CAUSE NO. 03-00001-CRF-85 THE STATE OF TEXAS, Plaintiff, vs. MARCUS DRUERY, Defendant.

IN THE 85th DISTRICT COURT OF BRAZOS COUNTY, TEXAS

DEFENDANTS MOTION TO DETERMINE EXECUTION COMPETENCY UNDER ARTICLE 46.05 Defendant Marcus Druery is scheduled to be executed by the State of Texas on August 1, 2012. Counsel set forth the facts below that establish a substantial showing of incompetency entitling Mr. Druery to: (1) the appointment of at least two independent mental health experts, TEX. CODE CRIM. PROC. art. 46.05(f); and (2) an evidentiary hearing on the merits of the competency-to-be-executed claim, TEX. CODE CRIM. PROC. art. 46.05(k). Despite counsels diligence in attempting to investigate, develop, and present all the facts in support of Mr. Druerys Article 46.05 motion, the comprehensiveness of this motion is limited by circumstances beyond counsels control. In particular, counsel have not had the time or resources to locate and interview nearly 100 collateral witnesses they identified during their review of over 5,500 pages of prison and medical records. These potential witnesses include prison physicians,

psychiatrists, psychologists, social workers, and nurses who have been involved in Mr. Druerys mental health treatment over the past few years. The list of potential

witnesses also includes correctional officers at the Jester IV Unit (the inpatient psychiatric facility for treating mentally ill death row inmates) and the Polunsky Unit (where Mr. Druery is housed on death row). Counsel for Mr. Druery have filed, simultaneously with this motion, an ex parte request for funds to allow them to hire an investigator to identify and interview the most important of these collateral witnesses. Furthermore, counsel recently renewed their ex parte motion to obtain copies, at county expense, of approximately 1,800 pages of TDCJ medical records provided to the Court by the District Attorney. Despite finding Mr. Druery indigent and appointing counsel in these proceedings, the Court insisted that counsel pay for these copies out-of-pocket, a $900 expense. Because counsel could not pay the copying fee, they were unable to compare the records with the ones they received separately through a subpoena duces tecum. In short, as a result of these circumstances curtailing their development of the facts, counsels Article 46.05 motion is necessarily incomplete and Mr. Druerys mental health expert can provide only a preliminary report at this time. Accordingly, counsel for Mr. Druery ask the Court to allow them to supplement this Article 46.05 motion with additional factual support should the Court grant them funding for investigative assistance and for copies of the TDCJ records currently in the possession of the District Clerk.

I.

A PERSON WHO LACKS A RATIONAL UNDERSTANDING OF THE REASON FOR HIS EXECUTION IS INCOMPETENT TO BE EXECUTED UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Ford v. Wainwright, 477 U.S. 399 (1986), established that the Eighth

Amendment forbids the execution of those prisoners who are unaware of the punishment they are about to suffer and why they are to suffer it. 477 U.S. at 422 (Powell, J., concurring in part and concurring in judgment). The Fifth Circuit had interpreted that standard to mean that a prisoner need only be aware that he [is] going to be executed and why he [is] going to be executed. See, e.g., Panetti v. Quarterman, 448 F.3d 815, 819 (5th Cir. 2006) (citing Barnard v. Collins, 13 F.3d 871, 877 (5th Cir. 1994)). In Panetti v. Quarterman, 551 U.S. 930 (2007), the Supreme Court squarely rejected this bare factual awareness standard, noting that it treats a prisoners delusional belief system as irrelevant if the prisoner knows that the State has identified his crimes as the reason for his execution. 551 U.S. at 958. As the Court explained: [T]he Ford opinions nowhere indicate that delusions are irrelevant to comprehen[sion] or aware[ness] if they so impair the prisoners concept of reality that he cannot reach a rational understanding of the reason for the execution. If anything, the Ford majority suggests the opposite. Id. Thus, the Supreme Court concluded that the pre-Panetti Fifth Circuit standard was too restrictive to afford a prisoner the protections granted by the Eighth Amendment. Id. at 956-57. 3

A fundamental tenet of the Fifth Circuits pre-Panetti flawed standard was the conclusion that a prisoners reasoning is irrelevant if the prisoner knows that the State has identified his crimes as the reason for his execution. Panetti, 551 U.S. at 958. In rejecting that conclusion and in holding this test too restrictive, the Panetti Court looked in part to the common-law underpinnings of Fords ban on executing the incompetent. While these underpinnings are numerous, the Panetti Court focused on the role the competency requirement holds in serving capital punishments retributive purpose. More specifically, the Supreme Court examined the manner in which that retributive purpose is undermined when the inmate has no comprehension of why he has been singled out and stripped of his fundamental right to life. Id. at 957 (citing Ford, 477 U.S. at 409-10). The Supreme Court explained: Considering the lastwhether retribution is servedit might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole, including the surviving family and friends of the victim, to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed. The potential for a prisoners recognition of the severity of the offense and the objective of community vindication are called in question, however, if the prisoners mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole. Id. at 958-59. Thus, [t]he principles set forth in Ford are put at risk by a rule that deems delusions relevant only with respect to the States announced reason for a punishment or the fact of an imminent execution. Id. at 959. 4

Instead, a proper Ford inquiry must probe the prisoners rational understanding of his punishment, the reason for it, and the role his lack of rationality plays in preventing or distorting that understanding to the point at which the execution no longer serves the purpose intended, thus violating the Eighth Amendment. As the Supreme Court emphasized, [a] prisoners awareness of the States rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter. Id. Although Panetti did not attempt to set down a rule governing all competency determinations, id. at 960-61, the Court repeatedly explained that a rational understanding test is appropriate and consistent with the reasons supporting the ban on executing the insane announced in Ford. Id. at 958-62. Mr. Druery is not competent to be executed under this standard. Because his psychotic disorder prevents a rational understanding of the connection between his crime and his punishment, the States interests in retribution cannot be served by his execution and his execution would violate the Eighth and Fourteenth Amendments to the United States Constitution.

II.

MARCUS DRUERY HAS MADE A SUBSTANTIAL THRESHOLD SHOWING OF INCOMPETENCY THAT ENTITLES HIM TO THE APPOINTMENT OF AT LEAST TWO INDEPENDENT EXPERTS AND AN EVIDENTIARY HEARING ON THE MERITS OF HIS CLAIM THAT HE IS INCOMPETENT TO BE EXECUTED UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. A. Marcus Druery suffers from a severe, active psychotic condition that began sometime in his mid- to late-twenties.

Mr. Druery suffers from a severe, active psychotic condition, meeting criteria for a clinical diagnosis of schizophrenia, undifferentiated with features of paranoid and disorganized subtypes, beginning sometime in his mid- to late-twenties. See Exhibit 1 at 20 (Preliminary Forensic Psychological/Neuropsychological Evaluation of Dr. Diane Mosnik). 1. Schizophrenia defined.

Schizophrenia is a psychotic mental disorder. During the minimal one month of active-phase symptoms, two or more of the following symptoms must be present: 1) delusions, 2) hallucinations, 3) disorganized speech, 4) grossly disorganized or catatonic behavior, and/or 5) negative symptoms such as flattening of affect, alogia, or avolition. See American Psychiatric Association, DIAGNOSTIC
AND

STATISTICAL

MANUAL OF MENTAL DISORDERS 312, 4th edition text revised 2000 (excerpt attached as Exhibit 2) (hereinafter DSM-IV-TR). For a significant portion of the time since the onset of the disturbance, one or more major areas of functioning such as work, interpersonal relationships, or self-care are markedly below the level achieved prior

to the onset. Id. In other words, there is noticeable social and/or occupational dysfunction. Characteristic symptoms of schizophrenia are divided into two categories, positive and negative. Exhibit 2 at 299. Positive symptoms appear to reflect an excess or distortion of normal functions, while negative symptoms appear to reflect a diminution or loss of normal functions. Id. Positive symptoms themselves fall into two categories: the psychotic dimension, which includes delusions and hallucinations, and the disorganization dimension. which includes disorganized speech and behavior. Id. Negative symptoms include restrictions in the range and intensity of emotional expression (affective flattening), in the fluency and productivity of thought and speech (alogia), and in the initiation of goal-directed behavior (avolition). Id. Delusions (Criterion A1), one of the positive symptoms of schizophrenia, are defined by the DSM-IV-TR as erroneous beliefs that usually involve a misinterpretation of perceptions or experiences. Exhibit 2 at 299. Delusional

content can include a variety of themes (e.g., persecutory, referential, somatic, religious, or grandiose). Id. Most common among these are persecutory delusions, in which a person believes he or she is being followed, poisoned, spied on, or conspired against. Id. Referential delusions, also common, occur when an

individual believes that certain gestures, comments, passages from books or periodicals, or other environmental cues are directed at him. Id. If a delusion is deemed bizarre, only this single symptom is needed to satisfy Criterion A for 7

Schizophrenia.

Id.

The DSM-IV-TR defines bizarre delusions as clearly

implausible and not understandable, andnot derive[d] from ordinary life experiences, such as a belief that ones thoughts are being taken away by an outside force (i.e., thought broadcasting). Id. Hallucinations (Criterion A2) may occur in any sensory modality (e.g., auditory, visual, olfactory, gustatory, and tactile), but auditory hallucinations are by far the most common. Exhibit 2 at 300. Auditory hallucinations are usually experienced as voices, whether familiar or unfamiliar, that are perceived as distinct from the persons own thoughts. Id. Hallucinations of two or more voices

conversing, or of voices maintaining a running commentary on the persons thoughts or behavior are considered especially characteristic of schizophrenia. Id. Arguably the single most important feature of Schizophrenia is disorganized thinking (formal thought disorder), frequently manifested by disorganized speech. For example, the person may slip off the track from one topic to another (derailment or loose associations); answers to questions may be obliquely related or completely unrelated (tangentiality); and, rarely, speech may be so severely disorganized that it is nearly incomprehensible and resembles receptive aphasia in its linguistic disorganization (incoherence or word salad). Id. Since mildly

disorganized speech is relatively common, such speech is considered to be a symptom of schizophrenia only when it substantially impairs effective

communication. Id.

The negative symptoms of Schizophrenia account for a substantial degree of the morbidity associated with the disorder. Exhibit 2 at 301. Affective flattening is especially common, and is characterized by the persons face appearing immobile and unresponsive, with poor eye contact and reduced body language. Id.

Individuals with affective flattening do show some degree of emotional engagement from time to time, such as smiling and laughter, but their overall range of emotional expressiveness will be diminished the majority of the time. Id. Other associated features of Schizophrenia include inappropriate affect such as smiling or laughing without appropriate stimulus, disturbances in sleep pattern, poor insight regarding ones own mental illness, refusal of food as a consequence of delusional beliefs, and difficulty in concentration, attention, and memory. Exhibit 2 304. The onset of schizophrenia generally occurs in the early- to late-twenties. Exhibit 1 at 17. The median age at onset for the first psychotic episode of

schizophrenia is in the early- to mid-twenties for men. Exhibit 2 at 308. It may be quite abrupt, or more gradual (insidious). Id. There are five different subtypes of Schizophrenia: Paranoid, Disorganized, Catatonic, Undifferentiated, and Residual. Id. at 303. Undifferentiated Type

Schizophrenia is characterized by the presence of symptoms that meet Criterion A of Schizophrenia but that do not meet criteria for Paranoid, Disorganized, or Catatonic Type. Id. at 316.

2.

Marcus Druery suffers from Undifferentiated Type Schizophrenia, with features of disorganized and paranoid subtypes.

On September 24, 2004, less than a year after arriving on death row, Mr. Druery was examined by mental health staff at the Polunsky Unit for depression and trouble sleeping; staff opined that Mr. Druery may benefit from psychotropic medication. Exhibit 3 at 16022 (excerpt of UTMB records). Just over a year later, in early January 2006, Mr. Druery began reporting that he was hearing things: [S]ometimes I feel like I hear thingsnoisesbellssometimes I feel people calling meno one there. Exhibit 3 at 17057 (Psychiatric Evaluation 1/12/2006) (ellipses in original). Mr. Druery stated that it began one and a half or two years prior. Id. When asked how it affects him, Mr. Druery responded, make me feel like Im losing itmy mindnot right. Id. at 17058 (ellipses in original). In March 2009, Mr. Druery suffered a psychotic break. Mr. Druery was

referred to Jester IV, the psychiatric unit of the Texas Department of Criminal Justice, on March 26, 2009, but due to a lack of space, he was not transferred until March 30, 2009. Exhibit 3 at 17010. On April 3, 2009, Jester IV staff noted that Mr. Druery exhibited as disorganized with poor ADL [activities of daily living]. Id. at 16858. Mr. Druery was hearing echoes in and out of his cell, believed

something [was] following him and hearing everything he [said]. Id. at 17010. He began to lose focus, and often failed to provide logical or coherent answers to questions. Once, when asked what he had eaten for breakfast, he responded, No, is it time for me to change cells with the guy next door? Id. at 16868. 10

Although he presented with auditory hallucinations, blunted affect, disorganized thought processes, and paranoid delusions, Jester IV psychiatric personnel failed to offer an Axis I diagnosis and decided not to prescribe psychotropic medication. Exhibit 3 at 16856-16857. Noting that Mr. Druery

himself had no interest in mh [mental health] treatment and requested to be discharged, psychiatric personnel released Mr. Druery back to the Polunsky Unit on April 7, 2009, one week after he had been admitted. Id. at 16860, 14157. Upon his return, Mr. Druery began filing numerous grievances with prison staff, protesting, among other things, that his food was poisoned and that he was hearing voices and following their commands (for which he believed he was being punished by prison staff): They arent showering me. I follow directions of the voices, then I get in trouble for following directions. Id. at 16991. Hearing voices again! Need something to help me sleep. My cell is echoing again. Id. at 17094.1 Beginning in March 2009, Mr. Druery, who previously had very few disciplinary infractions, began to accrue a slew of minor disciplinary write-ups. Consistent with his belief that the voices he hears tell him that if he jacks the food slot he will be set free (known clinically as command hallucinations), Mr. Druery began regularly putting his arm in the food tray slot, obstructing its use, and refusing to leave the recreation and visitation areas. Id. at 16863 (Pt contributes

The excerpts from Mr. Druerys writings are reproduced in this motion without correction to spelling or grammatical errors. 11
1

[sic] his behavior (i.e. jacking his slot, jacking the recreation space) to trying to get off the pod.); see also Exhibit 4 at 14029-33, 14035-43, 14045 (excerpt of TDCJ Classification and Records records) (various infractions for jacking the slot). Concerned with Mr. Druerys deteriorating mental condition, Mr. Druerys parents hired psychologist Kit Harrison to evaluate Mr. Druery in hopes that, with professional assistance, they might be able to secure psychiatric care for their son. Exhibit 5 at 13781 (Evaluation of Dr. Kit Harrison) ([Marcus Druerys] parents reported that they had noticed a significant deterioration in their son in the last number of weeks, confirmed by death row staff they additionally reported. The parents had requested an assessment of his current status.). On April 24, 2009, Mr. Druery was examined by Dr. Harrison. Id. Dr. Harrison concluded that Mr. Druery was suffering from bipolar disorder with psychotic features. Id. Dr.

Harrison noted that Mr. Druery had been hallucinating and was slightly delusional with paranoid ideation. Id. He recommended psychopharmaceutical intervention, including the use of an antipsychotic medication. Id. at 13782. Despite Dr.

Harrisons assessment, Mr. Druery was not put on any psychotropic medications for the treatment of his symptoms. Exhibit 3 at 16994-98. Mr. Druerys symptoms continued to worsen over the summer and early fall of 2009. On October 30, 2009, after Mr. Druery appeared confused to his federal habeas lawyer and prison security staff, TDCJ psychiatrist Nathan Pradan examined Mr. Druery and determined that he was indeed suffering from the onset of psychosis. Exhibit 6 at 14445 (excerpt of TDCJ Grievance records). Mr. Druery 12

told psychiatric personnel that he hear[d] people talking about him all day long, and had been hearing voices for months. Id. He believed that he had a 10-month sentence despite being on death row, and maintained that he followed the directives of the voices. Exhibit 3 at 16397. Of his voices, Marcus stated: They say insipidusThat is a codename or catch phraseI ask themwhatever sense it was. Id. (ellipses in original). TDCJ mental health staff described Mr. Druerys speech as disorganized with looseness of association and illogical, and determined that he required inpatient treatment at Jester IV. Id. Mr. Druery signed a refusal, but was

nonetheless transferred on or about November 4, 2009. Exhibit 3 at 16391, 16394. Upon arriving at Jester IV, Mr. Druery reported that he had instruction problems with people at his unit he would get instructions from voices telling him to jack the slot, go to certain cell, etc. Exhibit 3 at 16841. He felt that people around him were talking about him and constantly asking him questions, and heard voices calling his name. Id. Jester IV medical staff noted that Mr. Druery had been psychotic and had poor insight. Id. at 16832. His thoughts were illogical and disorganized. Id. Staff noted that his psychiatric condition had deteriorated and he is suffering because of his current metal [sic] condition. Id. He was diagnosed with an Axis I diagnosis of Schizophrenia, undifferentiated type, and was retained on an involuntary basis for inpatient care. Id. On November 4, 2009, at 5:30pm, Jester IV psychiatrist Jamal Rafique noted that Mr. Druery was suffering from auditory hallucinations, entered an Axis I 13

diagnosis of Schizophrenia, paranoid type, and prescribed Risperidone. Exhibit 3 at 16846. On November 9, 2009, Jester IV staff noted that Mr. Druery was experiencing psychotic ideations, including that he believed he had a one month sentence. Exhibit 3 at 16830. Personnel noted a summary of their findings: [Mr. Druery] appeared confused by what he described as instructions apparently coming from various sources including the intercom. He stated that he wondered if he should jack the shower when he got instructions this morning. Id. at 16836. Staff noted that Mr. Druery did not appear to be exaggerating his symptoms for secondary gain and recommended that he be considered for inclusion in the Partial Remission Program with follow-up and medication management by outpatient mental health staff. Id. Mr. Druerys symptoms of psychosis became more pronounced in the following days. On November 18, 2009, Mr. Druery reported: I have not been taking my medications because I dont think that I need them. I dont have any psychiatric illness.I do not know why they had sent me here from Polunsky unit. I think someone was filing a suit against me.I want to go back to Brazos. That is where Im from and where my family is. Id. at 16790. Staff noted that Mr. Druerys mood was dysphoric and his affect constricted. Id. They noted the possibility of paranoid delusions. Id. On December 7, 2009, Mr. Druery was subject to a disciplinary write-up for failing to leave the visitation area when instructed. Id. at 16754. When asked the 14

reason, Mr. Druery explained about his having received a ten month sentence or a ten year sentence. Id. I just wanted to go home for Christmas, he said. Id. The clinician noted that Mr. Druerys comments did not support the reality of his situationon death row.apparently he did not comprehend the reasons why he was restricted. Id. She noted that he had disorganized thoughts, was

delusional, and unable to follow the rational [sic] behind security restrictions. Id. During December 2009, Mr. Druery began referring to something he termed options, although exactly what they are is unclear. See, e.g., Exhibit 3 at 17249. On December 23, 2009, the record noted that: [Mr. Druery] comments that he receives instructions to solidify his options. His attempts to explain his experiences were vague and confusing. He indicates that these instructions are sometimes to jack his cuffs and to go to the rec yard. It aint going on in my head he replies to further inquiry related to these instructions.Im supposed to force my county to come get me. Id. at 16727. While jacking his food slot, Mr. Druery protested that he was only trying to get the attention of his father so as to somehow obtain these options: What? I can hear you from here. I got the bean slot jacked because Im waiting on my options. Its my dad that are the options. No I dont want to hurt myself. Id. at 17220. Throughout the month of January, Mr. Druerys concern over his options was well-documented. 15

On January 7, 2010: [A]sked how he was doing, patient stated not okay cuz Im not at home yet. Exhibit 3 at 17219. On January 15, 2010, following a write-up for jacking the shower: They havent given me my options yet. Im waiting to go to the Hamilton unit. Whenever they get it right and give me my opitions [sic]. Id. at 17208. On January 21, 2010, when asked how he was: Its not going so good. Im still waiting on my options. My options is to go back to East Harris County were [sic] Im from. I think Im suppose [sic] to be going today but Im not for sure. They havent told me yet if I will be going today. Id. at 17199. On January 30, 2010, during rounds, Mr. Druery stated: Its not going. I dont know what the deal is. Im just waiting. Im suppose [sic] to be getting out. I dont know the results of the opitions [sic]. Id. at 17186. On February 6, 2010, Mr. Druery reported that he was unable to obtain a shower for several days and denied that he had in fact refused to shower. Id. at 16718. His actions were based on frustrations about this: Im just trying to get back to Harris County. Id. Mental health staff noted that Mr. Druerys thought content was delusional, that his affect was constricted and that his thought processes were goal directed but illogical. Id. 16

On February 25, 2010, mental health staff noted that Mr. Druery remained reluctant to speak with the clinician. Exhibit 3 at 16718. He states that he is just wanting to talk to his county about his options. Then he mentioned that he might be getting married. When asked if he has a fiance, he remarked, You never know. Id. at 16718. Mr. Druery was found to be illogical, and appeared delusional about some legal process he labels options. Id. His affect was constricted and he was distrustful. Id. On March 1, 2010, during a follow-up psychiatric evaluation, Mr. Druery stated: I was given option to go home while I was in Brazos county jail. I do not take any meds as I do not have any mental illness. Id. at 16707. Mr. Druerys diagnosisschizophrenia, paranoid typewas reaffirmed and he was encouraged to adhere with prescribed medications (i.e., Risperidone). Id. at 16705, 16711. On March 3, 2010, mental health staff noted: The pt made statements related to his options. He seemed to be admitting that he possibly should not rebel against folks because they are not helping. When asked who they were who were preventing him from gaining his options, he was vague and his response did not make sense. He wondered about why he is not getting commissary and was informed that since he has incurred several cases, he most likely has some sort of restrictions ag. him. He seemed unaware of what this writer was talking about exactly. Id. at 16704. Mr. Druery was found to be illogical and disorganized, as well as easily confused. Id. He was found to lack insight into his mental illness and his need to comply with the treatment. Id.

17

On March 13, 2010, during rounds, Mr. Druery stated that he believed the assistant district attorney on his case was responsible for holding him hostage: Im being held hostage. By who, I think his name is Jarvis [Parsons]. He is from my home time [sic] and he is acting like he dont know what happen. Exhibit 3 at 17174. Mr. Druery continued to stay focused on obtaining a transfer to the county. Id. at 16702. On March 19, 2010, he reported that he had

attempted to obtain release from Jester IV by misbehaving, and that Mr. Druery was confused about why it was not effective. Id. Mr. Druery

presented with disorganized thoughts, was confused, and lack[ed] insight into his problems. Id. He was encouraged to take the psychotropic medicine prescribed. Id. On April 1, 2010, Mr. Druery stated that he believed that his food was being contaminated with human waste: They are putting something in my food. It smells like human feces.You see there is urine in it. Id. at 16699. Mr. Druery was found to be dysphoric, have a constricted affect and paranoid ideations. Id. On April 22, 2010, Mr. Druery requested a sick call: I have spider in my throat. What you going to do about it? Id. at 17172. Mr. Druery was informed that the nurse was unable to see the spider in his throat. Id.

18

On May 10, 2010, Mr. Druery was seen for functional level review. Staff observed that Mr. Druery has been given cases recently for refusing to leave the visitation areas. Exhibit 3 at 16693. He was warned that he might loose [sic] this privilege should he persist in his quest to force staff to assist him in gaining freeworld legal assistance. Id. Mr. Druery was found to be psychotic and to have no insight into his illness. Id. Staff wrote, The patient remains focused on his freeworld legal entitlements that he thinks are his due. Id. It was further noted that Mr. Druerys psychosis interferes with his ability to function appropriately. Id. On May 24, 2010, Mr. Druery asked, What are your instruction [sic] to get conjugal tonight? What Im saying is you hear something different from me. He was found to have illogical thought processes and

Exhibit 3 at 16880.

delusional thought content with possible auditory hallucinations. Id. On May 25, 2010, Jester IV mental health personnel noted that Mr. Druerys cell was dark and littered with newspapers, magazines and clothing. Id. at 16669. He could not identify the day. Id. Mr. Druery was uncooperative because he believed he was being held at Jester IV and not taken where he need[ed] to go to remain safe: They tell me to go to county and to Estelle. Why did they not establish me to move to that option? I cant explain it. Someone is trying to assassinate me. Id.

19

The following day, on May 26, 2010, Mr. Druery was discharged from Jester IV (though he was not actually transferred back to the Polunsky Unit until June 2, 2010). Exhibit 3 at 16650, 14166. Medical staff opined that his condition was

stabilizing. Id. at 16648. On May 28, 2010, Mr. Druery was found sitting on a mattress on the floor by his door with his right arm hanging out of the food slot. responded to questioning: I cant do that. I cant let them close it. Im jacking because I cant get my options yet. They are playing games with me and holding me here and want [sic] let me out to go home. Im not suppose [sic] to be locked up anyway. No, I want [sic] let them close it. Id. at 17173. On July 25, 2010, Mr. Druery wrote the following grievance: I have a most serious problem. I want a most serious suit because of the fact that I should not have to jack a bean slot and suffer any more pain, suffering or punishment just to gain my freedom or option to go to the free world or receive my time. I am doubly innocent of all charges I was accused of. Its been proven over and over. My life is in continual danger daily every hour of the day and yet I recieve no help whatsoever. Ive had several chances to go to the free worlds during this whole situation and held my arm in the bean slot hundreds of times and only received a lot of cuts, scrapes and abrasions from having my arm slammed in the same slot I was told to jack. And then denied medical attention and or even pictures of said injuries. I went through the same thing on Jester 4. During this whole fiasco [illegible] I was ordered by TDC personnel and others to stay at the table during my visit room keys and stayed there several times over and over and only recieved several people forcing me back to a cell when I had several chances and options to be free or go to another county jail or unit for a very short period of time and yet havent went anywhere. My life is important and I plead that this situation be taken way more seriously because it has been duely reported that there are several people gang related or not waiting for me to be unwired. I was never 20 Id. at 17173. He

supposed to be wired in the first place and especially for this long and yet have to continually recycle through several options and settlements and people because of the way this is set up. I cannot choose a certain person because of the way my case went and that is why I continually ask to go with my family to Brazos County and live there in a house with my own money asap. I need my freedom period!!! It is detrimentally harmful to my life and the lives of others to keep me in prison during this situation. TDC couldve released me themselves several times over and ever more so couldve allowed Brazos county jail pick me up but yet denied them coming when they tried to. Send me to my innocence asap because they keep trying to keep me in prison and know Im innocent either way and was never suppose to have come to prison. Ive lost 8 years of my life for no reason. Please see to it I recieve my freedom and be unwired at the same time with pay please (especially pain & suffering in here plus)! Thank You! I was convicted w/o cause or evidence of the death of Skyler Brown in 2003 and has since been proven innocent several times over [illegible] or continually ask or question people who were not there themselves. Ive never been convicted of a felony anywhere in America before and need to be released asap because theres nothing to charge me with. Please see my freedom. Ask for David Schulman, Jarvis Parsons, Bill Turner or any atty [illegible] familiar w/ my case. Exhibit 6 at 14385-14386. On August 15, 2010, in complaining of back pain, Mr. Druery insisted that his body had been supposedly silently tampered with. Exhibit 3 at 17375. Mr. Druery continued to suffer from delusions regarding what he believed was his unlawful confinement. When requesting rheumatism stockings at the Polunsky Unit on September 5, 2010, he signed off with the added request: And FREEDOM to! Id. at 17369. On September 7, 2010, Mr. Druery wrote a grievance: I was wired in 2008already known Ive been held even after countless options were granted and there [illegible] no reason to keep me in prison. The statements made by others & myself need to be 21

turned over to my Atty. & a Judge w/ prior knowledge of my case. (Especially all [illegible] pertaining to my case) My case has been overly investigated & was ruled on several times & thrown out several times & yet I havent been released as of late. My case needs to be speedily appealed based on that; asap, because Im continually held for no reason in a cell w/ wires in it where everything I say & do can be heard & everything I say recorded ([illegible] others around me) It is very dangerous to be in a any prison wired up like that. There have been countless injuries sustained to myself because of this whole situation. My freedom NEEDS to be more IMMEDIATELY IMMEDIATE!!! Exhibit 6 at 14420. On September 14, 2010, Marcus wrote a grievance explaining that he was instructed to jack the slot for his freedom: I was placed on extended cuffs & not double cuffs (which was larger) after my hand was injured in slot I was told to jack for my freedom (Federal 8 hour sentence). It was okd for me to wear them and then they took me back to Polunsky and Polunsky unit was simply supposed to be housing because I was never supposed to have went back. I was sent back after saying I had help and a lil more safety over here than over there because I kept getting hit up and injured over and over on J4. Ive spoken to several ranking officials over last two weeks about it and they simply said they werent needed but never took it off paper work. Id. at 14418. In October of 2010 he began to refuse breakfast routinely due to his suspicions that his food was contaminated. See, e.g., Exhibit 3 at 17143; Exhibit 4 at 14018-14020. On November 11, 2010, he wrote in a sick call request: I need new freedom option thru medical like I had B4 but hardly received!!! If not can you produce an old option??? Exhibit 3 at 17364. 22

Mr. Druery further complained: I had a few options to go to Freedom or short sentence or parole base on back time (8 years) through medical several times before. What happened to these options? Am I still eligible for them? I was told to stay in a chair even during a mental health Dr.s visit on video and wasnt allowed to stay because officers forced me back regardless. Even during an II Bldg visit when I couldve went to another part of this unit or transport but went through the same things. Forced back when told to stay for certain options. Can you please tell me what they were and where they went? Exhibit 3 at 17365. Mr. Druery requested a sick call on November 16, 2010, based on a fear of food contamination: Need to be taken off diet trays because these people get me into it and some may get hit Id. at 17366. On November 18, 2010, seen cell-side by mental health staff at the Polunsky Unit, Mr. Druery explained his delusional belief that he had been offered an option through the television: I SAW DR. ON TV WHOME HAD ME FREE OR ON PAROLE AND TRANSPORTED BUT DIDNT RECEIVE HIS OPTION DUE 2 BEING FORCED FROM CHAIR BY OFFICERS. MAY I RECEIVE OPTION W/O CHAIR B/C IT CAN ONLY GET ME Id. at 17365. On November 19, 2010, Mr. Druery put in a sick call request, stating the reason for the appointment:

23

Im losing it b/c Im wired in prison w/o options after I had 40 options to go based on my life & case & now they claim I dont have any options but fail 2 unwire me! Exhibit 3 at 17092. On his sick call request, Mr. Druery listed the number of days that he has had the problem as since I 1st got wired till now! Id. On December 3, 2010, Mr. Druery wrote to the United States District Court for the Southern District of Texas, claiming he had been wired since 2008: Ive been wired for over 2 years and as you will see enclosed it is senseless to keep me wired without freedom coming about. As soon as possible! This is a very very dangerous situation that is occurring in here and has been occurring and has also put people in the world in danger several times also and it needs to come to an end. My case had a new trial once before right about the time I became wired in 2008. Since then Ive been turned on on every unit in texas supposedly and theyve wired me in other units. Just being wired in prison creates and breeds serious danger. Ive had several rulings upon my case and officers and TDC officials such as rank have been allowed to force me back from complete freedom several times over. Even from legal visits as they were termed because they were able to call them out during visits. (Options and settlements ect) Exhibit 7 at 12602 (Letter from Marcus Druery to the US District Court). On December 6, 2010, Mr. Druery wrote in a sick call request: Im not supposed to be in prison after all these freedom options I had! Theyre trying to take my freedom but leave me wired. My $ to ! Free me asap. Exhibit 3 at 17091. Over the next year Mr. Druery would continue to refuse food and repeatedly request to be taken off the diet tray, claiming various kinds of contamination: I had actual leaves on my tray! May I have a real copy of the refusal slip I signed. I continually get mis-fed! No more diet trays please! 24

Exhibit 3 at 17360 (Sick Call Request 12/7/2010). By the end of January 2011, the lack of improvement in Mr. Druerys mental state prompted TDCJ medical personnel to transfer Mr. Druery to Jester IV for the third time in two years: The patient was transferred to Jester 4 per attending DMS psychiatrist. The patient has refused his psychiatrists appointment 4 times and has not been seen in over a year. His medication compliance is 23%. The psychiatrist recommended transfer to an inpatient facility for initiation of Risperdal injection. . The patient is not sure why he is here, he doesnt believe he has any mental problems.He said he did not know which attorney is working on his case, he had options on his case. Asked if he was on death row, he said he was not sure. He says he is not supposed to be on death row, he was found innocence, they threw out his case but did not release him. There are people trying to bring it back. He also received a settlement, he is supposed to get a hundred thousand something a month and a luxury car but evidently there are people interfering with this. He has never taken any other antipsychotic. Id. at 16359-16360. The clinician noted that Mr. Druerys appearance was mildly blunted, that his thought processes were delusional, and that his thought content contained paranoid delusions. Id. Mr. Druerys insight and judgment were impaired. Id. Mr. Druerys delusions of contaminated food, wiring of his cell and body, attacks by guards and fellow prisoners, and his legal entitlement to freedom were crystallized in his February 4, 2011, examination, which ultimately culminated in a new diagnosis (of undifferentiated schizophrenia) and a new prescription of Haloperidol (Haldol): 25

I feel so so. I am lied for my release. DA and Judge gave me options. Security staff gave me options while I am in TDCJ. I do not enjoy my stay in TDCJ. I had several events at Unit. I was stuck in cell that was wired so that every one can listen to what I say. They refused to unwire me from speakers. I was hooked up to speakers system. I do not know who did it when, where and why. I thought I was supposed to go back to world. I know danger was coming from other inmates, and officers at unit of assignment, as they were trying to attack me with razor blades from last two years. In 2009, I was stabbed and cut with razor.My food was mixed with feces, urine and insects. Exhibit 3 at 16572. Mr. Druery was put on a partial remission psychotic treatment track the following day. Mental health personnel described his thought content as delusional, paranoid: I dont know why Im here. The officers did not want to move me to county jail. They broadcast my files on Polunsky Im not supposed to be a Death Row Inmate. Id. at 16878-16879. Occasionally, Mr. Druery complained of non-existent medical conditions. For example, on February 21, 2011, he wrote: I NEED SOME OF THAT TRIPLE ANTIBIOTIC OINTMENT TO PUT UNDER MY ARMS. I GOT SOME ON YESTERDAY. I CUT MYSELF UNDER THE ARMS WITH A STAPLE THAT WAS IN MY SHORTS WHEN I WAS WASHING MY UNDERARMS WITH MY SHORTS. IT WAS A STAPLE IN THE SHORTS AND IT CUT ME. I HAVE CUTS UNDER MY ARMS. WHY CANT I JUST GET SOME OF THAT TRIPLE ANTIBIOTIC OINTMENT ANYWAY? ITS JUST OINTMENT AND ITS NOT LIKE IM ASKING FOR A LOT. Nurse noted that skin under arms was intact. Id. at 17123. In a grievance dated February 22, 2011, Mr. Druery wrote: 26

One officer plainly stated to the next: This is why Im trying to keep him off commissary and hit him up! That means the officers are intentionally trying to do me harm and a tray can be hit with any number of things. Please see to it that I make commissary asap before Im fed something that does lasting harm or causes death. Exhibit 6 at 14422. On March 29, 2011, due in large part to Mr. Druerys lack of compliance and failure to progress, Jester IV staff concluded that he had received maximum benefit from treatment and discharged him from the inpatient program: Patient received psychiatric and psychosocial assessment from Diagnostic and Evaluation Team of Mental Health Services at Jester IV. He was assessed as having Schizophrenia, Undifferentiated Type on Axis I.He was involved with acute care/PRP/CCP treatment track in accordance with Mental Health Inpatient Program from 2.03.2011 through 3.29.2011. Staff identified this patient as experiencing psychotic, delusional symptoms. Along with psychosocial treatment the patient was prescribed psychotropics to include Risperdal for psychosis.Patient had no significant side effects, he rarely took medication. He did not meet criteria for compelled medication. Exhibit 3 at 16464-16468 (emphasis in original). On April 21, 2011, Mr. Druery filed a complaint regarding the confiscation of his magazines: My Poder magazine Oct/Nov issue was taken and it is not easily replaceable. It had investigations into my case in it and spoke on certain

settlements. Exhibit 6 at 14424. On April 20, 2012, prison medical staff received a call from Major McMullen, stating offender Marcus Druery is sending in some pretty crazy I-60s [grievance forms] and asked if someone from the mental health department could follow up with him on Monday April 23rd. Exhibit 3 at 18204. 27

On May 26, 2012, Mr. Druery included the following in his request for a dental appointment: On my case I was attacked several times by the deceased on my case and I had multiple gold teeth with jewels in them and they were knocked out. I had 6 to 8 gold bejeweled teeth and now only have two. That should be super easy to prove. Your help would be greatly appreciated. Even on the two I have its missing the enamel in the letteringp.s. That should get me a stay of execution b/c at trial they stated I was never attacked. Exhibit 3 at 18147. B. Marcus Druerys psychotic condition renders him unable to rationally understand the reason for his impending execution. On May 14 and 15, 2012, Dr. Diane Mosnik, a neuropsychologist specializing in schizophrenia, conducted a clinical interview and neuropsychological/

psychological assessment of Mr. Druery at the Polunsky Unit of the Texas Department of Criminal Justice. diagnoistic psychiatric interview, Exhibit 1 at 2. Dr. Mosnik In addition to the clinical administered the following

standardized tests: 1. 2. 3. 4. 5. 6. 7. 8. 9. WRAT-IV Reading test to estimate premorbid verbal ability Wechsler Adult Intelligence Scale-IV edition Wechsler Memory Scale-Revised version Logical Memory Stories and Visual Reproduction subtests Rey-Osterreith Complex Figure Copy Test Controlled Oral Word Association with Lexical and Semantic Fluency Trail Making Test A & B Wisconsin Card Sorting Test Tower of London Brief Psychiatric Rating Scale (BPRS) 28

10. 11. 12. Id.

Scale for the Assessment of Positive Symptoms Scale for the Assessment of Negative Symptoms M-FAST Interview

Additionally, Dr. Mosnik reviewed hundreds of pages of medical, school, and prison records, as well as letters from Mr. Druery, and previous psychiatric and psychological evaluations. Id. at 1-2. The results of Dr. Mosniks cognitive testing and clinical examination of Mr. Druery revealed: Mr. Druerys overall level of general intellectual functioning was assessed and fell in the low average range. His performance on cognitive testing revealed impaired executive functions, impaired attention/working memory, impaired visual construction, and impaired delayed free recall for verbal information, in the context of intact visual perceptual skills and learning and memory for visual information. The pattern and severity of these cognitive impairments would be consistent with those deficits often exhibited by patients diagnosed with schizophrenia and well-documented in the scientific literature. Moreover, the results do not provide any evidence to support a diagnosis of malingering. Mr. Druery refuses mental health visits and is noncompliant with prescribed antipsychotic medications because he does not believe that he has a mental illness. Id. at 19. The results of the Psychiatric Rating Scalesthe BPRS and the

SAPS/SANSrevealed the presence of both positive and negative psychotic symptoms, including the presence of formal thought disorder. Id. Specifically: Mr. Druery exhibited at least moderately severe delusional thinking characterized by persecutory delusions, as well as what appear to be somatic delusions and delusions of reference and thought broadcasting. Although he did not endorse the experience of auditory hallucinations 29

Id.

directly, his descriptions of his experiences relating to his delusional beliefs that he is wired to speakers, includes the experience of people listening and talking to him, as well as him responding to them; suggesting the presence of auditory hallucinations that he attributes to real environmentally produced auditory stimulation rather than hallucinations. In regards to formal thought disorder, he evidenced tangentiality, illogicality, and a loosening of associations, as well as occasional derailment. In regards to the negative syndrome, he evidenced marked unchanging intensity of facial expressiveness, affective nonresponsivity, decreased spontaneous movements, anhedonia, apathy, and poverty of content of speech, with an overall rating of severe affective flattening. Mr. Druery also exhibited emotional withdrawal, conceptual disorganization, and pervasive suspiciousness. He did not exhibit or endorse the experience of tension, anxiety, depression, mania, or excitement. Based on the testing results, her thorough record review, as well as her direct

clinical examination of Mr. Druery, Dr. Mosnik was able to conclude that Mr. Druery fulfills the criteria for a diagnosis of Schizophrenia, with features of both paranoid and undifferentiated subtypes. found: Mr. Druery suffers from a severe, active psychotic condition, meeting criteria for a clinical diagnosis of schizophrenia, undifferentiated with features of paranoid and disorganized subtypes, beginning sometime in his mid- to late-twenties (consistent with the typical age of onset for schizophrenia). It is further evident that Mr. Druery does not now at this time have an understanding of his own mental state or an appreciation of his experiences as symptoms of a mental illness. In addition, the evidence presented above supports the finding that Mr. Druery has no insight into his mental status and a limited understanding or appreciation of his actual current legal situation. Individuals who are seriously mentally ill, such as Mr. Druery, retain the mental capacity for factual knowledge and some ability to remember (depending on the degree of any possible memory 30 Id. at 19, 20. More specifically, she

impairment) and relate what we would identify as facts regarding a specific event, although their memory of an event and their subsequent interpretation of the event can be altered or influenced by their mental illness. In this case specifically, the facts as related by Mr. Druery are intricately and inextricably interwoven with his fixed and rigid delusional system. As such, the facts of the case as presented by Mr. Druery, in comparison to the facts of the case obtained from other records, are severely distorted and, at this time, Mr. Druery does not recognize or rationally understand what the true facts of the case are and what they imply in regards to his current legal defense. It has been clearly documented throughout the records that Mr. Druery sees no other applicable legal posture apart from his delusional beliefs supporting his innocence. Id. at 20. With regards to assessing Mr. Druerys execution competency, Dr. Mosnik was asked to consider the following questions: 1. 2. Does Mr. Druery suffer from a severe mental illness? If so, does Mr. Druerys mental illness interfere with his ability to rationally understand the world around him (i.e., perceiving accurately, interpreting, and/or responding appropriately to the world around him)? If so, does Mr. Druerys mental illness deprive him of a rational understanding of the connection between his crime and punishment?

3.

Dr. Mosnik found that Mr. Druery suffers from a severe mental illness that does in fact interfere with his ability to rationally understand the world around him: This examiner finds that the defendant, Mr. Druery, does currently suffer from a severe mental illness, namely schizophreniaa psychotic disorder, and that this severe mental illness and the resultant symptoms of the mental illness (e.g., delusions, ideas of reference, thought broadcasting, and auditory hallucinations, among others), interfere with his ability to accurately interpret, perceive, and respond to the world around him. 31

Id. at 21-22.

She ultimately concluded that [t]he severity and nature of the

mental illness also deprive [Mr. Druery] of a rational understanding of the connection between his crime and punishment. Id. at 22. She explained: I opine with confidence that Mr. Druerys delusional ideas pervade and distort his understanding of his current legal situation and his present circumstances. Because of his inflexible, psychotic, and delusional interpretation of his circumstances, Mr. Druery does not have the capacity to rationally understand the connection between his crime and his punishment. It is the opinion of this examiner that Mr. Druery is rigid, illogical, and perseverative about his ideas. A review of Mr. Druerys mental health records indicates a progressive deterioration in his thought processes and overall level of mental and cognitive functioning. Scientific literature has indicated that the longer an individual diagnosed with psychosis or schizophrenia goes untreated, the more refractory to treatment the disorder will be, with significantly less hope for recovery as time goes on. Id. at 21. In other words, Mr. Druerys delusional system is so severely rigid and fixed, and has become so intricately and inextricably interwoven with the facts of his case, that Mr. Druery lacks the capacity to rationally understand why he is being punished. Dr. Mosnik explained, Although [Mr. Druery] has a factual

awareness than an execution date has been scheduled for the crime for which he was tried, he does not believe that he will be executed because of his illogical, fixed, and firmly held delusional belief system. Id. at 22. PRAYER FOR RELIEF Mr. Druery has made a substantial showing of incompetency that triggers the statutory protections of Article 46.05 and the procedural due process guarantees of Ford and Panetti. Accordingly, Mr. Druery asks that the Court:

32

1. 2.

Find that he has made a substantial showing of incompetency; Withdraw the execution date and refrain from setting a new one unless and until the Court finds, after holding an evidentiary hearing on the merits, that he is not incompetent; After reviewing recommendations from both parties, appoint at least two independent experts to review the pertinent records, interview collateral witnesses, evaluate him, and submit written reports; Order the State to videotape the evaluations conducted by the courtappointed experts; Allow counsel to attend the evaluations conducted by the courtappointed experts; Order the court-appointed experts to abide by the professional guidelines for execution competency evaluations set out in a motion filed simultaneously with this one; Order the court-appointed experts to apply the definition of rational understanding set out in a motion filed simultaneously with this one; Grant Mr. Druery adequate funding to retain an investigator who can identify and interview the most important collateral witnesses; Provide Mr. Druery copies at county expense of the TDCJ medical records currently in the possession of the District Clerk; Order the District Clerk to seal from public view the exhibits attached to this motion; Hold a final competency hearing, as required by Article 46.05(k), on a date to be announced by the Court after the parties have had a meaningful opportunity to develop their evidence and prepare for the hearing; Find that Mr. Druery is presently incompetent to be executed under the Eighth and Fourteenth Amendments; and Grant such other relief as law and justice require.

3.

4. 5. 6.

7. 8. 9. 10. 11.

12. 13.

33

A proposed order is attached for the Courts convenience. Respectfully submitted,

______________________________ Katherine C. Black Texas Bar No. 24064907 TEXAS DEFENDER SERVICE 1927 Blodgett Street Houston, Texas 77004 (713) 222-7788 (713) 222-0260 (f) kateblack@texasdefender.org Gregory W. Wiercioch Texas Bar No. 00791925 TEXAS DEFENDER SERVICE 430 Jersey Street San Francisco, California 94114 (832) 741-6203 (713) 222-0260 (f) gwooch@texasdefender.org

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was delivered by hand to Douglas Howell, Brazos District Attorney, 300 East 26th Street, Bryan, Texas 77803, on this 11th day of July, 2012.

______________________________ Katherine C. Black

34

CAUSE NO. 03-00001-CRF-85 THE STATE OF TEXAS, Plaintiff, vs. MARCUS DRUERY, Defendant. ORDER Having duly considered Defendant Marcus Druerys Motion to Determine Execution Competency under Article 46.05, the Court hereby: 1. 2. 3. Finds that Mr. Druery has made a substantial showing of incompetency; Withdraws the execution date; Orders the appointment of two independent experts to review the pertinent records, interview collateral witnesses, evaluate Mr. Druery, and submit written reports to counsel for both parties; Orders the State to videotape the evaluations conducted by the courtappointed experts; Orders the State to allow counsel for both parties to attend the evaluations conducted by court-appointed experts; Orders the court-appointed experts to abide by the professional guidelines for execution competency evaluations set out in Defendants accompanying motion; Orders the court-appointed experts to apply the definition of rational understanding set out in Defendants accompanying motion; Grants Defendants motion for funding to retain an investigator; IN THE 85th DISTRICT COURT OF BRAZOS COUNTY, TEXAS

4. 5. 6.

7. 8.

9. 10. 11.

Orders that Mr. Druery be provided copies at county expense of the TDCJ medical records currently in the possession of the District Clerk; Orders the District Clerk to seal from public view the exhibits attached to this motion; and Orders the setting of a final competency hearing, as required by Article 46.05(k), at a date to be announced after the parties have had a meaningful opportunity to develop their evidence and prepare for the hearing. day of July, 2012.

SIGNED on this

______________________________ Hon. J.D. Langley Presiding Judge