by marcia chambers | Sep 11, 2016 10:54 am

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Posted to: Legal Writes

Dr. Lishan Wang’s public defenders plan to appeal to the United States Supreme Court a unanimous decision by the Connecticut Supreme Court that Dr. Wang be forcibly medicated against his will. The forced medication, the state says, is necessary to restore Dr. Wang to mental competency so that he might finally stand trial for murder.

At a 20-minute court session in state Superior Court in New Haven Friday, Thomas Ullmann, the chief public defender and Dr. Wang’s attorney, told prosecutor Eugene R. Calistro, Jr. and the trial judge that he had spoken with Mark Rademacher, the office’s appellate attorney in the Wang case. Rademacher, he reported, has decided to file a petition for a writ of certiorari before the nation’s highest court.

The Connecticut Supreme Court’s decision becomes official on Sept. 13. An advanced copy of the decision was published on Sept. 6. Before the decision became public, a pre-trial hearing in the Wang case had been scheduled before Superior Court Judge Thomas V. O’Keefe, Jr., the trial judge, for last Friday morning in New Haven Superior Court. Dr. Wang was not in court.

After an in-chambers hearing with the attorneys, the judge took the bench and said he would now update the court on the Wang case. O’Keefe explained that the state’s highest court had ruled that Dr. Wang could be forcibly medicated in an effort to restore him to competency so that he might stand trial. The judge observed that the state’s highest court had agreed with his finding to forcibly medicate Dr. Wang. “What a surprise,” he added with a smile.

Ullmann and Rademacher maintain that forced medication violates Dr. Wang’s rights and may hinder his ability to assist in his defense at trial. The defense has said in prior court hearings that the success rate of these drugs, between 50 and 70 percent, is not impressive.

Seeking a writ of certiorari before the nation’s highest court is a long shot because the state Supreme Court decision was unanimous, with none of the judges accepting the defense’s position that the forced medication raised a constitutional issue. The judges accepted the arguments put forth by Calistro, the senior assistant state’s attorney who has been handling this case since murder charges were first brought against Dr. Wang in April 2010.

Dr. Wang was arrested on April 26, 2010, and charged with the shooting death of Dr. Vanjinder Toor outside his condo in Branford. Dr. Wang has yet to stand trial in the murder of Dr. Toor, whom he apparently holds responsible for his firing from a Brooklyn hospital in 2008. He is also accused of attempting to kill Dr. Toor’s wife that morning.

Sell Case

In 2003, in what was a landmark decision, the United State Supreme Court imposed stringent limits on the right to forcibly medicate a criminal defendant who, like Dr. Wang had been deemed incompetent to stand trial for the sole purpose of making the defendant competent to stand trial. But in that case, “Sell v. United States,” the court also held there were factors in which forcible medication could be imposed.

Calistro argued in court that forced medication was required and that the Wang case met the four factors outlined in Sell case. One of those factors says forced medication may be sought “if an important government interest is at stake.” In this case, that interest is the trial of Dr. Wang, Calistro said.

The U.S. Supreme Court receives about 7,000 to 8,000 petitions each term but takes only about 80 of those cases for oral argument. Rademacher will have 90 days from the time the decision is formally filed on Sept. 13 to submit the writ to the U.S. Supreme Court. The state will have 30 days to reply. Conceivably the lawyers for both sides in the Wang case will learn whether the case has been accepted for review or not by year’s end.

Next Judge O’Keefe reviewed and granted a defense request for an evidentiary hearing on how best to monitor the process for the forced medication.

The motion, submitted by Ullmann, was signed Sept. 6, the day the high court’s decision became known. It asked Judge O’Keefe to establish “a monitoring protocol before, during and after the administration of psychotropic medication.” The motion noted possible side effects “whether the doses are administrated orally or by injection.”

Ullmann said in court papers that a court-ordered monitoring protocol “should be ordered to protect the defendant’s state and federal constitutional rights to a fair trial as well as his individual bodily and medical integrity.”

Judge O’Keefe observed that it was not unreasonable for Dr. Wang’s attorneys to have some sort of monitoring procedure in place in order to determine possible side effects. “We will come up with a plan to make sure the health issues are addressed,” the judge told Ullmann and Calistro.

The judge then set Oct. 6 for the evidentiary hearing to take place in Superior Court. Dr. Wang will be present in court that day, the judge said.

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