Scott Panetti is clearly insane, but Texas officials seem determined to execute him even as his lawyers are making a last-ditch effort to stop the state.
Scott Panetti claims that Selena Gomez is his daughter and that prison guards implanted a listening device in his tooth. He also believes his imminent execution is part of a conspiracy between the State of Texas and the Devil to stop him from preaching the Gospel on death row.
Texas officials, for their part, argue that Panetti—who murdered his in-laws in 1992—is mentally competent to be executed on Wednesday.
At this point, it's tough to say who's more delusional.
What is plenty evident is that Texas has gone to great lengths and cut countless corners in an effort to kill a man with a long and well-documented history of paranoid schizophrenia, which was first diagnosed by doctors in an army hospital in 1978. Over the next 14 years, Panetti would be hospitalized more than a dozen times and diagnosed and re-diagnosed with schizophrenia and other mental disorders.
While Texas refuses to acknowledge Panetti's condition, a diverse group of individuals and organizations—beyond the usual prison-reform suspects—are calling for clemency. These include 55 prominent Evangelical Christians and seven retired and active bishops from the United Methodist Church; former US Representative Ron Paul; former Texas Governor Mark White; ten Texas state legislators; nearly 30 former prosecutors and US attorneys general; Murder Victims Families for Reconciliation, the American Bar Association, and the European Union.
Michael Perlin, a lawyer, law professor, and world-renowned expert on mental health and the law, didn't mince words when asked about Panetti.
"The Panetti case is as shameful a stain on our legal system as I have observed in my 43-plus years as a lawyer," he told me. "There is no question as to the profundity of his mental illness and similarly no question that his execution mocks the notion that due process is truly available to all in the criminal justice system."
The legal issue at hand is Panetti's ability to understand and thus undergo his execution. But the only reason he faces execution in the first place is because Texas failed to acknowledge his mental incompetence at the time of the crime and subsequent trial.
In 1986, Panetti hallucinated that he killed the Devil—who had apparently entered his home—and washed the walls of his house to remove the "blood." On another occasion, he buried his furniture and valuables because the Devil was supposedly hiding in them. As his co-counsel Kathryn Kase told me, "It really can't be seriously disputed that he has schizophrenia. I assure you the Army doesn't go around casually diagnosing people with serious mental illnesses."
Nor does the Social Security Administration, which determined in 1986 that Panetti's schizophrenia was so debilitating it entitled him to disability benefits.
Like many people with psychotic illnesses, Panetti has not always taken his prescribed medications. In 1992, his mental health was so bad that his wife, Sonja Alvarado, took their three-year-old daughter and moved in with her parents. Alvarado obtained a restraining order against her husband but was unable to have him committed. She asked the authorities to take away his guns, but they claimed they lacked the right to do so. As Kase told me, "We wouldn't be here if the authorities had only taken away his guns. The authorities knew that he was mentally ill and that he had cycled in and out of the hospitals."
A few days after the police refused to confiscate his weapons, Panetti awoke before dawn, shaved his head, leaving strange patches of hair, and drove to the home of his wife's parents. Off his meds, and in front of his wife and daughter, Panetti fatally shot his in-laws at close range. He then put his wife and daughter in a bunkhouse he'd been living in. When police surrounded it, Panetti released his family unharmed, washed the blood off himself, changed into a suit, and surrendered.
It's hard to keep track of the number of times the court system failed Panetti, but let's start with his 1994 pre-trial competency hearing. Under Texas law, a person is considered competent to stand trial if he or she has "sufficient present ability to consult with his or her lawyer with a reasonable degree or rational understanding," and "a rational, as well as a factual, understanding of the proceedings against him or her."
Here's where Panetti's incompetence should have been a slam dunk. One of Panetti's lawyers testified that his delusional behavior made any useful communication between them impossible. Psychiatrists called by both the defense and the prosecution agreed that he was schizophrenic. And yet, somehow, the doctor testifying for the state was able to claim that Panetti was competent. And the jury agreed.
Panetti kicked off his trial by firing his lawyers, whom he believed to be conspiring against him. His sister said in an affidavit that her brother "had a delusion that only an insane person could prove insanity." The judge allowed the man to represent himself even as he entered a not guilty by reason of insanity plea.
He certainly looked the part in his purple cowboy suit, bandana, cowboy boots, and spurs. Panetti called more than 200 witnesses, including Jesus Christ, the Pope, and JFK. He aimed an imaginary rifle at the jury and explained that he had killed his in-laws while under the control of "Sarge," one of his auditory hallucinations that had been documented years earlier, when doctors noted that Panetti appeared to have suffered a "psychotic break" and had "started using assumed name Sgt. Iron Horse." In front of the jury, using the third person, Panetti testified:
Sarge woke up. Cut off Scott's hair. Sarge suited up. Shells, canteen pouch, 30.06, tropical hat, tropical top, bunkhouse, fast, haircut fast, suited up fast, boom, ready fast, fast, haircut, webgear, top, brush hat, boots, out the door, in the jeep, driving, wife, the bridge. Why is it taking so long? In front of Joe and Amanda's house... Sarge, everything fast. Everything fast. Everything slow. Tapped on the window, shattered window... Scott, what? Scott, what did you see Sarge do? ...Sarge not afraid, not threatened. Sarge not angry, not mad. Sarge, boom, boom. Sarge, boom, boom, boom. Sarge, boom, boom. Sarge is gone. No more Sarge... Boom, boom, boom, blood... Demons. Ha, ha, ha, ha, oh, Lord, oh, you.
The trial transcript suggests Judge Stephen Ables was more interested in getting on with the case than in justice. Particularly heartbreaking is an exchange in which Panetti repeatedly asked for a continuance so he could go to the doctor and get his medication: "I'm not looking for a long delay, but I'm going to definitely need a couple of days to get the medicine, to see my doctor, and to prepare my case." The judge refused, responding, "All right, we need to go ahead and stop and kind of catch our breath and we will be starting here in about ten minutes." Ables was more than happy to talk to Panetti like he was an intellectual and emotional child. He just didn't want to try him like one.
Kase, who now represents Panetti, was shocked by how often "Scott was in distress... and how he was allowed to represent himself and how he was allowed to continue to represent himself after showing his mental illness. Why didn't the judge say, 'I'm going to require you to have counsel'?"
It took the jury only two hours to find Panetti guilty in 1995. In the sentencing hearing that quickly followed, Dr. James P. Grigson testified that Panetti would kill again unless executed and that psychotropic drugs would have no effect on him. Grigson's penchant for predicting the dangerous behavior of defendants he'd never met earned him the nickname "Dr. Death" and got him expelled from the American Psychiatric Association that very year. It took the jury four hours to determine that Panetti deserved to die by lethal injection.
Fast-forward three decades. Panetti's lawyers have appealed his death sentence, arguing that he should never have been found competent to stand trial, should not have been permitted to represent himself, should have been found insane, and should not have been sentenced to die. But courts have denied all appeals, which is why his lawyers are focusing on his current mental incompetence.
In 2007, Panetti's lawyers argued in front of the US Supreme Court that Texas failed to prove that he met the standard of competence required by Ford v. Wainwright (1986), which established that "the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it." While Panetti's lawyers claimed that Ford defined competence as having a "rational understanding," Senator Ted Cruz, then the state's Solicitor General, argued that a factual understanding was sufficient. It was, according to Cruz, irrelevant that Panetti was so delusional that he believed that his execution was part of "spiritual warfare" between Satan and himself. The Supreme Court disagreed with Cruz and established that competence required rational and not merely factual awareness in itsPanetti v. Quarterman decision.
But instead of finding Panetti incompetent, the Supreme Court sent the case back down to the lower courts. All the Fifth Circuit—which has jurisdiction over Louisiana, Mississippi, and Texas—had to do to move forward with the execution was find that Panetti was indeed competent under the new precedent, which it did last year. Now the clock is ticking.
Meanwhile, Texas law enforcement figures haven't done much to hide their disregard for Panetti. Neither the district attorney who sought an execution date—nor the judge who granted it, nor the Attorney General, nor the Texas Department of Criminal Justice—thought it important to let Panetti's lawyers know that their client would be executed this Wednesday, December 3. As Kase explained to me, this is bizarre.
"The most active user of the death penalty in Texas is Harris County," she said. "That DA office routinely advises defense that it plans to seek an execution date and invites the defense lawyer to the hearing so that they lawyer can say if there is anything that's a barrier to setting an execution date."
It was a full two weeks after the hearing that Kase found out the client she'd been representing for nearly ten years had a date for execution. She read about it in the newspaper.
Panetti's lawyers lost two weeks of work in what is literally a matter of life and death. Kase told me that "mental health cases are extremely paper-heavy and we've been inundated with more than 8,000 pages of material regarding records for Mr. Panetti. I can't begin to describe how overwhelming that is and to have to do this all in a short period of time."
Since learning of the execution date, Panetti's lawyers have filed a clemency petition, as well as two other motions. One asks for a stay or modification of the execution date so they can assess his competence. Given that Panetti hasn't been evaluated or received any medical treatment in seven years, Texas can't even claim it's killing a man who is competent at this moment. While Panetti hasn't been competent since 1992, his mental health has also seriously deteriorated since then.
Though the Texas Department of Criminal Justice has failed to provide Panetti's lawyers with all the requested records, the ones that have been sent over reveal a change in behavior. After nearly 20 years of refusing to take psychotropic medication, Panetti is now seeking it. A staff member reported that Panetti is requesting medication because he is no longer able to cope through prayer and Bible reading. Notes from prison guards indicate he is misbehaving in ways he never has and his paranoia has increased.
"He's just getting worse and worse," Kase said. "In our last visit he heard voice in front of me, which was extremely disconcerting. I'm not a mental health professional, and I could tell something was happening, and when I asked him if he was hearing voices, he very reluctantly admitted it. He tried to hide it."
The Texas Court of Criminal Appeals denied the first motion, and an appeal was filed at the Fifth Circuit on Sunday.
The other motion filed could change the way this country deals with capital punishment and the mentally ill. Disturbingly, though the Supreme Court has prohibited the execution of the intellectually disabled (formerly called "mentally retarded"), it has not categorically banned the execution of people with severe mental illness. Last week, Panetti's lawyer's filed an Eighth Amendment Challenge arguing that the execution of the mentally ill is prohibited by the Constitution, thanks to an emerging consensus that it is wrong to execute those with severe mental illness.
Unfortunately, if not surprisingly, the Texas Court of Criminal Appeals (TCC) denied this motion as well. But a TCC judge made history in his dissenting opinion. Tom Price became the first TCC judge ever and the first state-wide Republican judge anywhere to publicly oppose the death penalty from the bench. Panetti's lawyers have filed an appeal to the Fifth Circuit on this motion as well. While a ruling that the death penalty in itself should be abolished is highly unlikely, it is conceivable that the Fifth Circuit would at least recognize the cruel and unusual nature as well as the inhumanity of executing people who not only suffer a painful and debilitating disease, but have been utterly failed by the American criminal justice system.
When I asked Kase how she felt about the task of staving off the execution this week, she replied, "Determined."
Katie Halper is a writer, filmmaker, comedian, and sometime history teacher born, raised, and still living in New York City. She has appeared on MSNBC and writes for Salon, Jezebel, the Nation, and Comedy Central. Follow her on Twitter.