# Petition for Writ of Certiorari — Panetti v. Quarterman

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0369%3A02

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 930

## Text

10 9/6/07
,.. 06-6407

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2005

SCOTT LOUIS PANETTI,

Petitioner,

V.

NATHANIEL QUARTERMAN,
Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Keith S. Hampton*
1103 Nueces Street
Austin, Texas 78701
(TEL) 512-476-8484
(FAX) 512-476-0953

Gregory W. Wiercioch
Texas Defender Service

430 Jersey Street

Michael C. Gross

106 S. St. Mary’s Street
San Antonio, Texas 78205
(TEL) 210-354-1919
(FAX) 210-354-1920

San Francisco, California 94114

(TEL) 415-285-2472

(FAX) 415-285-2472

* Counsel of Record, Member Supreme Court Bar

CAPITAL CASE

QUESTION PRESENTED
DOES THE EIGHTH AMENDMENT PERMIT THE EXECUTION OF A DEATH ROW INMATE WHO HAS
A FACTUAL AWARENESS OF THE REASON FOR HIS EXECUTION BUT WHO, BECAUSE OF SEVERE
MENTAL ILLNESS, HAS A DELUSIONAL BELIEF AS TO WHY THE STATE IS EXECUTING HIM, AND

THUS DOES NOT APPRECIATE THAT HIS EXECUTION IS INTENDED TO SEEK RETRIBUTION FOR

HIS CAPITAL CRIME?

TABLE OF CONTENTS

I ie 6 ara alate alate ess ad phscenene i
TABLE OF CONTENTS ............. RPC Vere tee ty PRN aT ae ii
eT CE otic Cece dvcrenscentcudéndenedudess’suaeweskwlwexacan iv
EEE EE ee REPS RR a RM ee 2
EL isaeGhiahenysdVacustNendul beeches se Mleced bie wew nha sock ccces 2
CONSTITUTIONAL PROVISIONS INVOLVED ......... ccc cece ccc ccc eccceecucees 2
ey tes ce og cebu ee hbensseuebedendedatede sweets 2
A. Mis. Panotti’s History of Mental Timess ...... 0. ccc cc cccccccccceccess 3
B. The Competency-to-Stand-Trial Proceedings ..............0cccceueceuuee 5
S. Ms. Panetti’s Decision to Waive Counsel .... 0... cee cc ccccccscceces 7
D. Mr. — Refusal to Take Antipsychotic Medication ................... 8
E. EE 5 5 40d vl Rade oxaiee bee danenkdcecetaeial 10
P. The Appellate and Post-Conviction Proceedings ....................0005. 17
G. The Competency-to-Be-Executed Proceedings ..............00.cecceeeee 18
H. Evidence of Mr. Panetti’s Detcriorating Condition ....................... 23
i 24
REASONS THE WRIT SHOULD BE GRANTED ................cccccccccccscsecces 26

THE F IFTH CIRCUIT HAS INTERPRETED FORD V. WAINWRIGHT SO NARROWLY THAT
THE EIGHTH AMENDMENT DOES NOT PROTECT THE INSANE FROM BEING EXECUTED
i 005d cK 8N6658 4 6dNE Code OE RES Slew OU ean SRE Leet oie eee 26

A. Because the Fifth Circuit has jettisoned Ford’s retributive rationale from the
execution competency determination, the Eighth Amendment provides no protection
to the severely mentally ill in the nation’s busiest death penalty jurisdiction .. . 28

B. The confusion sown by Barnard has led the American Bar Association, the American
Psychiatric Association, and the American Psychological Association to adopt
resolutions intended to remind the courts of the retributive value underpinning of

DE REGS Coad 64 GRRE SORES OV ESES MATT oO eee tdecdak Fished ee anne 32

od Mr. Panetti’s case presents an ideal vehicle for this Court to ensure the Fifth Circuit's
TEE avis pavdcacckosceddncdbess mcecieidessosunkdan 34
ET s6cucdiwdcttenddd di sccudiinnpebentekddudesoihsedcnteecseebesens 35

TABLE OF AUTHORITIES

FEDERAL CASES

RSS. CED, TS FF Ore Ne GOOD vice csccccceccevccncccsccevecccns passim
Ford v. Wainwright, 477 US. 399 (1986) saciatacael kde vekeuubinkou cee nnmneaien passim
Ford v. Wainwright, 752 F.2d 526 (1 \th Cir. 1985),

er TE ah bs kd ruck Gan wetee Fehuab cic 3]
Se I ted bid bunesstbpeasevensebeusavesedosnunddas 27
Lowenfield v. Butler, 843 F.2d 183 (Sth Cir. 1988) 2.2.0.2... 0.0 c ccc cece eee eves 29,30
Martin v. Dugger, 686 F. Supp. 1523 (S.D. Fla. 1988)... 6... eee eee cee eee ees 30
Panetti v. Cockrell, No. 01-50347 (Sth Cir. Jul. 19, 2003) .. 0.0.0.0. cece cee eee 18
Panetti v. Dretke, 448 F.3d 815 (Sth Cir. 2006) ............. ccc cece eee eee ees 2,25,26,30
Panetti v. Dretke, 401 F. Supp.2d 702 (W.D. Tex. 2004) .... 2. cece eee 2,24,25,34
Panetti v. Johnson, No. A-99-CA-260-SS (W.D. Tex. Mar. 9, 2001) 2.00.0... cee ee 18
eg eek une eee ee hed apeeneNe 18
Solesbee v. Balkcom, 339 U.S. 9 (1950), .

overruled, Ford v. Wainwright, 477 U.S. 399 (1986) . 0.0... ccc cc eee eee eee 3]
Vargas v. Lambert, 199 F.3d 1161 (9 Cie. 1996) ow... ccc ccc eres ccccccccecccsecees 29

STATE CASES
Ex parte Panetti, Writ No. 37,145 (Tex. Crim. App. May 20, 1998) ...........0...000005 18
STATUTES

PE EE, bide dceewnhekdvaeniadevdadavens Pabichowkiveeveutaenesdpiesabs 2.4
I oe vaca de aeeesadusbbdeeuesdens eas cab keeeeeees 4,19

MISCELLANEOUS

American Bar Association, Resolution 122A (Aug. 8, 2006) ... 0... 00. ee 32
American Psychiatric Association, Mentally Ill Prisoners on Death Row (Dec. 2005) ...... 33
Blumenthal & Liptak, Judging Whether a Killer is Sane Enough to Die,

DU I A i la er a 34
Bonnie, Mentally Ill Prisoners on Death Row: Unsolved Puzzles for Courts and Legislatures,

Pe i CIE <:i-5's 60s 64-6 cb xu $0008 Feeesec even bebknee neenes 34
Chamblee, Time for a Legislative Change: Florida's Stagnant Standard Governing

Competency for Execution, 31 Fla. St. U. L. Rev. 335 (2004) 2.0... 06. ee eee eee ee 28
Farringer, The Competency Conundrum: Problems Courts Have Faced in Applying

Different Standards for Competency to be Executed, 54 Vand. L. Rev. 2441 (2001) ...... 29
Honberg, The Injustice of Imposing Death Sentences on People with Severe Mental Illnesses,

Pe a rh SED bk on weeny nne bn da ceed kane teeuees pecuenyeecaes 34
Horstman, Commuting Death Sentences of the Insane: A Solution for a Better, More

Compassionate Society, 36 U.S.F. L. Rev. 823 (2002) ....... 0.0 cc cece cee eee ees 28
Note, /nsanity of the Condemned, 88 Yale L.J. 533 (1979)... 0. cc ce eee eens 31

Schopp, Wake Up and Die Right: The Rationale, Standard, and Jurisprudential Significance
of the Competency to Face Execution Requirement, 5\ La. L. Rev. 995 (1991).......... 31

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2005

SCOTT LOUIS PANETTI,
Petitioner,
Vv.
NATHANIEL QUARTERMAN,

Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

Petitioner Scott Louis Panetti asks that this Court issue a writ of certiorari to review the

judgment of the United States Court of Appeals for the Fifth Circuit.

CITATION TO OPINIONS BELOW

The decision of the United States Court of Appeals for the Fifth Circuit, Panerti v. Dretke,
448 F.3d 815 (S" Cir. 2006), is attached to this petition as Appendix A. The memorandum opinion
of the district court denying Mr. Panetti’s competency-to-be-cxecuted claim, Panetti v. Dretke, 401
F. Supp.2d 702 (W.D. Tex. 2004), is attached as Appendix B.

JURISDICTION

The Court of Appeals entered its judgment on May 9, 2006. The Court of Appeals denied
Mr. Panetti’s timely petition for rehearing en banc on June 8, 2006. The order denying rehearing is
attached as Appendix C. This Court’s jurisdiction is invoked pursuant to 28 U.S.C. §1254, Mr.
Panetti having asserted below and asserting in this petition the deprivation of nights secured by the
United States Constitution.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

l. This case involves the Eighth Amendment to the United States Constitution, which
provides that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”

2. This case involves the Fourteenth Amendment to the United States Constitution,

which applies the Eighth Amendments to the states, and which provides, in _— part, that “No
state may deprive any person of life [or] liberty . . . without due process of law.”
STATEMENT OF THE CASE
While the issuc in this case now focuses on competency to be executed, it is important for

this Court to understand the severity of the mental illness that Mr. Panetti has experienced for 25

years and its manifestations at every stage of his criminal proceedings. There is no dispute that Mr.

Panetti is profoundly mentally ill; the dispute centers around the legal consequences of his mental
illness. Although unorthodox, this lengthy Statement of Facts will provide context and asSist the
Court in assessing the question at the heart of this case: whether Mr. Panetti’s psychotic thought

processes affect his ability to appreciate the connection between his crime and his punishment.

A. Mr. Panetti’s History of Mental Illness

In the decade leading up to the crime, Mr. Panetti was hospitalized 14 times in six different
institutions for schizophrenia, manic depression (bipolar disorder), auditory hallucinations, and
delusions of persecution and grandiosity.' He was involuntanly committed to the Kerrville (Texas)
State Hospital i 1981. He was diagnosed as paranoid and hostile toward his family. In April 1986,
he was admitted to the Starlite Village Hospital and diagnosed with schizophrenia. He spoke
incoherently and was actively hallucinating: He claimed he killed the devil and exorcized his home.
He was transferred to the Kerrville State Hospital for further evaluation and was diagnosed with
paranoia and schizophrenia He had nailed shut the curtains in his home and buricd some of his
furniture in the backyard, becausc he believed that the devil wasin the furniture. He was transferred
to the Waco Veteran’s Hospital in May | 986, diagnosed with chronic undi Sesentiened schinghomia,
and treated with antipsychotic medications.

Mr. Panetti moved to Wisconsin and was admitted to Tomah Veteran's Hospital in July 1986
after failing to comply with his medication regimen. He was again diagnosed with atimabente.
He was transferred to Cumberland Memorial Hospital and diagnosed with depression, brain

dysfunction, delusions, auditory hallucinations, and homicidal ideation toward his family. He was

' Mr. Panetti’s medical records were admitted at the second competency-to-stand-trial
proceeding in 1994 as State Exhibits | through 6.

3

then transferred to Northern Pines Unified Services Center in August 1986 and diagnosed with
depression and suicidal ideation. Mr. Panett: experienced hallucinations, seeing the devil on a wall.
He hallucinated blood coming out of the walls. He washed the walls and his house to get rid of the
devil. Mr. Panetti appeared to be on the edge of a psychotic break. He was concerned that he might
hurt his family.

Upon his return to Texas, Mr. Panetti was again hospitalized at Starlite Village in October
1986 and again diagnosed with schizophrenia. He was transferred to the Kerrville Veterans Hospital
in November 1986 and diagnosed with schizoaffective disorder.

In 1990, Mr. Panetti was involuntarily committed to the Kerrville State Hospital for
homicidal behavior: He had threatened to kill his wife, baby, father-in-law, and himself. The
citizens of Kerrville, Texas, were plotting against him, he believed.. In 1992, after threatening his
family and suffering from delusions of grandiosity and psychotic religiosity, he was admitted to the
Kerrville Veterans Hospital and diagnosed with schizoaffective disorder. During Stctucaindientu
the records revealed the possible presence of three personalities that he had given names to.

In the midst of his severe mental health problems, he and his wife separated, and she took
their three-year-old daughter and began living with her parents. On September 8, 1992, Mr. Panetti
sawed off the barrel of a shotgun, shaved his head, dressed in Army fatigues, went to the residence
of his parents-in-law, Joe and Amanda Alvarado, and shot them in front of his wife and daughter.
He then took his wife and daughter to his bunkhouse. He eventually released them unharmed. When
the police surrounded his bunkhouse, Mr. Panetti changed into a suit and surrendered to the police.

B. -to- lal Procee di

Based on Mr. Panetti’s lengthy history of severe mental health problems, a competency trial

4

was held in 1994. After the jury deliberated for nearly twelve hours, the judge declared a mistrial.
10 RR 371, 3792 Notes in the record indicate that the jury deadlocked 9-to-3 in favor of
incompetency. 3 CR 290. A little more than a month later, after the trial court ordered a change of
venue, a new jury heard nearly identical evidence about Mr. Panctti’s competency to stand trial.’

At the second competency trial, Mr. Panetti’s defense counsel, Richard Mosty, testified that,
under stress, Mr. Panetti would become delusional and unresponsive to his questions. During
conversations, Mr. Panetti often said that he felt possessed by demons and had been visited by angels
and Jesus. Mosty testified that he could not have a meaningful conversation with Mr. Pancetti about
the legal issues in the ease. He concluded that Mr. Panetti was not competent to stand trial. 13 RR
20-50.

Dr. Richard Coons, a forensic psychiatrist, performed a competency evaluation. He found
Mr. Panetti suffered from schizophrenia. Dr. Coons testified that Mr. Panetti decompensates when
under stress, causing his thinking to become tangential, circumstantial, and inefficient. As an
example of Mr. Panetti’s disordered thought processes, Dr. Coons listed the topics Mr. Panetti talked
about during onc of their mectings: e

[H]e began to talk about scripture and then he began, with no prompting from me,
no interjection from me whatsoever, he went from scripture to being in jail in Bell

* Citations to the reporter’s record of the capital murder trial and the competency-to-stand-
trial proceedings are noted as“ RR __.” Citations to the clerk's record of the capital murder trial
and competency-to-stand-triai proceedings are noted as“ CR ___.” Citations to the competency-to-
be-executed hearing held in federal district court are noted as“ FH __.”

* The parties presented virtually the same evidence at both competency trials. All but one
of the witnesses testified at both competency trials. Only Dr. Michael Lennhoff, a defense expert
at the first competency proceeding who testified that Mr. Panetti had the ability to rationally
understand the proceedings and consult with his lawyers, did not testify at the second competency
proceeding.

County to the way pnsoncrs look, to the Waco Veterans Administration Hospital.

He described patients. He talked about lightning, talked about having been drowned

a couple of times, the Lord wants me to help a person, talked about the meaning of

life, suicidal thoughts, his mother’s prayers, so much to be thankful for, problem

marriages, women he’s dated, rodeo, drinking, tequila in old Mexico, the YO Ranch,

his battle with the bottle, a mescal dream of a bottle with worms in it, dope dealer

sitting in the courtroom, Luke, Chapter 13 Verse 33, new saddle, boots, boot maker

is dead, hobbles for a horse, an old picce of cotton rope and riding with a lead shank.

13 RR 63-64. According to Dr. Coons, Mr. Panetti had other distractions besides his disordered
thinking that prevented him from rationally assisting his lawyers: He hears some voices that may
have “particular religious significance” and others that are “more precise and commanding.” /d. at
65. Dr. Coons concluded that Mr. Panetti could not consult with his attorneys with a reasonable
degree of rational understanding, and that Mr. Panctti did not have a rational understanding o* the
proceedings. /d. at 59-85.

Dr. E. Lee Simes, a psychiatrist, testified Mr. Panetti is clearly mentally ill, that his thought
processes are tangential, and that he most likcly suffers from schizophrenia. Dr. Simes concluded
that Mr. Panetti was competent to stand trial. However, Dr. Simes admitted on cross-examination
that he recalled Mr. Panctti’s delusional, irrational thinking about “gold dust coming down and
spiritually filling him,” “the demons Dagon and Beelzebub,” and “the tinglies.” 13 RR 153-54. Dr.
Simes also recalled Mr. Panetti’s delusional thoughts about the four personalities inside him and his
belief that the purpose of the competency trial was to provide him with the proper medication. Dr.
Simes admitted that when he asked Mr. Panctti about the role of his lawycrs, he never gave arational
response. Dr. Simes also conceded that when he testified at the first competency trial, he said that

Mr. Panetti believed the President was Ford or Nixon. Dr. Simes agreed that stress exacerbates

schizophrenia and Mr. Panetti’s delusions could make him incapable of assisting his attorneys. Dr.

Simes testified that, as the capital murder tnal progressed and the stress increased, it was “quite
possible” that Mr. Panetti would decompensate. /d. at 174.
* Mr. Panetti was found competent to stand trial. 13 RR 206-07.

C. Mr. Panetti’s Decision to Waive the Assistance of Counsel

On April 1, 1995, Mr. Panetti had a “revelation” that he was a “bom-again April fool” whose
schizophrenia had been cured by God. 15 RR 9.* He refused to take any more antipsychotic
medication.* Less than three months later, Mr. Pancetti asked the trial court to allow him to represent
himself. 15 RR 14-16, 26. His attorneys told the judge that they did not feel Mr. Panetti was
competent to stand trial, did not understand the process, and should not represent himself. /d. The
prosecution objected to allowing defense counsel to withdraw, stating:

I don’t think the State could agree to this, if that’s an issue with the Court, but I did

want to put that on record. We are concerned about protecting the Defendant's

rights. I think they would be best served by leaving counsel in based on the record

we have heard today.

Id. at 23-24. Based on the jury’s finding that Mr. Panctti was competent to stand trial, the court ruled

that he could represent himself. Jd. at 29-30.

* Mr. Panetti described this “revelation” in his opening statement to the jury at the guilt-
innocence phase of his capital murder trial:

In my year in the Waco Branch Davidian expert’s cell in Bell County, I didn’t hear from my
previous law firm, and I got paranoid that I wasn’t being told or lost a chance to appeal the
decision of the illegal evidence that was found illegal and then found legal, and I came to the
conclusion after my medicine was taken from me and I went into the paranoia and the
thought disorder that it depended on me, the April fool, as I consider myself the born again
April fool, not saying being born again bars someone from being able to sin, but | depended
on the Lord to do for me what the medicine wasn’t doing.

31 RR 31-32.

* Mr. Panetti has not taken any antipsychotic medication since that day.

-

D. Mr. Panetti’s Refusal to Take Antipsychotic Medication

Mr. Panctti stopped taking any medication to alleviate his symptoms of schizophrenia on
April 1, 1995. He began representing himself three months later. However, Mr. Panetti was taking
antipsychotic medicine when he was found competent to stand trial. The undisputed evidence
presented at the competency-to-stan¢trial proceedings showed that his schizophrenic symptoms
(delusions, hallucinations, tangentiality, and circumstantial thinking) markedly diminished when he
was taking his medication. 13 RR 67-70 (testimony of Dr. Richard Coons), see id. at 74 (testifying
that medication and hospitalization have had a “positive influence” on Mr. Panetti); id. at 80
(testifying that Mr. Panetti “gets better” when he is treated). Dr. Coons stated that Mr. Panctti was
currently being treated with such a heavy dosage of Trilafon that it would render somebody without
a severe mental illness dysfunctional. /d. at 69, 71. Without any medication, according to Dr.
Coons, Mr. Panetti would be “very psychotic,” “tremendously paranoid,” and “more delusional.”
Id. at 71. Dr. Coons believed, however, that Mr. Panctti’s condition would improve with better
treatment and more potent medication than Trilafon. /d. at 76-77; see id. at 80 (testifying that Mr.

Panetti “is not being treated with the heavy-duty meds that I think he should be”).° Dr. E. Lee Simes,

* Dr. Coons’s testimony at the first competency proceeding was substantially similar. He
testified that Trilafon is “a medium range, medium intensity antipsychotic medication” that is not
one of the “more powerful, more potent agents” for treating somconc in Mr. Panetti’s condition. 10
RR 226. He believed that Mr. Panetti needed to be treated with medication “much stronger than
Trilafon.” /d. at 228. Nevertheless, Dr. Coons testified that without the strong dosages of Trilafon,
Mr. Panetti “would hear more voices, he’d become more delusional, he would have more strange
ideas. His thinking would be even more fragmented and less intense. He would have even less
control over his thoughts and behavior.” /d. at 234-35. Dr. Coons also noted that Mr. Panetti’s
condition usually improves when he has been hospitalized and properly medicated. /d. at 228, 247.

Dr. Lennhoff, who testified only at the first competency proceeding, also recommended that
Mr. Panett: be treated with newer, more powerful medication to determine if his condition would
improve. 9 RR 257.

the State’s expert who testified at the 1994 competency hearings, agreed with Dr. Coons that Mr.
Panetti’s condition would worsen if he were not taking any antipsychotic medication. 9 RR 279.’

After Mr. Panetti began representing himself, he asked the judge on several occasions that
he be given the proper medications and an opportunity to sce a psychiatrist. At a pretrial hearing on
August 14, 1994, Mr. Panetti said, “I haven't had the proper medication since April of ‘91 and I’m
pretty much convinced of my healing and a need not forit, and if | was offered a state of the art new
medication where | was offered just old stuff, may consider a medication that may help my conduct
in court from here on... .” 19 RR 42; see id. at 30 (“All I’m asking is for a simple lick out of the
shoot, such as medicine, such as treatment, not to delay, and we’ ll deal with the witnesses’ subpoena
and continuance and forgive me for rambling on, Your Honor.”’). The judge denied Mr. Panetti’s
motion for continuance. /d. at 60-61. In that same hearing, the judge said, “the next motion is a
motion for treatment of mental illness and I think I have already addressed that. That’s outside of my
jurisdiction, and that’s denied.” /d. at 26. Ata pretrial hearing on September 6, 1995, Mr. Panetti
mentioned his desire to speak with a psychiatrist. The appointment was scheduled for September
12", the same day the judge had set for the case-in-chief to begin. The judge responded, “I’m
hesitant to do anything that’s going to gct us off track for going, you know, 9:00 to 5:00 every day
on the trial. If it is after 5:00, | don’t have a problem, and then, as I told you yesterday, if you can

change that appointment to the | Ith, that would really be the best thing.” 30 RR 8-9. Finally, on

’ Dr. Arambula stated in the report he prepared for state habeas counsel that Mr. Panetti’s
refusal to take any medication in the months leading up to his trial, coupled with “the stress of a trial
upon any defendant, much less one representing himself,” would lead any clinician to “reasonably
foresce that Mr. Panetti’s symptoms would worsen.” Affidavit of Michacl Arambula, M.D., R.Ph.
at 5-6. In this unmedicated state, Mr. Panetti “deteriorate[d] to such a level that he was subject to
persecutory delusions and severe disturbances in his thinking (and ability to communicate with
others). /d. at 7.

September 12, 1995, the first day of the tnal, Mr. Panetti requested a continuance. He expressed his
concerns about getting anon-drowsy medication so that he would be able to think clearly, because
“Thad problems with certain jurors that I couldn’t think clearly nough to ask them acertain question
and I declined to ask those questions.” He argued that he needed to have medicine and see a
psychiatrist so that he would “be prepared.to_cross-cxamince, to think clearly, to cross-examine

witnesses clearly.” 31 RR 13-17. The trial court denied Mr. Panetti’s request for a continuance.

E. The Capital Murder Trial

Regecsenting himself, Mr. Panetti raised a defense of not guilty by reason of insanity. He
dressed in a “Tom Mix” outfit like a cowboy in an old television Western. He wore a cowboy hat
in court that hung on a string over his back. leather suede pants tucked into his cowboy boots, and
a burgundy double-folded Western shirt with a bandana. He peppered his remarks to the court and

7 4s

questions to the witnesses with phrases like “bronc steer,” “pardner,” “run away mule,” “buckaroo,”
and “hosses.” He made bizarre and inappropriate statements to the jury; went on imelevant,
irrational, and illvgical reveries (tangential thinking); exhibited sudden changes in his thought
processes (flight of ideas); asked questions that were incomprehensible or not coherently connected
together (loose associations): rambled incessantly and in such extraneous detail that the main point
was obscured (circumstantial thinking); perseverated; recited senseless, fragmented prose; badgered
the judge, the prosecuting attorney, and witnesses; and resisted the judge’s repeated efforts to control
his conduct.

Several excerpts from various portions of the trial provide compelling evidence of the

severity of Mr. Panetti’s mental illness:

e Mr. Panetti applied for over 200 subpoenas, including John F. Kennedy, Pope John

10

Paul Il, and Jesus. He listed Jesus’s address as “everywhere” and the county of
residence as “Heaven.” See 36 RR 1207 (“I didn’t want to go subpoena crazy and |
turned the Pope loose and J.F.K. and I never subpoenaed them, but Jesus Christ, he
doesn’t need a subpoena. He’s right here with me, and we’ll get into that.”).

Mr. Panetti made bizarre comments to the panel of prospective jurors during general
voir dire:

The death penalty doesn’t scare me, sure but not much. Be killed, power line, when
I was a kid. I’ve got my Injun beliefs as a shaman. | sent the buffalo hom to my
sister. Adjustment, Jesus wrote. I was born in the North woods in a reservation
hospital and my granddad was a justice of the peace and he sobered up the doctor and
the doctor was half sobered and they delivered me and my mom had a bad sickness
in her milk and they wondered why I wasn’t dead, and a lot of beatings I took from
the kids that show me had prejudice, which I don’t have any prejudice, and they said
this about me in the newspapers in the beginning, but I don’t love Injuns and
Mexicano, and Mexicano know, but | suffered a lot of reverse prejudice from
Colored people, which is rare, darn rare, but | was named “He who doesn’t cry”
because I didn’t cry when I should have, and I must admit, though, in Gillespie
County Jail when I was in my little suicide box whese there was an old boy
committed suicide, I went through about a week of pretty much scuba diver’s tears;
although, I don’t scuba.

RR vol. 2] at 87-88.
He asked rambling, nonsensical questions of trial witnesses:

Mr. Panetti: Canteen where — I was expecting the whole list to question, Donna
Stanley, educated, expert.

The Court: You need to ask a question, Mr. Panett.

Mr. Panetti: I hope you don’t find any more ~ well, Dr. Bayardo, he didn’t find
any offense when I mentioned “Quincy.” We didn’t say whether we
liked the show, but we mentioned about the beginning where the cops
got sick, and [ asked him that naturally for a reason, but I didn’t ask
him if it made the job popular or anything, but when it comes to
dealing with blood, his autopsy, and the crime scene, your expert
evidence, autopsy, crime scene. I’m thinking out loud, so I don’t ask
you questions that you’re — well, it would be like asking a rodeo hand
what cutting a horse means. They might know it all, but I just — have
you got those pictures of the glow-in-the-dark?

32 RR 443.

The judge repeatedly wamed Mr. Panetti to ask relevant questions:

The Court:

Mr. Panett:

The Court:

Mr. Panetti:

33 RR 755-56.

Well, can you tell me how it’s going to be relevant, Mr. Panetti? I’m
not sure how your belt buckle is relevant to this issuc.

Your Honor, I beg the pardon of the Court, but if I was to — not a
gambler, but I found in the jury selection and whatnot that it was
compared, legal business was. In other words, if I go ahead, or if I
would have requested this buckle brought out earlier, or if | would
have requested it later, in light of the fact that it may not be brought
in, I would have been telling the District Attorney, such as subpoena
list that had to change because some of his witnesses weren’t called
that [ had to recall.

Mr. Panetti, at this time I don’t see how the belt buckle is relevant to
any issue this jury is going to determine and so if you can’t explain
the relevance to me, I’m going to sustain the objection. Can you
explain to me how the belt buckle is relevant to any issue in this case?

Yes, | can, Your Honor. It has to do with jailhouse religion. It has to
do what some men would do for a belt buckle. It has to do with the
difference between a rodeo hand and a buckaroo poet. It as to do with
my whole outlook and this will come up, God forbid, in the
punishment stage. ,

Before religion, when you got religion, prior religion, church
member, I’m going to have witnesses from the church come in and
Chaplain Bob got on his knees and read that buckle, Ranger
Cummings, read this buckle and people go out of their way. At
rodeos cowboys make sure they look at your buckle without you
looking at it.

Mr. Panctti took the stand in his own defense at the guilt-innocence stage of the trial
and proceeded to tell his life story, including: his birth, his méther’s milk sickness,
his parents fighting, his ncar-drowning, his clothes and haircut, his tattoo, a horse
flipping over on him and his castrating that horse later, working with his father,
farming, recciving military fatigues after his uncle returned from Vietnam, a school
play, a girlfriend who got him into rodeo, his sexual experiences, his job as an
artificial insemination technician for cattle, drinking, smoking marijuana, horses his

1?

—

family owned when he was growing up, riding a minibike, watching his friend who
was a diabetic injecting insulin, his girlfricnd’s abortion, being a cowboy and bull
rider, an automobile accident he was in, going into the Navy, intclligence training,
being drugged with LSD and PCP in the Navy by a fellow soldier, his brothcr’s
wedding, taking cocaine with a nursc after Icaving the Navy, talking with a man who
worked for Frederick’s of Hollywood who wanted him to model lingerie, his
marriages, his near-clectrocution, killing a rattlesnake, being an extra in a movie,
attending cosmetology school and cutting his sister's hair, accidentally being shot in
the leg, and secing the devil.

37 RR 1447-1556.*

e Despite the trial court’s repeated orders to testify only about certain topics, Mr.
Panetti’s perseveration prevented him from obcying them:

The Court: Mr. Panetti, get to the LSD incident.

Mr. Panetti: And —

The Court: Right now.

Mr. Panetti: Right now. I went — now, my military records, sir, this is thick, and
I’m going to make it that thick, but I’m just going to bnefly move to
the LSD incident.

The Court: Go straight to it right now.

Mr. Panetti: Okay. They — they said, “You're so highly qualified.”

The Court: —_No, straight to the LSD incident.

Mr. Panetti: Well, sir -

The Court: Go straight to the LSD incident.

Mr. Panetti: That was my third and final duty station, but right in the middle I'll
just quickly touch a short stint.

The Court: | No, don’t touch on the short stint. Go straight to the LSD incident.

Mr. Panetti: First time I requested to sce a psychiatnst, I thought that I might be
disciplinaried, and they — I didn’t know how to go about that.
Straight to, okay, straight to. Your Honor, may I just briefly touch on
the brief situation of — briefly to that incident?

* The judge admonished Mr. Panctti about the relevance of his testimony:

Mr. Panctti, for the last 35 minutes we have been listening to Navy stories that I do
not deem relevant. I am not going to let you ramble and tell the jury your life story.
] wouldn’t let the State have a witness on and just ramble and tell his life story. I’m
going to insist that you get to issues that you think this jury can use in making their
determination of whcther or not you’re guilty or innocent of the charges against you.

37 RR 1478.

13

The Court: No.

Mr. Panetti: It has relevance, sir.

The Court: No.

Mr. Panetti: It does have relevance, sir.

The Court: Go straight to the LSD incident.
Mr. Panetti: They said —

(At which time there was a long pause.)

Mr. Panetti: They said — they said, “What do you want to do?” I said, “Just let me
run heavy equipment.”, and they said, “No, you can’t. That’s full up.
You cant be in HCB.”

The Court: Mr. Panetti -

Mr. Panetti: And I’m coming right up to my first taste of LSD.

The Court: Stop. Ladies and gentlemen, we’re going to recess —

37 RR 1476-77.
Assuming the personality of “Sarge,” Mr. Panetti testified about the crime:

Joe, Joe, Amanda, no talking, no words, knife, Sarge knife, threatened, scared, fight,
no. Sarge shoots,CC. Sarge turns, shoots, boom, boom. Where is Amanda? Mom
is dead. Joe look up. No. Where’s Birdie? Sonja bedroom. Birdic. Joe. Where’s
Amanda. Sarge, Sarge, left abullet. Scott, what? Scott, what did you see Sarge do?

Fall. Sonja, Joe, Amanda, kitchen. Joe bayonet, not attacking. Sarge not afraid, not
threatened. Sarge not angry, not mad. Sarge, boom, boom. Sarge, boom, boom,
boom, boom. Sarge, boom, boom.

Sarge is gone. No more Sarge. Sonja and Birdie. Birdie and Sonja. Joc, Amanda
lying kitchen, here, there, blood. No, leave. Scott, remember exactly what Sarge did.
Shot the lock. Walked in the kitchen. Sonja, where’s Birdie? Sonja here. Joe,
bayonet, door, Amanda. Boom, boom, blood, blood.

Demons. Ha, ha, ha, ha, oh, Lord, oh, you.

The Court: Mr. Panetti, let’s stop.

Mr. Panetti: You puppet.

The Court: Mr. Panetti, we're going to take about a five-minute recess.

37 RR 1544-46.

Mr. Panctti delivered an incoherent guilt-innocence phase closing argument:

14

Ladies and gentlemen of the jury, | think that State will have more than a few
comments, judging by the time allowed to respond to mine. Brie fly, in 45 minutes
you might wonder a little bit about when I testified, and Scott and Sarge and who
talked and who talked about who and who talked about what and in light of Dr.
Simes not being here, he did leave this letter and it will explain that and it has
something to do about me showing you the tattoo and introduce you to Will, and I
don’t tell you Texas Will and Chaplain or Montana Will and go into that, and the
evidence will, if you read that, look over that, might explain that. I wish you not to
mistake charisma for sanity. Charisma is by definition a spiritual gift.

Briefly touching on just a few of the - demon dabbling is my understanding just a
nonphysical being hostile to humans and God, caused by bad influences and disease,
mental distress on human beings.

See 38 RR 1645-63.
Mr. Panetti delivered an incoherent 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 Vetcrans Hospital to Father De la Garza, | wasn't
Catholic.

See 39 RR 85-90.

On September 21, 1995, the jury found Mr. Panetti guilty of capital murder. The next day,

the punishment phase began. The prosecution called two witnesses, including Dr. James Grigson,

who testified that anapsychotic medications would not reduce the likelihood that Mr. Panetti would

be a funn danger to society. 39 RR 54, 60. Mr. Panetti called only one witness, his stand-by

counsel. He was sentenced to death the same day. 7 CR 1033-38.

Dr. Wolfgang Selck, a psychiatrist who treated Mr. Panetti at the Starlite Village Hospital

in 1986, and whom Mr. Panctti called as a witness, watched a day-and-a-half of the trial before he

testified. Dr. Selck later provided state habeas counsel with an affidavit setting out his observations

i)

of Mr. Panetti’s behavior in the courtroom:

Scott was acting as his own attorney from his paranoid fear that the attorneys were
out to get him. Due to the paranoia, Scott was lead [sic] by his mental illness to
demand to represent himself. Since Scott could not trust lawyers to represent him,
he had to represent himself. This decision was a facet of his paranoia and severe
mental illness.
**# * *

As a psychiatnst | also observe the emotion rather than the contents of the sentence.
The emotion that Scott displayed was also a clear sign of mental illness and
incompetence. To the lay person and the jury, it may have appeared that Scott was
capable because he appeared normal in the sense that he could talk in sentences, ask
questions, and argue. One reason that some mental illness is difficult to determine
is because paranoid people are usually sharp in certain areas. A paranoid
schizophrenic may be alert to time and place, but, this has to be contrasted with the
verbal rambling where the person is lost in irrelevant talk or where the person has
fixed ideas.

Affidavit of Wolfgang Selck, Ph.D., at 3-4.

Mr. Panetti also called Dr. F.E. Seale, another psychiatrist who treated Mr. Panetti at the
Starlite Village Hospital in 1986, to testify at the capital murder trial. Dr. Seale had an opportunity
to watch Mr. Panetti in court for an entire day, and later gave state habeas counsel an affidavit
containing his opinion about Mr. Panetti’s behavior: 7

When I observed Scott in September 1995 at his trial, | would describe Scott as
delusional.

~— ***
My main impression was why was the Judge allowing this crazy man to defend
himself. | thought to myself, “My God. How in the world can our legal system allow
an insane man to defend himself? How can this be just?” | not only thought Scott
was incompetent, but, that it was not moral to have him stand trial. It was ternbly
wrong. I did not know that our legal system would allow an insane man to represent
himself in his own trial. -

***

Scott was acting out a role that was a delusion of a specific war hero. He described
the shooting in the rok of Sarge. He acted out the role in the Courtroom. Scott was
totally out of touch with reality. He had no knowledge of the effect of his actions in
Court. I think that Scott was enjoying playing the role of Sarge. This is a sure sign
of obvious mental illness.

16

The main thing that | specifically remember about Scott was his manner and the
grandiosity of his ideas. Scott enjoyed being an attorney descnbing his role in the
crime. The Court allowed Scott to perform.

Affidavit of F.E. Seale, Ph.D., at 1-2.

Dr. Michael R. Arambula, a forensic psychiatrist, provided state habeas counsel with an
evaluation of Mr. Panetti’s mental status at the trial. He reviewed the medical records, conducted
a clinical interview, and read the trial transcnpt. Dr. Arambula’s report contains several insights
about Mr. Panetti’s behavior during the trial:

There are numerous incidents in Mr. Panetti’s trial when he exhibits flight of ideas
and grandiosity (symptoms of mania), but there are even more examples of looseness
of associations and tangentiality in his thought processes (symptoms of
Schizophrenia). Example after example of the court repeatedly redirecting Mr.
Panetti to stay on line with relevant evidence is a stark example of how he cannot
think.and communicate rationally because of his underlying disease. It is certainly
understandable from a lay point of view how frustrating it was for the court,
particularly not appreciating that Mr. Panctti’s disease was the reason for his inability
to comply with the judge’s requests.

*s*
It is clear to this examiner that Mr. Panctti retains personal choice throughout his trial
proceedings. This is not unexpected, since even the most psychotic individuals |
have seen in my career still have personal preferences and choices. However, the
clinical crux of a reasoned choice is determined by whether a person’s psychotic
thought process is involved in that decision-making process.

** a2 *
Mr. Panetti’s testimony indicates that he is cognitively impaired by his own thought
disorder. Even though Mr. Panctti’s choice to represent himself is a personal
decision, his ability to carry out this personal decision is still limited by his psychotic
disease. Mr. Panctti’s thoughtdisorder renders his thinking incoherent, illogical, and
goal non-directed. :

Affidavit of Michael R. Arambula, M.D., R.Ph., at 6 (emphasis omitted).

F. The Appellate and Post-Conviction Proceedings

Mr. Panetti agreed to be represented by counsel on direct appeal. Appellate counscl raised

several points of error related to Mr. Panetti’s competency. The Texas Court of Criminal Appeals

17

rejected the claims and affirmed Mr. Panetti’s conviction and sentence. Panetti v. State, AP-72,230
(Tex.Crim. App. Dec. 3, 1997) (unpubiished). This Court denied his pe***:on for a writ of certiorari
on October 5, 1998. Panetti v. Texas, 525 U.S. 848 (1998).

Mr. Panetti, represented by counsel, filed his state application for writ of habeas corpus on
June 19, 1997." In it, he raised several claims related to his competency. Adopting verbatim the
findings and conclusions authored by the District Attorney, the trial court recommended that habeas
relief be denied. The Texas Court of Criminal Appeals adopted the trial court’s findings and
conclusions. Ex parte Panetti, Wnt No. 37,145 (Tex. Crim. App. May 20, 1998) (per curiam)
(unpublished).

Mr. Panetti filed his federal habeas petition on September 7, 1999. The district court held
that Mr. Panetti had not exhausted his claims that he was incompetent to stand trial and that the
judge should have held an additional hearing to determine his competency. Panetti v. Johnson, No.
A-99-CA-260-SS(W.D. Tex. Mar. 9, 2001) (unpublished). The Fifth Circuit found that Mr. Panetti
had properly exhausted the competency claims, but the appeals court then denied them on the merits.
_Panetti v. Cockrell, No. 01-50347 (5" Cir. Jul. 19, 2003) (unpublished).

G. Competenc y-to-Be-Executed Proceedings

After the conclusion of the federal habeas proceedings in the Fifth Circuit, the state tral court
set an execution date for February 5, 2004. Counsel for Mr. Panetti filed a motion pursuant to

Article 46.05 of the Texas Code of Criminal Procedure, asserting that Ford v. Wainwright, 477 U.S.

” In September 1996, the trial court held a hearing to determine whether Mr. Panetti was
indigent and desired the appointment of state habeas counsel. Mr. Panetti stated that he did not feel
competent to decide whether he wanted to represent himself or request court-appointed counsel. The
judge found that any waiver given at that time would “not be voluntary and intelligently made” and
appointed counsel to represent Mr. Panetti in state habeas proceedings. 43 RR 9.

399 (1986), prohibited Mr. Panetti’s execution. The federal district court later stayed the execution
to allow the state court to adjudicate the Article 46.05 motion. On February 20, 2004, the trial court
found that Mr. Panetti had made a substantial showing of incompetency and, in accordance with the
statute, appointed two mental health professionals, Mary Anderson, a psychiatrist, and George
Parker, a clinical psychologist, to exam Mr. Panetti. The court-appointed experts examined Mr.
Panetti jointly and co-authored a report. They concluded that Mr. Panctti was competent, because
he knew that he was to be executed and he had the ability to understand the reason for his execution.

Mr. Panetti sought the appointment of counsel, funds to hire a mental health expert, and
funds to hire an investigator. He also asked the state court to hold a hearing, as required under
Article 46.05.'° On May 26, 2004, the state court concluded that Mr. Panetti “ha[d] failed to show,
by a preponderance of the evidence, that hc is incompetent to be cxecuted.”

The federal district court held that the state court, by failing to hold a hearing, had violated
the minimal procedural due process requirements of Ford. The district court ordered an evidentiary
hearing and granted Mr. Panetti’s motion for appointment of counscl, motions for funds for expert
and investigative assistance , and motion for discovery. In September 2004, the district court held
the evidentiary hearing. Counsel for Mr. Panetti presented the testimony of four mental health
experts. The State of Tcxas presented the testimony of three death row correctional officers and the

two mental health experts, Dr. Parker and Dr. Anderson, appointed in the state court proceedings.

'° Once an inmate has made a substantial showing of incompetency, not only must the trial
court appoint at least two mental health experts, but it alsomust eventually hold a “final competency
hearing” before it makes a determination of the inmate's competency to be exccuted. TEx. CODE
CRIM. Proc. art. 46.05(k).

19

Counsel for Mr. Panetti first called Mary Alice Conroy, a forensic psychologist who had
worked for twenty years with the Federal Bureau of Prisons evaluating and treating prisoners with
severe mental illness. Dr. Conroy testified that Mr. Panetti suffers from a form of schizophrenia
called schizoaffective disorder. She said that “his thinking docs not fit together in any kind of
logical, rational way,” and that his symptoms include pressured speech, flight of ideas, loosc
associations, and inappropriate affect. | FH 14,21-22. Dr. Conroy testified that Mr. Panetti knows
he is on death row and that the State intends to execute him. She said that he is aware that the State
wants to put him to death for murdering his parents-in-law, but that he belicves “that’s really a
sham.” /d. at 25. According to Dr. Conroy:

His understanding of why he is to be executed is a part of spiritual warfare, and that

spiritual warfare is war between the demons and the forces of the darkness, and God

and the angels and the forces of light, which he said there are angels but they do not

have wings. He pointed that out several times. And the reason that the State wants

to kill him is not what they’re saying.

Id. Dr. Conroy testified that, although Mr. Panctti on at times answer concrete questions, he does
not “perceive or appreciate the connection between his killing of his in-laws and his execution.” /d.
at 26.

Susana A. Rosin, a psychologjst, testified that Mr. Panetti has a set of fixed delusions that
center around grandiose ideas that he must save othcrs by preaching the word of God. Dr. Rosin
testified that Mr. Panetti could hold a normal conversation if the topic of discussion did not deal with
his fixed delusional system. She belicved that he knows he is on death row and that he is going to

be executed. Dr. Rosin also testified that Mr. Panett’ knows he killed his parents-in-law. However,

he told her that he did not believe these murders are the real reason the State secks his execution.

Mr. Panetti told Dr. Rosin that “he was going to be exccuted for preaching the gospel” and that “the
forces of evil, demons, devils are basically set against him.” /d. at 82, 89-90.

The last witness counsel for Mr. Panetti called during its casc-in-chief was Seth Silverman,
a psychiatrist. Dr. Silverman testified that Mr. Panetti believes an individual named “Sarge” killed
his parents-in-law. Dr. Silverman said that Mr. Panetti knows the State wants to execute him, but
that these murders are not the reason. Mr. Panetti told Dr. Silverman that the real reason is
“[bJecause he preaches the word of the gospel.” /d. at 109-10. |

Dr. George Parker, the psychologist whom the state court had been appointed forthe Article
46.05 proceedings, testified that he attempted, along with Dr. Mary Anderson, to evaluate Mr.
Panetti. According to Dr. Parker, Mr. Panctti refused to cooperate with the evaluation, because Dr.
Parker and Dr. Anderson would not answer his question about their religious preferences. Dr. Parker
admitted that Mr. Panetti suffered from “serious psychological problems.” /d. at 134. He also
testified that Mr. Panetti had the ability at times to function in a cohcrent manner. Jd. at 140. Dr.
Parker testified that simply because “Mr. Panetti is preoccupied with religion and may even, at some
level, genuincly believe that he is being executed for preaching the gospel,” does not “render him
incapable of understanding why the authorities have ordered his execution.” Jd. at 142. Dr. Parker
admitted, however, that he does not know whether Mr. Panctti understands why he is going to be
executed, “but that he is capable of understanding.” /d. On cross-examination, Dr. Parker testified
that Mr. Panctti said he was on death row because “they don’t want me to preach the word of God.”
Id. at 150.

The other expert the State called was Mary Andcrson, the forensic psychiatrist who had

examined Mr. Panetti in state court. Dr. Anderson testified that she did not make a conclusion about

21 \

whether Mr. Panetti is competent to be executed. She explained that Mr. Panetti was not cooperative
with the evaluation: He would not answer her and Dr. Parker’s questions, because they had refused
to respond to Mr. Panetti’s question whether they believed in Jesus. Mr. Panetti told Dr. Anderson
that he is going to be executed for preaching the gospel. However, Dr. Anderson believed that Mr.
Panetti had the capacity to understand the real reason why he is going to be executed. She said that
Mr. Panctti’s refusal to cooperate with the evaluation was the result of deliberate, conscious choice
rather than the product of mental illness. She-refused to conclude that Mr. Panetti suffers from
schizophrenia, because she did not think that his mental illness is relevant to the competency
determination. 2FH 40-41.

Counsel for Mr. Panetti called Mark Cunningham, a clinical and forensic psychologist, as
a rebuttal witness. Dr. Cunningham testified that the conclusions of Dr. Parker and Dr. Anderson
that Mr. Panetti was deliberately uncooperative were not a fair characterization of his behavior. Dr.
Cunningham explained that Mr. Panetti has a lengthy history of responding to questions with
religiosity rather than concrete answers. Dr. Cunningham said that Mr. Panetti did not behave ina
fundamentally different way with Dr. Parker and Dr. Anderson than he has with numerous other
persons throughout the criminal proceedings. Emphasizing that Mr. Panetti’s behavior is entirely
consistent with his diagnosis, Dr. Cunningham explained the nature of schizophrenia:

[Y Jou have to understand that when somebody is schizophrenic, it doesn’t diminish

their cognitive ability. It doesn’t make them retarded where they don’t know where

the door is, don’t know you're a doctor, don’t understand that these are corrections

officers. It doesn’t render them stupid.

Instead, you have a situation where — and why we call schizophrenia thought disorder

is the logical integration and reality connection of their thoughts are disrupted, so the

stimulus comes in, and instead of being analyzed and processed in a rational, logical,
linear sort of way, it gets scrambled up and comes out in a tangential, circumstantial,

22

symbolic sort of relevant, not really relevant kind of way. That’s the essence of
somebody being schizophrenic.

And so, when I encounter somebody like that and they respond in that way, they’re
behaving like somebody who is unmedicated, untreated schizophrenic, and that’s
what they can do under these demand characteristics. Now, it may be that if they’re
dealing with someone who’s more familiar, if they’re inside their own cell, where
they spend 23 hours a day and have for years, and what may feel like a safer, more
enclosed environment for them ~ and we're talking through this little screen in the
door about their commissary, or about whether they’re going to come out for a visit,
that these sorts of interactions may be reasonably lucid whereas a more extended
conversation about more loaded material would reflect the severity of his mental
illness.

2 FH 63-64.

Dr. Cunningham testified that Mr. Panetti belicves the State of Texas is not acting as a
lawfully constituted authority in seeking his exccution. ntuol, according to Dr. Cunningham, Mr.
Panctti thinks that the State “is in league with the forces of evil to prevent him from preaching the
gospel.” /d. at 70. Dr. Cunningham identified this as a “specific delusional belief” consistent with

Mr. Panetti’s “long-standing delusions of religiosity” and diagnoses of schizophrenia and

schizoaffective disorder. /d.

H. Evidence of Mr. Panetti’s Deteriorating Condition

At the federal evidentiary hearing, Mr. Panetti’s expert witnesses unequivocally stated that
Mr. Panetti’s mental condition has deteriorated since a jury found him competent to stand trial. Dr.
Conroy attributed his deterioration to the fact that he has not been on any kind of psychotropic
medication since his “April Fool's Day revelation” in 1995. Dr. Silverman also testified that Mr.
Panetti was more |ycid, coherent, and logical when he took his medication. He stated that Mr.

Panetti’s mentai illness “has progressed more significantly” since he stopped taking his medication

in 1995. | FH 117. Noting the type and amount of medication that Mr. Panetti was taking on a daily
basis prior to his pre-trial competency hearings, Dr. Silverman explained that:

I can’t imagine anybody getting that dose waking up for two to three days. You
cannot take that kind of medication if you are close to normal, without absolutely
being put out. And when you wake up, you can’t think. You have kind of like the
lights on, nobody's home. It just doesn’t happen. And he, actually, before that had

- tobe put on 32 milligrams of Stelazine and then, Trilafon. He got that regularly, and
he was still walking and talking. You would have to be extremely psychotic just fo
tolerate it and then, benefit from it. To me, that’s almost diagnostic — that is
diagnostic of a psychotic illness.

Id. at 122. Dr. Silverman concluded that tac lack of medication in a case like Mr. Panetti’s would
most likely lead to “a more severe refractory kind of illness.” /d. at 125.

HOW THE ISSUES WERE DECIDED BELOW

On September 29, 2004, the district court denied relief on Mr. Panetti’s claim of

incompetency to be executed under Ford v. Wainwright, 477 U.S. 399 (1986). Panetti v. Dretke, 401
F. Supp.2d 702 (W.D. Tex. 2004). The court, with some reluctance, concluded that Barnard v.
Collins, 13 F.3d 871 (5" Cir. 1994), controlled the outcome. In Barnard, the Fifth Circuit set out
the state habeas court’s findings of fact:
Applicant’s experts do not establish that he is unaware of the fact of or the reason for :
his impending execution, but rather that his perception of the reason for his
conviction and pending execution is at times distorted by a delusional system in
which he attributes anything negative that happens to him to a conspiracy of Asians,
Jews, Blacks, homosexuals, and the Mafia.
Id. at 876. The Fifth Circuit concluded that these findings were entitled to the presumption of
correctness and held that “[t]he state court thus found that Barnard knew that he was going to be

executed and why he was going to be executed ~ precisely the finding required by the Ford standard

of competency.” /d. at 877. In Panetti, the district court questioned the Barnard court’s statement

that it had applicd Justice Powell’s concurring opinion in Ford as the appropriate standard for
determining competency for execution:

Although the court stated it was following the Powell concurrence in reaching its

conclusion that the standard for competency had been satisfied, it did not even

suggest the presence of an issue with respect to its “retributive goal” aspect. Had the

court determined the “retributive goal” inquiry was required, theresult it reached may

have been different At the very least, the state court’s findings with respect to the

petitioner’s delusions would have given rise to an arguable issuc about whether his

understanding of the reason for his execution was so distorted that the retributive

goal of the law would not be satisfied by his execution.
Panetti, 401 F. Supp.2d at 711. Bound by Barnard, the district court concluded that “a petitioner’s
delusional beliefs - cven those which may result in a fundamental failure to appreciate the
connection between the petitioner’s crime and his execution — do not bear on the question of whether
the petitioner ‘knows the reason for his execution’ for purposes of the Eighth Amendment.” /d. at
712. Consequently, the district court held: “Because the Court finds that Panetti knows he
committed two murders, hc knows he is to be executed, and he knows the reason the State has given
for his execution is his commission of those murders, he is competent to be executed.” Jd.

On May 9, 2006, the Fifth Circuit affirmed the district court’s decision. Panetti v. Dretke,
448 F.3d 815 (S" Cir. 2006). Noting that Barnard was “nearly identical” to Mr. Panetti’s case, the
court held that “Justice Powell did not state that a prisoner must ‘rationally understand’ the reason
for his execution, only that he must be ‘aware’ of it.” /d. at 819: see id. at 821 (holding that
“awareness, as that term is used in Ford, is not necessarily synonymous with ‘rational
understanding’”). Therefore, the Fifth Circuit concluded, Mr. Panetti is competent to be executed,

because cven though he may lack a rational understanding of the reason for his execution, he is

“aware” of the reason the State has given for his exccution. /d. at 821.

REASON WRIT SHOULD BE NTED
THE Fif tH CIRCUIT HAS INTERPRETED Forp Vv. WAINWRIGHTSO NARROWLY THAT
THE EIGHTH AMENDMENT DOES NOT PROTECT THE INSANE FROM BEING
EXECUTED IN TEXAS. ;

I’ve got one thing to say, get your Warden off this gurney and shut up. I am from the island
of Barbados. 1am the Warden of this unit. People are seeing you do this.

— Last Statement of Monty Delk, executed in Texas on February 28, 2002.

Statement to what[?] State what[?] I am not guilty of the charge of capital murder.

Steal me and my family’s moncy. My truth will always be my truth. There is no kin

and no friend; no fear what you do to me. No kin to you undertaker. Murderer.

[Portion of statement omitted due to profanity] Get my money. Give me my rights.

Give me my rights. Give me my rights. Give me my life back.

— Last Statement of Kelscy Patterson, executed in Texas on May 18, 2004.

For today, no less than before, we may seriously question the retributive value of

executing a person who has no comprehension of why he has been singled out and

stripped of his fundamental right to life.

~ Ford v. Wainwright, 477 U.S. 399, 409 (1986) (majority opinion).

Two decades have passed since this Court decided Ford, and the Fifth Circuit has yet to find
a single death row inmate incompetent to be executed. During this same period, the State of Texas
has executed 360 people. The execution of Scott Panctti would be but the latest in a growing list of
“miserable spectacle[s]” in Texas. See Ford v. Wainwright, 477 U.S. 399, 407 (citing 3 E. Coke,
Institutes 6 (6" ed. 1680)). The Fifth Circuit has reduced the Eighth Amendment’s ban on the
execution of the insane into a toothless prohibition. It is unclear who would be protected by the
“bare factual awareness” standard the Fifth Circuit began crafting in Barnard v. Collins, 13 F.3d 871
(5" Cir. 1994), and completed in Panetti v. Dretke, 448 F.3d 815 (5" Cir. 2006). However, it is

exceedingly clear that the Fifth Circuit’s standard provides far less protection to the insane than the

common law ever did. Despite paying lip service to the Ford majority’s and Justice Powell’s
retributive rationale as the basis for prohibiting the execution of the insane, the Fifth Circuit has
uncoupled Justice Powell’s competency standard from its foundation, leaving only a shell of bare
awarencss.

As the lengthy Statement of Fact reveals, the state and federal courts have grappled with Mr.
Panetti’s competency at nearly every stage of the criminal proceedings. The compelling nature of
this case — including allowing such a _— mentally ill man to represent himself when his life is
at stake — provides this Court with an ideal vehicle to ensure that the Fifth Circuit takes into account
the retributive goal of capital punishment when assessing competency for execution. Moreover, Mr.
Panetti’s case, unlike Harold Barnard’s or Monty Delk’s or Kelscy Patterson’s, is unencumbered by
state court findings entitled to the presumption of correctness or legal conclusions entitled to
AEDPA deference. In addition, the fallout from the Barnard case demands this Court's immediate
intervention. Spurred on by Barnard, the American Bar Association, the American Psychiatric
Association, and the American Psychological Association have all recently adopted resolutions that
recognize the nced for an inmate to have more than a shallow understanding of the reasons for his
execution to ensure that the retributive value of capital punishment will be vindicated while still
protecting those persons with biologically-based brain disorders — the severely mentally ill. Finally,
this Court should grant certiorari because the Court’s “duty to search for constitutional error with
painstaking care is never more exacting than it is in a capital case.” Kyles v. Whitley, 514 U.S. 419,
422 (1995). The execution of a man like Mr. Panetti would not only be “savage and inhuman,”

Ford, 477 US. at 406, but it would also offend “the dignity of society itself.” /d. at 410.

Unfortunately, Mr. Panetti cannot look to clemency as a realistic option in Texas. This Court is his
last resort.

A. Because the Fifth Circuit has jettisoned Ford’s retributive rationale from

This Court must enforce constitutional guarantees — especially in death penalty cases — with
particular zeal. The Fifth Circuit, while purportedly adopting Justice Powell’s standard for execution
competency, has simultaneously undermined F' ord’s substantive prohibition by refusing to assess
an inmate’s execution competency in light of the retributive value of capital punishment. It is
impossible to reconcile the Fifth Circuit's decisions in Barnard and Panetti with Ford’s explicit
recognition that be execution of the insane serves no retributive purpose. The Fifth Circuit's “bare
factual awareness” standard carves the heart out of Justice Powell’s standard and leaves only the
husk — the two-pronged, limited, just-the-bare-facts inquiry.

Numerous commentators agree that a “bare factual awareness” standard will not protect
severely mentally ill inmates — those who, at common law, would have been labeled “mad” or
“insane” — from execution. See L. Elizabeth Chamblee, Time for a Legislative Change: Florida's
Stagnant Standard Governing Competency for Execution, 3) FLa. St. U. L. Rev. 335, 350 (2004)
(“[I]f ‘understand’ merely means that the inmate should possess a bare mental awareness of
execution, then many severely mentally ill people will be deemed competent.”); Lindsay A.
Horstman, Commuting Death Sentences of the Insane: A Solution for a Better, More Compassionate
Society, 36 U.S.F. L. REV. 823 ( 2002)(“{D]efining sanity as merely having the ability to understand

one’s crime and fate does not account for the complexities involved with diagnosis and treatment

of mental illness.”’); John L. Farringer, The Competency Conundrum: Problems Courts Have Faced
in Applying Different Standards for Competency to be Executed, 54 VAND. L. REv. 2441, 2490
(2001 ) (“Mere knowledge or awareness of an impending execution, without a rational understanding
of the reasons for it, is not sufficient to find competency to be executed. Evidence from an expert
witness that the person is so deluded that he or she simply cannot relate the crime to the punishment
is evidence of such lack of a rational understanding.”); see also Vargas v. Lambert, 159 F.3d 1161,
1174 (9" Cir. 1998) (Kleinfeld, J., dissenting) (“Mental illness is not binary, such that one is entirely
healthy, or so insane that he can do nothing; it is a continuum, like physical illness”). In the Fifth
Circuit’s view, the Ford majority’s reliance on retribution as a substantial part of its rationale for
banning the execution of the insane, as well as Justice Powell’s decision to craft his execution
competency standard based on similar reasoning, is entirely extrancous. The Fifth Circuit’s crabbed
interpretation of Ford has not saved a single inmate from the gurncy in 20 years. Justice Powell and
the Ford majority intended the Eighth Amendment’s ban to be more than an empty formality that
would provide no protection to severely mentally ill death row inmates like Harold Barnard, Monty
Delk, Kelsey Patterson, and Scott Panetti. '

The Fifth Circuit expressly adopted ‘ustice Powell’s execution competency standard. In
Lowenfield v. Butler, 843 F.2d 183 (5" Cir. 1988), the court repeated verbatim the heart of Justice
Powell’s opinion:

If the defendant perceives the connection between his crime and his punishment, the

retributive goal of the criminal law is satisfied, and only if the defendant 1s aware that

his death is approaching can he prepare himself for his passing. Accordingly, | would

hold that the eighth amendment forbids the execution only of those who are unaware
of the punishment they are about to suffer and why they are to suffer it.

BEST AVAILABLE COPY

Id. at 187 (quoting Ford, 477 U.S. at 422 (Powell, J., concurring)). The first sentence summarizes
the two common law justifications for barring the execution of the insane that Justice Powell
believed still retained their merit. See Ford, 477 U.S. at 419-21. The second sentence simply
announces the standard that he formulated to take into account those common law concerns.
| The portion of the Ford opinion that Justice Powell joined to form a majority also recognized
the importance of the retributive rationale as a reason for the common law rule against executing the
insane. See id. at 408 (noting that “the community’s quest for retribution — the need to offset a
criminal act by a punishment of equivalent moral quality — is not served by execution of an insane
person, which has a lesser value than that of the crime for which he is to be punished”’) (internal
quotation marks emined), id. at 409 (recognizing that “we may seriously question the retributive
value of executing a person who has no comprehension of why he tes been singled out and stripped
of his fundamental right to life”).'' Consequently, acondemned inmate must have a real appreciation
of the proposition “that, because he has committed an act that society and all civilized humanity
finds heinous, he is to be killed.” Martin v. Dugger, 686 F. Supp. 1523, 1568-70 (S.D. Fla. 1988).
Barnard stands in stark contrast to Lowenfield. Barnard simply lifts from Justice Powell’s
opinion only the sentence that sets out the standard, and disconnects its from the retributive goal
rationale. 13 F.3d at 876n.2. Barnard’s application of the standard to the facts, without taking into
account Justice Powell’s underlying rationale, renders the competency determination virtually

meaningless. Cf’ Barnard, \3 F.3d at 876 (“Applicant’s experts do not establish that he is unaware

'' Tellingly, the Fifth Circuit mistakenly attributed the retributive value rationale for barring
the execution of the insane to only a plurality of the Court in Ford. See Panetti, 448 F.3d at 818.
However, Justice Powell joined Parts I and Il of Justice Marshall’s opinion - where the retributive
value discussion appears — making it a majority opinion. See Ford, 477 U.S. at 401; id. at 418
(Powell, J., concurring in part and concurring in the judgment).

30

=

of the fact of or the reason for his impending execution, but rather that his perception of the reason
for his convictien and pending execution is at times distorted by a delusional system in which he
attributes anything negative that happens to him to a conspiracy of Asians, Jews, Blacks,
homosexuals, and the Mafia.””) (emphasis added), with Ford, 477 US. at 422 (Powell, J., concurring)
(“If the defendant perceives the connection between his crime and his punishment, the retributive
goal of the criminal Jaw is satisfied . . . .”) (emphasis added); see also Ford v. Wainwright, 752 F.2d
526, 531 n.3 (11" Cir. 1985) (Clark, J., dissenting) (noting that “the social goal of retribution is
frustrated when the power of the State is exercised against one who does not comprehend its
significance”), rev ‘d, 477 U.S. 399 (1986). 2
The moral force of retribution is lost if an inmate believes that his execution is being carried
out through a conspiracy of demonic forces rather than as a lawful punishment for a horrific crime.
If a death-sentenced inmate does not rationally understand that, when the time for cxccution arrives,
this is the price he must pay for his horrible deed, then society does not get the full benefit of
retribution. See Robert F. Schopp, Wake Up and Die Right: The Rationale, Standard, and
Jurisprudential Significance of the Competency to Face Execution Requirement, 51 La.L.REvV.995,
1039-46 (1991) (arguing that the retributive system of capital punishment is designed to apply
exclusively to rational persons who have the cognitive-capacities to answer for their conduct). The
execution of an insane inmate is a punishment of a lesser value because, in effect, the person being
executed is no longer the same person who was convicted and sentenced to death. See Solesbee v.
Balkcom, 339 U.S. 9, 19 (1950) (Frankfurner, J., dissenting) (“If a man has gone insane, is he still
himself? Is he still the man who was convicted?”), overruled, Ford v. Wainwright, 477 U.S. 399

(1986); Note, /nsanity of the Condemned, 88 Y ale L.J. 533, 536 n.17 (1979) (arguing that execution

3]

of the insane is executing a person who for all moral purposes is a different person than the one who
committed the crime).

The absence of any retributive value in executing the insane - one of the common law
justifications for the prohibition — provides the foundation upon which the Ford majority based its
decision and Justice Powell constructed his standard. The standard collapses if the foundation is
removed. Consequently, the Fifth Circuit’s adoption of a “bare factual awareness” standard creates
an untenable situation: The Eighth Amendment now provides less protection to the insane in Texas
than the common law did. This Court should grant certiorari to ensure that the severely mentally ill

in the nation’s busiest death penalty jurisdiction have Ford’s full protection.

On August 8, 2006, the American Bar Association passed a resolution addressing the
execution of severely mentally ill death-sentenced inmates. In February 2006, the American
Psychological Association and, in December 2005, the Amcrican Psychiatric Association (APA)
approved position statements on the same topic. The ABA’s resolution and the position statements
of the \merican Psychiatric and Psychological Associations are identical, stating, in part, that “[a]
sentence of death should not be carried out if the prisoner has a mental disorder or disability that
significantly impairs his or her capacity. . . to understand the nature and purpose of the punishment,
or to appreciate the reasan for its imposition in the prisoner’s own case.” ABA Resolution 122A
(adopted Aug. 8, 2006). The APA Commentary to the policy specifically notes the uncertainty

created by the Fifth Circuit’s decision in Barnard:

32

There has been some confusion about the meaning of the idea that the prisoner must
be able to understand (or be aware of) the nature and purpose for (reasons for) the
execution. In Barnard v. Collins, decided by the Fifth Circuit in 1994, the state
habeas court had found that Barnard’s “perception of the reason for his conviction
and impending execution is at times distorted by a delusional system in which he
attributes anything negative that happens to him to a conspiracy of Asians, Jews,
Blacks, homosexuals, and the Mafia.” Despite the fact that Barnard’s understanding
of the reason for his execution was impaired by delusions, the Fifth Circuit concluded
that his awareness that “his pending execution was because he had been found guilty
of the crime,” was sufficient to support the state habeas court’s legal conclusion that
he was competent to be executed.

American Psychiatric Association, Mentally Ill Prisoners on Death Row, Commentary on Position
Statement (Dec. 2005) (footnotes omitted).'? The APA Commentary then states:

In order to emphasize the need for a deeper understanding of the state’s justifying
purpose for the execution, [the APA] would require that an offender not only must
be “aware” of the nature and purpose of punishment but also must “appreciate” its
personal application in the offender’s own case — that is, why it is being imposed on
the offender. This formulation is analogous to the distinction often drawn between
a “factual understanding” and a “rational understanding” of the reason for the
execution. If, as is gencrally assumed, the primary purpose of the competence-to-be-
executed requirement is to vindicate the retributive aim of punishment, then
offenders should have more than a shallow understanding of why they are being
executed.

Id. (emphasis omitted, footnote omitted). The APA Commentary is drawn directly from an earlier
report produced by the ABA’s Task Force on Mental Disability and the Death Penalty. The decision
by the ABA and the American Psychiatric and Psychological Associations to adopt this policy
demonstrates that the confusion created by Barnard 1s pervasive and serious. This Court should
grant certiorari, emphatically repudiate the interpretation of Ford found in Barnard and Panetti, and

provide guidance to the lower courts on a recurring issue.

” See http://www.psych.org/edu/other_res/lib_archives/archives/200505.pdf.

33

For several reasons, Mr. Panetti’s casc is a particularly appropriate vchicle for rejecting the
Fifth Circuit’s assessment of exccution competency. First, the facts surrounding Mr. Panetti’s severe
mental illness and its effects on his cognitive functioning arc compelling and undisputed. Several
commentators have focused specifically on his case as an egregious example of the lower courts’
reluctance to use Ford to protect the profoundly mentally ill. See, e.g., Richard J. Bonnie, Mentally
lil Prisoners on Death Row: Unsolved Puzzles for Courts and Legislatures, 54 Catu. U. L. Rev.
1169, 1173 (2005); Ronald S. Honberg, The Injustice of Imposing Death Sentences on People with
Severe Mental Ilinesses, 54 CATH. U. L. REV. 1153, 1163-64 (2005); see also Ralph Blumenthal and
Adam Liptak, Judging Whether a Killer is Sane Enough to Die, N.Y. TiMES at 1A (Jun. 2, 2006).
Second, the lower courts relied exclusively on the controversial decision in Barnard as the
controlling precedent in Mr. Panetti’s case. Mr. Panetti’s case presents the “bare factual awareness”
issue ty and cleanly. Third, unlike Barnard, Delk, or Patterson, Mr. Panetti’s case docs not
require this Court to wade through a thicket of procedural barricrs before reaching the merits. The
presumption of correctness does not apply to the state court’s findings of fact in Mr. Panctti’s case
and the state court’s legal conclusions are not entitled to AEDPA deference. The district court held
an evidentiary hearing and conducted de novo review of the Ford claim, because the state court
refused to hold a hearing after finding that Mr. Panetti had made a substantial showing of
incompetency. Panetti,401 F. Supp.2d at 705-06. This Court should grant certiorari either to clarify
the role the retributive goal rationale plays in assessing the execution competency of the severely

mentally ill or simply to correct the error the Fifth Circuit made in Mr. Panetti’s case by ignoring it.

34

CONCLUSION
The Court should grant certiorari and schedule this case for bricfing and oral argument to

ensure the Fifth Circuit’s compliance with Ford v. Wainwright.

Respectfully submitted,

KEITH S. HAMPTON*
1103 Nueces Street
Austin, Texas 78701
(512) 476-8484

MICHAEL C. GROSS
106 S. St. Mary’s Street
San Antonio, Texas 78205
(210) 354-1919

GREGORY W. WIERCIOCH
Texas Defender Service

430 Jersey Street

San Francisco, California 94114
(415) 285-2472

* Counscl of record

BY:

September 6, 2006

35

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2005

SCOTT LOUIS PANETTI,
Petitioner,
V.
NATHANIEL QUARTERMAN,
Director, Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

CERTIFICATE OF SERVICE

I, Keith S. Hampton, hereby certify that a truc and correct copy of Petitioner’s Petition for
Writ of Certiorari was served on counsel for Respondent on this 6th day of September 2006, via First
Class United States Mail, addressed to:

Ms. Tina J. Dettmer

Assistant Attorney General
Office of the Attorney General
P.O. Box 12548

Austin, Texas 78711-2548

APPENDIX A

APPENDIX B

APPENDIX C

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0369%3A02. Public record. Not legal advice.