MOTION FOR STAY

IN THE COURT OF COMMON PLEAS OF ROSS COUNTY, OHIO

Judge HOLZAPFEL
STATE OF OHIO, )
Plaintiff/Appellee, Trial Court Case No. 09 CR00393

Ct. Appeals Case No. 14CA-3471
-vs- )
MOTION FOR STAY
JOHN J. ROHRER,
Defendant/Appellant. )

Defendant appellant John Rohrer, by and through his attorney, David L. Kastner, hereby moves the court for an Order staying further enforcement of any and all purported orders of psychiatric hospital confinement, pending the resolution of the appeal herein, and waiving any requirement that said John Rohrer post a supersedeas bond.

WHEREFORE, John prays that this court make a ruling in this regard with due dispatch so that the issue might, if necessary, be revisited with the Court of Appeals without undue delay.
__________________________
David L. Kastner (#0078355)
Attorney for Defendant/Appellant
3434 North Drive
Beavercreek, Ohio 45432
937-477-8394
dlkastner@sbcglobal.net
MEMORANDUM IN SUPPORT
OF MOTION FOR STAY

I.BACKGROUND

John Rohrer, the defendant/appellant in this case, was charged with and pled Not Guilty by Reason of Insanity [NGRI] on January 25, 2010 to the September 1, 2009 felonious assault on another man who had previously attacked him, said assault having occurred while John was under the influence of psychotropic drugs known to cause violence [9/25/14 Ts. p. 19, 34] and while still bleeding from an attack by a third man. John was allowed to stop taking the notorious SSRI drugs in 2010.

A review of the January 25, 2010 transcript attached reveals that following a not guilty by reason of insanity (NGRI) plea, the trial court matter of State v. Rohrer underwent a transformation from being a criminal case to becoming a mental health commitment proceeding under Ohio Rev. Code Sec. 2945.40. Sec. 2945.40 is very clear that hospital commitment following an NGRI plea, or even the existence of continuing jurisdiction in the trial court to order some lesser disposition of the case, is far from automatic. In order for the post-NGRI trial judge to act further, the State must first present clear and convincing evidence proving that the NGRI acquitee at the time of the commitment hearing is “mentally ill” and “subject to hospitalization by court order” within the meaning of Ohio Rev. Code Sec. 5122.01(A) and (B). There is no presumption whatsoever of mental illness from the fact that the NGRI acquitee has just pled NGRI as to a charged criminal act. Baxtrom v. Herold, 383 U.S. 107 (1966)); Bolton v. Harris, 395 F2d 642 (D.C. Cir. 1968) (also relying on Baxtrom, the circuit court found that “[t]he plea [of NGRI] is neither an express nor implied admission of present illness, and acquittal rests only on a reasonable doubt of past sanity, i. e., at the time of the offense.”)

Notwithstanding the requirements of due process and Ohio Rev. Code Sec. 2945.40, the January 25, 2010 trial judge failed to admit any evidence at all during what might have otherwise been a Sec. 2945.40 commitment hearing. As will be argued in greater detail in the appeal brief, no subject matter jurisdiction ever attached because there was not the slightest semblance of compliance with Ohio Rev. Code Sec. 2945.40 or the constitutional due process requirements for commitment hearings set out in Addington v. Texas, 441 U.S. 418 (1979). The codification of how subject matter jurisdiction is lost is set out in Ohio Rev. Code Sec. 2945.40(B), which defines it as occurring ten (10) days following the denial of the statutorily and constitutionally required Sed. 2945.40 hearing. Absence of subject matter jurisdiction may be raised at any time. Its absence was first discovered upon the February, 2014 preparation of the January, 2010 transcript but was never fully considered in the 2014 trial court. It is being raised now in the Fourth District Court of Appeals. It is expected that the resolution of that issue would be dispositive of this appeal in defendant-appellant’s favor, although there are also alternative assignments of error being raised in the appeal.

Notwithstanding the absence of subject matter jurisdiction John was purportedly ordered confined to Twin Valley Hospital per a February 1, 2010 “Entry”. Without having ever been informed of the legal rights that had been taken from him until early 2014, John set about trying to make the best of the 2010 confinement to the criminal wing of the state psychiatric hospital in Columbus (Twin Valley). John, a former National Merit semi-finalist who has a degree from Ohio University involving psychology, even continued to write and self-publish books and musical compositions, and participate in co-facilitating treatment groups while institutionalized. [9/25/14 Ts. p. 70] In 2011 he was dealt another blow when the trial judge again subjected John to another “hearing” without evidence and “ordered” him to be force drugged. He fought the stupor and the trauma the drugs caused him and muddled through as best he could, succeeding in 2012 in being transferred to the current hospital, Appalachian Behavioral Healthcare [ABH], a “civil” hospital. Hopes that he could be restored to some of his human rights were soon dashed, however, as ABH blindly followed the forced drugging “Entry” entered without evidence, without first bothering to find him incompetent to make his own treatment decisions, and without compliance with controlling caselaw.

Following John’s attorneys’ numerous filings in the trial court attacking subject matter jurisdiction and his attempt to obtain extraordinary writs from the Ohio Supreme Court which summarily declined to consider the matter on its merits, the current trial judge claimed in the August 22, 2014 “Order” to have subject matter jurisdiction without considering any of the grounds that he did not. The trial judge had already scheduled evidentiary proceedings for September, 2014, which he then conducted during three days of “hearing”. No admissible or probative evidence was presented during the September proceedings indicating that John was or is “mentally ill” and “subject to hospitalization by court order”. John’s testimony in September, 2014 appears very calm and rational, with the main bone of contention being by the prosecutor who attempts throughout his cross-examination of John to portray his dissenting views as somehow pathological [9/25/14 Ts. p.70], evidently because others might be persuaded by them. The current trial judge terminated the forced drugging per one of the November 3, 2014 “Decision[s] & Order[s]” but claimed in the other November 3, 2014 “Decision & Order” that John was “mentally ill” and “subject to hospitalization”, thus keeping him involuntarily hospitalized to this day, notwithstanding the enactment of Sec. 1.21 of the Ohio Constitution in 2011, which had been brought to his attention repeatedly and since 2013.
As of this writing, John has successfully tapered down from the psychotropic drugs to a maintenance level that he is comfortable with. [See Stmt. Dr. Janson] John’s privately retained psychologist, Dr. Janson, indicates that, as he testified in September, 2014, John continues to present no signs of being dangerous, which means he does not meet the legal definition of mental illness under Ohio Rev. Code Sec. 5122.01. The state psychologist, who had never interviewed John, offered no serious dispute during the September, 2014 proceedings as to whether John was dangerous or had presented any substantial or imminent risk to anyone during the 5 years of institutionalization.

On November 24, 2014 John exercised his legal right to bring suit against ABH, TBMFU/TVBH, OMHAS, the current trial judge, and others, by filing tort claims in the Ohio Court of Claims in Case No. 2014-00925 and in Franklin County Common Pleas Court on November 26, 2014 in Case No. 14 CV 012387. Both suits seek compensation in connection with the injuries and other damages caused by forced drugging and by the other torts committed against him over the years by Ohio’s mental illness system.

On December 1, 2014, John appealed the finding of the lack of subject matter jurisdiction to commit or to force drug, and the continuing forced confinement to the Fourth District Court of Appeals. He now seeks a stay of the continuing forced confinement because

(a) he is likely to prevail on appeal;
(b) he needs medical care which can only fully be accessed in the community;
(c) continued confinement interferes with his constitutional rights to counsel and to participate in all the pending litigation;
(d) he is not a flight risk;
(e) the outpouring of support from friends, family members, and others who would help him in the community demonstrate that it is inappropriate and unlawful under O’Connor v. Donaldson for him to continue to be forcibly confined;
(f) he is not a danger to any community;
(g) a stay from involuntary hospitalization would free up bed space for someone who has the right to it or who has been properly committed;
(h) a stay would mitigate damages thereby serving legitimate public policy considerations for the taxpayer who would otherwise be subject to multiple and unnecessary liabilities; and
(i) a stay would avoid further retaliations from ABH or other complications arising from the conflicts of interest that it and many of its staff now have due to the pendency of the tort claims.

II.JOHN IS LIKELY TO SUCCEED ON THE MERITS OF THE APPEAL

A.Lack of subject matter jurisdiction appears on the face of both transcripts

The issue of lack of subject matter jurisdiction to have issued the original confinement order is substantial and its merits are clearly apparent upon the face of the attached January 25, 2010 transcript, just as the absence of jurisdiction to have force drugged is clear on the face of the March 4, 2011 transcript, being considered moot for purposes of the within Motion for Stay. The 2010 transcript demonstrates, among other defects of constitutional dimension, that (1) the 2010 public defender and the prior trial judge gave John the distinct, false impression that some sort of commitment post-NGRI was automatic; (2) no evidence, much less clear or convincing evidence was ever admitted in support of trial court jurisdiction to commit; and (3) John was neither informed of nor waived any rights.

B. Forced treatment is unlawful under Sec. 1.21 of the Ohio Constitution

If what was intended was “treatment”, which the original confinement “Entry” purports to have ordered, then the hospitalization part of the “Entry”, not just the forced drugging that came in March, 2011, was imposed upon John against his will. Sec. 1.21 first imposed a ban involuntary treatment in November, 2011, and continues in effect today. It very much governs all legislative and judicial acts, providing in pertinent part as follows:

Ҥ 1.21 Preservation of the freedom to choose health care and health care coverage
(A) No federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system. . . .
(E) As used in this Section,
(1)’Compel’ includes the levying of penalties or fines.
(2) ‘Health care system’ means any public or private entity or program whose function or purpose includes the management of, processing of, enrollment of individuals for, or payment for, in full or in part, health care services, health care data, or health care information for its participants.” [Emphasis supplied]

Ohioans now have a constitutionally protected right to not to be compelled to participate in the public health care system that ABH is part of, or an example of. This relatively new health freedom addition to Ohio’s Bill of Rights, contains no exceptions for NGRI defendants.

C. Notwithstanding the clear failure of subject matter jurisdiction to have attached from the beginning, the present trial judge scheduled September, 2014 proceedings which likewise produced no evidence supporting either Sec. (A) or (B) of Ohio Rev. Code Sec. 5122.01 and nothing to contradict Dr. Janson’s September 15, 2014 testimony that he had never seen evidence of John’s dangerousness.

As the Ohio Supreme Court observed in Sheffel v. Sulikowski, 62 Ohio St. 2d 128, 132 (1980), citing Addington v. Texas (1979), 441 U.S. 418 (1979):

“Loss of liberty calls for a showing that the individual suffers from something more serious than is demonstrated by idiosyncratic behavior.”

The record that is available so far demonstrates that the State never made such a showing, much less by means of even a shred of admissible evidence during the September, 2014 proceedings. Even the ABH psychiatrist Hamill, who, like ABH psychologist Scott, admittedly “never evaluated him” [9/12/14 Ts. p. 101] admitted that a forensic psychologist such as Dr. Janson, who had evaluated John many times over many months, would have a more valid assessment than they would, stating

“that would be a good one”. [9/12/14 Ts. p.111]

and that

“[a] forensic trained psychologist, that would carry some weight.”
[9/12/14 Ts. p. 127]

What the defense currently has of Dr. Janson’s testimony is summarized in the November 26, 2014 proffer and in his statement attached hereto. It is the transcript of his testimony that the court reporter refuses to date to provide, and which the trial judge refuses to date to order. Transcription by the defense’s court reporter of the audio files, even of Dr. Janson’s missing September 15, 2014 testimony, is also not presently being permitted.

D. The assertion in the November 3, 2014 “Decision & Order” confining John, that Dr. Janson “concurred” with what Dr. Scott called a “diagnosis”, clearly appears to be false

This claim is particularly disturbing given the continuing unavailability of the transcript of Dr. Janson’s testimony more than three months after the court reporter cashed the check for its preparation. [copy /cancelled check attached to affidavit of Karen Stanley attached to John’s November 26, 2014 Supplemental Memorandum] These alarming issues as to the integrity of the trial court record have already been raised in John’s October 31, 2014 and November 26 Memorandum with proffers. Even if both Dr. Scott, whose testimony was all inadmissible on an assortment of other grounds, and Dr. Janson had “concurred” on a diagnostic label of “schizo-affective”, neither was an M.D. and therefore incapable of making such a diagnosis consistently with the DSM which requires ruling out general medical conditions. The State witnesses admittedly lacked the expertise to rule out the general medical conditions existing in 2009, which include adverse drug reactions caused by the over-prescribing of the drug Celexa which admittedly precipitated the one incident of violence in 2009 – the assault. Dr. Pinkham’s September 25, 2014 testimony remains unrefuted that it was the convergence of the over-prescribing of Celexa and other drugs, the influence of alcohol and a still bleeding head injury that led to the original charge [9/25/14 Ts. p. 19 & 34] and testified categorically that John was not suffering from psychosis anymore. [9/25/14 Ts., p. 39]

Even had there been a medically legitimate diagnosis of “schizo-affective”, this would have been legally insufficient to support a finding of mental illness under Ohio Rev. Code Sec. 5122.01(A), which also requires that the “disorder” in question must be ”substantial” and must “grossly impair” significant life functions. No proof of any this was ever adduced and there was no state witness competent to do so even had this been attempted, which it never was. Even if evidence had supported all the elements of Sec. 5122.01(A) by clear and convincing evidence, this would still leave Sec. 5122.01(B) – the imminently dangerous portion of the statute, completely unproven. Without compliance with both Subsections (A) and (B), agents of the State of Ohio from the beginning lacked the statutory and constitutional authority to lock John up. They continued to lack that authority when Scott and Hamill demonstrated themselves completely incapable of providing admissible or competent testimony during the September, 2014 proceedings.

E. Ordering of continued confinement had absolutely no legal or factual basis because of the absence of evidence of Sec. 5122.01 defined mental illness

(1) There was no evidence at all admitted in the confinement portion of the 1/25/10 confinement proceeding. This should have resulted in an unconditional discharge in February, 2010 per Ohio Rev. Code Sec. 2945.40(B) since no Sec. 2945.40 was ever provided in any meaningful sense, within the required time;
(2)“Evidence” presented by the two state witnesses during the sham hearings of September 12, 15, and 25, 2014 conducted sans jurisdiction was based on Dr. Scott’s vague attempts to paraphrase confidential “treatment” records which she read from and speculated about without the consent of the patient;
(3) State “evidence” from the September, 2014 proceedings lacked foundation and was incompetent because given by two individuals who had never interviewed John;
(4) State “evidence” from the September, 2014 proceedings lacked foundation and was incompetent because neither the ABH psychologist nor the ABH psychiatrist had any basis for making a psychiatric diagnosis due to their admitted failure to follow their own diagnostic protocols set out in the DSM-IV;
(5) State “evidence” from the September, 2014 proceedings was based on hearsay, and hearsay within hearsay, often from remote unspecified periods in the past
(6) State “evidence” was non-fact based and therefore jurisdictionally inadequate to support either 5122.01(A) or (B), or within the meaning of In re Miller 63 Ohio St.3d 99 (1992) or In re Boggs, 50 Ohio St.3d 217, 219 (1990) which held that without
“probable cause to order the person’s detention, the court’s jurisdiction is never invoked.”
F. John was denied the right to jury trial or even the right to be informed he had the right to jury trial during what might have been a commitment hearing on January 25, 2010, and was again denied the right when he demanded it on July 15, 2014.

In State v. Hunter, Ohio Sup. Ct. Case Number 20141-02223, the high Court granted a temporary stay in part based on irregularities Ms. Hunter is claiming in her appeal which may have interfered with her right to a unanimous jury verdict. In John’s case, he was never even given notice of his right to jury trial in the commitment portion of the January 25, 2010 proceedings, as opposed to during the underlying criminal charge, which was an entirely separate proceeding.

John was never given an opportunity to demand or waive the right to jury trial during the probate portion of the case, even though the right is of constitutional dimension in both civil and criminal cases under Sec.1.05 of the Ohio Constitution. The right is “inviolable” and existed in pre-1851 common law commitment cases. In fact the unanimous six person jury was the exclusive manner recognized by law in the Northwest Territory for determining the facts required before a court could take away the liberty of a citizen accused of being an “idiot, non compos, or lunatic person”. [“Laws of the Territory Northwest of the River Ohio: Including the Laws of the Governor and Judges, the Maxwell Code, and the laws of the Three Sessions of the Territorial Legislature, 1791-1802”, Chapter CLVIII: An act providing for the appointment of guardians to lunatics and others found at books.google.com.uy/books?id=f7gwAQAAMAAJ&pg=PA339&lpg=PA339&dq=lunacy+Ohio+1802&source=bl&ots=sQ5vI7oeNF&sig=dz-wW7hsAb25YK6cA4Berf2kmic&hl=en&sa=X&ei=5jezU9FnkpOoBuL-gbAM&ved=0CDYQ6AEwBA#v=onepage&q=lunacy Ohio 1802&f=false.]

Had John been informed of his right to jury trial in 2010, he could have required that they and not the court make the determination of whether he then fit the definition of being mentally ill under Sec. 5122.01(A) and (B). Jurors could have been specifically instructed, as they are now with the insanity defense, and as they did at common law in lunacy cases. The right to jury trial was thoroughly briefed in John’s 7/15/14 Jury Demand. The current trial judge summarily denied John’s right to jury trial for the September, 2014 proceedings.

Having a jury trial in commitment proceedings is well known to be outcome determinative in states that have the same jury trial guarantees as Ohio does in their state constitutions:

“The right to jury trial has been shown to be critical, numerous studies indicating that the exercise of that right may well mean the difference between release and commitment.” Lessard v. Schmidt, 349 F.Supp. at 1100 (Oct. 18, 1972).

See also Humphrey v. Cady, 405 U.S. 504, 509 (1972):
“The jury serves the critical function of introducing into the process a lay judgment, reflecting values generally held in the community, concerning the kinds of potential harm that justify the State in confining a person for compulsory treatment.”

Since the grounds demonstrating the absence of jurisdiction are to all now be ignored, as before, and if public protection is really what is claimed to be desired, it was the community itself that should have been allowed to hear and determine any facts the State might have had to convince them John should have been locked up for his “own good” and their protection.

III. ONLY WITH THE GRANT OF A STAY WOULD JOHN BE ALLOWED TO CONTINUE TO FULLY FOLLOW THE RECOMMENDATIONS OF HIS MEDICAL TREATMENT TEAM IN THE COMMUNITY OUTSIDE OF ABH & BE COMPETENTLY ASSESSED AND TREATED FOR SERIOUS CONDITIONS CAUSED BY THE DRUGGINGS & BATTERIES THAT OCCURRED DURING INSTITUTIONALIZATION

ABH psychiatrists admittedly are not medical doctors in the usual sense, in that they cannot and do not treat for physical disorders. This was basically admitted by ABH’s Dr. Hamill when he testified on September 12, 2014:

“I have some medical background. If you get me outside
of psychiatry I’m going to have some trouble.” [9/12/14 Ts. p. 86]

Records show that ABH is so non-medically equipped that it even must send yeast infection cases to O’Bleness Hospital. Even talk therapy options at ABH are astonishingly meager. There is no individual or group counseling available at ABH addressing the after-effects of the violence inflicted upon John in the Ross County jail in 2009, or later in the two state psychiatric facilities. ABH is a holding facility that dispenses drugs and serves meal – not a hospital in the usual sense of the word. John’s psychologist on the outside, Dr. Janson, is a trauma expert who has attempted to establish a collegial relationship with ABH staff for John’s benefit, but ABH refuses to cooperate with him, other than to occasionally tolerate his presence when he visits John.

John also is attempting to follow the recommendations of and be treated by his family doctor in Columbus, Dr. Sandra Pinkham a toxicology expert and researcher who
designed his tapering protocol from the Risperdal. [11/14/14 ltr Dr.Pinkham]. ABH is only
willing or able to follow her recommendations to a partial degree, although the supplements she prescribes are all being paid for and sent in by John’s family. Fortunately John’s tapering is going quite well [Stmt Dr. Janson], indicating again that he has no need to be hospitalized at all. Still, ABH continues to disregard some of Dr. Pinkham’s recommendations, including most of the key dietary recommendations. ABH has always made it clear that it opposes transporting John to Dr. Pinkham, just as it opposed transporting John to his own dentist outside ABH, Dr. John Johnson. John has dental work very much needing to be done [9/10/14 ltr Dr. Johnson], but ABH has a history of using the prosecutor’s office to attempt to block John from obtaining Dr. Johnson’s services. – although required for a moderately urgent dental problem caused by the very drugs they were forcing upon him. [See sole motion filed by the prosecutor, on August 18, 2014 in which ABH complained that transporting John to his own dentist “created an undue burden on their staff”. [p. 2 of motion]]

John also has an integrative psychiatrist in Columbus on standby, who will be available to assist Dr. Pinkham. [Aff. Dr. Linda Cole, 9/25/14 Ts. p. 39] In any event, it is John’s right to have meaningful contact at his family’s expense with outside medical people he trusts – not be limited to the very same psychiatrists in the very same facility he has been forced to file suit against for malpractice. Treatment for conditions caused by his confinement and drugging is essentially impossible to achieve while John remains confined at ABH.

ABH is in the business of prescribing psychotropic drugs and increasing dosages. It does not deal with the concept of tapering nor is there any financial inducement for them to do so. Nor does it address the causes of the very real physical disorders that the drugs cause. For example, ABH is not equipped to address John’s need for treatment for the tardive dyskinesia and other physical disorders which have been caused by the Risperdal and other drugs ABH and Twin Valley inflicted upon him over the years. The fact that John is experiencing these symptoms is described in the various reports and testimony of Dr. Pinkham, and set out in the tort claims filed in November, 2014 against ABH and others. http://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/caseSearch?UD1PzEskcHKWyJBthS2I and http://cases.ohiocourtofclaims.gov/cgi-bin/wspd_cgi.sh/ws_civilcasesearch_2007.r?mode=5&CaseNo=201400925. Even ABH’s Dr. Hogan admits

“”He does have a fine tremor” [9/25/14 Ts., p. 97],

which is a sign of neurological damage characteristic of neuroleptic drugs such as Risperdal. [http://www.uspharmacist.com/content/d/feature/c/46119/]

Tardive dyskinesia is a neurological disorder commonly caused by Risperdal. ABH has zero expertise in the holistic treatments that show some promise of being able to reverse the often permanently disabling disorder. [http://www.uofmhealth.org/health-library/hn-1278003] It is essential that those treatments be started as soon as possible. It is bad enough that John was illegally and forcibly drugged for 3 years and 7 months – the last year of which was after the trial judge and ABH had ample reason to know that their actions were unlawful. But it is truly intolerable that ABH even now declines to allow Dr. Pinkham to fully treat John and manage his Risperdal tapering.

Apparently, due to the ongoing tort claim, which names the current ABH treating psychiatrist, Dr. Derrico, as a defendant, no one at ABH will speak with Dr. Pinkham so that her full plan can be implemented. To stand the best chance of being able to heal his neurological system, John is entitled to the services of a toxicology expert such as Dr. Pinkham – services that ABH cannot and will not provide.

Besides the medical damage done to him, the batteries and forced druggings have also taken their emotional toll over the years. Continuing institutionalization continues the trauma. John needs and is entitled to services from a PTSD expert on the outside such as Dr. Janson, and such as the peer support that the attached affidavits and testimony [9/25/14 Ts. pp. 53-54] show are clearly available to him on the outside. Though it claims no reason for doing so, ABH continues to restrict even John’s electronic access to the outside world, keeping him banned from the Internet where he could access at least some peer support. ABH also continues to keep John confined on the unit with the least availability of such few “services” the facility offers. ABH offers no individualized counseling for victims of violence such as John. He has no safe place to deal with his feelings about the tasorings and beatings at the jail, the physical effects of which continue to cause him pain. Nor does he have a safe place to recover from any of the other trauma that institutionalization inherently inflicts on people. See Lessard v. Schmidt, 349 F. Supp. 1078, 1087 (E.D. Wis.1972), which referred to

“the substantial evidence that any lengthy hospitalization, particularly where it is involuntary, may greatly increase the symptoms of mental illness and make adjustment to society more difficult. See, e. g., Hearings before the Senate Subcommittee on Constitutional Rights, 91st Congress, 1st and 2d Sess., 214-15, 319, 409 (1969 and 1970)”.

Somehow, perhaps because of the hope his friends, family and supporters bring to him, John has managed to continue against all odds to have an upbeat attitude. He is grateful to have the chance at a productive life that his recent release from forced drugging is giving him and possibly the chance to reverse his emerging tardive dyskinesia/parkinsonism. He deserves and has a right to pay for medical services that he can trust in the community just as other citizens do.

IV. HOSPITALIZATION AND ABH’S CONTINUING PUNITIVE PRACTICES INTERFERE WITH JOHN’S ACCESS TO HIS ATTORNEY AND HIS FIRST AMENDMENT RIGHTS TO REASONABLE ACCESS TO COURT AND FULL PARTICIPATION WITH HIS ATTORNEY IN ONGOING LITIGATION

John needs access to his attorneys for the within appeal, for subsequent appeals if need be, and for the tort claim cases. ABH’s insistence on enforcing its Internet ban against him not only restricts his access to Drs. Pinkham, Cole, Janson, and Johnson, it also takes away most of his reasonable rights of access to his own attorneys. The fact that this practice has been occurring since July, 2014 has never been denied. Nor has the trial judge attempted to remedy it.

The undersigned attorney has filed multiple pleadings since July, 2014 seeking relief from ABH’s blocking of John’s reasonable online communication online efforts with him in violation of his right to counsel and right to court access under the First, Fifth, Sixth and Fourteenth amendments to the federal constitution. However, the trial judge continues to ignore those pleas.

During the pendency of this appeal and the tort cases in Franklin Count, the trial judge now has a direct interest in continuing to allow ABH to interfere with John’s right to meaningful access to his attorney, physician, psychologist, and psychiatrist in the outside world, as this trial judge is a named defendant in the said tort cases and refuses to either recuse from the within case or to allow John’s attorney reasonable access either to his client or to significant portions even of the trial record in this case. See defendant’s October 31, 2014 Motion and November 26, 2014 Supplemental Memorandum.

If the problem is that the trial judge is reluctant to interfere with ABH’s internal institutional practices even when they are unlawful and destroy constitutional rights, one simple solution would be a stay.

V. JOHN HAS NEVER BEEN A FLIGHT RISK AND HAS STRONG COMMUNITY TIES

John is not a flight or escape risk. He has no criminal convictions, no record of flights to avoid prosecution, no failures to make court appearances, and no incidents of escape or attempts to escape from his unlawful psychiatric confinement. He is facing no criminal prosecutions. He has no history of such conduct in all the five years he has been locked up as a person accused of mental illness without evidence. The trial court record shows that John was transferred to ABH in 2012 for the very reason that Twin Valley did not even then believe he required heavy security.

During those years, despite the drugging, the daily humiliations, and the assaults, John availed himself of the very spotty and limited resources in the two hospitals to design at least a dozen websites where he has been marketing the books he has written and the music he has composed and performed. [htttp://en.gravatar.com/jonnylucid] His writing continues, now limited to pen and paper.

Like the petitioner in McDuffie v. Berzzarins, 43 OhioSt2d 23 (1975), John is motivated not just to leave psychiatric incarceration but to clear his name and the stigma associated with false, vague, and stigmatizing non-evidence-based pseudo-diagnoses of mental illness. In a similar case in which habeas corpus was granted even after unconditional discharge, the McDuffie Supreme Court held that the petitioner was entitled to be free of the stigma of mental illness labeling even though he had already obtained his physical liberty, the Court focusing on

“our concern with the continuing collateral consequences subsequent to release from commitment for mental illness. See In re Fisher (1974), 39 OhioSt2d 71, 80-81 Cf. Sibron v. New York (1968), 392 U.S. 40; Carafas v. LaVallee (1968), 391 U.S. 234. Also, a decision on the merits in this case will not be a futile exercise since it may affect serious continuing disabilities which are the result of a finding of mental illness, and commitment. [McDuffie, pp. 24-25]

John likewise wants to avoid as much as possible those continuing disabilities and clear up the mis-information about the nature of his one act of prescription drug-associated violence which must not lawfully be used to brand him as “dangerous” forever. Hargrave v. Vermont 340 F3d 27 (2ndCirc. 2003)(only those who pose a direct threat of harm to others can be discriminated against under the Americans with Disabilities Act). It should be noted that even those who are not mentally ill but who are merely “regarded as having such an impairment” Title 42 Chapter 126 USC Sec. 12102(1)(C) are entitled to the ADA protections of non-discriminatory treatment.

As he looks to his future, John realizes that the stigma of a court’s purported finding of him as “mentally ill” is considerably worse than that of being a convicted felon, a well-recognized phenomenon described in the landmark case of Lessard v. Schmidt 349 FSupp 1078, 1089 (E.D. Wis. 1972):

“The stigma which accompanies any hospitalization for mental illness has been brought to public attention in the news stories surrounding the recent resignation of a vice-presidential aspirant from further candidacy. Evidence is plentiful that a former mental patient will encounter serious obstacles in attempting to find a job, sign a lease or buy a house. One commentator, noting that “former mental patients do not get jobs,” has insisted that, “[i]n the job market, it is better to be an exfelon than ex-patient.” Testimony of Bruce J. Ennis, ACLU, New York City, 1970 Hearings at 284.”

John has strong family, social, and community ties as evidenced by the attached affidavits of support from prominent members of the community, including the disabilities community ready to accept him with or without stigma. He has lived in Ohio for most of his life, having graduated with honors from Chillicothe High School and having then earned an Associate’s degree from Ohio University. Although he has a mother and supporters in Uruguay, where attached affidavits show he would be welcomed into the American community there, he has a great many more supporters and opportunities in Ohio. He is welcome to do peer work at Lifeworxx in Ashland, Ohio [aff. of its director, Amy Flanagan], where Mr. and Mrs. Patrick Risser would help him find housing. [Risser affidavits], Karen and Gary Stanley would help him in Chillicothe [Stanley affidavits], as would peer specialist Steve Copper [Aff. S. Cretsinger, & 9/25/14 Ts. pp. 53-54] and William Loucks [see affidavit]. Additional attached affidavits reveal John is supported by others in Cincinnati, in Kent, in Chillicothe, in Columbus, in Kentucky, and in North Carolina. As an indigent person for now, John is dependent on his supporters, family, and his physicians in Columbus, Ohio from whom he has been receiving treatment but only when he was able to do so by telephone or persuade the trial judge to order ABH to provide transportation to their offices.

John is significantly motivated to establish that from the beginning he has never been lawfully deemed “mentally ill and subject to hospitalization by court order” due to the absence of evidence. Fleeing would ruin his chances of proving this once and for all. The attached affidavits of support show his considerable community connections and willingness to remain in the State of Ohio during all appeals, and during the tort cases pending in Franklin County. John intends to diligently pursue the vindication of legal rights denied to him for so long and will need to be available to freely consult with his attorneys, review discovery documents and pleadings, and participate in depositions.

It is very much in John’s interests to re-establish the unrefuted fact that it was the psychiatric drugging and head trauma, not “mental illness” that led to the 2009 assault on the man who had previously attacked him. It would also very much be in the interests of the public to understand that it is the SSRI and other drugs, not the mental illness diagnosis itself that is known to be associated with violence, particularly when psychiatric patients are not treated humanely.

John is working to have a real future – not a dead-end as a mental patient. Towards that end, his presence in Ohio will be needed in order for him to consult effectively with his attorney, to be present for court appearances and for depositions and other discovery activities which are likely to commence quite soon in Case No. 2014-00925 in the Ohio Court of Claims and in Case No. 14CV012387 in Franklin County Common Pleas court. Maintenance of meaningful contact with his attorneys may also continue to be constitutionally required should he again seek either an appeal of a denial of stay or extraordinary relief in the Ohio Supreme Court.

VI. THE EXTRAORDINARY OUTPOURING OF COMMUNIT¨Y SUPPORT FOR JOHN DEMONSTRATES THAT HE IS NOT ONLY NOT AN ESCAPE OR FLIGHT RISK BUT THAT THERE IS NO LONGER ANY LEGAL GROUNDS TO KEEP HIM INSTITUTIONALIZED EVEN HAD THERE EVER BEEN SUCH GROUNDS

The attached affidavits from friends, supporters, and family establish that John has ample emotional and financial support waiting for him upon his return to the community pending appeal. It has long been settled law that

“a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” O’Connor v. Donaldson, 422 U.S. 563 (1975)(Sec. II of opinion)
Those principles are codified in Ohio Rev. Code Sec. 5122.01(A) and (B).

As the O’Connor case also pointed out, the State is incapable of justifying its confinement of persons it labels as “mentally ill” where, as here, there is no evidence that treatment is being conducted to any significant degree – only forced drugging, warehousing, and psychological and physical abuse. Similar abuses, including over-drugging, have led to federal court shut-downs of psychiatric hospitals, including one in Ohio, as described in Davis v. Hubbard 506 F. Supp. 915 (N.D. Ohio 1980). The human rights abuses described in Davis as having occurred at Lima State, minus many of the building code violations found in Davis, live on at ABH and other of the state’s hospitals. It makes no sense to continue locking up those who can and should live on the outside in communities which want them. Very recently another federal court decision sent a strong message that the federal judiciary will not tolerate the use by Ohio courts of practices that allow vague, propensity-towards-violence types of evidence or procedures to take away citizens’ liberties in disregard of federal rights, including the right to due process of law. Gumm v. Mitchell (6th Cir. No. 11-3363, 12/22/14)

It is clear that so long as a person accused of “mental illness” has family and/or friends who will help him adjust to the outside world, as John clearly does, when there is no real treatment being provided, there is no purpose to be served by incarcerating him at all, much less by incarcerating utilizing innuendo instead of evidence, resulting in a far longer lock-up period than he would be likely to have had, had he been punished by the criminal law.

VII. JOHN MAY NOT JUSTIFIABLY BE VIEWED AS A DANGER TO ANY COMMUNITY

There have been no serious allegations that John poses an imminent, substantial or direct physical danger to self or others, nor has there been for the past five years of his unlawful psychiatric incarceration. During May and June, 2014 John physically resisted the unlawful forced Risperdal consta injections, which he knew were causing him neurological damage. ABH take-down teams responded aggressively, injuring him many times, causing him to be severely traumatized and to scream in terror, physical pain, and outrage. Realizing he himself did not want to be goaded into defensive violence and faced with the prospect that ABH staff could easily injure him seriously and permanently in their zeal to inject the Risperdal, he stopped physically resisting at the end of June, 2014 [9/25/14 Ts. p. 57] and only verbally refused the violation of the Risperdal needle. Thereafter, or at least until the absurdity of their charade became apparent by the final day of hearing in September, 2014 ABH was insisting on putting on an elaborate display of chaining John for each court appearance or court-ordered transport to the doctor. No one was injured when John resisted the injection, except for John himself. The only other allegations that there have been against John by ABH are that he has at times insulted some of the ABH staff people responsible for his unlawful forced drugging and has yelled in pain or outrage without even defensive violence on his part when assaulted by others – behaviors which are not indicative of mental illness or dangerousness.

The felonious assault from September 1, 2009, which was the subject of part of the January 25, 2010 proceedings, occurred in a violent group home under the supervision of the Department of Mental Health. There a government psychiatrist prescribed and John took as prescribed, the violence-associated SSRI drug, Celexa, among others. By July, 2009 appellant attempted to question the psychiatrist about his concerns about those effects, as is documented in those records. See attached redacted SPVMH treatment note of July, 2009. But John’s concerns about the drugs were ignored then as they continued to be for another 5+ years. The record is clear that the 2009 felonious assault is appellant’s only violent offense and occurred only as a result of a combination of the SSRI and other aggression producing drugs, a still bleeding head wound from the day before [9/25/14 Ts. p. 19, 34], and a history of prior assaults by the man he struck on September 1, 2009, as stated in John’s December 4, 2013 Motion and never refuted.

In September, 2014 the state psychologist even admitted that the Celexa caused “mania” [Ts. of 9/12/14 p. 45], which the psychiatrist at Twin Valley did not figure out and stop the drug, until some time after John’s confinement there, during 2010. Appellant has since been physically attacked multiple times at ABH as he was at the previous hospital – TVBH – always choosing to not defend himself. After first claiming lack of knowledge, Scott was forced to admit to one of those instances at ABH when John was knocked down and did not defend himself. [9/12/14 Ts. pp. 73-74]

Celexa and other SSRI drugs are notorious for causing horrific violence, including murders by persons otherwise never known to be violent. This is in addition to suicidal ideation and acts. E.g. Tobin v. SmithKline Beecham Pharmaceuticals, 164 FSupp.2d 1278 (D. Wyo. 2001)(6 million dollar verdict to survivors of a man who killed wife, daughter, baby granddaughter, and then himself while under the influence of Paxil, an SSRI anti-depressant, jury finding that Paxil contributed 80% to the proximate cause of the deaths); Brancaccio v. State, 698 So2d 597 (4th Dist Ct/App. Fla. 1997)(error to not instruct jury on involuntary intoxication in murder case where defendant under the influence of Zoloft, an SSRI drug). The role – and potential liability – of SSRI drug prescribers, such as the one who prescribed Celexa for John in 2009, when they set up a patient for acts of deadly violence is now also finally beginning to be recognized, as it was by the Supreme Court of Utah in Jeffs v. West, (No. 20110207, February 28, 2012)(prescribing of Paxil, an SSRI and other drugs which then causes the patient to shoot wife may result in liability on the part of the prescriber to the motherless children).

In the following trial court decisions, even individuals who committed killings while under the influence of psychotropic drugs, particularly SSRI drugs, were partially or fully spared the loss of liberty as a result:

California v. Meyers, No. F05187 (Santa Cruz County, Ca. 2000)(defendant represented by a public defender using defense of involuntary intoxication, acquitted of attempted murder of best friend after being on Zoloft, an SSRI anti-depressant)
Louisiana v. Pinckard, (35th Jud.Dist. La. 2000 CR 286) (defendant acquitted of murdering her 11-year-old daughter by reason of insanity, the Prozac, an SSRI drug she was taking before the shooting having been said to have acted as a catalyst for her hidden bipolar condition)
Washington v. Curry, (Spokane Cty No. 99-1-02073, 2000)(mother acquitted of stabbing death of 8-year-old daughter due to drug induced psychosis from Paxil, an SSRI, and Adderall, an amphetamine, both considered involuntary since they were prescribed)
Arizona v. Henry (Az., Maricopa Cty, CR 2000-017302)(mother acquitted of trying to murder her two daughters, due to insanity and toxic delirium caused by involuntary intoxication with anti-depressants)
Florida v. Smith (Fl., Sarasota Cty, No. 2003 CF 016229 NC, 2005) (defendant acquitted of attempted murder by reason of insanity due to involuntary intoxication by a prescribed antidepressant)
Washington v. Attwood (Wash., Thurston Cty, No. 05-1-1891-1, 2006)( defendant found insane at the time of attempt to kill his wife, due to a reaction to Wellbutrin, a non-SSRI anti-depressant)
State v. Witlin (Conn. Stamford Cty, No. CR-07-0159548-T, 2008)(defendant acquitted of attempted murder, assault, burglary, and risk of injury to a child.  Two psychiatrists, including one hired by the prosecution, testified that Witlin suffered a psychotic episode brought on by Prozac and Adderall)
Kansas v. Housworth (Kansas, Reno Cty, 2009) (defendant acquitted of five counts of battery against correctional officers and two counts of aggravated battery of a corrections officer and a fellow inmate, Prozac having been found to have “caused his aggressive behavior”.)
In other cases of violence, including murder, the use of prescribed psychotropic medications resulted in reduced sentences:
Virginia v. Lowe, (Va., Washington Cty, No. 11-447 & 00-449, 2001)(judge reduced jury sentence of 54 years to 19 years of defendant who had shot estranged wife and deputy sheriff under influence of Prozac, Remeron, and Buspar,)
Washington v. Baadsgaard (Wash., Grant Cty, No. 01-1-00208-5, 2002) (16 year old defendant convicted as adult, of using rifle to hold 23 classmates hostage, while under influence of Paxil, justified imposition of mitigated sentence of time served (508 days) and 5 years community custody)
Utah v. Gall, (Ut. Salt Lake Cty, No. 011919226 , 2004)(defendant under influence of Paxil and Zyprexa axe-murdered mother, found guilty/mentally ill of manslaughter, 1-15 years imposed)
Texas v. Crerar, (Tex., Bastrop Cty, No. 12521, 2007)(defendant killed wife under influence of Cymbalta an SNRI antidepressant, sentenced to 10 years probation)

Yet John, just as much a victim of some of the very same SSRI and other drugs, goes into his sixth year of confinement for an assault that caused a cut that was easily closed with stitches.

As of July, 2009 governmental regulatory agencies in the United States, European Union, Japan, United Kingdom, Australia and Canada were issuing official warnings about the violence producing effects of SSRI drugs. See Citizens Commission on Human Rights, Psychiatric Drugs—Regulatory Warnings on Violence, Mania, Psychosis, Homicide. [article listing available at http://www.cchrint.org/psychiatric-drugs/drug_warnings_on_violence/] The FDA in our own country admitted as long ago as 1993 that

“[o]nly about 1% of serious events are reported to the FDA,
according to one study.” Kessler, D. “Introducing MEDWatch: A New Approach to Reporting Medication and Device Adverse Effects and Product problems” JAMA, Vol. 269 No. 21 6/2/93 [http://www.fda.gov/downloads/Safety/MedWatch/UCM201419.pdf]

That is to say – the dangers of psychotropic drugs are likely to be 100 times worse than the FDA admits they are.

It seems pretty clear, especially with Dr. Scott’s admission about the mania producing effects of the Celexa upon John, that the events of September 1, 2009 were far likelier to have been caused by the use of prescribed psychotropic drugs, combined with John’s head injury and the pervasive atmosphere of violence in the group home, than to “mental illness” within the meaning of Sec. 5122.01(A) or (B) of the Ohio Rev. Code. There is absolutely no reason to believe that violence would now be a concern, nearly 5 ½ years later, with John off of the aggression-causing SSRI drugs and greatly reduced from the agitation producing drug Risperdal.

As the 7/30/14 brief filed in the trial court by ISEPP (International Society for Ethical Psychology and Psychiatry) explains:

“There is no known psychological or psychiatric test or evaluation that accurately and consistently predicts violence. Dolan, M., Doyle, M. “Violence Risk Prediction: Clinical and actuarial measures and the role of the Psychopathy Checklist”. Br. J. Psychiatry (2000) 177: 303-311, abstract at http://bjp.rcpsych.org/content/177/4/303.full [“Violence risk prediction is an inexact science and as such will continue to provoke debate.”] There are, however, factors that tend to increase the risk of violence. Melton, G., Petrila, J., Poythress, N., & Slobogin, C. (2007). Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers. 3rd Edition. 306-321. Having a diagnosis of mental illness is not a risk factor. . .
All prescription psychotropic drugs work essentially in the same way as do the illegal psychotropic drugs. They are all either agonists or antagonists of neurotransmitters and all act on the receptors in the brain. The effect the drug has on one’s brain is important, whether the drug be alcohol, Seroquel, methamphetamine, or Prozac. In all cases, the drug interferes with natural brain functioning and causes alterations of consciousness that include reduced inhibitions, agitation, restlessness, confusion, and emotional numbing. Given these effects, it is not surprising that empirical evidence demonstrates a link between alcohol and drugs and an increased risk of violence. The point here is that the brain cannot distinguish between prescription drugs and illicit ones. “

Dr. Janson’s testimony in September, 2014 was that he

“had never observed anything in John that would cause me concern about his being a danger to himself or others.” [Proffer contained in p. 2 of Proffers of November 26, 2014]

In his attached statement, Dr. Janson further notes that now, contrary to all the dire predictions to the contrary, with John having titrated himself down to a low level of oral Risperdal, and only on half the Depakote forced upon him in 2013, that he remains non-dangerous.

John’s non-dangerousness is not seriously disputed even by ABH’s more zealous witness, Dr. Scott, who admitted John refused to defend himself when assaulted [9/12/14 Ts., pp. 73-74]. Dr. Scott’s insinuations that someone at some time believed John to be dangerous were never based on actual facts as required by In re Miller, 63 OhioSt.3d 99 (1992) – only baseless speculations, such as her claimed conclusion that John had at some unspecified time made a “veiled threat” against some unspecified person or persons. When defense counsel objected and attempted to get her to specify what she meant by the accusation, she was unable to do so. [9/12/14 Ts. p. 37] Even when the prosecutor attempted to indulge Scott’s vague-sounding theory about having two symptoms within six months [9/12/14 Ts. p. 39], by trying to get her to give current information about

“what specific acts do you base the determination that he has met at least
two of the five on” [p. 41]

she was unable to produce any “specific act” that was current information.

All Dr. Scott ever claimed were insinuations, of which she had no first-hand knowledge, along with second and third-hand versions of snippets of conversation fragments someone at some time attributed to John or someone who claimed to have talked to John. Dr. Hamill claimed to know even less hearsay than Scott did, as he too “have never evaluated him” [9/12/14 p. 101]. The State brought in no one who did have first-hand knowledge. The State was unable to establish that any “dangerousness” had existed from which anyone would have had first-hand knowledge.

ABH alleged but never proved “dangerousness” within the meaning of Ohio Rev. Code Sec. 5122.01(B) when ABH’s Dr. McGee, who never testified, sent a July, 2014 letter to the judge complaining that John had physically resisted forced drugging in May and June, 2014 and yelled in pain and outrage at a government retained dentist who had hurt him and yelled at him first. Obviously it does not make a person “dangerous” to yell out in pain when he is being physically attacked. John did not become “dangerous” by labeling Dr. Sierra, the forced drugging prescriber, as a “murderer”. Indeed her conduct has been and will again be shown to have constituted deliberately assaultive behavior using a deadly drug that caused John physical harm, including neurological damage which may prove irreversible and disabling.

John did not become “dangerous” by exercising his right to dissent from the ABH version of reality about the supposed benefits of psychotropic drugging at the extreme levels ABH had been insisting upon. Nor is he the first person to challenge the pro-drug- at-all costs mindset. The Ohio Supreme Court in Steele v. Hamilton Cty Comm’y Mental Health Bd., 90 Ohio St3d 176 (2000) and the 11th District Court of Appeals in State v. Welch 125 OhioApp3d 49 (11th Dist. 1997), also observed the great harm that psychotropic drugs can do. To date, those judges have not been locked up for expressing “dangerous” ideas.

It is not in dispute that it was the psychiatrists, not John, who insisted on drugging him in 2009 with the violence associated drugs, Celexa, Invega, Neurontin, and Buspar. It was a state psychiatrist who ignored the suicidal distress it caused him [7/09 redacted treatment note], who continued to keep him placed him in a violent home, and who then refused to protect him from any of the violence there. Once free of the Celexa, an SSRI drug – there was no further violence, a fact the state does not seriously dispute.

VIII. RELEASING JOHN PENDING APPEAL WOULD HELP ALLEVIATE A SEVERE SHORTAGE OF BEDS FOR PSYCHIATRIC PATIENTS WHO WANT OR ARE LEGITIMATELY ORDERED INTO TREATMENT

Those who have recently pled NGRI are sitting unlawfully in jail cells throughout Ohio because there is not enough bed space in Ohio’s psychiatric facilities to meet demand. http://www.dispatch.com/content/stories/local/2014/04/13/psychiatric-beds-fail-to-meet-demand.html. The National Alliance for the Mentally Ill agrees, stating that

“Psychiatric hospitalization in Ohio is not adequate
because there are not enough beds.””
[http://www.namiohio.org/images/publications/brochures/Budget_Platform_FINAL.pdf]

Since Ohio Rev. Code Sec. 5122.17 prohibits the housing of psychiatric patients in a

“nonmedical facility used for detention of persons charged with or convicted of penal offenses”,

the bed shortage is a worsening problem likely to create more State liability. It is bad public policy to keep an obviously low-risk individual such as John locked up now going into his sixth year when he is no longer using the hospital’s drugs to any significant degree and has resources of his own available on the outside. To waste scarce hospital resource that others want and are legally entitled to does not make sense.

On December 26, 2014, the Ohio Supreme Court granted a stay to a similarly low-risk individual whose incarceration would impose a burden on one of the State of Ohio’s locked facilities. The six months jail sentence of convicted judge Tracy Hunter pending her appeal following a jury trial in Hamilton County, Ohio was partly based on the avoidance during appeal of what is predicted to be an unnecessary, expensive and burdensome jail sentence. State v. Hunter, Ohio Sup. Ct. Case No.2014-2223 [http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2014/2014-Ohio-5699.pdf] Four of the justices agreed that a stay of Ms. Hunter’s six month jail sentence should be ordered after her stay motions were denied by the trial court and First District Court of Appeals. Two additional justices opined that Ms. Hunter should be free on habeas corpus, leaving only one justice who would have denied her liberty pending appeal.

Hunter was convicted of a crime in which, as a judge, she was found to have wrongfully disclosed confidential health records. Ironically, the record in this case is replete with examples of the wrongful, unconsented-to disclosure of John’s psychiatric “treatment” records. John has merely been seeking the avoidance of similarly unlawful disclosures but it is he who is locked up for it.

Like John, Ms. Hunter asserted the likelihood of reversal on appeal, her strong ties to the community, her need to undergo medical treatment in the community, and her lack of dangerousness. Like John, Ms. Hunter has numerous community supporters who believe she has not received justice. In both cases, the prosecution attempted to use the fact of widespread community support to demonize the defendant. [9/25/14 Ts. p. 70]

IX. IT IS LIKELY THAT UNLESS A STAY IS ENTERED, JOHN’S DE FACTO PUNISHMENT, MASQUERADING AS “TREATMENT” WILL CONTINUE, COSTING TAXPAYERS AT LEAST AN ADDITIONAL $800 PER DAY TO KEEP HIM UNLAWFULLY CONFINED IN ADDITION TO ADDING UNNECESSARILY TO THE DAMAGES THE STATE HAS A DUTY TO MITIGATE WHILE THE TORTS OF
FALSE IMPRISONMENT AND ASSAULT AND BATTERY CONTINUE TO BE LITIGATED IN THE COURT OF CLAIMS AND FRANKLIN COUNTY COMMON PLEAS COURT

The length of additional time that may be consumed in the within appeal and subsequent appeals if necessary in order to clear his name and establish the wrongfulness of the original purported “Entry” ordering John confined, is likely to be in the neighborhood of 12-18 months. In addition to the within proceedings and further appeals that may be needed, the Court of Claims and Franklin County Common Pleas Court actions are likely to continue several years, even without appeals of claimed immunities. For example, if McCualsky v. State of Ohio, Court of Claims Case No. 2011-10240 [previously 2010-09094], another tort action also alleging ABH caused harm to a patient in connection with excessive drugging, is any indication, that matter was initially filed in 2010 but is only just now scheduled for trial in the Court of Claims for March, 2015.

It hardly seems just for John to continue to be confined during all of the currently pending proceedings, particularly under the unprecedented circumstances in which his legal adversaries will be controlling every aspect of his life while having a vested interest and stake in preventing John from having reasonable access to his attorney, as they are doing now. As a person branded as being “mentally ill and subject to hospitalization by court order” without evidence to back up such a life destroying accusation, John is subject to being required to submit to the State’s “treatment” of him until January, 2018 potentially, even though he is following advice from outside ABH, and is now taking only a tiny amount of their drugs and doing extremely well without them. Because ABH is a named defendant in the tort claims in Franklin County, the expected reversal of John’s confinement is likely to result in not only the unnecessary expenditure of public funds for the perpetuation of his current confinement, but also some additional amount as compensatory damages in the future in connection with the pending and continuing tort claims. Being released pending appeal is a sensible way to mitigate the prospect of double damages to the taxpayer by allowing John’s family and friends to help him obtain his own medical and/or psychiatric care if he so chooses pending appeals.

Since as of the November 3, 2014 termination of forced drugging, ABH has no longer been able to bill for psychotropic drugging and since Dr. Janson’s affidavit indicates that John’s adjustment to a non-drugged state is going well, John may attempt further reductions in the tardive dyskinesia-producing drug Risperdal throughout the appeal. This would continue to result in further inroads into ABH’s ability to bill Medicare for the drugs he no longer takes by injection and the related claims that it used to be able to make on John’s behalf. ABH will feel this loss of the usual collections as well. And those who need a bed and want the drugs, will not receive services.

Given the absence of any non-drug, trauma-informed therapy that would address the violence John has been a victim of before and during institutionalization, there is no further justification for continuing to confine him, as no “treatment” is even arguably still going on.

Rather than exacerbating the damages during the next 12-18 months that appeals in this case may take, and while the appellate court is determining whether the trial judge has jurisdiction, and if so, whether he violated appellant’s rights to not be incarcerated without clear and convincing evidence under Ohio Rev. Code Sec. 5122.01(A) and (B), it would be prudent and conserving of limited Ohio Mental Health resources to await that ruling without continuing to enforce an ostensibly unlawful confinement amounting to false imprisonment.

If the “Entries” in this case that appear to be nullities turn out to not be, the State can initiate (for the first time) a civil commitment proceeding against John any time it chooses, provided it can meet the threshold requirements under the probate statutes. There is no need to continue to saddle the taxpayer during this appeal with additional expenses they may otherwise never have to incur.

The non-party, ABH, whose preferences have been so important to the trial judge that he suspended state and local rules and statutes to schedule hearings on some five separate occasions to accommodate them, would not be damaged by John’s release pending appeal. Since ABH has been expressing dissatisfaction with the drug-free message that John exemplifies for other patients, it seems likely that ABH will welcome and be fiscally benefitted by John’s discharge pending appeal. This should be a perfect solution for ABH, which complained during the September, 2014 proceedings that it had no use for John at their facility exercising his First Amendment rights as to his belief in the rights of citizens to choice in health care.

John’s release pending this appeal is the only and best way for him to be able to mitigate the damages that have been caused by the ongoing false imprisonment being imposed upon him by the trial judge and ABH for which he is forced to seek compensation in the Ohio Court of Claims and the Franklin County Common Pleas Court.

X. REQUIRING JOHN TO GO INTO A SIXTH YEAR OF CONFINEMENT, NOW IN A FACILITY STAFFED BY THOSE WHOSE CONDUCT IS THE SUBJECT OF JOHN’S TORT CLAIMS, CREATES SERIOUS CONFLICTS OF INTEREST, OPPORTUNITIES FOR FURTHER RETALIATION, AND INTERFERENCE WITH JOHN’S RELATIONSHIPS WITH HIS DOCTORS AND ATTORNEYS ON THE OUTSIDE

The trial judge has already observed that there is and was a “strained relationship between ABH and the defendant” in one of the November 3, 2014 “Decision[s] & Order[s]” but chose to force John to remain at ABH anyway, possibly due to the previously referenced bed shortage. By exercising his rights to sue for the damages inflicted upon him over these past 5+ years by various state actors, John, his family members and supporters have reason for concern that the already “strained relationship” he has with his captors at ABH will worsen, thereby adding to the trauma, including physical batteries, previously testified to by Dr. Pinkham and Dr. Janson which ABH’s “treatment” has caused or failed to protect him against.

Resentments over being sued should not be allowed to fester. Granting a stay would avoid further retaliations, accusations of retaliations, and the general atmosphere of mistrust on both sides, in the unseemly situation in which John as a “patient” is being forced to depend on a psychiatrist and an institution who are also defendants in the tort cases he has brought against them and for which they will be forced to find defenses. At the very least, it is unreasonable to expect real “treatment” to occur when the “treatment” provider at best can be said to be struggling with divided loyalties.

Since ABH, like other state psychiatric hospitals, is supported by its billing for its prescribing of large amounts of pharmaceuticals, not by tapering patients off these deadly drugs, John continues to be forced to do the tapering under the watchful eyes of those who know nothing about it. Although ABH is, to their credit, following some of the recommendations of John’s M.D, toxicology expert, Dr. Pinkham, they are not following them all. Dietary recommendations are ignored in many important ways, as are some of the nutritional supplements. ABH staff continue to interfere with John’s abilities to have meaningful contact with his doctors, Drs. Pinkham and Janson. ABH staff refuse to permit Dr. Janson to be present and provide support to John during ABH’s “treatment team” meetings, which in the past have been quite abusive, and they refuse to speak with Dr. Pinkham or Dr. Janson. [Statement of Dr. Janson]

Although some of the higher ranking ABH staff members have been displaying ostensible cooperation towards John during the past few weeks while he tapers down from the previously forced drugging, some retaliation does continue, adding to the stress John experiences from the litigation and concerns about the degree of physical disability the drugs have left him with.

It is not surprising for an institution to act rigidly to protect its own interests. It is only to be expected that ABH, like any hospital in the OMHAS system, would continue to further the OMHAS agenda of increasing the dosages of drugs patients are taking, not decreasing them, as has been explained and documented in defendant-appellant’s tort claims. See complaints at http://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/caseSearch?UD1PzEskcHKWyJBthS2I and http://cases.ohiocourtofclaims.gov/cgi-bin/wspd_cgi.sh/ws_civilcasesearch_2007.r?mode=5&CaseNo=201400925.

ABH’s history of refusing to permit John to meaningfully access the services of his own physician and psychologist presents a constant threat to his best interests during the critical time of neuroleptic drug withdrawal, and is in fact counter-therapeutic and in violation of his rights. A recent prescription written by an ABH psychiatrist who refused and continues to refuse to discuss the details of Risperdal tapering with Dr. Pinkham, resulted in the prescribing of a dosage of oral Risperdal on November 13, 2014 that could have easily constituted a life-threatening overdose had John not known enough to decline it. Both oral and injectable Risperdal continue to be prescribed for John at ABH at the same time and for no apparent reason. ABH’s Dr. McGee has already informed John that he intends to be on the look-out for any pretext to again forcibly drug or confine him. McGee has a history of threatening John, as recently as July, 2014 to the effect that even if John were to prevail in litigation that McGee would continue to pursue John in an effort to again forcibly confine him and force drug him.

Although relationships with Drs. McGee and others seem to be improving, the fact remains that they now have financial and professional incentives to portray John as somehow failing in his tapering from Risperdal. To do otherwise puts into serious question their entire theory of what it is they claim to be doing for psychiatric patients at taxpayer expense.

XI. SUPERSEDEAS BOND

Requiring John to post a bond under these circumstances and given the indigent status that his psychiatric incarceration forces upon him, would be to effectively deprive him of his opportunity to vindicate his substantial statutory and constitutional rights in the pending appeal based only on the suspect classification of wealth.

There is no material harm that could befall any party herein for which there is any reason for any security to be posted. Indeed, suspending John’s ostensibly unlawful confinement during appeal would have the effect of mitigating damages now being claimed against ABH, the State of Ohio, and other named defendants in the Franklin County actions.

XII. CONCLUSION

If the defense is mistaken about the absence of subject matter jurisdiction and is also mistaken about the State’s failure to prove that John meets the Sec. 5122.01 definition of being a “mentally ill person subject to hospitalization by court order” in September, 2014, he will surely be subjected to another proceeding to commit him if released pending appeal. In the meantime, during the pendency of this appeal, for the reasons stated above, this court should grant his request to stay John’s confinement for involuntary “treatment” when he has his own treatment team, family, friends, and supporters in the community. He should be free to recover his physical health and meaningfully participate in the preservation of his rights.

_______________________
David L. Kastner

CERTIFICATION

This is to certify that on this 7th day of January, 2015, I instructed that this Motion for Stay, with attachments, be delivered on this date to the following: Jeffrey C. Marks by ordinary mail to him at 72 N. Paint Street, Chillicothe, Ohio, with sufficient postage thereon affixed

________________________
David L. Kastner

Leave a Reply

Your email address will not be published. Required fields are marked *