Texas tries again to prove that Scott Panetti is just sane enough to be executed

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The state of Texas admits Scott Panetti is severely mentally ill, repeatedly diagnosed with schizophrenia and paranoid delusions over four decades, before and after he murdered his in-laws in 1992.

Prosecutors accept that Panetti thinks a device was implanted in his tooth during a prison dental procedure to either spy on him or broadcast thoughts into his brain. They concede that he falsely believes U.S. Supreme Court Justice Amy Coney Barrett visited him on death row. And they acknowledge that he is sure he killed Joe and Amanda Alvarado 30 years ago only after an evil spirit named Sarge Ironhorse took over his body.

But over a three-day hearing this week, the Texas Attorney General’s Office tried to convince a federal judge that Panetti, ill as he may be, retains enough sanity to legally be executed.

Under the U.S. Supreme Court’s precedents, all the state must do to clear the constitutional barrier against executing the insane is prove that the 64-year-old has a “rational understanding” of why the state plans to kill him. In other words, as long as Panetti grasps the idea that he is to be executed for murdering people, the rest of his delusions are irrelevant.

As is the spectacle of Panetti’s 1995 trial, at which, representing himself, he attempted to call to the stand witnesses like Jesus Christ and John F. Kennedy and questioned himself as “Sarge” on the stand using different voices.

At this week’s federal court hearing, the latest chapter in Texas’ 27-year effort to execute the man, the state tried to show that within all his delusional statements, Panetti has made some comments that indicate he does understand his impending execution.

As lawyers, psychologists and psychiatrists attempted to sort through Panetti’s chaotic mind over three days, the prisoner largely sat expressionless. Occasionally, he pointed out Bible passages to his attorneys or rapidly patted his graying sandy hair flat onto his forehead, jingling the chain connecting his wrist to his ankle. His disheveled hair and shaggy white beard clashed with the button-down shirts and slacks his attorneys brought him to wear.

Assistant Attorney General Jay Clendenin faulted Panetti for having told only one of his two recent evaluators that he believed he is a prophet, with an execution being the devil’s attempt to keep him from saving souls. And the prosecutor voiced skepticism of Panetti’s previous claims that he believes himself to be immortal and therefore unable to be executed.

To make his point, Clendenin culled phrases and statements from otherwise largely illogical letters and recorded conversations which the state argues show a clear understanding on Panetti’s part that an execution would lead to death and that he is responsible for the Alvarados’ deaths.

Panetti’s experts testified repeatedly with growing exasperation that the prosecutor was wrongly trying to use rational thinking to make sense of Panetti’s irrational mind.

“You’re imposing logic and linearity on Mr. Panetti,” Mark Cunningham, a clinical and forensic psychologist told the state’s lawyers. “And so if you were in that situation working with your logic and linear mind, that’s what you could conclude about your reaction to that. … His mind is not attempting to line up and make things consistent.”

Panetti’s recorded history of mental illness goes back more than four decades. Before going to prison, he had been hospitalized 14 times for psychotic behavior. He was repeatedly diagnosed with schizophrenia and found to be severely disabled, according to court records.

His first recorded signs of illness came when he was 20, according to his attorneys, after he was hospitalized in 1978 for severe electrical burns suffered while working as a lineman. In 1986, he began expressing a delusion that he was battling Satan, burying his family’s furniture in the yard to rid the home of the devil.

Two years before killing the Alvarados, he was institutionalized for homicidal behavior toward his family and stated the town was plotting against him. This delusion has persisted, evolving into statements this year to psychologists that Panetti believes his trial was unfair because Gillespie County officials and residents were targeting him to cover up a large conspiracy, including a pedophile ring in which he has long claimed his father-in-law was involved.

In Fredericksburg in 1992, shortly after his wife and toddler left him to stay with her parents, Panetti roughly shaved his head, dressed in camouflage fatigues and busted through his in-laws’ front door. He fatally shot the Alvarados, then took his wife and child hostage for hours until surrendering to police after changing into a suit.

Shortly before his trial, he fired his attorneys and pleaded insanity. He claimed he had been overtaken by “Sarge” when committing the murders while off his antipsychotic medicine but had since been cured of his mental illness by God. Aside from a short period after the trial, he has not taken medication for his schizophrenia since, insisting to this day he is no longer ill.

His lawyers label the trial “a mockery of the criminal justice system.”

“Mr. Panetti rambled incessantly and incoherently, perseverated on irrelevant issues, engaged in bizarre behavior, badgered witnesses, and exasperated the judge,” his lawyers said in a statement earlier this month. “He visibly frightened the jurors.”

After being found guilty and sentenced to death, his appeals have focused almost entirely on whether he was mentally competent to represent himself, to stand trial or to be executed. After his first execution date was set in 2004, the question of his competency made it to the U.S. Supreme Court.

In 2007, the justices set new court precedent under his name, raising the bar on the constitutional restriction against executing the insane. Instead of weighing whether the prisoner simply had a factual awareness of the state’s reason for executing him, the court ruled he must also have a rational understanding of it as well.

“Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose,” Justice Anthony Kennedy wrote in the court’s 5-4 opinion.

Frustrating lawyers, judges and mental health professionals in the 15 years since, Kennedy conceded it was difficult to know what can be defined as a rational understanding.

After another yearslong round of reviews, the courts accepted Panetti was competent, leading to a new execution date being set in 2014. The U.S. 5th Circuit Court of Appeals stopped it at the last minute, however, agreeing that a thorough, renewed look at his competency was warranted.

Panetti’s lengthy appeals can’t be seen as gaming the system, Judge Patrick Higginbotham wrote in 2017, because Panetti himself continues to argue he is competent and no longer ill.

“He has a long history of mental illness that predates his crime and following a judicial determination of his competency to be executed, he experienced a delay of another decade of solitary,” he said.

So began what Higginbotham called “another chapter in this judicial plunge into the dark forest of insanity and death directed by the flickering and inevitably elusive guides.” U.S. District Judge Robert Pitman in Austin marked days off his calendar this week to once again hear arguments on whether Panetti’s severe schizophrenia is enough to qualify him as insane by federal execution standards.

“It is unprecedented to be litigating on an execution competency claim for 20 years now,” Greg Wiercioch said in his opening statements Monday, pausing as Panetti interrupted by loudly whispering to one of his other attorneys, a Bible verse citation standing out within the chatter.

During courtroom breaks, the four prison officers who accompanied Panetti would allow him to walk close to the rail separating the courtroom pews and speak to his sister, brother-in-law and son. He talked fast and loud about stories from the past, real or imagined, including birthdates, titles and namesakes of people included. His relatives nodded along, smiling sadly. Other times he sat at the table and talked to no one in particular, the current proceedings never coming up in his speech.

The mental health professionals who evaluated Panetti for the hearing all agreed the prisoner did not understand that the court was weighing whether or not he was fit for execution. He believed, they said, that the hearing would get him a new trial, where he could raise evidence he says had been hidden in a conspiracy against him to prove he was insane at the time of the murders and be freed.

He wants to be found competent, they said, because he believes that will allow him to stand trial a second time.

In more than four hours of evaluation this July, however, a forensic psychiatrist hired by Panetti’s legal team said Panetti told him the state claims it wants to execute him for killing the Alvarados, but that’s not the real reason.

Instead, he told Dr. Bhushan Agharkar that he is a prophet, and the devil wants to stop him from saving souls. He also said it was to cover up a conspiracy he’s discovered about Fredericksburg, involving a pedophilia and drug ring that his father-in-law was involved in.

“He believes he’s being executed so he’ll stop preaching, it’s the devil and to cover up this conspiracy he discovered about his town,” Agharkar testified. “He’s saying that’s the reason they’re going to give, but this is what’s going on.”

The state tried to undercut these delusional statements by questioning why Panetti would mention them to Agharkar but not to the psychologist hired by the state who also spent four hours with the prisoner within a day of Agharkar’s interview.

Psychologist Timothy Proctor ultimately opined that while Panetti is severely mentally ill, he is still competent for execution because he understood rationally he was to be executed for the Alvarados’ murders. When asked about things like immortality or the execution, he believed Panetti was likely being evasive.

“It seems like when it got to that topic, beyond his flight of ideas, there was a tendency to not want to say some specific things,” Proctor said.

He said Panetti even indicated he feared saying some things that could be used against him. But when Clendenin tried to focus on Panetti’s inconsistency in spouting his execution-related delusions, Pitman, who was largely quiet during the proceedings, interrupted to express skepticism over why Panetti would intentionally hold back from the state something that would benefit him.

Cunningham had offered an alternative to deliberate evasiveness instead as Panetti’s mind triggering even more disorganized thoughts around difficult topics.

“The topic area is one that’s more emotionally loaded, and Mr. Panetti’s tolerance for that issue may be very limited,” he said.

After nearly two days of attempts to dissect the weight of specific fantasies in a clearly delusional mind, Pitman finally jumped in to try to decipher how to legally react to a psychological puzzle. The judge is not expected to rule on Panetti’s competence until next year.

“Are we asking the right question?” he asked the state’s psychologist, referring to the rational understanding legal standard.

“If Mr. Panetti’s ability to make rational interpretation of reality is so compromised by a pervasive mental illness as to render his rational thinking unstable, inconsistent, intermittent, unpredictable, then how can we conclude that as to any specific question such as those that are at play in this legal community, his understanding is rational rather than delusional at any given time or place?” the judge posed.

“What confidence can I have about any understanding that he might have about anything?”

Before the Eighth Amendment’s prohibition on cruel and unusual punishment was enacted in the 1700s, common law protections existed to prevent the executions of “idiots” and “lunatics.” In the modern death penalty era, the U.S. Supreme Court has adopted the language of such common laws, ruling that such a killing would be a “miserable spectacle.”

In the last 20 years, however, Wiercioch pointed to two executions in Texas alone that seemed to fit the bill of such a spectacle.

Monty Delk, executed in 2002 for murdering a man selling his car in 1986, told prison officials in the execution chamber that he was the warden, saying “get your Warden off this gurney and shut up. I am from the island of Barbados.”

Two years later, the state executed Kelsey Patterson for killing two people in 1992. Asked if he had a final statement, Patterson said “Statement to what.”

“Get my money. Give me my rights. Give me my rights. Give me my rights. Give me my life back,” the statement ended, according to prison records.

“When Scott Panetti is buckled to the gurney in the execution chamber, can we be assured there won’t be another spectacle that occurred when Monty Delk and Kelsey Patterson were executed?” Wiercioch asked the court.

His colleague later posed the same question to Proctor, the psychologist who believed Panetti is competent to be executed.

“It’s probably likely ... that there’s going to be some sort of disturbance,” Proctor said.