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United States Court of Appeals for the Fifth Circuit issues a stay of execution for Scott Panetti

(photo: Marcin Wichary/flickr)

Good afternoon:

The United States Court of Appeals for the Fifth Circuit  issued a stay of execution for Scott Panetti, who was scheduled to be executed today at 6 pm CST. Panetti is the floridly psychotic death row inmate who represented himself in his death penalty trial while dressed in a purple cowboy suit. You can read more about his case in Crane-Station’s post today.

The one-page per curiam opinion (i.e., a brief unsigned unanimous opinion) states:

We STAY the execution pending further order of the court to allow us to
fully consider the late arriving and complex legal questions at issue in this
matter.  An order setting a briefing schedule and oral argument will follow.

Panetti’s lawyers are raising three issues:

1) Whether he is so mentally ill that he cannot comprehend that he is going to be executed and the reason why he is going to be executed. This is a claim that he is mentally incompetent and therefore cannot be executed pursuant to United States Supreme Court case law.

2) Whether he is legally insane and therefore cannot be executed pursuant to United States Supreme Court case law.

3) Whether “evolving standards of decency that mark the progress of a maturing society” forbid the execution of the severely mentally ill under the Eighth and Fourteenth Amendments to the United States Constitution. This claim requires evidentiary support that attitudes about the death penalty, whom should society execute and how they should be executed have changed over time.

Resolution of the first two issues depends on mental health evaluations that must be conducted. Each side will have an opportunity to evaluate Panetti, who was last evaluated seven years ago. Based on my review of the case, I believe the defense has demonstrated that he is incompetent, delusional and  unable to distinguish between reality and delusions even when he is medicated with anti-psychotic medication.

Because the prosecution has done it before, you can expect they will find someone who will conclude to a reasonable medical certainty that Panetti is faking mental illness to avoid responsibility for his actions and escape execution despite overwhelming documentary evidence that he has been continuously psychotic for more than 20 years.

The defense responds that it’s difficult to believe that Panetti started faking his persistent psychotic delusions and resulting involuntary commitments some six or more years before he killed his in-laws so that he could represent himself at trial wearing a purple cowboy suit.

I am intrigued by the third issue, so I am going to go into it in some detail to bring it into focus.

The Eighth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, prohibits “cruel and unusual punishment.” The Supreme Court of the United States (SCOTUS) has decided that cruel and unusual punishment is a floating concept that may change over time according to “evolving standards of decency that mark the progress of a maturing society.”

Panetti’s defense attorneys, Kathryn Kase and Greg Wiercioch, have assembled information regarding how attitudes about the death penalty and executing the mentally ill have changed in the United States and other nations since the mid seventies (See generally pages 26-40 of their cert petition filed in the Texas Court of Criminal Appeals).

Here is a sample at pages 28-29:

A forthcoming empirical study of actual sentencing practices with respect to defendants determined to be “guilty but mentally ill” of death-eligible capital offenses demonstrates that a similar consensus has emerged against imposition of the death penalty on defendants with severe mental illness. The study, by Professor Meredith Martin Rountree of Northwestern University School of Law, examines the incidence of death sentences imposed on defendants convicted of death-eligible offenses in states that have statutes providing for “guilty but mentally ill” (GBMI) pleas and verdicts. The GBMI statutes in these states allowed Professor Rountree to identify the subclass of defendants adjudicated GBMI of death-eligible offenses, and to examine how often the death sentence was actually imposed on defendants in this group. Professor Rountree has so far identified 68 cases in which defendants were convicted of offenses that fall within the relevant State’s statutory requirements for death eligibility. App. I at ¶6 (Declaration of Meredith Martin Rountree). The study has found that death sentences were imposed in only 5 of 68 cases, a capital sentencing rate of 7.35 percent.

Id. at ¶11. In addition, Professor Rountree’s study suggests a clear trend away from death sentencing GBMI defendants. Four of the five GBMI defendants sentenced to death had their sentences imposed in 1984, 1985, 1986, and 1989. Id. at ¶12. The fifth one was imposed sometime between 1991 and 1995. Id. Therefore, the last time a defendant adjudicated GBMI was sentenced to death was at least 20 years ago. Id.

As you can see, Professor Rountree’s study demonstrates that over time juries have shown an increasing reluctance to sentence guilty but mentally ill defendants to death. This likely reflects juror awareness that people do not choose to be mentally ill,  and jurors are therefore reluctant to sentence the mentally ill to death. With information like this, defense counsel hope to persuade the Court to vacate Panetti’s death sentence and commute his sentence to life without parole.

The prosecution will argue that this petition should be dismissed without reaching the merits because it is a successive petition. The Texas Court of Criminal Appeals accepted this argument and dismissed Panetti’s petition without reaching the merits of his argument, resulting in this petition for cert. The defense will argue that they cannot be reasonably expected to show that the evolving standards of decency can be demonstrated, given the relatively short period of time between the imposition of the death sentence and the date that the original petition was filed, especially if the lawyer who filed the original petition was ineffective. A much longer period of time is required to demonstrate that standards have evolved.

For all things death penalty, check out the Death Penalty Information Center.

Disclaimer: I know Kathryn Kase professionally and Professor Meredith Martin Rountree professionally and personally. I have not had any contact with them regarding this case.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.

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