IN THE CIRCUIT COURT FOR WILLIAMSON COUNTY, TENNESSEE
AT FRANKLIN

STATE OF TENNESSEE			)
						)
VS.						)	No. S83428
						)
RICHARD C. TAYLOR			)

MOTION FOR A NEW TRIAL AND
MOTION TO DISMISS INDICTMENT

	Comes Richard C. Taylor, by and through counsel, and moves this Court to grant him a new trial pursuant to T.R.Cr.P. Rule 33 and in accordance with the Tennessee and United States Constitutions.1
  Since dismissal of the indictment is an appropriate remedy for several of the issues asserted in support of the motion for a new trial, Mr. Taylor also moves this Court to set aside the judgment of conviction and death sentence and dismiss the underlying indictment.  Due to the unique circumstances of this case – Mr. Taylor is the only person in the state of Tennessee who was found to be incompetent for years and then death-sentenced following a pro se trial – counsel also move for permission to file an amended motion for a new trial should the need to do so arise prior to the hearing on this motion.  Counsel anticipate the need to submit further briefing, i.e., provision of additional legal authority and factual basis, for the claims raised herein.2     
INTRODUCTION
	Mr. Taylor is currently forcibly medicated with the drugs Clozaril and Zyprexa and the drugging has interfered with his ability to accurately remember and communicate to undersigned counsel what occurred at the trial of this case in October 2003.  Richard Taylor was forcibly drugged before, during, and after the trial pursuant to this Court’s Orders.  No standby counsel was present during the trial to represent Mr. Taylor and/or to observe the presentation of evidence and argument at the trial.  Although pretrial proceedings were recorded on videotape for several years leading up to the retrial, due to this Court’s order ceasing taping of proceedings beginning in September 2003, this trial was not recorded on videotape.  Thus undersigned counsel are hindered in the ability to accurately assess and assert all possible claims for Mr. Taylor.  This motion, however, is an attempt to do so as fully as possible since the state seeks Mr. Taylor’s execution and T.R.A.P. Rule 3(e)3
 precludes appellate review of trial-related claims if not raised in the motion for a new trial.4
	The extensive record in this case – which arises from a prosecution initiated in 1981, and litigated through post-conviction before this Court, Special Judge Russell presiding, set aside the judgment and death sentence due to ineffective assistance by original trial counsel – further complicates counsel’s ability to assess and present to this Court all issues which provide a basis for relief.  Undersigned counsel are currently in possession of over thirty (30) boxes of material produced in this decades-long litigation and are still in the process of collecting and reviewing records, transcripts, and other documents relevant to this case.   
	The interrelationship between the forced drugging, competency issues, waiver of counsel, and the Court’s actions and Orders addressing these issues further complicates the presentation and preservation of issues in this motion and for purposes of an appeal.  The Court – Judges Harris and Heldman presiding during the recent course of this case – variously has postponed, failed to address, denied, or granted  various motions made by Richard C. Taylor on his own behalf and motions made by counsel appointed to represent Mr. Taylor.  Attorneys appointed to represent Mr. Taylor have included defense counsel, a guardian ad litem, and a conservator.  Mr. Taylor asserts the right to review of all claims raised below, regardless of whether the person who initially asserted the claim was himself or counsel acting on his behalf.
	The issues asserted herein arise because Richard C. Taylor suffers a permanent, severe mental illness5 which the state has chosen to disregard in its zeal to impose and carry out a death sentence.  By Order entered February 21, 1997 Special Judge William S. Russell set aside the previous conviction and death sentence and found Mr. Taylor to be incompetent to stand trial, as well as incompetent to be executed due to insanity per Ford v. Wainwright, 477 US 399 (1986).  The State did not contest that finding.  Nevertheless, the state has still persisted in seeking Mr. Taylor’s conviction and death sentence and pursued forced drugging in order to secure that goal.  This fundamental injustice and misuse of the prosecutorial power, combined with erroneous rulings by this Court, has resulted in a trial which has been described as a “sad spectacle” and “a grave injustice”6 and a death sentence which offends principles enshrined in civilized society.7 
Forced Drugging With Clozaril, Serentil, and Zyprexa Prior to and During
the Trial Violated Richard Taylor’s Rights to Due Process and to a Fair Trial 

1.		Beginning on July 30, 2001 and continuing at present, the state has forcibly

drugged Richard Taylor, over his repeated and vociferous objections, in order to force him into a death penalty trial.  The circumstances of the forced drugging violate both state and federal constitutional provisions.  The issue of whether Mr. Taylor was willing to ingest antipsychotic drugs in order to assist the state in its goal of trying and executing him, on a murder charge for which he had already served 20 years, first arose at a competency hearing before Judge Harris on January 26, 2001.  During the hearing when MTMHI witnesses and a TDOC witness discussed “forced medication,” Richard Taylor objected, citing Riggins v. Nevada, 504 U.S. 127, 134-135 (1992), in support of his right to not be forcibly drugged.  The Court ignored him, failing to address the issue.
2.		By Order entered on January 26, 2001, this Court found Richard Taylor
incompetent to stand trial and transferred him to the custody of the Department of Mental Health.8  The Department of Mental Health took no steps between January 26, 2001 and July 11, 2001 –  when he was admitted to Middle Tennessee Mental Health Institute (hereinafter MTMHI) – to provide therapeutic treatment of any kind to Richard Taylor.  In fact, neither the Department of Corrections (hereinafter TDOC) nor the Department of Mental Health felt moved to provide therapeutic services to Mr. Taylor from January 1985 until the court ordered a competency assessment.  The competency inquiry was triggered when state prosecutors reinitiated their pursuit of a conviction and death sentence following Judge Russell’s February 1997 order setting aside the 1984 conviction and death sentence and finding Richard incompetent to stand trial and incompetent to be executed9.  Notably no state agents felt compelled to offer treatment to Mr. Taylor from 1985 until 2001 – including the latter four year interim when Richard was found by this court, Special Judge Russell presiding, to be suffering from a mental illness so profound, severe, and intertwined with his view of the legal proceedings against him that the most minimal standard for competency was not met.
3.		On July 11, 2001 upon his admission to MTMHI, Richard immediately alerted
the staff that he was completely unwilling to take any medication.  He repeatedly told nursing staff and Dr. Farooque that he did not want to be forcibly medicated and over a period of several days he refused when the staff asked him to take Clozaril, an antipsychotic drug, in pill form.  On July 30, 2001, without any provocation by Richard Taylor to justify emergency measures, the staff attempted to inject him, against his will,  with a Serentil10 intramuscular injection by syringe.  When he resisted, he was placed in four point restraints11 for an hour and in seclusion for two hours.  During the incident, staff lifted Richard out of his chair and held him down while he swung his arms and legs, resisting.  Mr. Taylor’s rights to due process and his liberty interest in being free from forced drugging were violated by this unwarranted, severe intrusion of his bodily integrity. 
4.	Following the strapped-down forced injection, Richard acceded to the oral
administration of prescribed drugs in order to avoid physical assault.  However, he repeatedly objected to the drugging upon receipt of the pills and repeatedly voiced his concerns to staff.  On August 19, 2001 after becoming ill during the night he told the staff nurse that the medicine was making him sick.  The nurse told him he did not have to take medication that made him sick.  Richard replied that he was taking the medication because he did not want to be jumped on and beat up for not taking it.  The next morning he told nurse Frederick Sawyer that the night nurse said he didn’t have to take the drugs.  Sawyer replied that the drugs would stop only if Dr. Farooque ordered.  Thus, MTMHI staff used the threat of physical force to coerce compliance w/ involuntary drugging.  Use of these methods in order to attempt to secure competency to stand trial in a death penalty prosecution violates Mr. Taylor’s Fifth, Eighth and Fourteenth Amendment rights12 to due process and freedom from cruel and unusual punishment.  
5.		 When Mr. Taylor’s court appointed guardian ad litem, Virginia Story, learned
about the forced drugging she filed a motion for judicial review and a hearing was held on August 20, 2001.  Dr. Farooque was the sole witness.  She testified that Richard was argumentative and loud and that he told staff there was no legal justification for forced medication.  Farooque testified that she was “very fond of” Clozaril13 and that there were not many side effects to the drug other than the possibility of agranulocytosis, weight gain, sedation and diabetes.  She asserted her right to forcibly drug Richard Taylor and indicated that MTMHI was able to do so for 90 days without Mr. Taylor having the benefit of a conservator but that MTMHI would seek appointment of a conservator in the future to oversee Mr. Taylor’s medical decisions.
6.		Richard Taylor informed the Court, Judge Harris presiding, that the drugs
were making him “mentally retarded” so that he was unable to cross-examine witnesses and test the prosecutor’s case, among other things.  Ms. Story  argued that MTMHI did not try the least restrictive means to treat, that nothing in the records14 proceeding the forced drugging indicated that Richard would cause harm to himself or others, that pacing and being demanding after spending twenty (20) years on death row with no interaction with people was insufficient justification for forced drugging and physical restraints, and that MTMHI did not meet legal requirements to forcibly drug or restrain Richard.15  After Judge Harris reviewed a copy of Riggins v. Nevada,  504 U.S. 127 (1992) he ruled that MTMHI could continue to drug Mr. Taylor over his objections as it was medically appropriate and would help him to assist counsel.  However, he specifically stated that the standard which the Court was applying for this purpose was different than the stand for drugging during  a trial.  Judge Harris stated that if the case got to a point with a trial date set then Richard Taylor’s objections would be more “pertinent.”
7.		MTMHI sought appointment of a conservator, filing a petition in the Seventh
Circuit Court for Davidson County Probate Division.  A hearing was held on November 2, 2001 before Judge Kurtz at which Farooque testified that Richard Taylor was unable to understand the effects and side-effects of the drugs16 she prescribed and that he was unable to make “knowing and intelligent decisions” about his medical care.  Richard Taylor testified that he was only taking the drugs currently because he believed that MTMHI staff would force him to take it by injection if he refused.  Further he argued that the state could not forcibly drug him for the purpose of rendering him competent to stand trial under Riggins v. Nevada, supra.   Judge Kurtz, after overruling Taylor’s request for a jury trial and to represent himself,17 found that Taylor was unable to make rational decisions related to medical treatment and appointed the Guardianship and Trusts Corporation (GTC) as conservator.  Judge Kurtz entered on order with his findings on November 5, 2001.           	8.	On November 5, 2001 Farooque entered a doctor’s order to MTMHI staff
to not allow Richard Taylor to refuse drugs.  Once Taylor received the order appointing a conservator to override his decisions, he began, starting on November 13, 2001 to request that Dr. Farooque issue a “letter of competence” to discharge him from MTMHI and send him back to prison.  From that point onward to the present, Richard Taylor’s sole priority became – and still is – ending the forced drugging by any and all means possible. 
	9.	MTMHI continued forcibly drugging18 Taylor for purposes of achieving
competency to stand trial and the GTC conservator filed status reports with the Seventh Circuit Court for Davidson County, Probate Division, in accordance with the opinions of MTMHI staff.19  In early May 2002 MTMHI staff alerted the Court that Richard Taylor was competent to stand trial and that he did not meet the criteria for involuntary commitment.  By late May 2002, they changed their assessment and sent a letter to the Court indicating a significant deterioration which reflected the “fragility” of Richard’s mental condition.  On July 1, 2002 MTMHI sent a letter to the Court reflecting their assessment that Taylor was competent and that he did not meet involuntary commitment standards.  On August 29, 2002 MTMHI sent a letter to the Court stating that they believed Mr. Taylor was competent but subject to involuntary commitment.  
8.		 On December 31, 2002 GTC Executive Director Paula Reed filed an annual
status report with Judge Kurtz stating her opinion that Richard Taylor had no further need for a conservator and that he understood the risks and benefits of the drugs MTMHI staff  gave him.  On January 4, 2003 Richard Taylor protested to MTMHI staff that he did not want forced medication and that he had a letter telling him that he didn’t have to take it.  On January 6, 2003 Richard told Farooque that he received a letter from GTC declaring him competent to make treatment decisions and showed her the letter.  Farooque’s notes indicate that he said “Now I do not want to take my medicines.  They said I can decide.  I want to have my clear mind.”  Psychologist Ronnie Stout in his notes states that “[a]ll of this took the team completely by surprise.  He indicated he does not wish to take medication and he sees no connection between his medication and his current mental status.”  Social worker Lynn Danielson notes on January 7, 2003 that Larry Southard informed the staff that GTC still had the authority to sign for the drugs.  Forced drugging continued.
9.		On March 14, 2003 GTC, through attorney Colleen P. MacLean, filed a
motion in the Seventh Circuit Court for Davidson County, Probate Division for GTC to be relieved from guardianship duties for Richard Taylor and for appointment of a replacement since MTMHI had indicated that it would be transferring Taylor back to TDOC custody and GTC does not provide services to TDOC.  On March 18, 2003 guardian Virginia Story filed her second status report with this Court stating her opinion that Richard was incompetent to stand trial and to make treatment decisions.  On April 7, 2003 Ms. Story filed a notice of the medication being administered to Mr. Taylor, indicating that he was receiving 600 mgs of Clozaril and 10mg Zyprexa each day. 
10.		This Court entered an order on April 9, 2003 finding Richard Taylor
competent to stand trial, finding that he “can assist his counsel with a reasonable degree of rational understanding, and that [he] has a factual as well as a rational understanding of the proceedings against him.”  On May 12, 2003 Richard filed a motion demanding to proceed pro se, to terminate appointed counsel, and to terminate forced medication.  A “hearing”20 was conducted June 10, 2003 testified that he wanted to go to trial as soon as possible,21 stating “I want to be free of these drugs as soon as I can” and “I have to get off these drugs.”  Richard said “I don’t like being medicated.  I’m afraid that it will have an effect on me that I don’t desire the jurors to see.  And I need to be off of it for a period of time and get used to not being on it.”  He also testified that he didn’t believe he was incompetent and he didn’t believe medication made him competent.  Court granted the motion to terminate counsel and overruled the motion to terminate forced drugging.  The June 16, 2003 order overruling the motion to stop forced drugging notes that “the Court found insufficient evidence to grant the Defendant’s request.”
11.		On July 15, 2003, appointed defense counsel Hershell Koger filed a motion
for rehearing and a motion to allow a T.R.A.P. Rule 9 appeal on the Court’s June 16, 2003 orders removing counsel and allowing forced medication issue based on Sell v. United States, 539 U.S. ___, 123 S.Ct. 2174 ,156 L.Ed.2d 197 (2003).  The Court entered an Order denying these motions on July 16, 2003, finding that Koger had no standing to file and retroactively applying the Sell criteria to the hearing where Richard Taylor went unrepresented on the issue.   On August 25, 2003 MTMHI sent a letter to this Court stating that Richard was still competent and that they were sending him to Deberry Special Needs, a TDOC facility.  
12.	Richard was transferred to Deberry Special Needs Facility on August 26,
2003.    Dr. Casey Arney, a psychiatrist on contract to provide services at Deberry Special Needs, then became the doctor supervising forced medication and continued dosing Mr. Taylor with Clozaril and Zyprexa at the levels of 600 mg and 10 mg per day, respectively. 
13.		On September 11, 2003, the Seventh Circuit Court of Davidson County,
Probate Division, Judge Clement presiding, entered an order relieving GTC of responsibilities as conservator for Richard Taylor and appointing attorney Ed Ryan as successor conservator.  Upon assessing Richard Taylor’s medical best interests, Ed Ryan directed Dr. Arney on October 13, 2003 to discontinue the medication beginning on that day.  Dr. Arney agreed to discontinue the medication gradually.  
14.	On October 14, 2003, prior to selecting the jury, the Court conducted a
“hearing”22 to determine whether Taylor was competent to stand trial and whether the Court should continue forced drugging.  On October 14, 2003 upon learning of the conservator’s directions to Dr. Arney, this Court ordered the continued forced drugging of Richard Taylor and ordered Ed Ryan, court-appointed conservator to Mr. Taylor, to show cause as to why he should not be held in contempt.  
15.	On October 16, 2003, following a trial in which the jury was selected in a
couple of hours, and no defense witnesses were presented, Richard Taylor was found guilty of first degree murder.23  During the penalty phase, the state presented witnesses and argument in favor of a death sentence.  Richard Taylor presented no evidence or argument in favor of a life sentence – despite his previously expressed desire to settle the case for less than death.24  The jury deliberated 38 minutes before sentencing Richard Taylor to death.  Mr. Taylor appeared to be heavily sedated during the trial, often sitting motionless, dressed in a prison uniform and sunglasses, and rarely participating.25     
16.	Following the trial, Richard Taylor told Dr. Arney that the trial “went about
like I expected,” showed no signs of anxiety or agitation, and asked when he could leave Deberry Special Needs and go to Riverbend (Riverbend Maximum Security Institution).  In accordance with his request and consistent with current appointed counsel’s judgment, Mr. Taylor moved for termination of post-trial forced medication at a hearing on October 27, 2003.26  Currently Mr. Taylor is still being involuntary drugged with Clozaril and Zyprexa pursuant to the Orders of this Court.      
17.		It is unconscionable to use the power of the state in this manner for the
	purposes of rendering a severely mentally ill man competent27 to stand trial, permit him to sit alone, unrepresented, through a capital murder trial, all for the purpose of seeking his execution.  As Justice Kennedy has noted, the spectacle of a chemically flattened, sedated defendant facing his accusers – with the assistance of counsel – is an affront not only to the accused but also to the integrity of the process.  Riggins v. Nevada, 504 U.S. 127 at 145 (1992) (Kennedy, J., concurring in judgment) (“If the State cannot render the defendant competent without involuntary medication, then it must resort to civil commitment, if appropriate, unless the defendant becomes competent through other means.   If the defendant cannot be tried without his behavior and demeanor being affected in this substantial way by involuntary treatment, in my view the Constitution requires that society bear this cost in order to preserve the integrity of the trial process.”)
18.		The circumstances of this case are far more egregious than those found to
be inimical to the U.S. Constitution in Riggins v. Nevada, supra, and Sell v. United States, 539 U.S. ___, 123 S.Ct. 2174 ,156 L.Ed.2d 197 (2003).  The United States Supreme Court in Sell restates the nature of the rights28 involved when the government seeks to drug the unwilling, drawing upon previous cases identifying the fundamental constitutional concerns.  All experts who have testified in this case since the state renewed the prosecution in 1999  – including the state psychiatrist (Farooque) and psychologist (Stout) – agree that Richard Taylor is severely mentally ill, that he suffers from schizophrenia, and that without forced drugging he would be incompetent to stand trial.29  Yet, the state – as a direct result of and with the use of physically forced drugging – sought, and has achieved, a death sentence for Richard Taylor.  Worse, the state refused to accept any sentence less than death once he was found to be competent, despite Richard Taylor’s willingness to accept life in prison and despite an earlier offer of life in prison.
19.	"The forcible injection of medication into a nonconsenting person’s body...
represents a substantial interference with that person’s liberty and [i]n the case of antipsychotic drugs...that interference is particularly severe.”  Riggins v. Nevada, 504 U.S. 127, at 134 (1992) (citations omitted).  Under the Fifth Amendment Due Process Clause, Richard Taylor has "a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs ...."  Id.  The Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, it is necessary significantly to further important governmental trial-related interests.  Sell v. United States,   539 U.S. at ----, 123 S.Ct. 2174  at 2184,156 L.Ed.2d 197 (2003) (emphasis added).
20.	The Court specified four factors which must be addressed in considering
whether or not it is appropriate to administer medication involuntarily as follows: 
This standard will permit involuntary administration of drugs solely for trial competence purposes in certain instances.  But these instances may be rare because the standard says or fairly implies the following:  First a court must find that important governmental interests are at stake.  The Government's interest in bringing to trial an individual accused of a serious crime is important.  However, courts must consider each case's facts in evaluating this interest because special circumstances may lessen its importance, e.g., a defendant's refusal to take drugs may mean lengthy confinement in an institution, which would diminish the risks of freeing without punishment one who has committed a serious crime.  In addition to its substantial interest in timely prosecution, the Government has a concomitant interest in assuring a defendant a fair trial.  Second, the court must conclude that forced medication will significantly further those concomitant state interests.  It must find that medication is substantially likely to render the defendant competent to stand trial and substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a defense.  Third, the court must conclude that involuntary medication is necessary to further those interests and find that alternative, less intrusive treatments are unlikely to achieve substantially the same results.  Fourth, the court must conclude that administering the drugs is medically appropriate. 
 	 Id., 539 U.S. at ----, 123 S.Ct. at 2177. 

21.		There was no hearing in this case consistent with due process requirements
regarding the inquiry mandated by Sell.  Counsel for Mr. Taylor were dismissed from the case and not allowed to present evidence or argument regarding the failure of the state to meet the Sell test in forcibly drugging Mr. Taylor during this trial.  If a hearing had been conducted, abundant evidence was available to present that forced medication of Richard Taylor was inconsistent with Sell and in violation of the state and federal Constitutions.
22.		Further, there is abundant evidence that forced drugging operated as a form
of blackmail for Richard, completely undermining his ability to render knowing and
voluntary decisions on all issues related to the defense to these charges.  Because he was forcibly drugged and could find no means to stop the involuntary administration of drugs other than to pursue the quickest route to end the trial process, the forced drugging served a destructive, rather than therapeutic, purpose.  For this reason, as well as the reasons stated above, Richard Taylor should be granted a new trial and appointed counsel to represent him for purposes of addressing forcible drugging. 
The Court Erred in Finding Richard Taylor Competent to Stand Trial
and to Waive Representation by Counsel

23.		Richard Taylor was and is incompetent to stand trial, as the weight of the
evidence before this court demonstrated.  Mr. Taylor suffers from the severe, incurable mental disease schizophrenia30 which has been exacerbated by two decades of abuse and isolation in state custody which has rendered him unable to accurately perceive reality and to form trusting relationships with others.  A direct product of this illness is Richard’s persistent delusional belief system31 which encompasses several factors critical to his ability to rationally comprehend this prosecution.
24.		Richard believes that he has died before, more than once, and come back
to life.  He believes that if he is executed by the state of Tennessee, he will not die, but will in fact continue to live.  He believes that other people who are dead – including an inmate, Robert Coe, who was executed and Ronald Moore, the victim in this case – still exist.  Richard believes that an “unseen force” was present when Ronald Moore was stabbed and that the “unseen force” played a role in the offense.32  He cannot and will not ever trust an attorney to represent him in this case because he believes they are inherently evil and destructive to him.  Although forced drugging has rendered Richard more able to control the expression of these delusional beliefs and to verbalize what is expected of him to pass as “normal,” it has not removed the beliefs from his thought processes or altered their effect upon his decision making.  This is not unusual since nearly one third of schizophrenics remain persistently psychotic following treatment with antipsychotics. Kaplan & Sadock, Comprehensive Textbook of Psychiatry, Sixth Ed., Vol. I., p. 990 (1995).  The discouraging “cure” rate is for all schizophrenics, not schizophrenic sufferers who are warehoused in the prison system – Richard Taylor has been since for the majority of his life.  The appalling conditions of his confinement33 have only exacerbated his illness and undermined any possibility for substantial improvement.            
25.	Richard Taylor, as is symptomatic of his illness, does not believe he is
mentally ill or that he needs treatment.  These beliefs rendered him unable to rationally consult with counsel and to rationally make critical decisions.  Richard Taylor was not competent to stand trial or to waive counsel because his decision making was a product of his delusions.  Acting logically within one’s delusional belief system does not render a person competent to stand trial.  See, e.g., Lafferty v. Cook, 949 F.2d 1546, 1551 (10th Cir. 1991) (“a defendant lacks the requisite rational understanding if his mental condition precludes him from perceiving accurately, interpreting, and/or responding appropriately to the world around him.”).34
26.		The requirement that a defendant be competent in order to stand trial is
"fundamental to an adversary system of justice."  Drope v. Missouri, 420 U.S. 162, 171-2, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).35  "Competent" means that a defendant has "a rational as well as factual understanding of the proceeding against him."  Dusky v. U.S. 362 U.S. 402 (1960);State v Johnson, 673 S.W.2d 877, 880 (Tenn. 1984); Mackey v State, 537 S.W.2d 704 (Tenn. Crim. App. 1975).  In this case, Richard Taylor possessed an insufficient factual understanding36 of the proceedings and his delusional beliefs about the nature of the proceeding, the intentions and role of appointed defense counsel, and the effects of a death sentence rendered him incapable of a rational understanding of the case.37
27.	Mr. Taylor’s deeply embedded delusions regarding the role and intentions
of defense counsel were and are particularly fatal to his ability to achieve competence to stand trial.  “The ability of defendants to consult and interact appropriately with their defense attorneys lies at the heart of the incompetency standard ... a defense attorney not only is in close and continuing communication with a client, but he or she also knows the extent to which presentation of substantive and factual defenses may turn on the client's ability to understand them and assist counsel in advancing them."  Commentary to ABA Criminal Justice Mental Health Standards, 7-4.8.  "The premise on which standard 7-4.8(b)(I) rests is that defense counsel may well be the single most important witness on that dimension of incompetency.  A defense attorney not only is in close and continuing communication with a client, but he or she also knows the extent to which presentation of substantive and factual defenses may turn on the client's ability to understand them and assist counsel in advancing them.  Under the standard, defense counsel, whose testimony may be as important as, or even more important than that of an expert witness, should not be precluded automatically from appearing as a witness at a competency hearing."  Id. (footnotes omitted). 
28.	Previous defense counsel for Richard Taylor (Brad MacLean, Sue Palmer,
William Redick, Henry Martin, etc.) and guardian ad litem Virginia Story were in the best position to provide accurate information in determining whether he was competent to stand trial and/or waive representation by counsel.  See, e.g.,  ABA Criminal Justice Mental Health Standards, Commentary to Standard 7-4.8, p. 211-212 (American Bar Association 1989).38  The ability of a defendant to consult and interact appropriately with his defense attorneys lies at the heart of the competency standard.  See ABA Criminal Justice Mental Health Standards, supra, at p. 211.  The Supreme Court in Medina v. California recognized the value of counsel’s input on this issue:
Although an impaired defendant might be limited in his ability to assist counsel in demonstrating incompetency, the defendant's inability to assist counsel can, in and of itself, constitute probative evidence of incompetence, and defense counsel will often have the best-informed view of the defendant's ability to participate in his defense.  E.g., United States v. David, 167 U.S.App.D.C. 117, 122, 511 F.2d 355, 360 (1975); United States ex rel. Roth v. Zelker, 455 F.2d 1105, 1108 (CA2), cert. denied, 408 U.S. 927, 92 S.Ct. 2512, 33 L.Ed.2d 340 (1972).  Medina, supra, at 2580 (emphasis added).  Medina v. California, 112 S.Ct. 2572, 120 LED.2d 353 (1992)

29.		This Court erred in disregarding testimony from Richard Taylor’s previous
counsel – those who had observed and spoken with him over many years – and the opinions and observations of Virginia Story in finding him competent to stand trial and to waive representation of counsel.  Further, the Court erred in crediting the testimony of state witnesses Farooque and Stout over the testimony of Dr. Caruso on the issue of competency to stand trial.  Developments in the case following the competency hearing of April 2-3, 2003 proved Caruso’s testimony to be accurate and prescient and undermined the MTMHI witnesses’ testimony.  
30.	The Court erred in crediting testimony by the MTMHI witnesses without
adequate consideration of their personal and institutional prejudice against Mr. Taylor.  In the early 1980's staff at MTMHI had found Mr. Taylor competent to stand trial – an opinion discredited by Judge Russell’s 1997 findings.  Prior to Taylor’s transfer to MTMHI, employees of MTMHI attempted to block the transfer, expressed fear of Richard which was unfounded by his record, and for the first time in at least fifteen (15) years went to court to preclude admission of a mentally ill patient. Although MTMHI received legal custody of Richard on January 26, 2001, he was not admitted until July 11, 2001, reflecting insufficient bed space at MTMHI.   MTMHI was under pressure at the time to turn patients over to make room for incoming patients.  This Court, Judge Harris presiding, refused to allow MTMHI to send Richard Taylor back to TDOC based on a mere assertion of competence.  MTMHI staff were on notice that they could not transfer Mr. Taylor unless and until they demonstrated his competence. 
31.	The Court erred in failing to place the burden of proof beyond a reasonable
doubt on the state to prove Mr. Taylor’s competency to stand trial since he was previously found to be incompetent to stand trial and to be executed.  From the February 1997 ruling by Judge Russell to the April 2003 hearing, Richard Taylor was presumptively incompetent.  Due to this status, the state should have the burden of proof that Taylor had been restored to competency.  See, e.g., Manning v. State, 730 S.W.2d 744, 748 (Tex. Cr. App. 1987) (Where defendant's prior adjudication of incompetency stands "the State must then prove the accused's competency to stand trial beyond a reasonable doubt.") The purpose of assigning the burden of proof to the state in this situation has been described as follows:
Let us assume that defendant is in fact unable to cooperate with counsel and present his case in a rational manner.  It would be a strange rule, indeed, to impose upon him the burden of proving his own incompetence, for the very disability which he would be seeking to prove renders him incapable, either logically or legally, of sustaining the burden of proof.  People v. Bender, 169 N.E.2d 328, 332 (Ill. 1960).

32.		Applying this standard is particularly appropriate in Richard Taylor's case
since his illness and the resulting paranoid delusional belief system render him unable to recognize his own illness.  See, e.g, Kaplan & Sadock, Comprehensive Textbook of Psychiatry, Sixth Edition, Vol. II, page 1032 (1995) (“It is a hallmark [of the illness] that the patient does not believe that he or she is deluded or in need of psychiatric assistance.”)  This  symptom has had a devastating impact on Mr. Taylor’s ability to rationally consult with past and present attorneys and counsel's ability to raise and adequately present competency issues to the court.
33.		Regardless of the standard applied, this Court’s determination that Richard
Taylor was competent to stand trial was clearly erroneous based on the evidence presented.  The trial of Richard Taylor while incompetent violates federal and state constitution guarantees of due process.39       
34.	As a direct product of the Court’s erroneous determination that Richard
Taylor was competent to stand trial, the Court ruled that he was also competent to waive counsel and represent himself.  For the reasons stated above, the Court’s finding on this issue was clearly erroneous as well.
The Court Erred in Dismissing Defense Counsel and Presiding
Over a Capital Trial Without Representation for Mr. Taylor 

35.	Richard Taylor’s intention in dismissing defense counsel and proceeding to
trial alone were the product of a delusional distrust of appointed defense counsel and an all-consuming desire to end forced drugging as soon as possible.  He was thus not able to execute a voluntary and intelligent waiver of counsel.  Waiver of counsel requires an inquiry distinct from a finding of competency to stand trial.  See, e.g., Shafer v. Borzois, 329 F.3d 637 (8th Cir. 2003) (A finding that a defendant is competent does not mean that a defendant has made a knowing and voluntary waiver.  The waiver must also be knowing and voluntary, which involves a different and further inquiry and “heightened’ standard.)
36.		The Court erred in failing to appoint advisory or standby counsel to assist
Mr. Taylor and to ensure that, from the defense perspective, trial procedures were optimized in order to ensure a just result.  Appointment of standby counsel, even under circumstances where a court is permitted to accept a waiver of counsel, is appropriate. See, e.g., Faretta v. California, 422 U.S. 806, at 834-35 n.46 (1976) ("[A] State may--even over objection by the accused--appoint a 'standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary."); People v. Gordon, 688 N.Y.S.2d 380, 383-84 (N.Y. Sup. Ct. 1999) (recognizing that the trial court, "exercising its judicial discretion," provided a capital pro se defendant with advisory counsel); People v. Danann, 519 N.W.2d 128, 139-140 (Mich. 1994); see also ABA Standards of Criminal Justice, Standard 6-3.7 (2d ed. 1980 & Supp. 1986) (stating that judges should consider appointing pro se defendants standby counsel and should always do so in cases that the judge expects to be complicated or long, or those with multiple defendants).
37.		Denial of representation by counsel under the circumstances of this case
violated Mr. Taylor’s state and federal rights to a fair trial, due process, and to be free from cruel and unusual punishment and amounted to a denial of justice and distortion of the fact-finding process.  Mr. Taylor made essentially no efforts to defend himself at either the  culpability or punishment phases of trial.  The resulting product is neither reliable nor consistent with society’s interest in a just result.  See, e.g., Riggins v. Nevada, supra, (Kennedy, J., concurring in judgment); Whitmore v. Arkansas, 495 U.S. 149, 171-72, 110 S.Ct. 1717, 109 LED.2d 135 (1990) (Marshall, J., joined by Brennan, J., dissenting) (careful review of capital cases "is necessary not only to safeguard a defendant's right not to suffer cruel and unusual punishment but also to protect society's fundamental interest in ensuring that the coercive power of the State is not employed in a manner that shocks the community's conscience or undermines the integrity of our criminal justice system").  See generally Judge Stephen Reinhardt's special concurrence in United States v. Farad, 190 F.3d 1097, 1102 (9th Cir. 1999).  
38.	Denial of representation by counsel at sentencing denied Richard Taylor’s
rights to due process and freedom from cruel and unusual punishment since he desired to be represented by Brad MacLean at that stage of trial and did not wish to be sentenced to death.40  Due to his severe mental illness and incompetency, he was denied appointment of counsel to present evidence and argument.  Mr. MacLean and the post-conviction team representing Richard Taylor collected volumes of mitigating evidence – none of which was considered by the jury in this case.41  
39.		The Court erred in allowing Richard Taylor to represent himself under the
circumstances of this case.  Even if the rule in Faretta v. California, 422 U.S. 806 (1976) would normally be applied to permit self-representation, in this case the appropriate standard for permitting a waiver was not met.  
40.		Legal and psychiatric developments in the last decade have lead to serious
reconsideration of the Faretta doctrine as growing numbers of mentally ill people enter the criminal justice system each year.  See, e.g., Sabelli, M., Train Wrecks and Freeway Crashes: An Argument for Fairness and Against Self Representation in the Criminal Justice System, 91 J. Crim. L. & Criminology 161 (2000) (asserting that applying Faretta in cases where the defendant is severely mentally ill results in a judiciary “with eyes wide shut”).  Faretta should not apply to cases such as this one, where the criminal accused is severely mentally ill and subject to the ultimate sanction of death.  The Court erred in applying Faretta in this case since Richard Taylor’s severe mental illness places him within an exception to the rule.         	
Prosecution Upon this Indictment Violates Due Process/
Motion to Dismiss the Indictment
  
41.		Counsel filed a motion in May 2000 to dismiss the indictment, based upon
several grounds, which was passed42 and which the Court never addressed.  In February 1994 Judge Russell ruled that Richard Taylor was incompetent to stand trial and incompetent under the Ford v. Wainwright standard.  Judge Russell found that Taylor’s trial attorneys rendered ineffective assistance of counsel in handling the issue of his competency prior to and during his first trial.  The state did not appeal the ruling that Richard Taylor was incompetent.43  Thus the state conceded Taylor’s incompetency from at least February 1994 until the hearing in April 2003.    
42.	During the time period of February 1994 up to July 11, 2001 Richard Taylor
was incompetent, the state conceded his incompetence, but nonetheless he was housed in the Tennessee Department of Corrections44 in solitary confinement without treatment.  A state cannot detain a person indefinitely for the purpose of determining whether or not he ever becomes competent.  Taylor was held in correctional custody for over seven years while incompetent, followed by over two years of involuntary commitment at MTMHI in violation of fundamental due process protections.  See Jackson v. Indiana, 406 U.S. 715, 739, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972).45    
43.	The indictment should be dismissed because Richard Taylor was denied
his state and federal rights to a speedy trial.  The passage of over twenty-two (22) years between the offense and the trial, the bad faith actions of the state in the interim, and the persistent effects of Richard’s mental illness rendered him unable to present a defense to these charges and severely undermined any potential for a reliable and just result.  "[T]he passage of time only diminishes the reliability of criminal adjudications."  Herrera v. Collins, 113 S.Ct. 853, 855 (1993).
44.		The indictment should be dismissed because Richard Taylor is incompetent
and there is no reason to believe, given the severity and persistence of his mental illness, that he will ever be competent to stand trial.  See Jackson v. Indiana, supra. 

The Death Penalty Should Be Set Aside Since the Due Process Clause
and the Eighth Amendment Bar Imposition of Death and Execution

45.		The Eighth Amendment and the Due Process Clause of the Fourteenth
Amendment, and analogous state constitutional protections preclude executing the severely mentally ill.  The Eight Amendment bars execution of those who “have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to control impulses and to understand the reactions of others” since these deficiencies, while not justifying an exemption from criminal liability, do diminish the  personal culpability of those individuals to the extent that neither of the justifications advanced by states in support of the death penalty –  retribution and deterrence – would be served by permitting their execution.  See Atkins v. Virginia, 536 U.S. 304,122 S.Ct. 2242, 2250-2251 (2002).  
46.		Abundant evidence in this case demonstrates that Richard Taylor’s severe
47.	mental illness produces a diminished capacity in his functioning.  This Court, Special Judge Russell presiding, found him incompetent to stand trial and incompetent per Ford v. Wainwright in 1997.  This Court again found him to be incompetent to stand trial in January 2001.  Judge Kurtz found him to be incompetent to represent himself in his involuntary commitment proceeding in November 2001.  During the trial and currently, Richard is under the care of a conservator while under involuntary commitment.  It is the state’s position then that Richard lacks the judgment and insight to make his own medical decisions.          	Executing Richard Taylor under these circumstances is untenable and
offensive to contemporary standards of decency enshrined in our laws:   
[T]he natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today.  And the intuition that such an execution simply offends humanity is evidently shared across this Nation.  Faced with such widespread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.  Whether its aim be to protect the condemned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction finds enforcement in the Eight Amendment.  Ford v. Wainwright, supra at 2602.

48.	The circumstances of this case – particularly permitting a waiver of counsel
and conducting a trial where Richard Taylor sat drugged and mostly mute and no evidence was presented in his defense – were clearly inadequate to ensure that a just, reliable result would occur.  The inadequacy of the process is itself a violation of the Eight Amendment.  See Ford v. Wainwright, supra at 2602:   
The adequacy of a state-court procedure ... is largely a function of the circumstances and the interests at stake.  In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability.  See, e.g., Spaziano v. Florida, 468 U.S. 447, 456, 104 S.Ct. 3154, 3160, 82 L.Ed.2d 340 (1984).  This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.  See Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991-2992, 49 L.Ed.2d 944 (1976) (opinion of Stewart, Powell, and Stevens, J.J.).  Id. at 2602.

49.	The torture and abuse inflicted upon Richard Taylor by corrections officers46 
amounted to cruel and unusual treatment in violation of Petitioner's rights under the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 8, 13 and 16 of the Tennessee Constitution.  Because of the State's unlawful treatment of Richard Taylor, the state has lost any right to impose the death penalty in this case.
50.	In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726 (1972), and Gregg v.
Georgia, 428 U.S. 153, 96 S.Ct. 2909 (1976), the Supreme Court explained that for the death penalty to pass Eighth Amendment standards, it can be imposed only in cases where its application will clearly serve "two principal social purposes: retribution and deterrence."  428 U.S. at 183, 96 S.Ct. at 2929-30.  The death penalty should not be imposed where its application would be disproportionate to these defined social purposes.  As Justice White noted in Furman, when the death penalty "ceases realistically to further these purposes,... its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.  A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment."  408 U.S. at 312, 92 S.Ct. at 2764.
51.	Because Richard Taylor has been incarcerated for over twenty-two (22)
years in solitary confinement under threat of execution, and because of the cruel and inhuman treatment inflicted upon him during that period, neither retribution nor deterrence retains any force justifying imposition of the death penalty.  Any acceptable state interest in retribution has been more than satisfied by the severe punishment already imposed.  Given the unique circumstances of this case, imposition of the death penalty would be "patently excessive" and would be a "pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes."  Cf. Memorandum of Justice Stevens respecting denial of certiorari in Lackey v. Texas, 115 S.Ct. 1421 (1995).
52.		The death penalty should be stricken due to insufficient notice of the state’s
intent to seek the death penalty and notice of aggravating circumstances.  The notice was not filed until August 21, 2003.  Although the notice was filed before the deadline provided in T.C.A. § 39-13-208, the notice is insufficient, under federal and state constitutional guarantees of due process and freedom from cruel and unusual punishment.  See, e.g.,  Lankford v. Idaho, 500 U.S.110 (1991).     
53.	The death penalty should be stricken since the aggravating circumstances
used to enhance punishment from life in prison to death were not charged in the indictment, in violation of the state and federal constitutions.  See Ring v. Arizona, 536 U.S. 584 (2002); Apprendi v. New Jersey, 530 U.S. 466 (2000), but see State v. Dellinger, 79 S.W.3d 458 (Tenn. 2002).  The combined rule in Ring and Apprendi requires that aggravating circumstances be charged in the indictment.  See, e.g., United States v. Haynes, 269 F.Supp.2d 970, 978 (W.D. Tenn. 2003) (applying Apprendi and Ring in a federal death penalty prosecution). 
54.		The failure to include in the indictment aggravating circumstances -- which
enhance potential punishment of first degree murder from life imprisonment to death -- violates the Tennessee Constitution, Article I §8 and §14.  In Tennessee, there is “an absolute right to a criminal accusation by a grand jury.”  State v. Brackett, 869 S.W.2d 936, 938 (Tenn. Crim. App. 1993).  The Tennessee Constitution’s guarantees of  prosecution only by grand jury in Article I §14 and due process found in Article I §8 are synonymous with, or more expansive than, the U.S. Constitution’s corresponding guarantees in the Fifth and Fourteenth Amendment.   Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997); Newton v. Cox, 878 S.W.2d 105, 110 (Tenn. 1994);Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992); State v. Hale, 840 S.W.2d 307, 312 (Tenn. 1992). 
55.	The Supremacy Clause of the United States Constitution, Art. VI, cl. 2, which
provides that the federal constitution is the ultimate "Law of the Land," “essentially mandates that no Tennessee law, whether statute, rule, or constitution, may operate to deprive a Tennessean any right afforded by the federal constitution.”  Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1, 12 (Tenn. 2000), citing Miller v. State, 584 S.W.2d 758, 760 (Tenn.1979).  Thus, the rule of Apprendi/Ring must be applied in Tennessee at least to the extent as provided in the federal courts.
The Jury Selection Process Was Inadequate
To Secure a Fair and Impartial Jury

56.	Denial of counsel for purposes of selecting a jury effectively denied Richard
Taylor’s rights to a fair and impartial jury, as provided in the state and federal constitutions.  Taylor asked no questions of any jurors, and did not challenge any jurors either for cause or in exercising a peremptory strike.  Regardless of whether Mr. Taylor had the right to represent himself at trial, he should have had the benefit of experienced counsel to assist with the jury selection.  Due to the absence of such assistance, the jury selection in this capital murder case took only a couple of hours.  It is inconceivable that the jurors who were selected as a result of this process were fair and impartial.  The fact that during the guilt phase deliberations, the jurors sent a note asking who and when does the sentencing if the verdict is murder in the first degree is per se evidence that jury selection was constitutionally inadequate. 
57.	 	The process of questioning jurors about the death penalty itself leads to a
bias of jurors for the death penalty according to social science research.  See Craig Haney, Violence and the Capital Jury: Mechanisms of Moral Disengagement and the Impulse to Condemn to Death, 49 Stanford Law Review 1447 (1997).
When jurors are repeatedly asked whether they can “follow the law” and impose the death penalty, they begin to believe that the law actually requires them to reach death verdicts.  Death qualification becomes a kind of “obedience drill” in which jurors feel they are voluntarily relinquishing the power to deviate from the outcome the law seems to favor.  The personal characteristics of many death qualified jurors render them especially receptive to arguments that the must follow the implicit promise made to the court.
With Richard Taylor asking no questions and unable to “life qualify” jurors this perception that death is the expected verdict was only worsened. 
58.	Death qualification biases capital juries “not only because it alters the
composition of the group ‘qualified’ to sit, but also because it exposes them to an unusual and suggestive legal process.”  See Craig Haney, On the Selection of Capital Juries, 8 Law and Human Behavior No. 12, 121-33 (1984).  Haney found that the death qualification process had the following effects:
Exposure to death qualification increased subjects' belief in the guilt of the defendant and their estimate that he would be convicted.  It also increased their estimate of the prosecutor, defense attorney, and judge's belief in the guilt of the defendant.  The death qualification process led subjects to perceive both prosecutor and judge as more strongly in favor of the death penalty, and to believe that the law disapproves of people who oppose the death penalty.  And it led jurors to choose the death penalty as an appropriate punishment much more frequently than persons not exposed to it.  Thus, persons who had been exposed to death qualification not only differed from non death-qualified subjects, but they differed in ways that were consistently prejudicial to the interests and rights of the defendants.  Id. at 128-9.
  
See also Theodore Eisenberg and Martin T. Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L. Rev. 1 (1992).
There is a “presumption of death.” Id. at 12. [Our] data suggest that the sentencing phase of a capital trial commences with a substantial bias in favor of death .  This is not in and of itself an indictment of the death trial phase.  But the tilt towards death suggests that a defendant with a confused jury may receive the death sentence by default, without having a chance to benefit from the legal standards deigned to give him a chance for life.” Id. at 38, n.12.

59.	The minimal jury questioning conducted in this case was insufficient to
identify jurors with pro-death penalty biases, which are often well camouflaged:
[A] far greater percentage of death penalty skeptics identify themselves at voir dire than do death penalty supporters. Review of the voir dire transcripts of automatic appeals decided by this court confirms the existence of the problem. Although death penalty supporters vastly outnumber opponents, it is a rare voir dire transcript where more venire persons acknowledge support for capital punishment than opposition.

People v. Turner, 690 P.2d 669, 699 (Cal. 1984) (Bird, C.J., concurring and dissenting). Compare Ross v. Oklahoma, 487 U.S. 81, 83-84 (1988) (juror initially indicated he could vote to recommend life if the circumstances were appropriate, but on further examination by defense counsel declared that if the jury found petitioner guilty, he would vote to impose death automatically).  Thus, before presentation of proof began, the deck was already stacked heavily against Mr. Taylor.
Trial Errors Constituting Denial of Due Process and/or
The Right to a Fair Trial
60.	Mr. Taylor was attired in his TDOC prison uniform during the course of the
trial.  Displaying the accused in correctional attire unfairly prejudiced him before the jury  since it undermined the presumption of innocence.
61.		Insufficient evidence of first degree murder was presented and the Court
should have directed a verdict on this issues.  Given the circumstances of this case and of the offense, the state should have been required to prove Richard Taylor sane beyond a reasonable doubt and to prove premeditation and deliberation beyond a reasonable doubt.  The proof presented did not meet the standard.
62.	Richard Taylor’s rights to a fair trial, due process, and Eighth Amendment
protections were violated when Ronald Moore’s sister Lenjoy Wilsdorf offered victim impact testimony in the innocence/guilt phase of the trial.
63.	The court erred in allowing the introduction into evidence of letters Richard
Taylor allegedly wrote to other inmates following the offense.  The letters should not have been admitted since they were obtained unconstitutionally and Taylor was suffering from a severe mental illness at the time which was exacerbated by the cruel and unusual treatment he was receiving in prison.  The letters are unreliable evidence and thus not probative; even if the letters were probative, their prejudicial nature outweighed any probative value.
64.	Richard Taylor’s due process rights were violated when jurors were informed
through introduction of Exhibit 16 that Richard was previously sentenced to death.  See Caldwell v. Mississippi, 472 U.S. 320 (1985) (due process is violated when jurors’ sense of responsibility for imposing sentence is undermined).  The Court erred in admitting this exhibit – writings filed with the Clerk by Mr. Taylor – since he was incompetent at the time they were filed.  
65.	The testimony of Dr. Filley in the penalty phase violated Mr. Taylor’s due
process/Eighth Amendment rights to reliable sentencing.   Richard Taylor presented no defense on his own behalf.  He presented no argument on his behalf at the sentencing trial.47  The testimony of Dr. Filley served no legitimate purpose as prosecution direct testimony and was unnecessary for rebuttal purposes since there was no defense to rebut.  Also, Filley’s opinion was a product of the original mishandling of this case by state officials and defense counsel and the taint from the previous proceedings should not have been permitted to infect this trial.48
Unconstitutional Application of Aggravating Circumstances
66.	The prior felony aggravating circumstance, TCA § 39-13-204(I)(2) “one (1)
or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person” is unconstitutional as applied in this case.  The circumstances underlying the joyriding and simple robbery convictions which were introduced before the jury to justify a finding of this aggravator are insufficient to meet the statutory requirements.  Application of this aggravating circumstance in this case fails to meaningfully narrow the class of offenders eligible for the death penalty.  See, e.g.,   Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).
67.	Application of the “corrections officer” aggravating circumstance, TCA § 39-
3-204(I)(9) is unconstitutional since Richard Taylor was insane at the time of the offense and could therefore not formulate the intent required by this statute.  Further, application of this aggravator violates due process and Eighth Amendment heightened reliability requirements under the circumstances of this case since the corrections investigation into the offense resulted in findings that Richard Taylor was deprived of appropriate psychiatric care and that Ronald Moore was insufficiently trained.  It is fundamentally unfair for the state to create the circumstances which led to this offense and then use those circumstances to justify a death sentence.
68.	Application of the murder while in “lawful custody” aggravating circumstance,
TCA § 39-3-204(I)(8), violates due process and Eighth Amendment heightened standard requirements under the circumstances of this case since corrections investigation resulted in findings that the TDOC deprived Richard Taylor of appropriate psychiatric care and insufficiently trained Ronald Moore.  Following this offense and the investigation into the appalling conditions at the Turney Center, the prison was razed and rebuilt and changes were implemented to improve the correctional system.  Applying this aggravating circumstance is fundamentally unfair when the prison system’s treatment of Mr. Taylor – both before and following the offense – has been so egregious. 
69.	Mr. Taylor’s rights to due process, reliable sentencing, and to be free from
double jeopardy are violated by the application of both the (I)(8) and (I)(9) aggravating circumstances.  As applied in this case, the state has used the same factual basis to support both aggravating circumstances.  Thus, the additional aggravating circumstance adds unfair weight to the scale in the balance of mitigating and aggravating circumstances,
70.	The heinous, atrocious, and cruel aggravating circumstance,  TCA § 39-3-
204(I)(5) is unconstitutional as applied.  Insufficient evidence was introduced to demonstrate that Mr. Taylor possessed the mental state which justifies finding that his actions were heinous, atrocious, and cruel.  Application of this aggravating circumstance in this case fails to narrow the class of eligible offenders in a meaningful fashion.   
The Death Penalty Statute is Unconstitutional
71.		The death penalty statutory scheme is unconstitutional as applied in this
case. Tennessee's death scheme fails to meaningfully narrow the class of death eligible defendants.  The death penalty is imposed in an arbitrary and capricious fashion throughout the state since standards for seeking death differ by jurisdiction.49  The appellate review process in Tennessee is constitutionally inadequate.  Failure of the Tennessee death penalty scheme to select only the “worst of the worst” is highlighted by the imposition of a death sentence in this case.         
Substitution of Presiding Judge Denied Due Process         
72.		After the state appealed, and the Court of Criminal Appeals affirmed, Special
Judge William S. Russell’s order setting aside Richard Taylor’s conviction and death sentence, the case came before this Court, Judge Don Harris presiding.  Judge Harris presided over hearings and monitored the competency assessment process beginning October 15, 1999 and continuing until at least September 9, 2002.  On November 15, 2002, this Court, Judge Russell Heldman presiding, issued an order vacating a scheduling order entered September 9, 2002 and set a pretrial conference.  Due to the change in presiding judge, Richard Taylor was deprived of the benefit of the three years of observation and longitudinal experience which Judge Harris had with this case.
International Law Violations
73.		Richard Taylor possesses rights under international law, including, but not
limited to,
	a.  His rights under treaties ratified by the United States.  Such treaties include:
			I.  International Covenant on Civil and Political Rights, Dec. 19, 1966, G.A. Res. 2200, U.N. GAOR, Supp. No. 16 at 52, U.N. Doc. A/6316 (1967), 999 U.N.T.S. 171, art. 24 [hereinafter ICCPR], which was ratified by the United States on June 8, 1992;
			ii.  The International Convention on the Elimination of All Forms of Racial Discrimination, Mar. 7, 1966, G.A. Res. 2106A, U.N. GAOR, 20th Sess., Supp. No. 14 at 47, U.N. Doc. A/6014 (1965) [hereinafter Race Convention], which was ratified by the United States on October 21, 1994; and
			iii.  The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N. Doc. 39/51 (1984) [hereinafter Torture Convention], which was ratified by the Untied States on October 21, 1994.
		b.  His rights under treaties entered into and signed by the President of the United States.  Such treaties include:  
			I.  The American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S.No. 36, O.A.S. Off. Riec. OEA/Ser. L./V./II.23/Doc. 21 Rev. 6 [hereinafter American Convention]  signed on June 1, 1977;
			ii.  The Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46 at 193, U.N. Doc. A/34/46 (1979) [hereinafter Women’s Convention], which was signed on July 17, 1988; and
			iii.  The International Covenant on Economic, Social and Cultural Rights, Dec. 15, 1966, 1976, 999 U.N.T.S. 3 [hereinafter Economic Covenant], which was signed on October 5, 1977.
		c.  His rights under customary international law.  Customary international law and jus cogens norms are binding upon the courts as the law of the land.   “The law of nations . . . is part of the law of the land.” The Paced Havana, 175 U.S. 677, 700 (1900).  Evidence of customary international laws can be found, inter alia, in other treaties and international proclamations neither signed nor ratified by the United States, including but not limited to:
			I. The American Declaration of the Rights and Duties of Man, May 2, 1948, Res. XXX, at 38, Final Act, Ninth Intel Conf. of American States, Bogota, Columbia, Mar. 30-May 2, 1948 (Pan-Am 1948), O.A.S. Off. Rec. SEA/Ser. L./V./ II.23/Doc. 21 Rev. 6 (1979), Art. XX [hereinafter American Declaration] and 
			ii. Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., pt.1, U.N. Doc. A/810 (1948) [hereinafter Universal Declaration].
		Rights guaranteed to Mr. Taylor through the treaties and customary international law identified in paragraph N that counsel failed to raise, include, but are not limited to:
		a. The right to life50;
		b.  The right to be free from racial discrimination51;
		c.  The right to be free from gender discrimination52;
		d.  The right to be free from discrimination on the basis of economic status53;
		e.  The right not to be sentenced to death for this crime because it was not sufficiently serious to warrant a sentence of death54;
		f.  The right not to be put to death by electrocution, because death by electrocution constitutes cruel, inhumane and degrading punishment55;
		g.  The right to not be executed by lethal injection, because death by lethal injection constitutes cruel, inhumane and degrading punishment56;
		h.  The right to a fair and impartial trial57;
		I.  The right to be presumed innocent until proven guilty according to law58;
		j.  The right to detailed notice of the charges against him/ her59;
		k.  The right to adequate time and resources in which to prepare his defense60;
		l. The right to obtain the attendance of witnesses to testify in his/her defense61;
		m.  The right to examine witnesses against him/her62;
		n.  The right to be free of coercion to confess guilt63;
		o. The right to refrain from testifying against him/herself64;
		p.  The right to be free from detention while awaiting trial65;
		q.  The right to be tried without undue delay66;
`		r.  The right to be free from arbitrary searches67;
		s.  The right to be free from arbitrary detention68; and
t. The right to have his/her detention review by a court without undue delay69.
The substantive rights provided in the international law provisions cited above require that Mr. Taylor be granted relief in the form of a new trial and a resentencing trial at which the death penalty would not be an available sentencing option.   
CONCLUSION
	Wherefore, for all the reasons stated above, Richard Taylor, by and through counsel, moves this Court to set aside the judgment of conviction and death sentence and dismiss the underlying indictment.  In the alternative, Mr. Taylor moves the Court to grant him a new trial.  Further, Richard Taylor moves for the right to amend this motion if necessary.   

						Respectfully submitted,

						_____________________________________
E. Covington Johnston, Jr. #4408
Attorney at Law
238 Public Square
Franklin, Tennessee 37064 
(615) 791-1819

						______________________________________
Kelly A. Gleason # 22615
Attorney at Law
2214 Claypool-Alvaton Road
Bowling Green, Kentucky 42103
(270) 782-8835

CERTIFICATE OF SERVICE

	The undersigned hereby certifies that a true and exact copy of the foregoing document has been served by U.S. Mail, postage prepaid, upon Ron Davis, District Attorney General and Derek K. Smith, Assistant District Attorney, P.O. Box 937, Franklin, Tennessee, 37065-0937; and Attorney General Paul G. Summers, P.O. Box 20207, Nashville, Tennessee 37202-0207, on this 30th day of April, 2004.

						______________________________________