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Wednesday, September 16, 2009

Ind. Courts - Briefs for upcoming argument in Thomas v. FSSA

Here are the briefs for the upcoming oral argument in Thomas v. FSSA, set for 5:00 PM at the Wynne Courtroom at IU-Indy Law next Wednesday, Sept. 23rd.

Gavin Rose, who has furnished the briefs, notes: "The State’s brief is scanned upside down because the binding holes kept getting jammed in the scanner when I tried to run it through right-side-up." (ILB: I was able to OCR it; the rest of the documents were in Word format.) Rose adds: "Please also note that the first footnote in the reply brief has been redacted. The public-access motion seeking leave to file that footnote under seal is also attached."

Many thanks for making these documents available.

Statement of the issues from Appellants' brief:

1. Whether the trial court erred in determining that this case is not ripe for review, given that the agency policy presently at issue, wherein all criminal defendants in Indiana who are adjudicated to possess insufficient comprehension to stand trial pursuant to Indiana Code § 35‐36‐3‐1, et seq., are automatically and indefinitely placed in the restrictive environs of a state institution operated by the Division of Mental Health and Addiction for the provision of “competency restoration services,” has undisputedly been applied to the appellants and given that release planning and consideration for alternative placements is something that must be undertaken—and is undertaken for all other patients—beginning at the very outset of a patient’s institutionalization.

2. Whether the trial court erred in determining that it was prohibited from reaching the merits of the appellants’ claims by the separation‐of‐powers doctrine encapsulated in Article 3, Section 1 of the Indiana Constitution.

3. Whether the agency policy presently at issue—which is applied to incompetent criminal defendants regardless of the needs of the particular patient, regardless of the severity of the offense with which he or she has been charged, and regardless of the likelihood that the patient may ultimately gain competency — violates Indiana law and the Fourteenth Amendment to the United States Constitution.

Posted by Marcia Oddi on September 16, 2009 01:37 PM
Posted to Upcoming Oral Arguments