Petitioners Brief — Panetti v. Quarterman

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gn The

Supreme Court of the Anited States

SCOTT LOUIS PANETTI,

Petitioner,

NATHANIEL QUARTERMAN, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF FOR PETITIONER

KEITH S. HAMPTON®* GREGORY W. WIERCIOCH

1103 Nueces Street TEXAS DEFENDER SERVICE

Austin, Texas 78701 430 Jersey Street

(512) 476-8484 San Francisco, California 94114

(512) 476-0953 (facsimile) (415) 285-2472

‘Counsel of Recard (415) 285-2472 (facsimile)

al ———-

COCKLE LAW BRIEF PRINTING CO) sii) 225-6964

OR CALL COLLECT (402) 442-2851

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 understand that his

execution is intended to seek retribution for his capital

crime?

PARTIES TO THE PROCEEDINGS BELOW

The caption of the case contains the names of all

parties to the proceedings in the courts below and in this

Court, with the exception that during part of the prior

proceedings, other individuals (Wayne Scott, Gary John-

son, Janie Cockrell, Douglas Dretke) served as the named

Director of the Texas Department of Criminal Justice,

Correctional Institutions Division.

ill

TABLE OF CONTENTS

Page

EE OF EIT IIIIEED secssnisicsensiscitenhsclsiiinvensnamansinsiinsien i

PARTIES TO THE PROCEEDINGS BELOW .............. il

ee IT sisi siitcicitaeseniaitineiscenadintnsdndeonpenieni lil

ee Ce ae Es cistiniicsisihincssingennnsnnsscinsecanianans Vv

SY I inhsciseccnsiininsnrnicciieeabncssnbemnadiguainecelaniabnidininian 1

Nestle hebdieahiepaeaihabaanicibaaebiticeabins 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

SE Tae inistsssetcsitchinieneieidinnaniceisasnncieiateipiibckenbiaiialinenaniiieaisaidingsscdeta 1

STATEMENT OF THE CASE .......ccccccoscssssssoscssesssesceeees 2

i i I saci iiticnctanicpicinicioicnciiueiicinin 2

B. Facts Material to the Issue Presented............... 6

1. Biomtal Beadtts History ...........cccccccssccsescossee. 6

2. Deterioration ....... ccesnaieiaeiabiinuanbtingbieiaibiags 16

DB. Preset Camsteisy .....csccsecsescsscesccssssescessess 18

SUMMARY OF THE ARGUMENT ...................:cccceeeeees 28

TEE sccsisniesiicgtnsccuiinnnniienninmneninmendaiienndseséannioniitniin 30

THE EIGHTH AMENDMENT PROHIBITS THE

EXECUTION OF A PERSON WHO, BECAUSE OF A

SEVERE MENTAL IMPAIRMENT, IS INCAPABLE

OF RATIONALLY UNDERSTANDING THE REA-

EFES PRFEe SED MAG) COIS ceccceccvetccsesneceisossoroesceosenseen 30

TABLE OF CONTENTS - Continued

Page

I. THE ANCESTRAL LEGACY OF THE COM-

MON LAW INSISTS THAT THE DEATH

PENALTY CANNOT BE IMPOSED ON A

PERSON SO LACKING IN RATIONAL UN-

DERSTANDING THAT HE IS UNABLE TO

PERCEIVE THE CONNECTION BETWEEN

HIS CRIME AND HIS PUNISHMENT ............. 33

A. Ford identified the common-law justifica-

tions for the ban on executing the insane

that retain contemporary validity............... 33

B. The common-law rationales embraced by

the Ford opinions logically imply the need

for rational understanding.......................0 37

Il. CONTEMPORARY STANDARDS REQUIRE

THE INMATE TO RATIONALLY UNDER-

STAND THE CONNECTION BETWEEN HIS

CRIME AND HIS PUNISHMENT..................... 40

a, I III ciccsdisacensstainnnnieanipeiandsiatendiucdutenitianitibiien 40

B. Informed Professional Opinion ................... 42

Ii]. EXECUTING A PERSON INCAPABLE OF

RATIONALLY UNDERSTANDING THE CON-

NECTION BETWEEN HIS CRIME AND HIS

PUNISHMENT WOULD NOT SERVE THE

PENOLOGICAL PURPOSES OF THE DEATH

IIIT cicisseeaichnashdienasidedlncsda tiessnsinisitieiiibaihceiangaiiaatcesiis 44

FN iain aias eran ibiniihiaciaeinalennen 44

UNI cnc alia atid amanda 47

C. Uniquely Cruel and Inhuman..................... 48

SIU eceipiisinticdcsticsdebcdclediinsiubiaaingiicinsbesinininatinninenen 49

TABLE OF AUTHORITIES

Page

CASES

Atkins v. Virginia, 536 U.S. 304 (2002)........... 32, 40, 42, 43

Barnard v. Collins, 13 F.3d 871 (5th Cir. 1994) ...........0000. 5

Beverley’s Case of Non Compos Mentis, 76 Eng. Rep.

SE CE: CRED wcisesvsiscviterniscieincunteniabtidiiameeidananadaaii 47

Billiot v. State, 655 So. 2d 1 (Miss. 1995).........ccc ee eeeeeees 41

Ex parte Caldwell, 58 S.W.3d 127 (Tex. Crim. App.

SIP vnconsvsccsansnccesinessepnsensotiseniteneauiiieinaannaaaee 4

Caritativo v. California, 357 U.S. 549 (1958)............... 49

Chapman v. California, 386 U.S. 18 (1967) «0... cece 31

Ex parte Chesser, 112 So. 87 (Fla. 1927)..........:ccsssccseeeeeees 39

Coker v. Georgia, 433 U.S. 584 (1977) ........csceseceseeeeeeeeees 44

Enmund v. Florida, 458 U.S. 782 (1982)................006 44, 46

Ford v. Wainwright, 477 U.S. 399 (1986) 0.0... passim

Ford v. Wainwright, 752 F.2d 526 (11th Cir. 1985),

PIS, STE WE, GD CAD vanssescsuscnsissceneseenaemuehaamman 46

Gregg v. Georgia, 428 U.S. 153 (1976)........ccccceees 44, 45, 48

Harmelin v. Michigan, 501 U.S. 957 (1991)... ee. 32

Pe? mee Eo FS 38

Lee v. State, 45 S.E. 628 (Ga. 1903)................:seesesereeeeeeees 38

Martin v. Dugger, 686 F.Supp. 1523 (S.D. Fla.

BEI .xoccocccotessienenessessenstscesenistsinenssilemeicesstinseiissianianlianannananannnn 45

Musselwhite v. State, 60 So. 2d 807 (Miss, 1952)............. 38

Panetti v. Drethke, 448 F.3d 815 (5th Cir. 2006)................... 1

TABLE OF AUTHORITIES -— Continued

Page

Panetti v. Dretke, 401 F. Supp. 2d 702 (W.D. Tex.

a cea ace igacnnennitnriintasateienienemumiinnee 1

Provenzano v. State, 750 So. 2d 597 (Fla. 1999)............... 41

Roper v. Simmons, 543 U.S. 551 (2005)... eee 32

Spaziano v. Florida, 468 U.S. 447 (1984)... 44

State v. Genna, 112 So. 655 (La. 1927) ..........cccccceceeeteee noes 39

State v. Harris, 789 P.2d 60 (Wash. 1990) ...........c00cc0cceeeee 42

State v. Noel, 133 A. 274 (N.J. 1926) ...........ccccceeecceeeeeeeeees 38

Thompson v. Oklahoma, 487 U.S. 815 (1988) ............... 47

CONSTITUTIONAL PROVISIONS

i ec passim

I peer a memnctccnnenctenen 1,31

STATUTES

I a enmusipnmnngentedanee 40

EER a ne a ea OE l

esr nrnnensnenesenite 1,4

Ms Ce GOED, FUOS. GIG. BD.GTD cncccccccccccecseccveccccccsovesoeses 15

Ten. Code Cota. Prec. O96. 46.06.....cccccccccscccccsscccseeses 1,2,3,4

OTHER AUTHORITIES

American Bar Association, Recommendation and

Report on the Death Penalty and Persons with

Mental Disabilities, 30 Mental & Physical Dis-

ee, Ts ctaeanciesibleneionncnscosecovers 43, 46

vil

TABLE OF AUTHORITIES — Continued

Page

American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders (4th ed.

ek EE eS See 28

American Psychiatric Association, Mentally Ill

Prisoners on Death Row (Dec. 2005)...............cccc000000000 43

American Psychological Association, Council Policy

Manual: N. Public Interest - Part 2, VIII.2 (Feb.

Sere ccheasiciieiniiesiinihatiillatiiauliinaiataciaiaiinie iinet icine 43

William Blackstone, 4 Commentaries. ...............cccccceceee000 33

Richard Bonnie, The Competence of Criminal

Defendants: Beyond Dusky and Drope, 47 U. Mi-

I ran ee ee eiccicieiiciniehcchesitcinitiehienienaaiiatinapuaaie 49

R.W. Buchanan & William T. Carpenter, Concept of

Schizophrenia, in Comprehensive Textbook of

Psychiatry (B. Sadock & V. Sadock eds., 8th ed.

Sir Edward Coke, 3 /nstitutes (6th ed. 1680) .............. 34, 47

Bruce Ebert, Competency to Be Executed: A Pro-

posed Instrument to Evaluate an Inmate’s Level

of Competency in Light of the Eighth Amendment

Prohibition Against the Execution of the Presently

Insane, 25 Law & Psychol. Rev. 29 (2001)..................6. 6

J.D. Feltham, The Common Law and the Execution

of Insane Criminals, 4 Melb. U. L. Rev. 434

(Uae ccscvnsnsensscunicncsnnciiidecscnasadanbidimtdadibdaniidedtabeienbiadiiints 39

Mary Ellen Gale, Retribution, Punishment, and

Death, 18 U.C. Davis L. Rev. 973 (1985).................. 45, 46

Sir John Hawles, Remarks on the Trial of Mr.

Charles Bateman, in XI State Trials ‘T. Howell

iin Se TnTED stcacineitestpsccicsicsseintaiiegnlnebiciaaiiatiiaiaatiiisatatitiamesiatincecaiadmatins 38

viii

TABLE OF AUTHORITIES - Continued

Geoffrey C. Hazard & David W. Louisell, Death, the

State, and the Insane: Stay of Execution, 9

FARK, Go, TRBC, BBG CBP accccesscscesscsonnsmncsesssconsecs

Wayne LaFave & Austin Scott, Handbook on

SESS SRSERE Pesca. Pree

S. Reynolds ed., The Essays of Francis Bacon (1890)

Robert F. Schopp, Wake Up and Die Right: The

Rationale, Standard, and Jurisprudential Sig-

nificance of the Competency to Face Execution

Requirement, 51 La. L. Rev. 995 (1991)..................

L. Shelford, A Practical Treatise on The Law Con-

cerning Lunatics, Idiots, and Persons of Unsound

NESE SeSR Es Ss, are ee es eee oer

Barbara A. Ward, Competency for Execution: Prob-

lems in Law and Psychiatry, 14 Fla. St. U. L.

| TT Sa ee rere nee Lee wea D NA eR Oe

Henry Weihofen, A Question of Justice: Trial or

Execution of an Insane Defendant, 37 A.B.A. J.

GI (pee cnecussccscessessenesnnnnennanenenesesscnessnssensceanpemnocnses

Patricia A. Zapf et al., Assessment of Competency

for Execution: Professional Guidelines and an

Evaluation Checklist, 21 Behav. Sci. & L. 103

Page

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit, Panetti v. Dretke, 448 F.3d 815 (5th Cir.

2006), affirming the District Court’s decision, appears at

JA 374-84. The District Court’s opinion, Panetti v. Dretke,

401 F. Supp. 2d 702 (W.D. Tex. 2004), appears at JA 354-

73.

JURISDICTION

The Fifth Circuit entered its judgment on May 9,

2006, JA 374, and denied rehearing en banc on June 8,

2006. JA 385. Petitioner filed his petition for writ of

certiorari on September 6, 2006. This Court has jurisdic-

tion under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS AT ISSUE

This case involves the Eighth and Fourteenth

Amendments, 28 U.S.C. § 2254(d), and Article 46.05 of the

Texas Code of Criminal Procedure. The relevant portion of

the Eighth Amendment states: “nor [shall] cruel and

unusual punishments [be] inflicted.” The relevant portion

of the Fourteenth Amendment provides: “nor shall any

state deprive any person of life ... without due process of

law.” The relevant portion of 28 U.S.C. § 2254(d) states:

An application for a writ of habeas corpus on be-

half of a person in custody pursuant to the judg-

ment of a State court shall] not be granted with

respect to any claim that was adjudicated on the

merits in State court proceedings unless the ad-

judication of the claim —

(1) resulted in a decision that was

contrary to, or involved an unreason-

able application of, clearly established

Federal law, as determined by the Su-

preme Court of the United States|.|

The text of Article 46.05 is set out in Appendix A.

STATEMENT OF THE CASE

A. Course of Proceedings

Petitioner Scott Louis Panetti was convicted of capital

murder for killing his parents-in-law and sentenced to

death in 1995 in Texas? On October 31, 2003, after the

conclusion of the direct appeal and collateral review

proceedings, the trial court set Mr. Panetti’s execution for

February 5, 2004. On December 10, 2003, counsel for Mr.

Panetti filed in state court a motion under Article 46.05,

alleging that Mr. Panetti was not competent to be exe-

cuted. The trial court denied the motion without a hearing,

finding that Mr. Panetti had failed to make a substantial

threshold showing of incompetence.

On January 26, 2004, counsel for Mr. Panetti filed in

federal district court a motion for stay of execution and a

petition for writ of habeas corpus raising a competency-to-

be-executed claim under Ford v. Wainwright, 477 U.S. 399

(1986). After some preliminary proceedings, the District

Court stayed Mr. Panetti’s execution so that the state

court would have time to adjudicate a renewed Article

46.05 motion. JA 113-16. The state court ordered the

district attorney and habeas counsel to provide it with the

names of mental health experts that it should consider

appointing under Article 46.05(f). See App. A. Counsel for

Mr. Panetti provided the court with the name of a mental

health expert and filed ten motions related to the Article

46.05 proceedings.’ Relying on Article 46.05(f), the court

appointed two mental health experts — neither of whom

had been recommended by habeas counsel — to examine

Mr. Panetti. See JA 59-60.

The state court judge denied Mr. Panetti’s motion to

videotape the competency examinations and his motion for

discovery. The judge said that he would revisit the remainder

of the motions only if both court-appointed experts concluded

that Mr. Panetti was competent to be executed. Counsel for

Mr. Panetti filed a motion to reconsider, pointing out that the

state court’s inaction until after the experts had conducted

their examinations would moot a number of the motions. JA

61-69. The court never ruled on the motion to reconsider.

On April 28, 2004, the court-appointed experts filed a

joint report concluding that Mr. Panetti was competent to

be executed. JA 70-76. Despite the judge’s earlier decision

to revisit the remainder of Mr. Panetti’s motions if the

experts concluded he was competent, the judge did not

rule on any of the motions. Instead, he ordered the parties

to raise any other matters regarding competency by May

21, 2004. JA 77-78. Counsel for Mr. Panetti filed objections

‘ Among the motions counsel filed were requests for appointment and

compensation of counsel, funds to hire a mental health expert and investi-

gator, discovery, videotaping of the mental health examinations, ensuring

procedural due process in the competency determination, and transcription

of all proceedings. In the motion for funds to retain an expert, counsel

reviewed the procedural due process discussions in Ford and concluded

that the decision demands “that a death row inmate who has made a

substantial threshold showing of incompetence be provided with the means

to retain the services of a consulting mental health expert to assist him in

the competency determination.” JA 57. Mr. Panetti’s counsel made a

similar argument in his motion to ensure procedural due process in the

competency determination: that, at a minimum, Ford guarantees the

prisoner's “mght to present expert opinion differing from those offered by

State or court-appointed experts.” JA 53.

to the methods used and the conclusions reached by the

court-appointed experts. JA 79-95. Counsel renewed his

motions for appointment of counsel, funds to hire a mental

health expert, and funds to hire an investigator. JA 95-97.

He also asked the court to hold an evidentiary hearing, as

indicated by the plain language of Article 46.05(k). JA 98;

see App. A. On May 26, 2004, the state court held that Mr.

Panetti “has failed to show, by a preponderance of the

evidence, that he is incompetent to be executed.” JA 99.”

In federal habeas, the District Court ordered an

evidentiary hearing and granted Mr. Panetti’s motion for

funds for expert assistance. JA 117-35.’ After a two-day

* Counsel for Mr. Panetti could not appeal this ruling, because the

Court of Criminal Appeals had previously held that it has jurisdiction

only to review a finding of incompetence. Ex parte Caldwell, 58 S.\W.3d

127, 130 (Tex. Crim. App. 2000).

* The State argued below that the District Court erred in failing to

give the state court’s decision the deference demanded by AEDPA. The

Fifth Circuit did not address this contention. JA 376 & n.1. The

argument lacks merit, because the state court’s adjudication of Mr.

Panetti’s claim was “an unreasonable application of ... clearly estab-

lished federal law, as determined by the Supreme Court of the United

States[.!” 28 U.S.C. § 2254(d\1). The state court disregarded Justice

Powell's concurrence in Ford, which sets out the Court’s holding on the

minimum procedural due process requirements in determining compe-

tency for execution. Although Justice Powell did not undertake to define

the precise contours of due process in such proceedings, he did require

the states to provide a forum to “receive evidence and argument from

the prisoner's counsel, including expert psychiatric evidence that may

differ from the State’s own psychiatric examination.” 477 U.S. at 427.

Despite the state court’s finding that Mr. Panetti had made a substan-

tial showing of incompetency, and despite Mr. Panetti’s repeated

requests for adversarial proceedings by which he could contest the

court-appointed experts’ opinions, the state court refused to allow any

such proceedings. See JA 49-53, JA 54-58, JA 65-68, JA 95-98. As a

result, the state court decided the competency claim without ever

“receiv[ing) ... from the prisoner's counsel ... expert psychiatric

(Continued on following page)

hearing, the District Court denied relief on the Ford claim,

JA 354-73, but later granted a certificate of appealability

on the issue. The Fifth Circuit succinctly stated the issue

presented on appeal: |

Panetti argues that the district court employed

an erroneous legal standard in evaluating

whether he was competent to be executed. The

district court held that it is sufficient that Pa-

netti knows: 1) that he committed two murders;

2) that he will be executed; and 3) that the rea-

son the state has given for that execution is his

commission of those murders. Panetti argues

that the Eighth Amendment forbids the execu-

tion of a prisoner who lacks a rational under-

standing of the State’s reason for the execution.

Panetti contends that this understanding is lack-

ing in his case because he believes that, although

the State’s purported reason for the execution is

his past crimes, the State’s real motivation is to

punish him for preaching the Gospel.

JA 377. The panel rejected these arguments as a matter of

law under the controlling precedent of Barnard v. Collins, 13

F.3d 871 (5th Cir. 1994). “Barnard, like Panetti. suffered

from paranoid delusions that his execution was the result of

a conspiracy against him and not his crimes,” JA 379, but the

panel held this delusional belief irrelevant to the question of

competency to be executed. JA 380. The panel found Barnard

“nearly identical” to Mr. Panetti’s case, JA 379, and “consis-

tent with Justice Powell’s concurrence in Ford.” JA 381.

Because “Justice Powell did not state that a prisoner must

‘rationally understand’ the reason for his execution, only

evidence that ... differ{ed) from the State’s own psychiatric examina-

tion.” 477 U.S. at 427 | Powell, J., concurring).

that he must be ‘aware’ of it,” JA 381, the panel concluded

that the District Court's findings were sufficient to establish

that Mr. Panetti is competent to be executed. JA 384; see JA

384 (holding that “‘awareness,’ as that term is used in Ford,

is not necessarily synonymous with ‘rational understand-

ing”). The Fifth Circuit denied rehearing en banc. JA 385-

86. This Court granted certiorari on January 5, 2007. JA 387.

B. Facts Material to the Issue Presented

Justice Powell stated in Ford that a condemned inmate

“does not make a claim of insanity against a neutral back-

ground,” because “in order to have been convicted and

sentenced, {the inmate] must have been adjudged competent

to stand trial, or his competency must have been sufficiently

clear as not to raise a serious question for the trial court.”

477 U.S. at 425-26 (Powell, J., concurring). Certainly, the

legal presumption of competency at the time of execution

applies in Mr. Panetti’s case. Factually, however, it rests

upon a frail foundation. Evidence of incompetency runs like a

fissure through every proceeding in this case.

1. Mental Health History’

Unlike Alvin Ford, Mr. Panetti suffered from a severe

mental illness long before he ever arrived on Texas's death

‘ Mental health professionals note that reviewing an inmate's

psychological and psychiatric history is an essential component of making a

reliable determination of the inmate's present competency for execution.

See. e.g., Patricia A. Zapf et al., Assessment of Competency for Execution.

Professional Guidelines and an Evaluation Checklist, 21 Behav. Sa. & L.

103, 106 (2003), Bruce Ebert, Competency to Be Executed. A Proposed

Instrument to Evaluate an Inmate's Level of Competency in Light of the

Eighth Amendment Prohibition Against the Execution of the Presently

Insane, 25 Law & Psychol. Rev. 29, 47-45 (2001).

row. Cf. Ford, 477 U.S. at 401-02. In the decade leading up

to the offense, Mr. Panetti was hospitalized over a dozen

times in numerous institutions for schizophrenia, schizoaf-

fective disorder, bipolar disorder, depression, psychosis,

auditory hallucinations, and delusions of persecution and

grandiosity. See n.14, infra (summarizing hospitaliza-

tions). Several weeks before the crime, Mr. Panetti and his

second wife Sonja had separated. 31 RR 60. Sonja testi-

fied that Mr. Panetti had threatened and hit her. 31 RR

62. At that time, Mr. Panetti had not been taking his

antipsychotic medication regularly or continuing his

follow-up care at the Kerrville V.A. Medical Center. See 37

RR 1552; Federal Petition for Writ of Habeas Corpus, No.

1:99-CV-00260 (W.D. Tex. Sept. 7, 1999) (hereinafter

“Federal Petition”) (Ex. 14: summary of medical records).

On September 8, 1992, Mr. Panetti shaved his head,

dressed in camouflage combat fatigues, armed himself with a

sawed-off shotgun and a deer rifle, and went to the home of

his parents-in-law, Joe and Amanda Alvarado. He shot them

at close range with the rifle in front of his wife and daughter.

37 RR 1544-46. He then took his wife and daughter to a

bunkhouse where he had been living. 37 RR 1547. He

eventually released them unharmed and, after a lengthy

standoff with the police, he surrendered. 37 RR 1548-51.

Based on Mr, Panetti’s long history of mental

health problems, the judge ordered a psychiatrist to

determine his competency to stand trial. Dr. E. Lee Simes

- Citations to the transcript of testimony from Mr. Panetti’s capital

murder trial and both competency-to-stand-trial proceedings are noted

as “RR” (“Reporter's Record”). Citations to the pleadings, orders, and

motions filed in the trial court during these proceedings are noted as

“CR” (“Clerk's Record”). Citations to the Ford hearing held in federal

district court are noted as “FH.”

reported that Mr. Panetti did not know what vear it was or

who the President was; had some looseness and tangentiality

in his thought processes; admitted to both auditory and

visual hallucinations, including seeing Jesus in his jail cell;

related chronic delusions marked by religiosity; appeared to

have “an odd fragmentation of his personality in describing

himself as several different people;” and suffered from

“obvious mental difficulties.” JA 9-14 ‘(Defense Ex. 44, 37 RR

1429, 1430). Nonetheless, Dr. Simes concluded that Mr.

Panetti was competent to stand trial. JA 13.

A competency trial was held on July 28-29, 1994. After

the jury deliberated for nearly twelve hours, the judge

declared a mistrial. 10 RR 371, 379. After the trial court

_ ordered a change of venue, a new jury heard nearly identi-

cal evidence about Mr. Panetti’s competency to stand trial.

At the second competency trial, Mr. Panetti’s defense

counsel testified that Mr. Panetti would become delusional

and unresponsive to his questions under stress. 13 RR 27.

During conversations, Mr. Panetti often said that he felt

possessed by demons and had been visited by angels and

Jesus in his jail cell. 13 RR 29-31. Defense counsel testi-

fied that he had never had a meaningful and rational

conversation with Mr. Panetti about the legal issues in the

case. 13 RR 34-36, 46.

Dr. Richard Coons, a forensic psychiatrist, found that

Mr. Panetti suffers from schizophrenia. 13 RR 60. Dr.

Coons testified that Mr. Panetti decompensates when

under stress, causing his thinking to become tangential,

circumstantial, and inefficient. 13 RR 61-64. As an exam-

ple, during one of their meetings Mr. Panetti:

* Notes in the record indicate that the jury deadlocked 9-to-3 in

favor of finding Mr. Panetti incompetent to stand trial. 3 CR 290.

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 County to the way prisoners look, to the

Waco Veterans Administration Hospital. He de-

scribed 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 mar-

riages, 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, Chap-

ter 13 Verse 33, new saddle, boots, boot maker is

dead, hobbles for a horse, an old piece of cotton

rope and riding with a lead shank.

13 RR 63-64. According to Dr. Coons, Mr. Panetti had

other distractions besides his inefficient thinking: He

hears voices that may have “particular religious signifi-

cance” and others that are “more precise and command-

ing.” 13 RR 65. Although Mr. Panetti was then taking

antipsychotic medication that diminished some of the

symptoms of his schizophrenia, 13 RR 69-70, Dr. Coons

said that Mr. Panetti still suffered from the disorganized

thought processes that characterize schizophrenia. 13 RR

75, 77. He said that Mr. Panetti’s mind “saddles up and

rides off in all directions.” 13 RR 85. Mr. Panetti was not

~ Shortly after arriving on death row, a medical services worker

described a visit with Mr. Panetti: “He assertively opened the interview

{with} a rambling, tangential, circumstantial diatribe ‘e.g. - ‘I read Dr.

Orr’s belt buckle — hard to see at a distance — thought it said “Stand

Tall, Walk in Peace” — like a code I saw on my milk carton — saw 3

ravens and a very contented bunny rabbit’ —- have a Woman Warrior in

Washington,’ etc., ete.” JA II 36 ‘Respondent’s Ex. 3, 1 FH 46, 91)

(punctuation in orginal).

malingering, Dr. Coons testified, because his symptoms

were consistent with the psychiatric records beginning in

the 1980's. 13 RR 82.

Dr. Simes testified that Mr. Panetti is clearly mentally

ill, that his thought processes are tangential, and that he

most likely suffers from schizophrenia. 13 RR 144-45, 158.

Although he concluded that Mr. Panetti was competent to

stand trial, 13 FR 146, Dr. Simes admitted that he recalled

Mr. Panetti’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. He also

recalled Mr. Panetti’s discussion about the four personalities

inside him and his belief that the purpose of the competency

trial was to provide him with the proper medication. 13 RR

154-56. Because stress exacerbates the symptoms of schizo-

phrenia, Dr. Simes testified that, as the capital murder trial

progressed and the stress increased, Mr. Panetti could

decompensate and his delusions could render him incapable

of assisting his attorneys. 13 RR 163, 172, 174.

The jury found Mr. Panetti competent to stand trial.

13 RR 206-07.

Seven months later, Mr. Panetti experienced his “April

Fool’s Day revelation” that God had cured his schizophre-

nia. 15 RR 9. He refused to take any more antipsychotic

* Mr. Panetti described this religious experience in his opening state-

ment to the jury at the guilt-innocence phase of his capital murder tral:

In my year in the Waco Branch Davidian expert's cell in Bell

County, I didn’t hear from my previous law firm. and | 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 medi-

cine was taken from me and I went into the paranvia and the

thought disorder that it depended on me, the April fool, as I

consider myself the born again April fool, not saving being

(Continued on following page)

medication. He asked the trial court that he be allowed to

represent himself. 15 RR 14-16, 26. His attorneys objected,

15 RR 12-13, as did the District Attorney. 15 RR 23-24.

The trial court ruled that Mr. Panetti could represent

himself. 15 RR 29-30.

Wearing a cowboy outfit,” Mr. Panetti raised a defense

of not guilty by reason of insanity. He told the jury in his

opening statement that only an insane person could prove

insanity. 31 RR 29. Mr. Panetti made bizarre and inappro-

priate statements to the jury; went on irrelevant, irra-

tional, and illogical reveries; exhibited sudden flights of

ideas; asked questions that were incomprehensible or

burdened with excessive and extraneous detail; rambled

incessantly; perseverated; recited senseless, fragmented

aphorisms and anecdotes; badgered the judge, the prose-

cuting attorney, and witnesses; and was unable to control

his behavior despite the judge’s repeated efforts.

Mr. Panetti applied for over 200 subpoenas, including

John F. Kennedy, the Pope, and Jesus. See 36 RR 1207 (“I

didn’t want to go subpoena crazy and I turned the Pope

loose and J.F.K. and I never subpoenaed them, but Jesus

born again bars someone from being able to sin, but I depended

on the Lord to do for me what the medicine wasn't doing.

31 RR 31-32; see JA 339, 345 (Petitioner’s Ex. 2, 1 FH 159, 159).

’ His standby counsel described Mr. Panetti’s appearance:

Scott dressed in a “Tom Mix” stvle costume like an old TV

western. Scott wore his hat in Court. He had-pants that

looked like leather suede tucked into his cowboy boots. He

wore a cowboy style shirt with a bandana. The shirt was the

double fold over type western shirt. One shirt was green,

the other was burgundy. Scott wore a big cowboy hat that

hung on a string over his back. It was a joke. It was hke out

of a dime store novel.

JA 23-24. °

Christ, he doesn’t need a subpoena. He’s right here with me,

and we'll get into that.”). He made unintelligible 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 | was a kid.

I've got my Injun beliefs as a shaman. | sent the

buffalo horn to my sister. Adjustment, Jesus

wrote. I was born in the North woods in a reser-

vation 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 re-

verse prejudice from Colored people, which is

rare, darn rare, but | was named “He who doesn't

ery” because I didn’t cry when | should have, and

1 must admit, though, in Gillespie County Jail

when I was in my little suicide box where there

was an old boy committed suicide, | went

through about a week of pretty much scuba

diver’s tears; although, I don’t scuba.

21 RR 87-88. He became fixated on irrelevant issues when

examining witnesses:

The Court: Mr. Panetti, at this time I don’t see

how the belt buckle is relevant to

any issue this jury is going to de-

termine and so if you can't explain

the relevance to me, I'm going to

sustain the objection. Can vou ex-

plain to me how the belt buckle is

relevant to any issue in this case?

Mr. Panetti: Yes, I 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 differ-

ence between a rodeo hand and a

buckaroo poet. It has to do with my

whole outlook and this will come

up, God forbid, in the punishment

stage.

Before religion, when you got relig-

ion, 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 with-

out you looking at it.

33 RR 755-56. He prefaced incoherent questions with

rambling statements:

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.

Panetti.

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 men-

tioned about the beginning where

the cops got sick, and I 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 |

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. He assumed the personality of “Sarge” when he

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. Birdie. Joe.

Where’s Amanda? Sarge, Sarge, left a bullet.

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. Joe, 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.

37 RR 1544-46. He delivered an incoherent guilt-innocence

phase closing argument:

Ladies and gentlemen of the jury, | think that

State will have more than a few comments, judg-

ing by the time allowed to respond to mine.

Briefly, 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 hu-

man beings.

38 RR 1645-46.

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, includ-

ing Dr. James Grigson, who testified that antipsychotic

medications would not reduce the likelihood that Mr.

Panetti would be a future danger to society. 39 RR 54, 60.

Mr. Panetti called only one witness, his standby counsel.

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

“ Less than two months after Mr. Panetti was sentenced to death,

the tnal court found him incompetent to waive the appointment of state

habeas counsel under Article 11.071 of the Texas Code of Criminal

Procedure. 43 RR 6-9. Soon thereafter, Mr. Panetti wrote to the tnal

court that he wished to waive his right to direct appeal. Federal

Petition at Ex. 32. The judge denied his request and appointed an

attorney to represent him on direct appeal.

Dr. Wolfgang Selck, a psychiatrist who treated Mr.

Panetti during one of his hospitalizations years before the

crime, watched part of the trial. Dr. Selck described Mr.

Panetti’s behavior in the courtroom:

I saw Scott’s rambling and antics as a sign of his

clear incompetence. I suspect that the members

of the Jury as lay persons saw Scott and thought

he was normal and pretending to be mentally ill.

In my opinion it [is] not possible to imitate the

words and deeds of a mentally ill person. To an

expert, there are too many details of voice and

action that indicate the signs of mental illness:

the inappropriate behavior, the repetition of

words, the fixation on details, the bizarre presen-

tation. He should be institutionalized in a State

Hospital for the criminally insane. In my opinion,

Seott is not a malingerer. Scott was not faking a

mental illness. Scott was severely mentally ill

and has not changed and most likely shall not

improve to an appreciable degree. When | was

treating Scott in 1986 he was not facing any

charges and had no reason to act mentally ill.

JA 34-35.

2. Deterioration

It is undisputed that Mr. Panetti’s mental health

markedly déteriorates when he is not taking antipsychotic

medication. At the time Mr. Panetti was found competent

to stand trial, he was on antipsychotic medication to

alleviate some of the symptoms of his schizophrenia. 13

RR 69-70. However, after his 1995 April Fool’s Day reli-

gious experience, he stopped taking his medication. By the

time the trial began, he had been in an unmedicated state

for five months. Except for a brief period shortly after

arriving on death row, Mr. Panetti has not taken any

antipsychotic medication since the day he declared that

God had cured him of his schizophrenia. See JA 196; JA II

26, 32-33. 7

The evidence at the competency-to-stand-trial proceed-

ings showed that Mr. Panetti’s schizophrenic symptoms

(delusions, hallucinations, tangentiality, and circumstantial

thinking) markedly diminished when he was taking his

medication. 13 RR 67-70; see 13 RR 74 (testimony of Dr.

Coons stating that medication and hospitalization have had

a “positive influence” on Mr. Panetti); 13 RR 80 (testifying

that Mr. Panetti “gets better” when he is treated). Mr.

Panetti was then being treated with such a heavy dosage of

Trilafon that it would render somebody without a severe

mental illness dysfunctional. 13 RR 69, 71. Without any

medication, Dr. Coons testified, Mr. Panetti would be “very

psychotic,” “tremendously paranoid,” and “more delusional.”

13 RR 71. Dr. Simes agreed that Mr. Panetti’s condition

would worsen if he were not taking any antipsychotic medi-

cation. 9 RR 279."

At the federal hearing, the evidence confirmed that

Mr. Panetti’s mental condition has deteriorated since he

was found competent to stand trial. Dr. Conroy attributed

the deterioration to the fact that Mr. Panetti has not been

on any kind of psychotropic medication since April 1, 1995.

JA 195. She testified that “|iJt is likely with Mr. Panetti

that his condition would be worse the farther he is from

the medication.” JA 195. Dr. Silverman testified that Mr.

“ After reviewing the trial record and examining Mr. Panetti for

state habeas counsel, psychiatrist Michael R. Arambula concluded: “As

a result of his unmedicated state. Mr. Panetti’s disease process deterio-

rates to such a level that he was subject to persecutory delusions, and

severe disturbances in his thinking ‘and ability to communicate with

others).” JA 353.

Panetti was “more. lucid, coherent, and logical when he

took his medication.” JA 228. He suspected that since Mr.

Panetti stopped taking his medication, “his illness has

progressed more significantly.” JA 228. Noting the type

and amount of psychotropic medication that Mr. Panetti

was taking on a daily basis prior to the 1994 competency

proceedings, Dr. Silverman explained that:

I can’t imagine anybody getting that dose waking

up for two to three days .... And he, actually, be-

fore that had to be put on 32 milligrams of Ste-

lazine and then, Trilafon. He got that regularly,

and he was still walking and talking. You would

have to be extremely psychotic just to tolerate it

and then, benefit from it. To me, that’s almost di-

agnostic — that is diagnostic of a psychotic illness.

JA 233." Dr. Silverman concluded that the lack of medica-

tion in a case like Mr. Panetti’s would most likely lead to

“a more severe refractory kind of illness.” JA 236.

3. Present Competency

Shortly before Mr. Panetti was scheduled to be exe-

cuted on February 5, 2004, habeas counsel visited him on

death row to gather evidence of his present competence.

Counsel reported that Mr. Panetti believed that his imminent

execution was part of a satanic conspiracy to prevent him

from preaching the Gospel. JA 102. Clutching a well-worn

* Dr FE. Seale, who treated Mr. Panetti at Starlite Hospital in

1986, testified at trial that he prescribed “huge doses of Thorazine to

bring [Mr. Panetti] under control, up to 2400 milligrams a day. We

finally settled on about 2,000 milligrams of Thorazine a day. when 100

milligrams would knock the average person out, but it took that to

control [Mr Panetti).” 38 RR 1568-69. Dr. Seale also testified that,

without antipsychotic medication for several days, Mr. Panetti could

lapse into a severe psychosis. 38 RR 1574-75.

and meticulously tabulated Bible, Mr. Panetti described in

rambling and disjointed fashion how the Holy Spirit had

freed him from his handcuffs after prison guards had

placed him in a room filled with inmates who began

beating him. JA 102-03.

Having represented Mr. Panetti for several years,

counsel was familiar with his lengthy mental health

history, his delusions of persecution, and his excessive

religiosity. Nearly two decades earlier — years before the

crime — Mr. Panetti first succumbed to the delusion that

he was engaged in an apocalyptic struggle with the devil.”

With this history in mind, counsel arranged for Mark

Cunningham, a clinical and forensic psychologist, and

David Dow, a law professor who represents condemned

inmates in post-conviction proceedings, to visit Mr. Pa-

netti. Dr. Cunningham reported that Mr. Panetti exhibited

disorganized thinking, characterized by flight of ideas,

* In 1986, Mr. Panetti’s first wife provided an affidavit in support

of her request to have Mr. Panetti transferred from Kerrville State

Hospital and involuntarily committed to the Waco V.A. Hospital:

My husband ... has over the last two months been experi-

encing hallucinations and has been generally out of touch

with reality. He became very paranoid and was always

thinking that someone was watching him from the creek in

our backyard. He would sit on the porch all day to keep

watch. The paranoia has continued to the present. After our

buby was born in March, he became obsessed with the idea

that the devil was in our house. He finally had a ceremony

to get rid of the devil during what he called the “devil’s

birthday.” He buried many valuables next to the house and

stacked other furnishings and valuables above the ground

‘which he washed with water. He would stay up during the

night and “make magic with the lights.” He claims that he

saw the devil on a wall and cut the devil with a knife and

that blood had run out on him.

JA 38-39. c

tangentiality, and circumstantiality. JA 108-09 (Peti-

tioner’s Ex. 7, 2 FH 53, 53). He found that Mr. Panetti was

actively psychotic, had delusional beliefs that were both

grandiose and paranoid, and was suffering from schizo-

phrenia or schizoaffective disorder. JA 109. Dr. Cunning-

ham said that Mr. Panetti believed that he is the target of

evil forces that “included not only Wicken [sic] national

headquarters in Wisconsin, but also reached even into ‘the

administration.’” JA 109. He attributed his impending

execution to these demonic forces that wish to stop him

from continuing to preach the Gospel. JA 109. Mr. Panetti

also described himself as a “born again April fool,” miracu-

lously healed by God and, therefore, no longer in need of

medication or treatment. JA 109. Dr. Cunningham con-

cluded that Mr. Panetti was not malingering his symp-

toms, because it is nearly impossible to imitate the

disorganized thinking he exhibited and because he has a

history of “psychotic decompensation and inpatient psy-

chiatric treatment.” JA 110.

Professor Dow stated that Mr. Panetti was unable to

answer questions in a linear fashion, bounced wildly from

topic to topic, freely associated, and peppered his remarks

with random and irrelevant biblical quotations. JA 111

(Petitioner’s Ex. 10, 2 FH 73, 74). He described Mr. Pa-

netti’s delusion that prison officials and inmates had

thrown boiling water on him, but Jesus had cooled the

water before it touched his skin. JA 111. Mr. Panetti also

said that he had not shed any blood when inmates had

shot him with blowgun darts. JA 111. Half a dozen times

during Professor Dow’s interview, Mr. Panetti had ex-

plained that his imminent execution was being orches-

trated by evil, “anti-Christian forces” that wanted to “rub

him out” to keep him from preaching the Gospels of Jesus

Christ. JA 111.

Based on this evidence, the state court appointed two

mental health experts. JA 59-60. These experts, Mary

Anderson, a psychiatrist, and George Parker, a clinical

psychologist, conducted a joint evaluation of Mr. Panetti

and co-authored’a report. JA 70-76. They described Mr.

Panetti as controlling and uncooperative, ignoring their

repeated questions and, instead, “filibustering about the

Bible and the Lord.” JA 70. Mr. Panetti did, however,

unambiguously state that he is on death row, because

“(t]hey don’t want me to preach the Word of God.” JA 72.

Deciding that further questioning was futile, the experts

ended the clinical interview after an hour. JA 73. Dr.

Anderson and Dr. Parker believed that “Mr. Panetti

deliberately and persistently chose to control and manipu-

late our interview situation by deflecting the interview

into religious topics.” JA 75. They concluded that Mr.

Panetti knows that he is to be executed, and that,

“{allthough Mr. Panetti chooses not to discuss the reason

that he is to be executed, he has the ability to understand

the reason he is to be executed.” JA 75. The state court

agreed and found that Mr. Panetti “has failed to show, by a

preponderance of the evidence, that he is incompetent to

be executed.” JA 99-100.

At the federal evidentiary hearing, counsel for Mr.

Panetti presented the testimony of four mental health

experts. The State presented the testimony of three death

row correctional officers and the two mental health ex-

perts who had been appointed by the state court.

Mary Alice Conroy, a forensic psychologist, testified

that Mr. Panetti has “a severe thought disorder,” meaning

that “his thinking does not fit together in any kind of

logical, rational way.” JA 139. She believed he suffers from

schizoaffective disorder. JA 144. His symptoms include

pressured speech, flight of ideas, loose associations, and

inappropriate affect. JA 146. Dr. Conroy testified that Mr.

Panetti knows he is on death row and that the State

intends to execute him. JA 147. However, Mr. Panetti told

her that:

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.

He says granted he understands that the state is

saying that they wish to execute him for this

murder, he knows that, but that’s really a sham,

that that’s not why the state wants to execute

him. The state wants to execute him to stop him

from preaching.

JA 149; see JA 150, 155 (explaining delusion that his

execution is part of “spiritual warfare”). She testified that

Mr. Panetti believes these evil forces first manifested

themselves in the mid-1980’s, when demons possessed his

home, his furniture, and his possessions. JA 149-50; see

n.13, supra.'' Dr. Conroy concluded that Mr. Panetti does

“ Mr. Panetti was involuntarily committed for psychiatric prob-

lems over a dozen times in hospitals in Texas and Wisconsin in the

decade preceding the crime. Treatment professionals repeatedly found

him to be paranoid, grandiose, delusional, and hallucinating. He

exhibited tangential and circumstantial thinking, severely impaired

judgment, and excessive religiosity. These profound disturbances in his

thinking and perception consistently led to diagnoses of chronic

undifferentiated schizophrenia and schizoaffective disorder. The doctors

frequently prescribed antipsychotic medication to alleviate some of his

psychotic symptoms. Auditory and visual hallucinations exacerbated

‘Continued on following page?

not appreciate the connection between his killing of his

wife’s parents and his execution. JA 150. Because of the

difficulty of imitating the symptoms of a severe thought

disorder — jumping from topic to topic, thinking illogically,

and making loose associations — Dr. Conroy found that Mr.

Panetti was not malingering. JA 150-51, 153-54. Adding

support to her conclusion, she noted that Mr. Panetti’s

lengthy mental health history showed that his delusions

about demonic persecution had remained remarkably

consistent. JA 182-83.

Susana A. Rosin, a psychologist, testified about Mr.

Panetti’s inability to maintain a train of thought, his flight

of ideas, and his use of excessive, irrelevant detail. JA 200-

02. She said that his symptoms are consistent with some-

one suffering from schizophrenia. JA 205. She also noted

that he displayed some signs of schizoaffective disorder,

which she described as a thought disorder accompanied by

rages, manic episodes, and sleeplessness. JA 206. Dr.

Rosin testified that Mr. Panetti has a set of fixed delusions

his delusions of persecution and grandiosity. He believed that the devil

had possessed his furniture. He buried it in the backyard and sprayed it

with water to exorcize the devil. He claimed to have seen the devil on

the walls of his home and admitted to hearing the voice of the devil. He

believed he was being controlled by an unseen power. He believed the

neighbors were spying on him, so he nailed his curtains shut. Two vears

before the crime, Mr. Panetti was involuntarily committed for homicidal

behavior after he began swinging a sword around the house and

threatening to kill his wife, baby, father-in-law, and himself. He thought

the citizens of Fredericksburg were plotting against him. In July 1991,

he was hospitahzed and found to be suffering from delusions of

grandiosity and psychotic religiosity. The possible presence of three

alternative personalities was noted. See generally JA 339-41 (summa-

rizing psychiatric history). Each of the experts who testified at the

federal hearing reviewed Mr. Panetti’s mental health records predating

the cnme. JA 141; JA 211-12; JA 222; JA 240; JA 307, 2 FH 56-57.

that date back to the 1980’s, centered around grandiose

ideas that he must save others by preaching the word of

God. JA 203. She explained that Mr. Panetti could hold a

normal conversation if the discussion did not deal with his

fixed delusional system. JA 203-04. She believed that he

knows he is on death row and that he is going to be exe-

cuted. JA 207. Dr. Rosin also testified that Mr. Panetti

knows he killed his parents-in-law. JA 208. However, he

told her that he does not believe these murders are the real

reason the State seeks his execution. Instead, he believes

that he was put on death row to preach the Gospel to save

other inmates, and that “the forces of evil, demons, devils”

have been in a conspiracy for years to kill him and put an

end to his preaching. JA 202, 209. She concluded that Mr.

Panetti was not malingering. JA 202, 205, 213.

Seth Silverman, a forensic psychiatrist, diagnosed Mr-

Panetti with schizophrenia. JA 227, 233. He testified that

Mr. Panetti believes an individual named “Sarge” killed

his wife’s parents. JA 221, 235. Dr. Silverman said that

Mr. Panetti knows the State wants to execute him, but

that these murders are not the reason. JA 221. Mr. Panetti

persisted in his belief that the real reason is “[blecause he

preaches the word of the gospel.” JA 222. He does not

associate his killing of his parents-in-law with his execu-

tion, or have a rational understanding of why the State

wants to execute him. JA 221-22, 231. Dr. Silverman

concluded that Mr. Panetti was not feigning symptoms of

severe mental illness, because no one could fabricate the

intensity, the grandiosity, and the tangentiality of thinking

that Mr. Panetti has consistently exhibited. JA 222-24.

As its first witness, the State called Dr. George

Parker, the psychologist whom the state court had ap-

pointed to evaluate Mr. Panetti. According to Dr. Parker,

Mr. Panetti refused to cooperate with the evaluation,

because Dr. Parker and Dr. Mary Anderson would not

answer his question about their religious preferences. JA

238. Dr. Parker did not dispute that Mr. Panetti suffers

from “significant psychological problems.” JA 239. He

testified that Mr. Panetti said he was going to be executed

to keep him from preaching the word of God. JA 255, 272.

However, Dr. Parker testified that Mr. Panetti is not

incapable of understanding why the authorities have

ordered his execution even though he is preoccupied with

religion and may, on some level, genuinely believe that he

is being executed for preaching the Gospel. JA 247. Dr.

Parker admitted that he does not know whether Mr.

Panetti understands why he is going to be executed, but he

insisted that Mr. Panetti is “capable of understanding.” JA

247.

The State also called Mary Anderson, the forensic

psychiatrist who had examined Mr. Panetti in the state

execution competency proceedings. She explained that Mr.

Panetti would not answer her and Dr. Parker’s questions,

because they refused to respond to his question whether

they believed in Jesus. JA 299-301. Mr. Panetti told Dr.

Anderson that “the devil is trying to rub me out for

preaching the word of Jesus Christ.” JA 309; see JA 303,

319. However, Dr. Anderson believed that Mr. Panetti had

the mental capacity to understand the real reason he is

going to be executed. JA 304, 315. She said that Mr.

Panetti'’s refusal to cooperate with the evaluation was the

result of deliberate, conscious choice rather than the

product of mental illness. JA 312-13. She refused to

conclude that Mr. Panetti suffers from schizophrenia,

because she did not think that his mental illness was

relevant to the competency determination. JA 313-14.”

In rebuttal, counsel for Mr. Panetti called Dr. Cun-

ningham, the same expert who had visited Mr. Panetti

days before his scheduled execution. After conducting a

more thorough evaluation, 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. JA 324. Dr. Cunningham

explained that Mr. Panetti has a lengthy history of re-

sponding to questions with religiosity rather than concrete

answers. JA 324-26. Emphasizing that Mr. Panetti

" The State also called three correctional officers at the hearing.

Steven Miller testified that Mr. Panetti knows that he is going to be

executed. JA 296. However, Miller did not have any idea whether Mr

Panetti knows why he is going to be executed. JA 296. Tern Hill

testified that Mr. Panetti appeared to be aware of his situation, but that

she had never had a lengthy conversation with him. 1 FH 196-97. She

described an incident where Mr Panetti was jogging “frantically”

around the recreation room, preaching to the other inmates from a

Bible he carried. 1 FH 195. The inmates shouted profanities and velled

at him to stop, but Mr Panetti was undeterred. 1 FH 195. Victoria

Williams testified that Mr. Panetti is different from others because he

“over-preaches” to the inmates and correctional officers. 1 FH 201. She

said that he realizes his preaching angers the other inmates but that he

keeps doing it anyway. 1 FH 204.

“ Mr. Panetti behaved in a similar manner when his post-

conviction counsel attempted to discuss the issues with him in prepara-

tion for filing the federal habeas petition:

When I attempted to mention a topic, he was unable to con-

tinue the same line of thought in his conversation, instead

going off on some bizarre tangent. He would talk about the

Death Row guards and the “belly of the whale” or his spiri-

tual healing and role as God's son. ... Mr. Panetti was often

making esoteric references to the Bible and would hold up

his copy to show us some important significance that only

he saw. To answer a question from counsel, he would open

his Bible to read a verse that signified to him the answer

‘(Continued on following page)

behaved in a manner consistent with someone suffering

from schizophrenia, Dr. Cunningham explained:

|W]hy 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 tangen-

tial, circumstantial, 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 schizo-

phrenic....

JA 328. According to Dr. Cunningham, Mr. Panetti be-

lieves the State of Texas is not acting as a lawfully consti-

tuted authority in seeking his execution. JA 333. Instead,

Mr. Panetti thinks that the State “is in league with the

forces of evil to prevent him from preaching the gospel.” JA

333. Dr. Cunningham identified this as a “specific delu-

sional belief,” consistent with Mr. Panetti’s “long-standing

delusions of religiosity” and diagnoses of schizophrenia

and schizoaffective disorder documented in the records

Among his many bizarre statements, Mr. Panett: said that

he alone was a “closet commando Guru” and that “he who is

first is last.”

JA 43, see JA Il 1 (Death Row medical records noting that: “The patient

reports: he is a preacher and is to deliver the Word of God to those

around him.... Pt was hyperreligious.... Pt would only speak of the

Bible and God.”)

from his numerous psychiatric hospitalizations since the

1980's. JA 334.”

SUMMARY OF THE ARGUMENT

Scott Louis Panetti is a captive to a malfunctioning

brain that cannot tell the difference between what is real

and what is imagined. Nearly all of the experts and

treating professionals who have examined him over the

last two decades have consistently diagnosed him as

suffering from schizophrenia or schizoaffective disorder.

Profound distortions in thinking and perception character-

ize these mental illnesses." The hallmark of Mr. Panetti’s

condition is his psychotic delusion of religious persecution.

Mr. Panetti believes that demonic forces, in league with

the State of Texas, have orchestrated his execution in a

final effort to prevent him from preaching the Gospels of

Jesus Christ. According to Mr. Panetti, the State of Texas

is using the murder of his wife’s parents as a pretext to

" The District Court found it significant that “no witness was able

to state as a matter of fact that Panetti understands he is being

executed for the murders he committed.” JA 364.

*“ Schizophrenia is one of the most chronic and disabling of the

severe mental illnesses, because its core symptoms include “distortions

in thought content (delusions), perception (hallucinations). language

and thought process ‘disorganized speech), and self-monitomng of

behavior ‘grossly disorganized or catatonic behavior.” American

Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders 299 (4th ed. text revision 2000). “The essential feature of

Schizoaffective Disorder is an uninterrupted period of illness during

which, at some time, there is a Major Depressive, Manic, or Mixed

Episode concurrent with [the characteristic symptoms! for Schizophre-

ma.” /d. at 319. Schizophrenia and schizoaffective disorder affect less

than one percent of the population. R.W Buchanan & William T.

Carpenter, Concept of Schizophrenia, in Comprehensive Textbook of

Psychiatry 1330 (B. Sadock & V. Sadock eds.. 8th ed. 2005).

fulfill the devil’s plot to silence him. In short, Mr. Panetti

is in the grip of a delusion that puts his execution at the

center of his irrational beliefs.

Mr. Panetti’s execution can proceed, the Fifth Circuit

held, because the Eighth Amendment does not require

that a prisoner must “rationally understand” the reason

for his punishment, only that he must be “aware” of the

reason the State has given. JA 381. This functionless

distinction is incompatible with the Eighth Amendment

and Ford v. Wainwright. Analysis of the relevant indica-

tors of the Amendment’s meaning demonstrates that it

does not permit the execution of a person who is so lacking

in rational understanding that he cannot comprehend that

he is being put to death because of the crime he was

convicted of committing.

First, the reasons for the firmly-embedded common-

law rule against executing the insane include the recogni-

tion that killing a person who is unable to understand that

the execution is a punishment for his crimes (1) serves no

retributive purpose, and (2) denies the condemned an

opportunity to prepare properly for death. The Ford

majority opinion and Justice Powell’s concurrence agree

that these rationales retain contemporary cogency. In

requiring an inmate to have a rational understanding of

the reason for his execution, Justice Powell crafted a

standard that implements the enduring purposes of the

common-law ban.

Second, among the States that have defined a stan-

dard of competency for execution, there is a broad contem-

porary consensus against executing condemned inmates

who are too mentally ill to understand the connection

between the crime and its punishment. This consensus

confirms that the capacity for such an understanding

continues to this day to be recognized as a necessary

component of the competency standard.

Third, putting to death a person who has no rational

understanding of the reason for his execution does not

measurably contribute to the retributive or deterrent

functions of capital punishment and is, therefore, mere

wanton cruelty for Eighth Amendment purposes. More-

over, executing a person who cannot understand that his

impending death is the result of the crimes for which he

stands convicted adds a further dimension to this cruelty,

because it deprives the person of any opportunity to

expiate the offense by making amends with his conscience

or his God.

Each one of these indicators — recognized by the Court’s

precedents as keys to Eighth Amendment interpretation —

points in the same direction. To execute someone like Scott

Panetti - a man who, in Justice Powell's Ford formulation,

cannot “perceive! | the connection between his crime and his

punishment,” 477 U.S. at 422 — offends a standard of decency

with established common-law roots, pervasive contemporary

acceptance, and a particular fitness to accommodate the

recognized aims of capital punishment with those of Cruel

and Unusual Punishment doctrine.

ARGUMENT

THE EIGHTH AMENDMENT PROHIBITS

THE EXECUTION OF A PERSON WHO, BE-

CAUSE OF A SEVERE MENTAL IMPAIR-

MENT, IS INCAPABLE OF RATIONALLY

UNDERSTANDING THE REASON FOR HIS

EXECUTION.

In Ford v. Wainwright, 477 U.S. 399 (1986), counsel

for the petitioner argued that the right not to be executed

while insane was a substantive federal constitutional

right, guaranteed by the Eighth Amendment, as incorpo-

rated into the Fourteenth Amendment. Alternatively,

counsel argued that, even if the right were merely a

creature of Florida law, the Due Process Clause required ©

Florida to administer it through fair procedures. A major-

ity of the Court made a clear choice to rest its decision

upon the first of these two grounds, holding that the

Eighth Amendment “places a substantive restriction on

the State’s power to take the life of an insane prisoner.” Jd.

at 405. It follows that, while the States may have some

leeway in crafting the specific terms of their local test for

competency to be executed, the Eighth Amendment im-

poses a constitutional minimum standard that all these

tests must meet. “With faithfulness to the constitutional

union of the States, we cannot leave to the States the

formulation of the authoritative laws, rules, and remedies .

designed to protect people from infractions by the States of

federally guaranteed rights.” Chapman v. California, 386

U.S. 18, 21 (1967); accord Ford, 477 U.S. at 419 (Powell,

J., concurring) (“The Court holds today that the Eighth

Amendment bars execution of a category of defendants

defined by their mental state. The bounds of that category

are necessarily governed by federal constitutional law.”).

This case requires the Court to determine whether that

minimum Eighth Amendment standard includes the

mental capacity to understand that one is being executed

as a punishment for a crime.

Texas proposes to execute Petitioner Scott Louis

Panetti, despite overwhelming evidence that his schizo-

phrenia has left him shackled to a psychotic delusion

strong enough to thwart the power of logic and reason. Mr.

Panetti believes that he and the devil have been engaged

in an apocalyptic struggle — “spiritual warfare” — for years,

and that the devil has specifically targeted him because of

his profound Christian faith and relentless efforts to

persuade others to follow the teachings of Jesus Christ. He

thinks that the actual reason for his execution is the

devil’s persecution for spreading the Gospels, not the

State’s retribution for killing his wife’s parents. He views

his capital murder conviction as simply part of the State’s

grand design to cover up the diabolical conspiracy that will

make him a martyr. Mr. Panetti’s distorted perception of

reality falls substantially short of the constitutional

minimum, which requires at least that the inmate “per-

ceives the connection between his crime and his punish-

ment.” Ford, 477 U.S. at 422 (Powell, J., concurring).

“The prohibition against ‘cruel and unusual punish-

ments,’ like other expansive language in the Constitution,

must be interpreted according to its text, by considering

history, tradition, and precedent, and with due regard for

its purpose and function in the constitutional design.”

Roper v. Simmons, 543 U.S. 551, 560 (2005). Recognizing

that Eighth Amendment analysis “should be informed by

‘objective factors to the maximum possible extent,’” Atkins

v. Virginia, 536 U.S. 304, 312 (2002) (quoting Harmelin v.

Michigan, 501 U.S. 957, 1000 (1991) (Kennedy, J., concur-

ring) (internal quotation marks omitted), this Court has

looked to the “ancestral legacy” of the common law, Ford,

477 U.S. at 408; a discernible contemporary consensus of

“legislative enactments and state practice,” Simmons, 543

U.S. at 563, particularly when that is reflective of “a much

broader social and professional consensus,” Atkins, 536

U.S. at 316 n.21; and the conformity or disjuncture be-

tween the particular infliction of capital punishment and

generally understood “penological justifications for the death

penalty.” Simmons, 543 U.S. at 571. With regard to the

narrow question presented in Mr. Panetti’s case - whether

the Eighth Amendment permits the execution of a person

who is incapable of understanding that his death will be

the punishment for a crime he has committed — all of these

objective indicators point to the same, negative answer.

I. THE ANCESTRAL LEGACY OF THE COMMON

LAW INSISTS THAT THE DEATH PENALTY

CANNOT BE IMPOSED ON A PERSON SO

LACKING IN RATIONAL UNDERSTANDING

THAT HE IS UNABLE TO PERCEIVE THE

CONNECTION BETWEEN HIS CRIME AND

HIS PUNISHMENT.

A. Ford identified the common-law justifica-

tions for the ban on executing the insane

that retain contemporary validity.

In holding that the Eighth Amendment prohibits the

execution of the insane, Ford found that this ancient

proscription was unquestioned and firmly embedded in the

common law at the time the Bill of Rights was adopted.

477 U.S. at 406-08. The common law had settled on no

single reason for the ban, and because some of its ration-

ales might have become obsolete,” the prevailing Ford

opinions undertook to identify those common-law purposes

that still retain vitality today.

Both the majority and Justice Powell cited Blackstone

for asserting that the rule reflected not only “‘the human-

ity of the English law” in appreciating that an insane

prisoner might be unable to allege “‘something in stay of

judgment or execution, ” 477 U.S. at 407 (quoting William

See Geoffrey C. Hazard & David W. Louisell, Death, the State.

and the Insane: Stay of Execution, 9 U.C.L.A. L. Rev. 381, 383 : 1962).

Blackstone, 4 Commentaries *24-*25),” but also a recogni-

tion that “execution serves no purpose in these cases

because madness is its own punishment.” Jd. at 407-08.

Coke viewed the execution of the insane as but “‘a miser-

able spectacle, both against Law, and of extream inhuman-

ity and cruelty, and can be no example to others.’” Jd. at

407 (quoting Sir Edward Coke, 3 Institutes 6 (6th ed.

1680)). His explanation suggests that execution of the

insane “contributes nothing to... deterrence” and “simply

offends humanity.” Jd. Still another rationale had religious

roots: Executing a person who is unable to reflect on his

conduct and predicament deprives him of a last opportu-

nity to make peace with God. /d. A final rationale rested

on the assertion that the execution of the insane does not

satisfy “the community’s quest for retribution.” Jd. at 408

(internal quotation marks omitted).

The majority opinion specifically concluded that at

least three of these common-law rationales continue to

“have no less logical, moral, and practical force than they

did when first voiced.” Jd. at 409. First, the Court noted

that “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.” Jd. The Court characterized executions lacking

retributive purpose as nothing more than “mindless

vengeance.” Jd, at 410. Second, the Court believed that

modern society abhorred the practice of executing “one

who has no capacity to come to grips with his own con-

science or deity.” Jd. at 409. Consequently, Eighth

” Justice Powell found that the rationale of protecting an inmate's

ability to articulate legal grounds in bar of execution had “shght merit

today.” Jd. at 421, see id. at 422 n.3.

Amendment prohibition of the practice would “protect the

condemned from fear and pain without comfort of under-

standing.” /d. at 410. Third, the Court concluded that, no

less than in ancient times, execution of the insane “simply

offends humanity.” Id. at 409.

Justice Powell joined this portion of the majority

opinion, but wrote separately to offer additional analysis

that could guide specific application of the majority’s

Eighth Amendment holding. In defining “the meaning of

insanity” in the execution setting, id. at 418, he looked to

the common law and the modern practices of the States -

the same sources that informed the majority’s recognition

of a substantive right against execution of the incompetent

— to formulate a “precise definition” of incompetency. Jd. at

419. Because the various rationales supporting the ancient

ban on executing the insane “do not provide a common

answer when it comes to defining the mental awareness

required by the Eighth Amendment,” id., Justice Powell

focused on the two that he believed still had merit in

modern practice. First, because most people today “value

the opportunity to prepare, mentally and spiritually for

their death,” he determined that the general concern of the

common law — “that executions of the insane are simply

cruel” — remained valid. /d. at 421. Second, he found that

one of the “critical justifications” for the modern use of

capital punishment - its retributive force — coincided with

the common-law rationale that required “the defendant's

awareness of the penalty’s existence and purpose.” Jd. He

concluded that a constitutionally appropriate standard for

competency to be executed had to satisfy both of these

rationales: :

If the defendant perceives the connection be-

tween his crime and his punishment, the retribu-

tive goal of the criminal law is satisfied. And only

if the defendant is aware that his death is ap-

proaching can he prepare for his passing.

Id. at 422. Accordingly, he proposed a standard that would

prohibit the execution of those “who are unaware of the

punishment they are about to suffer and why they are to

suffer it.” Jd.”

This review of the majority opinion and Justice

Powell’s concurring opinion in Ford leads to three unre-

markable conclusions. First, the competency standard that

Justice Powell endorsed must be read in light of the

common-law rationales that he found had modern-day

merit: (1) that the retributive goal of capital punishment is

not furthered by executing someone so lacking in under-

standing that he cannot grasp “the connection between his

crime and his punishment,” and (2) that it is uniquely

cruel to execute a person who has no chance to obtain

mental or spiritual consolation in preparation for his

death, because he does not comprehend the reason he is to

die. Second, Justice Powell’s standard is consistent with

the majority's stated reasons for finding that the Eighth

Amendment embodies the common-law prohibition: that

“executing a person who has no comprehension of why he

has been singled out and stripped of his fundamental right

to life” has no retributive value, and that it offends hu-

manity to execute someone who lacks the “comfort of

understanding” his impending fate, because he does not

have the “capacity to come to grips with his own con-

science or deity.” Jd. at 409. Third, for these underlying

common-law rationales to be satisfied, an inmate must

* Justice Powell’s use of the term “suffer” is instructive. It provides

additional support for the conclusion that his proposed test incorporates

the common-law retributive rationale.

possess a rational understanding of his predicament,

including a capacity to perceive the punitive connection

between his criminal conviction and his impending execu-

tion.” The inmate must be capable of realizing his moral

guilt before he can prepare himself for death as expiation

for his offense, and the state’s punitive purpose must be

intelligible to him for retribution to be meaningful.

B. The common-law rationales embraced by

the Ford opinions logically imply the need

for rational understanding.

In Ford, both the majority and Justice Powell referred

to Hawles’s commentaries, which emphasize that:

|T]here being so many to be made examples of,

besides those on whom the misfortunes of mad-

ness fall, it is inconsistent with humanity to

make examples of them; it is inconsistent with

religion, as being against christian charity to

send a great offender quick ... into another

world, when he is not of a capacity to fit himself

for it. ,

~ Justice Powell's opinion contains five slightly different formula-

tions of the competency standard he approved. These formulations

prohibit the execution of persons ‘1) who “are unaware of the punish-

ment they are about to suffer and why they are to suffer it,” (2) “who

dio} not have the mental capacity to understand the nature of the death

penalty and why it was imposed on them,” (3) who are “unable to

understand the nature and purpose of such sentence.” (4) who are

unable “to understand the nature of the sentencing proceedings, i.e.,

why he was being punished and the nature of his punishment:” and (5)

who do not “know the fact of their impending execution and the reason

for it.” Jd. at 421-22, 422 n.3 (citations and internal quotation murks

omitted! A rational understanding of the connection between one’s

criminal conviction and execution is explicit or implicit in each formula-

tion.

Sir John Hawles, Remarks on the Trial of Mr. Charles

Bateman, in XI State Trials 477 (T. Howell ed., 1816).

Hawles is the most explicit of the common-law writers

regarding the specific capacity demandee for competency

to be executed, and courts in the common-law tradition

continue to echo his point. See State v. Noel, 133 A. 274,

283 (N.J. 1926) (“The law is zealous in permitting one

condemned to death to make his peace with the Almighty,

before he pays the penalty of his crime. This expiation

cannot be made by one who is insane.”); Musselwhite v.

State, 60 So. 2d 807, 811 (Miss. 1952) (“It is... part of due

process that there be available to [the condemned] as a

rational person avenues toward ... spiritual consola-

tion.”). Plainly, the capacity to understand why one is to

die — the capacity to connect one’s death with one’s life and

deeds and to come to terms with one’s responsibilities in

the end — is a necessary condition for fitting oneself for

execution in the common-law sense.

Equally plainly, to inflict death upon one who does not

understand its punitive purpose would substitute “mind-

less vengeance,” Ford, 477 U.S. at 410, for the concept of

just deserts that is central to the retributive justification

for capital punishment. This is why common-law courts

have insisted that, “before the prisoner could be found

insane, it should be shown that he would not know he

would deserve punishment for doing a wrong act, and, if

punishment therefor should be inflicted upon him, would

not comprehend the reason why he was being punished.”

Lee v. State, 45 S.E. 628, 630 (Ga. 1903); see In re Lang, 71

A. 47, 49 (N.J. 1908) (explaining that a mentally ill pris-

oner cannot be executed unless a “court or a jury has

found that he is conscious of having committed a crime, is

aware that he is amenable to punishment and is apprecia-

tive of his situation as a murderer condemned to death”).

The tests that common-law courts have developed for

competency to be executed thus focus upon a condemned

inmate’s rational understanding of the purpose for which

the State is about to put him to death. See, e.g., Ex parte

Chesser, 112 So. 87, 89-90 (Fla. 1927) (holding that, if the

inmate is “unable to understand the nature, purpose and

effect of the process about to be executed upon him,” then

the execution shall not be carried out until the inmate

“regains his senses”); State v. Genna, 112 So. 655, 661 (La.

1927) (“He must be capable of understanding the situation

in which he stands and the nature of the proceedings

against him.”). Scholars have agreed that the common-law

standard was “generally said to be whether the con-

demned man has the capacity to understand the nature

and purpose of the punishment about to be executed upon

him.” Henry Weihofen, A Question of Justice: Trial or

Execution of an Insane Defendant, 37 A.B.A. J. 651, 652

(1951): see Wayne LaFave & Austin Scott, Handbook on

Criminal Law 303 (1972) (“{[H]je must be so unsound

mentally as to be incapable of understanding the nature

and purpose of the punishment about to be executed upon

him.”). As one commentator has suggested:

(PJerhaps the most convincing purpose for which

the rule has been said to exist in modern circum-

stances is that punishment should not be in-

flicted upon a person incapable of comprehending

the reason why he is punished. Thus in the

United States where the common law rules are

still operative in many States the tests of insan-

ity adopted consider the mental condition of the

prisoner in regards closely connected with the

purposes of execution.

J.D. Feltham, The Common Law and the Execution of

Insane Criminals, 4 Melb. U. L. Rev. 434, 468 (1964)

(footnotes omitted). Only through a radical divergence

from the common-law tradition could a court today con-

clude — as the Fifth Circuit did below — that it is permissi-

ble to execute a psychotic who delusionally believes that

the purpose of his execution is to aid and abet the devil by

depriving Jesus of the benefits of his ministry.

Il. CONTEMPORARY STANDARDS REQUIRE THE

INMATE TO RATIONALLY UNDERSTAND THE

CONNECTION BETWEEN HIS CRIME AND

HIS PUNISHMENT.

A. State Law

The “clearest and most reliable objective evidence of

contemporary values” relevant to the Eighth Amendment

is state legislation. Atkins, 536 U.S. at 312 (citation

omitted). Nineteen states currently have a statutory

definition of competency for execution.’ Of these, 14 states

provide that a condemned inmate must “understand the

reason” or “know why” he is being punished, or must

“understand the purpose” or the “object” of the punish-

ment. These formulas expressly require capability to

connect punishmen with crime. That capability is proba-

bly implied, as well, by three additional statutes that

forbid an execution if the inmate is “unaware that he is to

be punished for the crime of murder” or “lacks awareness”

” For the Court's convenience, the relevant statutory provisions

and case law decisions of the states are set out in Appendix B.

* Arkansas, Florida, Georgia. Kentucky, Louisiana, Mississippi,

Missouri. New York, North Carolina, Ohio, Oregon, Texas, Utah, and

Wyoming. The relevant federal statute also provides that. “A sentence

of death shall not be carried out upon a person who, as a result of

mental disability, lacks the mental capacity to understand the death

penalty and why it was imposed on that person.” 18 U.S.C. § 35961C).

that he “is to be executed for the crime of murder.”” The

two remaining states with statutory definitions assimilate

competency-to-be-executed with competency-to-be-sentenced

and forbid an execution if the inmate “lacks capacity” or “is

unable” to “understand the proceedings against” him.”

Thus, no state statutory definition expressly permits the

execution of someone incapable of connecting the execu-

tion to his criminal conviction; three-quarters of the

definitions explicitly forbid such an execution; and the

remaining quarter most likely forbid it implicitly.

Nine states do not have a statutory standard for

determining incompetency,” and ten states have no stat-

ute at all.” No judicial decisions appear to spell out the

competency-to-be-executed standard in most of these

states. However, in the six states where such decisions are

found, at least five require an inmate to be capable of

understanding the connection between his conviction of a

* Arizona, Colorado, and Maryland.

“ Idaho and Montana.

* See, e.g., Provenzano v. State, 750 So. 2d 597, 602 (Fla. 1999)

(noting that Florida’s statutory definition “does allow for a prisoner's

rational appreciation of the connection between his crime and the

punishment he is to receive”), Billiot v. State, 655 So. 2d 1, 16 (Miss.

1995) ‘explaining that the inmate “must comprehend the reasons for

the penalty and its implications, he must understand ‘the penalty’s

existence and purpose, and in order for the retributive goal of the

criminal law to be satisfied, he must ‘perceive! | the connection between

his crime and his punishment,’ and be ‘aware that his death is ap-

proaching |so] he can prepare himself for his passing”) ‘quoting Ford,

477 U.S. at 417, 422 ( Powell, J., concurring)).

“ Alabama, California, Connecticut, Kansas, Nebraska, Nevada,

New Mexico, Oklahoma, and South Dakota.

“ Delaware, Illinois, Indiana, New Hampshire, New Jersey,

Pennsylvania, South Carolina, Tennessee, Virginia, and Washington.

crime and his execution.” The remaining decision is silent

on the issue. »

In summary, all of the states in which the relevant

legal rule can be ascertained with any confidence prohibit

the execution of an inmate so lacking in rational under-

standing that he cannot comprehend the connection

between his crime and his execution. The rest of the death

penalty states have not reached a different conclusion;

they simply have not addressed the issue.

B. Informed Professional Opinion

This Court has looked to the positions of “organiza-

tions with germane expertise” to determine whether the

judgment of state legislatures “reflects a much broader

social and professional consensus.” Atkins, 536 U.S. at 316

n.21. That is certainly the case here. The American Psy-

chiatric Association, the American Psychological Associa-

tion, and the American Bar Association have all adopted

position statements regarding the execution of mentally

impaired inmates. With minor differences, presently

irrelevant, the positions of these national organizations

are identical, stating 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,

“ Pennsylvania requires that the inmate comprehend the reasons

for the death penalty. Tennessee and Indiana require that he be aware

of why he is to suffer it. South Carolina requires that he be able to

understand the reason for the punishment, and Oklahoma requires

that he be able to understand the punishment’s purpose.

“ The Washington standard says only that an inmate must be

“capable of properly appreciating his peril and of rationally assisting in

his own defense.” State v. Harris, 789 P.2d 60, 65 (Wash. 1990).

or to appreciate the reason for its imposition in the pris-

oner’s own case.”” The supporting commentary to the

American Bar Association’s resolution makes clear that

the standard includes a rational understanding compo-

nent:

[The standard] would require that an offender

not only must be “aware” of the nature and pur-

pose of punishment but also must “appreciate”

its personal application in the offender’s own

case — that is, why it is being imposed on the of-

fender. This formulation is analogous to the dis-

tinction often drawn between a “factual

understanding” and a “rational understanding”

of the reason for the execution.

American Bar Association, Resolution 122A, supra, at 675.

The consistency of the professional organizations’ stan-

dards with state legislative and case law evidence “lends

further support to [the] conclusion that there is a consen-

sus among those who have addressed the issue.” Atkins,

536 U.S. at 316 n.21.

“ American Psychiatric Association, Mentally Jil Prisoners on

Death Row, par. (a) (Dec. 2005), available at http://www psych.org/edu/

other_res/lib_archives/archives/200505. pdf. American Psychological

Association, Council Policy Manual: N. Public Interest - Part 2, VIIL.2,

par. 3ia) (Feb. 2006), available at http://www apa org/aboutdivision/

cpmpubint2.html#8, American Bar Association. Resolution 122A. par

3(a) ‘Aug. 7-8, 2006), in Recommendation and Report on the Death

Penalty and Persons uith Mental Disabilities, 30 Mental & Physical

Disability L. Rep. 668, 668 (2006).

Ill. EXECUTING A PERSON INCAPABLE OF

RATIONALLY UNDERSTANDING THE CON-

NECTION BETWEEN HIS CRIME AND HIS

PUNISHMENT WOULD NOT SERVE THE

PENOLOGICAL PURPOSES OF THE DEATH

PENALTY.

The imposition of capital punishment violates the

Eighth Amendment when it is excessive, “involv|ing) the

unnecessary and wanton infliction of pain.” Gregg uv.

Georgia, 428 U.S. 153, 173 (1976) (joint opinion of Stewart,

Powell, and Stevens, JJ.). To execute a person who lacks

the mental capacity to understand the causal connection

between his crime and his punishment is excessive on two

counts. First, execution of such a person does not serve

either of the principal penological justifications for the

death penalty: “retribution and deterrence of capital

crimes.” Jd. at 183. Unless the imposition of the death

penalty “measurably contributes to one or both of these

goals, it ‘is nothing more than the purposeless and need-

less infliction of pain and suffering,’ and hence an uncon-

stitutional punishment.” Enmund v. Florida, 458 U.S. 782,

798 (1982) (quoting Coker v. Georgia, 433 U.S. 584, 592

(1977) (plurality opinion)). Second, executing a person who

lacks rational understanding is “uniquely cruel,” Ford, 477

U.S. at 421 (Powell, J . concurring), because it subjects the

prisoner to “fear and pain without comfort of understand-

ing.” Jd. at 410 (majority opinion).

A. Retribution

Retribution is “the primary justification for the death

penalty.” Spaziano v. Florida, 468 U.S. 447, 461 (1984). In

retributive theory, capital punishment serves as “an

expression of society's moral outrage at particularly

offensive conduct,” Gregg, 428 U.S. at 183, and is “an

attempt to right the balance for the wrong to the victim.”

Simmons, 543 U.S. at 571. Retribution demands that,

when the time for execution arrives, the offender be able to

recognize death as the price he must pay for his culpable

deeds. See Mary Ellen Gale, Retribution, Punishment, and

Death, 18 U.C. Davis L. Rev. 973, 1031 (1985) (“To give

someone her just deserts implies her recognition that those

deserts are just.”). Society demands that the condemned

inmate suffer the anguish of realizing that he is being put to

death “for what he did.” Martin v. Dugger, 686 F. Supp. 1523,

1569 (S.D. Fla. 1988). Because retribution attempts to

awaken the conscience of the offender, Gale, supra, at 1031-

32, it is designed to apply exclusively to rational persons who

have the cognitive capacity to answer for their conduct. See

generally Barbara A. Ward, Competency for Execution:

Problems in Law and Psychiatry, 14 Fla. St. U. L. Rev. 35,

57-58 (1986).

Executing a delusional psychotic who believes that a

conspiracy of demonic forces is orchestrating his execution

does not serve the retributive goal of capital punishment.

The condemned’s lack of rational understanding severs the

critical connection between crime and punishment, de-

stroying his ability to appreciate that his suffering is

payback for his offense. See id. at 54 (“Because of the

immense suffering caused by the prisoner’s criminal

actions, he is to suffer in anticipation of his death, and this

goal cannot be achieved if the prisoner does not appreciate

his impending fate because of mental illness.”) ‘footnote

omitted); Gale, supra, at 1031 n.167 (“[W]e believe pun-

ishment appeals, whether successfully or not, to the

offender’s consciousness and conscience — |this] may help

explain our moral distaste for killing those who cannot

understand either what we are doing or why we are doing

it.”); Ford v. Wainwright, 752 F.2d 526, 531 (11th 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 signifi-

cance”), rev'd, 477 U.S. 399 (1986); American Bar Associa-

tion, Resolution 122A, supra, at 676 (“[T)he retributive

purpose of capital punishment is not served by executing

an offender who lacks a meaningful understanding that

the state is taking his life in order to hold him accountable

for taking the life of one or more people.”). Under these

circumstances, execution serves as vengeance, not retribu-

tion.”

The absence of any retributive value in executing

those who do not possess a rational understanding of the

reason for their impending death substantially influenced

Justice Powell’s formulation of the Eighth Amendment

competency standard in Ford. See 477 U.S. at 421-22

(explaining that, only “liJf the defendant perceives the

connection between his crime and his punishment,” is “the

retributive goal of the criminal law ... satisfied”). It also

served as one of the mainstays of the Ford majority’s decision

to constitutionalize the common-law rule. See id. at 409.

Executing a person who lacks the rational understanding

needed to make the connection between his crime and his

punishment thwarts “the retributive end of ensuring that

the criminal gets his just deserts.” Enmund, 458 U.S. at

* “Retribution focuses on the offender's deserved punishment;

revenge focuses on retaliation and tries to satisfy the victim’s or

society's desire to strike back at the criminal.” Gale, supra, at 1033

(internal quotation marks and footnote omitted), see The Essays of

Francis Bacon 34 (S. Reynolds ed., 1590) “Revenge is a kind of wild

justice, which the more man’s nature runs to, the more ought law to

weed it out.”).

801. Prohibiting such executions “protect|s] the dignity of

society itself from the barbarity of exacting mindless

vengeance.” Ford, 477 U.S. at 410."

B. Deterrence )

Most of the common-law authorities concluded, like

Coke, that the execution of the insane “should be a miser-

able spectacle ... of extream inhumanity and cruelty, and

can be no example to others.” Coke, supra, at 6; see, e.g.,

Beverley’s Case of Non Compos Mentis, 76 Eng. Rep. 1118,

1120-21 (K.B. 1598); L. Shelford, A Practical Treatise on

The Law Concerning Lunatics, Idiots, and Persons of

Unsound Mind 295 (1833). These writers suggest that the

life of an incompetent person can be spared without

weakening the deterrent effect of the death penalty. A

prospective offender cannot imagine losing his capacity for

rational understanding so that he will be spared from

execution. Hazard & Louisell, supra, at 385. Moreover, an

offender’s execution can proceed if he regains his sanity,

and it can have “the same deterrent effect as if he had

been sane throughout.” Jd. Consequently, inflicting capital

punishment upon a person who lacks a rational under-

standing of his predicament is “unnecessary to the accom-

plishment of the end of deterrence.” Jd. at 386.”

“ Thompson v. Oklahoma, 487 U.S. 815 (1988), cited Ford as an

example of a case where the Court found a death sentence unconstitu-

tional because the “retributive value is so low.” /d. at 836 n.44 (plurality

opinion).

* The “natural abhorrence” society feels at executing the insane,

Ford, 477 U.S. at 409, also counsels against the practice:

If the general population shares the opimon that execution

of disturbed offenders constitutes cruel, brutal, and barbaric

behavior, then the practice could cause the law to diverge

(Continued on following page)

C. Uniquely Cruel and Inhuman

An inmate who rationally understands the reason for

his execution can allay some of the fear and torment he

faces by coming to terms with his moral guilt, seeking

forgiveness, expressing remorse, making amends, or

clearing his conscience. An inmate who does not have this

capacity cannot make this expiation.” Executing such a

person, who is without the “comfort of understanding,”

Ford, 477 U.S. at 410, is a uniquely cruel and inhuman

practice that does not “comport|]| with the basic concept of

human dignity at the core” of the Eighth Amendment.

Gregg, 428 U.S. at 182.

When Ford found that executing an insane prisoner

would violate the Eighth Amendment, the majority invoked

“the natural abhorrence civilized societies feel at killing

from conventional morality so drastically that some would

consider certain illegal conduct to be not only morally ac-

ceptable but morally mandatory. Thus, the |competency-for-

execution] requirement might undermine the deterrent ef-

fect of capital punishment to some unspecified degree vet

serve the preventive function of the criminal law by avoid-

ing a practice that would promote alienation between the

law and conventional] morality.

Robert F. Schopp, Wake Up and Die Right: The Rationale, Standard,

and Jurisprudential Significance of the Competency to Face Execution

Requirement, 51 La. L. Rev. 995, 1016 (1991).

*“ Compare Last Statement of Derrick O’Brien ‘executed Jul. 11,

2006), available at http://www.tdcj.state.tx.us/stat/obrienderricklast.

htm (“I have always been sorry. It is the worst mistake that I ever made

in my whole life. Not because I am here, but because of what I did and |

hurt a lot of people — you, and my family. I am sorry; I have always been

sorry. | am sorry.”), with Last Statement of Manty Delk ‘executed Feb.

28, 2002), available at http://www.tdcj.state.tx.us/stat/delkmontylast.

htm (“I've got one thing to say, get your Warden off this gurney and

shut up. I am from the island of Barbados. I am the Warden of this unit.

People are seeing you do this.”).

one who has no capacity to come to grips with his own

conscience or deity.” 477 U.S. at 409. Equally concerned,

Justice Powell formulated his standard, in part, to allevi-

ate the excessive cruelty involved in dispatching persons

who do not have the ability “to prepare, mentally and

spiritually, for their death.” Jd. at 421. To execute an

inmate laboring under a psychotic delusion about the

reason for his execution would be “a uniquely cruel pen-

alty,” id., inconsistent with the fundamental premise of the

‘Eighth Amendment that even the most contemptible

criminal remains a human being entitled to respect and

dignity.”

CONCLUSION ~—

To affirm that the Eighth Amendment forbids the

execution of a prisoner so mentally impaired that he

cannot “perceive||] the connection between his crime and

his punishment,” 477 U.S. at 422, implements the consti-

tutional standard that Justice Powell endorsed in Ford. It

is consistent with the reasons the Ford majority gave for

holding that the Constitution imposes a substantive

restriction on the States’ power to execute the insane. It is

in the grain of a tradition of decency that has a deep and

distinguished pedigree in the common law, yet still retains

” To execute a person “who lacks a rudimentary understanding of

the nature and purpose of the proceedings .. . offends the moral dignity

of the process because it treats the defendant not as an accountable

person, but as an object....” Richard Bonnie, The Competence of

Criminal Defendants: Beyond Dusky and Drope. 47 U. Miami L. Rev

539, 551 (1993) ‘emphasis in original), see Cartiativo v. California, 357

U.S. 549, 559 (1958) (Frankfurter, J. dissenting) ‘explaining that it

would be “barbaric” to execute a person who is “mentally unfit to meet

his destiny”).

contemporary validity. Its approval by state legislatures

and state courts without dissent, and by informed national

mental health and legal organizations, signifies more than

simply historical continuity. It reveals a broad social

consensus that a condemned inmate must have the mental

capacity to rationally understand the reason for his

execution. To execute someone like Scott Panetti, who

lacks this rudimentary level of rational understanding,

would disserve the penological purposes of the death

penalty and would exact a uniquely cruel punishment at

odds with the core value of the Eighth Amendment -

human dignity.

This Court should reverse the Fifth Circuit's judgment

and remand the case so that the District Court can deter-

mine Mr. Panetti’s competency under the proper constitu-

tional standard.

Respectfully submitted,

KEITH S. HAMPTON* GREGORY W. WIERCIOCH

1103 Nueces Street TEXAS DEFENDER SERVICE

Austin, Texas 78701 430 Jersey Street

(512) 476-8484 San Francisco, California 94114

(512) 476-0953 (facsimile) (415) 285-2472

*Counsel of Record ~ (415) 285-2472 (facsimile)

—————————————————

A-1

APPENDIX A

CONSTITUTIONAL AND

STATUTORY PROVISIONS AT ISSUE

Article 46.05 of the Texas Code of Criminal Procedure

Competency to be Executed

(a) A person who is incompetent to be executed may not

be executed.

(b) The trial court retains jurisdiction over motions filed

by or for a defendant under this article.

proceeding in which the defendant was convicted, give the

date of the final judgment, set forth the fact that an

execution date has been set if the date has been set, and

clearly set forth alleged facts in support of the assertion

that the defendant is presently incompetent to be exe-

cuted. The defendant shall attach affidavits, records, or

other evidence supporting the defendant's allegations or

shall state why those items are not attached. The defen-

dant shall identify any previous proceedings in which the

defendant challenged the defendant’s competency in

relation to the conviction and sentence in question, includ-

ing any challenge to the defendant’s competency to be

executed, competency to stand trial, or sanity at the time

of the offense. The motion must be verified by the oath of

some person on the defendant’s behalf.

(d) On receipt of a motion filed under this article, the

trial court shall determine whether the defendant has

raised a substantial doubt of the defendant’s competency

to be executed on the basis of:

(1) the motion, any attached documents, and

any responsive pleadings; and

A-2

(2) if applicable, the presumption of competency

under Subsection (e).

(e) Ifa defendant is determined to have previously filed a

motion under this article, and has previously been deter-

mined to be competent to be executed, the previous adjudi-

cation creates a presumption of competency and the

defendant is not entitled to a hearing on the subsequent

motion filed under this article, unless the defendant

makes a prima facie showing of a substantial change in

circumstances sufficient to raise a significant question as

to the defendant’s competency to be executed at the time of

filing the subsequent motion under this article.

(f) If the trial court determines that the defendant has

made a substantial showing of incompetency, the court

shall order at least two mental health experts to examine

the defendant using the standard described by Subsection

(h) to determine whether the defendant is incompetent to

be executed.

(g) If the trial court does not determine that the defen-

dant has made a substantial showing of incompetency, the

court shall deny the motion.

(h) A defendant is incompetent to be executed if the

defendant does not understand:

(1) that he or she is to be executed and that the

execution is imminent; and

(2) the reason he or she is being executed.

(i) Mental health experts who examine a defendant

under this article shall provide within a time ordered by

the trial court copies of their reports to the attorney

representing the state, the attorney representing the

defendant, and the court.

A-3

(j) By filing a motion under this article, the defendant

waives any claim of privilege with respect to, and consents

to the release of, all mental health and medical records

relevant to whether the defendant is incompetent to be

executed.

(k) If, on the basis of reports provided under Subsection

(i), the motion, any attached documents, any responsive

pleadings, and any evidence introduced in the final compe-

tency hearing, the trial court makes a finding by a pre-

ponderance of the evidence that the defendant is

incompetent to be executed, the clerk <.all send immedi-

ately to the court of criminal appeals in accordance with

Section 8d), Article 11.071, the appropriate documents for

that court’s determination of whether any existing execu-

tion date should be withdrawn and a stay of execution

issued. If a stay of execution is issued by the court of

criminal appeals, the trial court periodically shall order

that the defendant be reexamined by mental health

experts to determine whether the defendant is no longer

incompetent to be executed.

(1) If the trial court does not make the finding as de-

scribed by Subsection (k), the court may set an execution

date as otherwise provided by law.

B-1

APPENDIX B

COMPETENCE TO BE EXECUTED: STATUTORY AND CASE LAW STANDARDS

Statute

State Case Law Interpreting Standard*

“If after conviction and sentence to death, but at any ume before

the exccution of the sentence, it is made to appear to the

satisfaction of the trial court that the convict is then insane, such

trial court shall forthwith enter an order in the tnal court

suspending the execution of the sentence... .”

Ala. Code § 15-16-23 (2006).

No case law.

“A person who is sentenced to death shali not be executed as

long as he is mentally incompetent to be executed.”

“As used in this article, ‘mentally incompetent to be executed’

means that duc to a mental disease or defect a person who ts

sentenced to death is presently unaware that he 1s to be punished

for the crime of murder or that he is unaware that the impending

punishment for that crime is death.”

Ariz. Rev. Stat. § 13-4021 (A),(B) (2006).

3. Arkansas

“{ AJn individual under sentence of death is not competent [to be

executed when], due to mental illness, [he or she does not]

understand the nature and reasons for that punishment... .”

Ark. Code § 16-90 506(d)(1) (2006).

4. California

If the warden has “good reason to believe that a defendant, under

judgment of death, has become insane,” he must notify the

Since 1850, competency for execution has been

governed by statute in California. Ex parte Phyle, 186

* No case law is provided for those states that have an explicit statutory definition of incompetency.

B-2

Jurisdiction

Statute

State Case Law Interpreting Standard*

district attorney for the county in which the prison is located.

The district attorney is required to notify the court, which must

in turn convene a jury to decide the issue.

“[W hen it is found that the defendant is insane, the order must

direct that he be taken to a medical facility of the Department of

Corrections, and there kept in safe confinement until his reason

is restored.”

Cal. Penal Code §§ 3701, 3703 (2007).

P.2d 134, 139 (Cal. 1947), cert. granted, Phyle v.

Duffy, 333 U.S. 841, and cert. dismissed, 334 U.S. 431

(1948). The current statutory scheme, enacted im 1941,

1S a continuation of the provisions in place since at

least 1905, id., though the procedures and authority for

decision-making have been amended. Applying the

msanity provisions in 1918, the Supreme Court of

California stated:

“The evidence on the question of insanity was amply

sufficient to support the conclusion that the defendant

was sanc, within the meaning of the law applicable.

That he was not perfectly poised mentally may be

freely conceded. Such, however, is not the test. There

was no substantial showing to the effect that his mind

was tn such a condition that he did not nghtly

comprehend his own condition with reference to the

proceedings against him that he had been convicted of

a crime punishable by death, and was before the court

for the purposes of judgment on that conviction, or that

he was then unable to present in a rational manner any

defense that he might have, either on motion for new

trial or to the pronouncing of judgment.”

People v. Lawson, 174 P. 885, 888 (Cal. 1918).

5. Colorado

“*Mentally incompetent to be executed’ means that, due to a

mental disease or defect, a person who has been sentenced to

death is presently unaware that he or she is to be punished for

the crime of murder or that the impending punishment for that

B-3

Jurisdiction

Statute

State Case Law Interpreting Standard*

crime is death.”

Colo. Rev. Stat. § 18-1.3-1401(2) (2006).

Connecticut

If a prisoner “awaiting execution of a sentence of death appears

to the warden thereof to be insane,” the warden may apply to the

court, which may in turn have the prisoner examined by

physicians. “Upon return to said court or such judge of a

certificate by such physicians, or a majority of them, stating that

such person is insane, said court or such judge shall order the

sentence of execution to be stayed and such person to be

transferred to any state hospital for mental illness for

confinement... .”

Conn. Gen. Stat. § 54-101 (2007).

No case law.

No statute.

No case law.

An inmate is incompetent to be executed if he “does not have

the mental capacity to understand the nature of the death penalty

and why it was imposed on him.”

Fla. Stat. Ann. § 922.07(3) (2006).

“A person under sentence of death is insane for purposes of

execution if the person lacks the mental capacity to understand

the fact of the impending execution and the reason for it.”

Fla. R. Crim. Pro. 3.811(b) (2006).

An inmate is incompetent to be executed if “because of a mental

condition the person 1s presently unable to know why he or she

is being punished and understand the nature of the punishment.”

Ga. Code Ann. § 17-10-60 (2006).

Jurisdiction

Statute

State Case Law Interpreting Standard*

10. Idaho

“No person who as a result of mental disease or defect lacks

capacity to understand the proceedings against him or to assist in

his own defense shall be tned, convicted, sentenced or punished

for the commission of an offense so long as such incapacity

endures.”

Idaho Code § 18-210 (2006).

11. Illinois

No statute.

Until 1994, an Illinois statute mandated that a

“defendant is considered unfit to be executed only if,

because of a mental condition, he is unable to

understand the nature and purpose of such sentence.”

People v. Owens, 564 N.E.2d 1184, 1186 (Tll. 1990)

(citing Til. Rev. Stat. 1989, ch. 38, par. 1005-2-3). The

Illinois statute was repealed in 1994 and has not been

replaced. People v. Johnson, 730 N.E.2d 1197, L115

(lil. 2000) (“Our legislature, however, has since

repealed section 5-2-3 .. . and has not adopted a

statutory provision delineating procedures for raising

and determining fitness for execution... .”).

12. Indiana

No statute.

“Ford v. Wainwright holds that the Fighth Amendment

prohibits a state from executing persons who are

insane at the time of execution. In this context,

persons are insane if they are unaware of the

punishmentthey are about to suffer and why they are

to suffer ut.” Baird v. State, 833 N_E.2d 28, 29 (Ind.

2005) (internal citation and quotation marks omitted).

Jurisdiction

Statute

State Case Law Interpreting Standard*

13. Kansas

“At any time prior to execution, a convict under sentence of

death, such convict’s counsel or the warden of the correctional

institution or sheriff having custody of such convict may request

a determination of the convict’s sanity by a district judge of the

judicial district in which such convict was tned and sentenced

_... If the district judge determines that there is sufficient

reason to believe that the convict is insane, the judge shal!

suspend the execution and conduct a hearing to determine the

sanity of the convict.”

“If, at the conclusion of a hearing pursuant to this section, the

judge determines that the convict is insane, the judge shall

suspend the execution until further order.”

Kan. Stat. Ann. § 22-4006(a),(d) (2005).

No case law.

14. Kentucky

“If the condemned person is insane, as defined in KRS 431.213

_.., on the day designated for the execution, the execution shall

be suspended until the condemned is restored to sanity... .”

Ky. Rev. Stat. § 431.240 (2006).

‘Insane’ means the condemned person does not have the ability

to understand: (a) That the person is about to be executed; and

(b) Why the person is to be executed.”

Ky. Rev. Stat. § 431.213 (2006).

15. Louisiana

“A person who is not competent to proceed to execution may not

be executed.”

“A person is not competent to proceed to execution when a

defendant presently lacks the competence to understand that he

B-6

Jurisdiction

Statute

State Case Law Interpreting Standard*

is to be executed, and the reason he is to suffer the penalty.”

La. Rev. Stat. § 15:567.1(A),(B) (2006).

16. Maryland

An inmate is incompetent to be executed if, “as a result of a

mental disorder or mental retardation,” the inmate “lacks

awareness: (i) of the fact of the inmate’s impending execution;

and (ii) that the inmate is to be executed for the crime of

murder.”

Md. Cede Ann., Correctional Services, § 3-904(a)(2) (2006).

17. Mississippi

“If it is found that the convict is insane, as defined in thts

subsection, the court shall suspend the execution of the

sentence.”

“{A] person shall be deemed insane if the court finds the convict

does not have sufficient intelligence to understand the nature of

the proceedings against him, what he was tned for, the purpose

of his punishment, the impending fate which awaits him, and a

sufficient understanding to know any fact which might exist

which would make his punishment unjust or unlawful and the

intelligence requisite to convey such information to his attorneys

or the court.”

Miss. Code Ann. § 99-19-57(2)(a),(b) (2006).

18. Missouri

“No person condemned to death shall be executed if as a result

of mental! disease or defect he lacks capacity to understand the

nature and purpose of the punishment about to be imposed upon

him or matters in extenuation, arguments for executive clemency

or reasons why the sentence should not be carried out.”

Mo. Ann. Stat. § 552.060(1) (2006).

B-7

Jurisdiction

Statute

State Case Law Interpreting Standard*

19. Montana

“If after judgment of death there is good reason to suppose that

the defendant lacks mental fitness, the mental fitness of the

defendant will be determined in accordance with the provisions

of chapter 14 of this title.”

Mont. Code Ann. § 46-19-201 (2005).

“A person who, as a result of mental disease or defect or

developmental disability, is unable to understand the

proceedings against the person or to assist in the person’s own

defense may not be . . . sentenced for the commission of an

offense so long as the incapacity endures.”

Mont. Code Ann. § 46-14-103 (2005).

20. Nebraska

“{I}f, after judgment and before execution of the sentence, such

person shall become mentally incompetent, then in case the

punishment be capital, the execution thereof shall be stayed until

the recovery of such person from the incompetency.”

Neb. Rev. Stat. § 29-1822 (2006).

“If any convict under sentence of death shall appear to be

mentally incompetent, the warden or shernff having him or her in

custody shall forthwith give notice thereof to a judge of the

district court of the judicial district in which the convict was

tried and sentenced and such judge shall at once make such

investigation as shall satisfy him or her as to whether a

commission ought to be named to examine such convict.”

“If the judge shal] determine that a commission ought to be

appointed to examine such convict, he or she shall make a

finding to that effect and cause it to be entered upon the records

Since at least 1901, if not earlier, the procedures for

determining insanity for the purpose of execution have

been regulated by statute. Jn re Grammer, 178 N.W.

624, 625 (Neb. 1920). However, “it was not the

purpose of the statute to do away with the definition of

insanity as it was understood 1n such cases at common

law.” Id. at 626.

Applying the common law standard, the Nebraska

court held that “Grammer, before he could reasonably

ask a suspension of his execution in this court, should

have made a showing liere that he has become insane,

not in some slight or peculiar or classical degree, but

that his state of mind and mental condition are such

that he does not understand, and ts incapable of

understanding, the nature of the proceedings against

him and of his impending fate and execution, and

B-8

Jurisdiction

Statute

State Case Law Interpreting Standard*

’

of the district court in the county in which such convict was

sentenced, and, if necessary, the judge shall suspend the

execution....”

“If two of the commission shall find the convict mentally

incompetent, the judge shall suspend his or her execution until

further order.”

Neb. Rev. Stat. § 29-2537 (2006).

therefore is unable, in a rational manner, to offer a

defense or make objection to execution.” Jd.

Although the procedures for determining competency

for execution have varied over time, there has been no

alteration of the competency standard. “Statutes are

not to be understood as affecting any change in the

common law beyond that which is clearly indicated.”

Ebert v. Wenzl, 260 N.W. 480, 482 (Neb. 1977).

21. Nevada

“If it is found by the court that the convicted person is insane,

the judge shall make and enter an order staying the execution of

the judgment of death until the convicted person becomes sane,

and shall therein order the director of the department of

corrections to confine such person in a safe place of confinement

until his reason is restored.”

Nev. Rev. Stat. § 176.455(1) (2005).

No case law.

22. New

Hampshire

No statute.

No case law.

23. New Jersey

No statute.

“If, therefore, a person sentenced for a crime is capable

of understanding the nature and object of the

proceedings going on against him, if he nghtly

comprehends his own condition in reference to such

proceedings and can conduct his defence in a rational

manner, he is, for the purpose of undergoing

punishment, deemed to be sane, although on some

other subjects his mind may be deranged or unsour.J.”

In re Lang, 7\ A. 47, 48 (NJ. 1908).

Jurisdiction

Statute

State Case Law Interpreting Standard*

“[W Je are not willing to adopt the view that in cases

where the law has decreed that a murderer should be

put to death, and the court or a jury has found that he 1s

conscious of having committed a crime, is aware that

he is amenable to punishment, and is appreciative of

his situation as a murderer condemned to death, he

shall be permitted to escape just punishment because

of a mental] infirmity which has no bearing on any of

these features of the case.” /d. at 49. '

24. New Mexico

“If, after his delivery to the warden for execution, there is good

reason to believe that a defendant, under judgment of death, has

become insane, the warden must call such fact to the attention of

the district attorney of the county in which the state penitentiary

is situated, whose duty it is to immediately file in the district

court of such county a petition, stating the conviction and

judgment, and the fact that the defendant is believed to be

insane, and asking that the question of his sanity be inquired

into. Thereupon it shal] be the duty of said court to inquire into

said question and render judgment thereon.”

“When it 1s found that the defendant is insane, the order shall

direct that the defendant be taken to the New Mexico behavioral

health institute at Las Vegas, and there kept in safe confinement

until his reason is restored.”

N.M. Stat. Ann. §§ 31-14-4, 31-14-6 (2006).

“Sanity” for the purposes of execution is not defined

by statute but has a clear definition in the common law

of New Mexico. In /n re Smith, the court held:

“If the prisoner has not at the present time, from the

defects of his facultics, sufficient intelligence to

understand the nature of the proceedings against him,

what he was tried for, the purpose of his punishment,

the impending fate which awaits him, a sufficient

understanding to know any fact which might exist

which would make his punishment unjust or unlawful,

and the intelligence requisite to convey such

information to his attorneys or the court, then he would

not be sane and should not be executed.”

176 P. 819, 823 (N.M. 1918).

In New Mexico, “[i]n criminal cases where no

provision of this code is applicable, the common law,

as recognized by the United States and the several

Jurisdiction Statute State Case Law Interpreting Standard*

states of the Union, shall govern.” N.M. Stat. Ann. §

30-1-3 (2006); see also State v. Bryant, 655 P.2d 161,

162 (N.M. 1982) (“A statute designed to effect a

change from that which existed under the common law

- must be strictly construed; it must speak in clear and

uneq. vocal terms and the presumption is that no

change is intended unless the statute is explicit.”).

25. New York “The state may not execute an inmate who is incompetent. An

inmate is ‘incompetent’ when, as a result of mental disease or

defect, he lacks the mental capacity to understand the nature and

effect of the death penalty and why it is to be carned out.”

N.Y. Correct. Law § 656(1) (2007).

26. North “No person may be . . . punished for a crime when by reason of

Carolina mental iliness or defect he is unable to understand the nature and

object of the proceedings against him, to comprehend his own

situation in reference to the proceedings, or to assist in his

defense in a rational or reasonable manner.”

N.C. Gen. Stat. § 1SA-1001 (2006).

27. Ohio “As used in this section and section 2949.29 of the Revised

Code, ‘insane’ means that the convict in question does not have

the mental capacity to understand the nature of the death penalty

and why it was imposed upon the convict.”

Ohio Rev. Code Ann. § 2949.28(A) (2006).

“If it is found that the convict is insane and if authorized by the

supreme court, the judge shal! continue any stay of execution of

the sentence previously issued, order the convict to be confined

B-1]

finds that the defendant suffers from a mental condition that

prevents the defendant from comprehending the reasons for the

sentence of death or its implications, the court may not issue a

death warrant until such time as the court, after appropriate

inquiries, finds that the defendant is able to comprehend the

reasons for the sentence of death and its implications.”

Or. Rev. Stat. § 137.463(6)(a) (2005).

Jurisdiction Statute State Case Law Interpreting Standard*

in the area at which other convicts sentenced to death are

confined or in a maximum security medical or psychiatric

facility operated by the department of rehabilitation and

correction, and order treatment of the convict.”

Ohio Rev. Code Ann. § 2949.29(B) (2006).

28. Oklahoma “(If it is found that the defendant is insane, the warden must “Before an inmate may be put to death, he must have:

suspend the execution and transmit a certified copy of the order ‘sufficient intelligence to understand the nature of the

mentioned in the last section to the Governor and deliver the proceedings against him, what he was tried for, the

defendant, together with a certified copy of such order to the purpose of his punishment, the impending fate which

medical superintendent of the hospital named in such order.” awaits him, and a sufficient understanding to know any

Okla. Stat. Ann. tit. 22, § 1008 (2006) (footnote omitted). fact which might exist which would make his

punishment unjust or unlawful, and the intelligence

requisite to convey such information to his attorneys or

the court.’” Fisher v. State, 845 P.2d 1272, 1276 n.3

(Okla. Crim. App. 1992) (quoting Bingham v. State,

169 P. 2d 311, 314-15 (Okla. Crim. App. 1946)).

29. Oregon “Notwithstanding any other provision in this section, if the court

30. Pennsylvania

No statute.

“The Commonwealth may not execute someone who

does not ‘comprehend ] the reasons for the death

penalty and its implications." Commonwealth v.

Jurisdiction

Statute

State Case Law Interpreting Standard*

Haag, 809 A.2d 271, 277 (Pa. 2002) (quoting

Commonwealth v. Jermyn, 652 A.2d 821, 824 (Pa.

1995)).

31. South

Carolina

No statute. :

An inmate is incompetent to be executed if the inmate

fails on either prong of a two-prong test: “The first

prong is the cognitive prong which can be defined as:

whether a convicted defendant can understand the

nature of the proceedings, what he or she was tried for,

the reason for the punishment, or the nature of the

punishment. The second prong }s the assistance prong

which can be defined as: whether the convicted

defendant possesses sufficient Capacity or ability to

rationally communicate with counsel.” Singleton v.

State, 437 S.E.2d 53, 58 (S.C. 1993).

32. South Dakota

“If the commission [of physicians appointed by the Governor]

finds the defendant mentally incompetent to proceed the

Governor shall suspend the execution of sentence and may in his

discretion order the defendant removed to the Human Services

Center, there to remain confined until he is no longer mentally

ill.”

S.D. Codified Laws § 23A-27A-24 (2006).

No case law.

33. Tennessee

No statute.

“(Only those who are unaware of the punishment they

are about to suffer and the reason they are to suffer it

are entitled to a reprieve.” Van Tran v. State, 6 S.W.3d

257, 266 (Tenn. 1999).

34. Texas

“A defendant is incompctent to be executed if the defendant

Jurisdiction Statute State Case Law Interpreting Standard*

does not understand: (1) that he or she is to be executed and the

execution is imminent; and (2) the reason he or she is being

executed.”

Tex. Code Crim. Proc. art. 46.05(h) (2006).

35. Utah An inmate is incompetent to be executed “if, due to mental

condition, an inmate is unaware of either the punishment he is

about to suffer or why he is to suffer it.”

Utah Code Ann. § 77-19-201 (2006). ;

36. Virginia No statute. No case law.

37. Washington No statute. “[A] defendant is competent to be executed if he ‘is

capable of properly appreciating his pen! and of

rationally assisting in his own defense [and] that this

standard [ability to assist] applies equally in the

context of a person’s insanity at the time of the

punishment as it does at the time of tnal.”” State v.

Harris, 789 P.2d 60, 65 (Wash. 1990).

38. Wyoming “If the court finds that the convict does not have the requisite

mental capacity, the judge shall suspend the execution of the

convict.”

Wyo. Stat. § 7-13-903(a) (2006).

“Requisite mental capacity’ means the ability to understand the

nature of the death penalty and the reasons it was imposed.”

Wyo. Stat. § 7-13-901(a)(v) (2006).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.