Texas Court Split Again on Granting Stay of Execution to Scott Panetti

Just In: Following a 5-4 divided ruling on Tuesday, today a 6-3 splintered Texas Court of Criminal Appeals (CCA) again denied a stay of execution on Eighth Amendment grounds for Scott Panetti, a schizophrenic man scheduled for execution on December 3, 2014. On November 24, attorneys filed a challenge to the use of the death penalty against persons with severe mental illness because there is an emerging consensus against the imposition of the death penalty on people with severe mental illness, like Mr. Panetti.

In a powerful dissent, Judge Tom Price wrote:

“I would grant applicant’s motion for a stay of execution and would hold that his severe mental illness renders him categorically ineligible for the death penalty under the Eighth and Fourteenth Amendments to the United States Constitution.

“It is inconceivable to me how the execution of a severely mentally ill person such as applicant would measurably advance the retribution and deterrence purposes purportedly served by the death penalty.

“I can imagine no rational reason for carving a line between the prohibition on the execution of a mentally retarded person or an insane person while permitting the execution of a severely mentally ill person. At a minimum, therefore, I would hold that the execution of a severely mentally ill person violates the Eighth Amendment of the federal Constitution.”

Judge Elsa Alcala, joined by Judge Cheryl Johnson found that Mr. Panetti had raised a “compelling argument” that the Eighth Amendment forbids the execution of the seriously mentally ill and that the majority had not given “greater consideration” to his argument. They would have stayed Mr. Panetti’s execution and permitted further briefing of the Eighth Amendment issue.

The CCA Order and Dissents can be accessed here: https://drive.google.com/file/d/0BxR5nee8pBYQa1czZHZmNHk0SXlVU3pKZkpnd0pId1owRnVB/view?usp=sharing

The following is a statement from Kathryn Kase, co-counsel for Mr. Panetti:

“In powerful dissents issued yesterday and today, judges of the Court of Criminal Appeals reflect the same concerns that  people across the country have expressed about the impending execution of Scott Panetti. Today’s dissent from Judge Tom Price, argues what tens of thousands of others across the nation have expressed – that executing a person as severely mentally ill as Scott Panetti will serve no retributive or deterrent value. New research shows that there is a growing trend across states against imposing the harshest punishment on people with severe mental illness. Certainly a consensus has emerged in this case, demonstrated by the widespread support for relief from the mental health community, the conservative faith community, the leading legal organizations, among others, that the execution of Mr. Panetti, who has suffered from schizophrenia for three decades, would cross a moral line. We will challenge today’s ruling and demonstrate that the execution of the Scott Panetti would be cruel and unusual punishment.”

-Kathryn Kase, attorney for Scott Panetti and Executive Director of Texas Defender Service

November 26, 2014

Yesterday’s Ruling and Dissents

On Tuesday, November 25th, a 5-4 splintered Texas Court of Criminal Appeals (CCA) denied, on jurisdictional grounds, a stay of execution and appointment of counsel and mental health experts for Mr. Panetti. Attorneys for Mr. Panetti had appealed a denial from the trial court last week where they sought a stay of execution and appointment of counsel and mental health experts in order to allow for a meaningful opportunity to assess Mr. Panetti’s competency for execution.

The appeal, which was appealed on Tuesday to the federal district court, argues that based on incomplete records recently obtained by Mr. Panetti’s counsel and a recent visit by counsel with Mr. Panetti, Mr. Panetti’s condition has deteriorated. Mr. Panetti is hearing voices, believes that a listening device has been implanted in his tooth and that TDCJ wants him to ‘shut up’ about corruption on death row and to stop him from preaching the Gospel.

Mr. Panetti’s attorneys say that this new information provides sufficient evidence that Mr. Panetti can make a showing that he is not competent for execution and that he is therefore entitled to appointed counsel, funding for a mental health expert and investigator, and a stay of execution so that he can prepare an adequate motion under Art. 46.05 raising his competency for execution claim.

Opening CCA Appeal Brief filed on November 20, 2014: https://drive.google.com/file/d/0BxR5nee8pBYQYk5pYU5yek1wejdqaUQtLWJsOFpVY1RZVFpN/view?usp=sharing

CCA Motion for Stay of Execution filed on November 20, 2014:  https://drive.google.com/file/d/0BxR5nee8pBYQUGRobFU0UDEtOWRlREk0ekNyblpIdjBDSlBF/view?usp=sharing

The appeal states:

“In denying Scott Panetti’s request for a stay of execution, assistance of counsel, and funding for a mental health expert and investigator, the trial court made precisely the same mistake that Judge Stephen B. Ables made in this case over a decade ago – a mistake that, the United States Supreme Court held, violated bedrock principles of due process. In Panetti v. Quarterman, 551 U.S. 930 (2007), the Supreme Court reached two conclusions that squarely address the issue this Court now faces. First, the Supreme Court found that the preliminary showing of incompetency dictated by Ford v. Wainwright, 477 U.S. 399 (1986), is neither onerous nor requires an inmate to present evidence that answers the Ford inquiries. Instead, the inmate need only make a sufficient showing of possible merit to warrant a more thorough exploration by the court. Second, the Supreme Court confirmed that, once an inmate has made this preliminary showing, the Due Process Clause and the Eighth Amendment require the court to give the inmate the tools needed to meaningful develop and present evidence of incompetency. Panetti, 551 U.S. at 952.”

“It is a bitter twist that the trial court is again depriving Mr. Panetti of the due process rights the Supreme Court announced in this very case seven years ago.”

“Mr. Panetti made the preliminary showing that triggers the due process protections of Ford and Panetti. Without first being afforded that rudimentary due process, Mr. Panetti cannot make the requisite Article 46.05 showing. Accordingly, this Court should conclude that Mr. Panetti is constitutionally entitled to a stay of execution, the appointment of counsel, and funding to retain a mental health expert and an investigator to assist him in preparing his Article 46.05 motion.” (pp. 36-38)

CASE BACKGROUND:

Three-Decade History of Severe Psychosis and Delusions

Mr. Panetti has suffered from extreme mental illness for over 30 years. He was hospitalized a dozen times for psychosis and delusions in the six years leading up to the crime for which he was convicted and sentenced to death.

The first time Mr. Panetti showed signs of being afflicted with a psychotic disorder was in 1978, over 14 years before the crime. During his multiple hospitalizations, doctors diagnosed him with chronic schizophrenia and schizoaffective disorder and proscribed antipsychotic medication.

In 1986, Mr. Panetti first succumbed to the delusion that he was engaged in spiritual warfare with Satan. In an affidavit his first wife signed to have him involuntarily committed, she testified that he was obsessed with the idea that the devil was in the house. He engaged in a series of bizarre behaviors to exorcize his home, including burying his furniture in the backyard because he thought the devil was in the furniture.

Two years before the crime for which he was convicted and sentenced to death, Mr. Panetti was involuntarily committed for homicidal behavior and was found to be suffering from delusions and psychotic religiosity.

The crime for which he was convicted and sentenced to death also had the hallmarks of a severely disturbed mind. While off his antipsychotic medication, Mr. Panetti shaved his head and dressed in camouflage fatigues before going to his in-laws’ home and committing the offense for which he was convicted and sentenced to death.

Detailed information about Mr. Panetti’s medical history can be found in this mental illness timeline starting in 1978 that shows how Mr. Panetti’s mental health degenerated over the years, including how in 1986, the Social Security Administration made a determination that Mr. Panetti was so disabled from schizophrenia that he was entitled to government benefits:https://drive.google.com/file/d/0B1LFfr8Iqz_7c3kzWW5nRFBib1U/view?usp=sharing

Mr. Panetti’s Trial: ‘A Miserable Spectacle’

Despite being a paranoid schizophrenic, Mr. Panetti represented himself at his capital murder trial in 1995. Wearing a cowboy costume with a purple bandana and attempting to call over 200 people to the witness stand, including the Pope, John F. Kennedy, Jesus Christ and his own alter ego, Mr. Panetti was found guilty and sentenced to death.

Mr. Panetti’s statements in court, at both the guilt and sentencing phase, were bizarre and incomprehensible. He took the witnesses stand and testified about his own life in excessive and irrelevant detail.

Mr. Panetti announced that he would assume the personality of “Sarge” and recounted the gruesome details of the crime in the third person. He gestured as if pointing a rifle to the jury box (visibly upsetting the jurors) and matter- of-factly imitated the sound of shots being fired.

Fixed Delusion that Texas is Trying to Kill Him for Preaching the Gospel

In 2004, Texas tried to execute Mr. Panetti, but a federal judge court stayed the execution and the United States Supreme Court ultimately found the Fifth Circuit’s standard for determining competency to be executed unconstitutional in Panetti v. Quarterman, 551 U.S. 930 (2007). Notwithstanding that decision, Texas continued to contest Mr. Panetti’s competence to be executed. In 2013, the Fifth Circuit again found him competent to be executed – despite the District Court’s findings that he has a severe mental illness and suffers from paranoid delusions.

If his execution date is not withdrawn, he will go to the execution chamber convinced that he is being put to death for preaching the Gospels, not for the murder of his wife’s parents, and the retributive goal of capital punishment will not be served.

Emerging Consensus Against the Imposition of the Death Penalty Against the Severely Mentally Ill

On November 24, 2014, attorneys for Mr. Panetti filed a challenge to the use of the death penalty against persons with severe mental illness, including schizophrenia and schizoaffective disorder, both of which were diagnosed in Mr. Panetti decades ago.

The habeas petition, which was filed in the Texas Court of Criminal Appeals, can be accessed here: https://drive.google.com/file/d/0BxR5nee8pBYQRWZpbWdQZkV3d0xRTFI2RWE3M21WZXcyYlQ0/view?usp=sharing

Mr. Panetti’s Subsequent Motion for a Stay of Execution can be accessed here: https://drive.google.com/file/d/0BxR5nee8pBYQeVdkODE0VWpsN3RERW80LXUtVUFmTHhBakg4/view?usp=sharing

Citing new research from a forthcoming empirical study, today’s filing argues that actual sentencing practices reveal an emerging consensus against use of the death penalty in cases where the defendant has severe mental illness. The new research, which examines the capital sentencing practices of 7 states, finds that only “5 out of 68, or 7.35% of defendants found [guilty but mentally ill] have been sentenced to death.”  (p. 45)

Furthermore, “the most recent instance in which a defendant found [guilty but mentally ill] was sentenced to death took place at least 20 years ago,” and none of those defendants has been executed. (pp. 45-46)

The new research “provides a critical element that has been missing from previous arguments that people with severe mental illness deserve the same constitutional protection when facing the death penalty that Atkins provides to people with intellectual disability. No court previously presented with this argument has had before it any evidence of actual relevant sentencing practices.” (pp. 43)

“The infrequency with which the death penalty is imposed on the class of death-eligible mentally ill defendants…demonstrates that a consensus has emerged against the imposition of the death penalty on mentally ill defendants.” (p. 47)

Other objective factors that demonstrate the national consensus against the death penalty for people with severe mental illness include the opinion of mental health professionals, and “[n]early every major mental health association in the United States has published policy statements recommending an outright…ban on the death penalty for offenders with severe mental illness….” (pp. 48-49)

The National Alliance on Mental Health (NAMI), NAMI’s Texas affiliate, the American Psychiatric Association, Mental Health America, Disability Rights Texas, dozens of other mental health experts and the American Bar Association, which in 2006 approved a resolution urging preclusion of the death penalty for those who were mentally ill at the time of their crimes, are actively urging officials in Texas to stop Mr. Panetti’s execution.

The filing notes that “the imposition of the death penalty on people with severe mental illness, like people with intellectual disability [who are protected from the death penalty], does not serve the goals of deterrence and retribution because of their reduced moral culpability.” (p. 62). Furthermore, “defendants with severe mental illness have less ability to meaningfully assist counsel, have demeanors which can alienate a jury, and can less effectively testify on their own behalf.” (p. 64)

This was certainly the case with Mr. Panetti who “displayed ‘bizarre, ‘trance-like’ and ‘scary’ behavior throughout his trial. He asked nonsensical questions about Native Americans…and flipped a coin to decide whether to strike a potential juror.” (pp. 64-65)

“During the punishment phase, Mr. Panetti called only one witness, his standby counsel, before delivering an unintelligible punishment phase closing argument:

You know, just to touch on the spat and wasn’t cuffed, but I was bronc and Sheriff Kaiser and I had a talk, well, of the fact that I’m no longer American citizen, and because of my buckaroo case.  I believe city people love horses, too, and I don’t consider myself anything above or below anyone, but I do consider myself me, and when I made my last confession at Veterans Hospital to Father De la Garza, I wasn’t Catholic. (p. 30) 

Widespread Support for Clemency

On November 12, 2014, Mr. Panetti’s attorneys filed a clemency petition with Governor Rick Perry and the Texas Board of Pardons and Paroles along with letters supporting clemency from the leading Texas and national mental health organizations and professionals such as the American Psychiatric AssociationMental Health America and Disability Rights Texas; criminal justice and legal professionals including former Texas Governor Mark Whitestate Attorneys General and former judges and prosecutors55 Evangelical leaders from Texas and nationally and 7 retired and active Bishops from the United Methodist Church and other faith leaders; Murder Victims Families for Reconciliation and the American Bar Association, among others.

On November 18, 2014, worldwide support for Scott Panetti reached a groundswell with new calls for clemency from prominent individuals and organizations from across Texas and the world, including the nation’s largest grassroots advocacy organization on mental illness, National Alliance on Mental Health (NAMI); NAMI’s Texas affiliate; ten legislators from Texas; former U.S. Representative Ron Paul; several more Evangelical Christians; and the European Union, which represents twenty-eight nations.

The clemency petition can be accessed through Texas Defender Service’s web page on the case: http://texasdefender.org/scott-panetti/

To access the letters supporting clemency, additional legal documents and other case resources, including a video, please go to: texasdefender.org/scott-panetti.

Additionally, a petition started by Mr. Panetti’s sister, Vicki Panetti, has been signed by over 88,000 concerned individuals. https://www.change.org/p/gov-rick-perry-spare-my-brother-s-life-a-severely-mentally-ill-man-on-death-row

To speak with Mr. Panetti’s attorneys, Kathryn Kase of Texas Defender Service and Greg Wiercioch of Texas Defender Service and University of Wisconsin Law School, or if you would like to speak with mental health and other experts, please contact Laura Burstein at Laura.Burstein@Squirepb.com or 202-626-6868 (o) or 202-669-3411 (c).

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