital, where he will undergo an evaluation over a period of several months. Mental health professionals will determine if he is then better able to assist in his own defense and has an understanding of the nature of the proceedings and the potential consequences if he is found guilty.

Under Measure 11 mandatory sentencing guidelines, Valencia faces a minimum sentence of seven and a half years in prison.

Nisley and Raschio say that further legal action on the case at the local level is dependent on how the state justices craft their decision in Lopes.

The top court in Oregon will determine under what circumstances a defendant can be drugged and if medication can be given when the person’s treating psychiatrist is not legally authorized to administer it. Also to be decided is if an allegedly non-dangerous person can be medicated to stand trial for a lesser crime if competency is the only rational for doing so.

However there are differences between the Lopes and Valencia cases that Nisley believes may merit further argument if the justices rule against the state. He said, if that happens, a prosecutor from the attorney general’s office will represent Wasco County in a high court hearing.

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