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Over Easy: Texas to Execute ‘Floridly Psychotic’ Scott Panetti Today at 6 PM

Barring a last-minute stay, Texas will execute Scott Panetti today at 6 PM. Scott Panetti is a severely mentally ill,  “floridly psychotic” individual whose trial was a farce that took place before a sentence of life in prison without the possibility of parole was an option. A Texas trial court allowed Panetti to decline a plea and represent himself at trial where he donned a cartoonish purple cowboy costume and subpoenaed Jesus Christ, JFK and the Pope, among others. His severe mental illness pre-dates his crime by twenty years and included multiple hospitalizations.

Scott Panetti is not competent now and he never has been, but since prosecutors scheduled an execution date without telling the defense, his pleas for a meaningful competency evaluation have been denied.

Even conservative political leaders such as former Virginia Attorney General Ken Cuccinelli have called the upcoming execution “immoral” and said that our nation’s highest punishment should “not be used against a person who is mentally incapable of rational thought.”

Despite opposition to this execution from both sides of the philosophical aisle, Texas Governor Rick Perry cannot grant clemency because the Texas Board of Pardon and Paroles unanimously green-lighted the execution, removing a clemency option from the Texas governor’s purview. The ultimate decision will come from the Supreme Court of the United States. Sometime today before 6 PM, the nation’s highest court will either grant review or not, but at this point it looks as if Texas will kill a man who believes that Satan is trying to prevent him from preaching the gospel to the condemned.

In light of the looming execution and prior to the case making its way to a Hail Mary pass before the United States Supreme Court, the Court of Criminal Appeals of Texas reviewed it, and although they voted to go forward with the execution, the consensus was not unanimous. One of the dissenters, Judge Price, issued a statement on November 26, explaining why he now believes the death penalty should be abolished.

Judge Price makes the important point that a person only gets one chance, and one chance only, in a writ of habeas corpus and that successive writs are prohibited. This is the procedural rule. If the first lawyer provides ineffective assistance by failing to raise a meritorious issue the first time around, the second lawyer is barred from raising the meritorious issue as well as the previous lawyer’s ineffectiveness, in a subsequent writ. This is a way to punish the defendant for a lawyer’s ineffectiveness which can and does lead to wrongful convictions. Judge Price notes procedural default laws and states:

Based on my specialized knowledge of this process, I now conclude that the death penalty as a form of punishment should be abolished because the execution of individuals does not appear to measurably advance the retribution and deterrence purposes served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty punishment option; and the risk of executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel. I would grant a stay of execution and file and set the application in order to grant applicant relief. I, therefore, respectfully dissent.

Moreover, Judge Price points out that society’s evolving standards of decency call for Scott Panetti’s life to be spared:

Having spent the last forty years as a judge for the State of Texas, of which the last eighteen years have been as a judge on this Court, I have given a substantial amount of consideration to the propriety of the death penalty as a form of punishment for those who commit capital murder, and I now believe that it should be abolished. I, therefore, respectfully dissent from the Court’s order denying the motion for stay of execution and dismissing the subsequent application for a writ of habeas corpus filed by Scott Louis Panetti, applicant. I would grant applicant’s motion for a stay of execution and would hold that his severe mental illness renders him categorically ineligible for the death penalty under the Eight hand Fourteenth Amendments to the United States Constitution.

My conclusion is not reached hastily. Rather, it is the result of my deliberative thought process from having presided over three death-penalty trials as a trial court judge and having decided countless issues related to capital murder and the death penalty as a judge on this Court. I have many reasons for reaching this conclusion, only a few of which I will discuss at this juncture, and will begin with the problems illustrated by the instant case. The Supreme Court has determined that the execution of a mentally retarded person or of an insane person would violate the Eighth Amendment. See Atkins v. Virginia, 536 U.S. 304 (2002); Ford v. Wainwright, 477 U.S. 399 (1986). The Court’s general rationale is that evolving standards of decency weigh against the imposition of the death penalty on these offenders because the execution of such individuals would not measurably advance the retribution and deterrence purposes served by the death penalty. Atkins, 536 U.S. at 306, 318-20. It is inconceivable to me how the execution of a severely mentally ill person such as applicant would measurably advance the retribution and deterrence purposes purportedly served by the death penalty. And, yet, unless and until a federal court or the Supreme Court grants his application, applicant, who few dispute is severely mentally ill, will be executed, whereas a similarly situated mentally challenged person, such as one who is mentally retarded or one who is insane, will have his sentence commuted to life in prison. This artificial line divides life and death. I can imagine no rational reason for carving a line between the prohibition on the execution of a mentally retarded person or an insane person while permitting the execution of a severely mentally ill person. At a minimum,therefore, I would hold that the execution of a severely mentally ill person violates the Eighth Amendment of the federal Constitution. But carving out another group that is ineligible for the death penalty is a bandaid solution for the real problem.

Evolving societal values indicate that the death penalty should be abolished in its entirety. Since Texas enacted life without parole as a punishment for capital murder, Texas district attorneys have significantly decreased their requests for the death penalty, and juries today often prefer that punishment to the death penalty. When I first joined it, this Court received a great number of death penalty appeals and writs, as compared to the number of these cases that reach this Court now. I believe that this decline is because District Attorneys and juries now (1) have the life without parole option and (2) are less convinced of the absolute accuracy of the criminal justice system.

Defense counsel is hoping that the United States Supreme Court will issue a stay of execution and grant certiorari today on the evolving standards of decency issue. Because a procedural bar prevents somebody from raising the issue, the rule needs to be changed- but it is a ‘long shot’ at this point.

Panetti Clemency Petition

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