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Monday, March 03, 2003
I am back from taking the Virginia Bar. I hope all three or four of you out there reading this will pause at this point and offer a silent encouragement that the Virginia Board of Bar Examiners see fit to find that I displayed minimum competency to practice in the Commonwealth in my answers last Tuesday and Wednesday.


It is lucky that the Virginia Bar does not require accuracy in predicting the outcome of Supreme Court cases in order to be admitted, because I seem to have incorrectly predicted pretty much every case that has come down in the last couple of weeks. That also provides a more than adequate reason for my reluctance to predict how well or poorly I did on the bar.


I am also late in predicting the two cases that were argued today. However, I am convinced that because I have, essentially, lost two months of my life to studying for the bar, I am metaphorically still ahead when it comes to predictions. I have not read any press accounts of the arguments. Thus I offer my predictions of the case that will be argued … that is, were argued this morning, Monday, March 3, 2003:


No. 02-5664 Sell v. United States


Here is an interesting criminal law question: May a court order that a prisoner be medicated in order to become competent enough to stand trial? Unfortunately, the posture of this case is that the district court said that the petitioner could be medicated, and the Court of Appeals affirmed that decision, but on direct, interlocutory appeal, before Sell was tried. Accordingly, the Court ordered the parties to be prepared to discuss the jurisdictional issue.


I predict the court will DISMISS this case as improvidently granted. Although I have not read the parties’ supplemental briefs on this issue (How could I? They aren’t due until the end of the week!), I still think that this case does not meet the requirements for an order for which interlocutory review is appropriate. What I remember about interlocutory appeals is that they must be on an important issue (check), separate from the merits of the case (check), which cannot be adequately addressed on direct review (uh oh).


It seems to me that the point here is whether Sell can be forced to submit to medication against his will in order to stand trial. If the Court were to decide that forced medication is unconstitutional, then Sell’s remedy after trial would simply to have the results of that trial vacated. Holding the trial itself, even with the forced medication, does not prejudice Sell. In fact, if the medication reduces his delusions, then he would be benefited. Thus, if it turns out in hindsight that he should not have been forced to be medicated, then he gets both the benefits of medication and his trial vacated. A win-win situation. Plus, there is always the chance that Sell will not be convicted -- a win-win-win.


The only possibility of prejudice is that Sell could be tried on the merits, found guilty, and then both the sentence and the involuntary medication could be affirmed. But a defendant can hardly claim that he is prejudiced by being tried, while competent, for crimes that he actually committed. Thus, I believe the Court will DIG this case. If it decides not to DIG, I’ll give myself 1/2 credit if it AFFIRMS the Court below, holding that the petitioner may be medicated against his will in order to bring him to trial.