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7/31/2019 Marcus Druery Article 46.05 Motion (July 11, 2012)
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CAUSE NO. 03-00001-CRF-85
THE STATE OF TEXAS, IN THE 85th DISTRICT COURT
Plaintiff, OF
vs. BRAZOS COUNTY, TEXAS
MARCUS DRUERY,
Defendant.
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
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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.
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I. A PERSON WHO LACKS A RATIONAL UNDERSTANDING OF THEREASON 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.
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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, thePanetti
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 toallow 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.
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II. MARCUS DRUERY HAS MADE A SUBSTANTIAL THRESHOLDSHOWING 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 UNITEDSTATES CONSTITUTION.
A. Marcus Druery suffers from a severe, active psychoticcondition 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
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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
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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.
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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.
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2. Marcus Druery suffers from Undifferentiated TypeSchizophrenia, 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.
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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
1 The excerpts from Mr. Druerys writings are reproduced in this motion
without correction to spelling or grammatical errors.
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[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
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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
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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
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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.
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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. Imsuppose [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.
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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. Whenasked 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 beadmitting 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.
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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 whathappen.
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.
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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.
Exhibit 3 at 16880. He was found to have illogical thought processes and
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 toassassinate me.
Id.
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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. Id. at 17173. He
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 allcharges 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 hadseveral 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
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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 isdetrimentally 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
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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 canbe 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 paperwork.
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.
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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 tostay 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:
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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!
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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):
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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 goback 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:
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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.
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10. Scale for the Assessment of Positive Symptoms11. Scale for the Assessment of Negative Symptoms12. M-FAST Interview
Id.
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 healthvisits 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
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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 evidencedtangentiality, 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.
Id.
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. Id. at 19, 20. More specifically, she
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 ofhis 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
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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 byMr. 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. Does Mr. Druery suffer from a severe mental illness?2. 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)?
3.
If so, does Mr. Druerys mental illness deprive him of a rationalunderstanding of the connection between his crime and punishment?
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 resultantsymptoms 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.
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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
ofFord andPanetti. Accordingly, Mr. Druery asks that the Court:
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1. Find that he has made a substantial showing of incompetency;2. 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;
3. After reviewing recommendations from both parties, appoint at leasttwo independent experts to review the pertinent records, interview
collateral witnesses, evaluate him, and submit written reports;
4. Order the State to videotape the evaluations conducted by the court-appointed experts;
5. Allow counsel to attend the evaluations conducted by the court-appointed experts;
6. Order the court-appointed experts to abide by the professionalguidelines for execution competency evaluations set out in a motion
filed simultaneously with this one;
7. Order the court-appointed experts to apply the definition of rationalunderstanding set out in a motion filed simultaneously with this one;
8. Grant Mr. Druery adequate funding to retain an investigator who canidentify and interview the most important collateral witnesses;
9. Provide Mr. Druery copies at county expense of the TDCJ medicalrecords currently in the possession of the District Clerk;10. Order the District Clerk to seal from public view the exhibits attached
to this motion;
11. Hold a final competency hearing, as required by Article 46.05(k), on adate to be announced by the Court after the parties have had a
meaningful opportunity to develop their evidence and prepare for the
hearing;
12. Find that Mr. Druery is presently incompetent to be executed underthe Eighth and Fourteenth Amendments; and
13. Grant such other relief as law and justice require.
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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)
Gregory W. Wiercioch
Texas Bar No. 00791925
TEXAS DEFENDER SERVICE
430 Jersey Street
San Francisco, California 94114
(832) 741-6203
(713) 222-0260 (f)
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
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CAUSE NO. 03-00001-CRF-85
THE STATE OF TEXAS, IN THE 85th DISTRICT COURT
Plaintiff, OF
vs. BRAZOS COUNTY, TEXAS
MARCUS DRUERY,
Defendant.
ORDER
Having duly considered Defendant Marcus Druerys Motion to Determine
Execution Competency under Article 46.05, the Court hereby:
1. Finds that Mr. Druery has made a substantial showing ofincompetency;
2. Withdraws the execution date;3. 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;
4. Orders the State to videotape the evaluations conducted by the court-appointed experts;
5. Orders the State to allow counsel for both parties to attend theevaluations conducted by court-appointed experts;
6. Orders the court-appointed experts to abide by the professionalguidelines for execution competency evaluations set out in Defendants
accompanying motion;
7. Orders the court-appointed experts to apply the definition of rationalunderstanding set out in Defendants accompanying motion;
8. Grants Defendants motion for funding to retain an investigator;
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9. Orders that Mr. Druery be provided copies at county expense of theTDCJ medical records currently in the possession of the District Clerk;
10. Orders the District Clerk to seal from public view the exhibits attachedto this motion; and
11. Orders the setting of a final competency hearing, as required byArticle 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.
SIGNED on this day of July, 2012.
______________________________
Hon. J.D. Langley
Presiding Judge