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Ineffective Assistance of Schizophrenic Self

Continuing with the theme of Bill's post, the State of Texas has scheduled the execution next week of Scott Panetti for the 1995 murder of his wife's parents.  The editorial board of the New York Times can't help themselves.  Even when their position is basically a reasonable one, they still have to make absurd statements in the process.

During his capital murder trial, at which he was inexplicably allowed to represent himself, Mr. Panetti dressed in a cowboy suit and attempted to subpoena, among others, John F. Kennedy and Jesus Christ. A standby lawyer said his behavior was "scary" and "trance-like," and called the trial "a judicial farce."
The word "inexplicably" is just plain ignorant.  There is no mystery at all as to why Panetti was allowed to represent himself or who was to blame.  The blame lies squarely with the United States Supreme Court in the 1970s and its propensity at that time to make up rights that are not really in the Constitution.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court said that criminal defendants have a constitutional right to reject counsel and conduct their own defense.  Justice Blackmun noted in dissent, "If there is any truth to the old proverb that 'one who is his own lawyer has a fool for a client,' the Court by its opinion today now bestows a constitutional right on one to make a fool of himself."  In Panetti's case, make that a crazy fool.

The Faretta rule was long understood to be absolute in most jurisdictions, including Texas and the Fifth Circuit.  As long as the defendant was competent to stand trial, a very minimal standard, he had the constitutional right to represent himself, no matter how much of a farce he made of the trial.  If the trial court denied him that dubious right, the judgment would be reversed on appeal or overturned on habeas corpus.  The Texas trial judge was therefore correct, in the sense of following the precedents of both the state and federal courts, in allowing Panetti to represent himself.  In Indiana v. Edwards, 554 U.S. 164 (2008), we finally got the Court to modify Faretta and recognize that some people are competent to stand trial and assist counsel but not to be their own counsel, see CJLF brief, but 33 years had elapsed and a lot of water had passed under the bridge.

The issue in the courts now, though, is not Panetti's representation at trial but rather whether he is presently too crazy to execute. 
There is a centuries-old rule that a person cannot be executed if he is so out of his mind that he does not know that he is being executed and why.  This case went to the Supreme Court once before.  At that time, CJLF filed a brief to oppose the expansive argument being made on Panetti's behalf that we feared would have opened the door to a lot more such claims.  The Court rendered a rather fuzzy 5-4 decision in Panetti's favor saying the Fifth Circuit Court of Appeals had applied the test too narrowly and requiring a new hearing in the District Court.

The District Judge followed the Supreme Court's direction, held an extensive hearing with multiple experts on both sides, and wrote a 62-page decision.  I have retrieved it from the PACER system, in two parts, and uploaded it here and here.  Here are the concluding paragraphs:

Panetti's deranged mental state may "wax and wane," but it has continued to a significant degree throughout his incarceration and continues today.  While the extent to which Panetti has been manipulating or exaggerating his sentence is unclear, it is not seriously disputable that Panetti suffers from paranoid delusions of some type, and these delusions may well have contributed to his murder of Joe and Amanda Alvarado.  However, it is equally apparent from his recorded conversations with his parents that these delusions do not prevent him from having both a factual and rational understanding that he committed these murders, was tried and convicted, and is sentenced to die for them.

Furthermore, his delusions do not prevent his rational understanding of the causal connection between those murders and his death sentence, and he in fact has such an understanding.  Panetti's understanding of the causal connection between his crime and his punishment is most clearly demonstrated by his rationally articulated position that the punishment is unjustified: He believes the State should not execute him because he was mentally ill when he committed the murders.  This position is based on and necessarily indicates a rational understanding that the State intends to execute him because he committed the murders.

Panetti was mentally ill when he committed his crime and he continues to be mentally ill today.  However, he has both a factual and rational understanding of his crime, his impending death, and the causal retributive connection between the two.  Therefore, if any mentally ill person is competently executed for his crimes this record establishes it is Scott Panetti.

The Court of Appeals affirmed, and the Supreme Court denied review.

The State of Texas will not be violating anything in United States Constitution if it carries out this execution.  Whether this is a proper case for executive clemency is a different question.  Schizophrenia is certainly a powerful mitigating circumstance.  Panetti's trial was not conducted in the manner that would be considered adequate today.  Now that the Supreme Court has corrected its own error, a person in Panetti's mental state would be represented by counsel. I would not consider it an injustice to commute this sentence.  Overall, the cause of capital punishment for those murderers most deserving of it would probably be better off by depriving its opponents of an example where schizophrenia was not given the consideration at trial that it deserved.


I'm sympathetic to your argument Kent, but the trial court's finding is from 2008 - six years ago. A lot can happen to a person with psychosis in that amount of time.

Argument? I am not opposed to the Texas courts holding a new competency hearing.

Any idea why they haven't? Obviously, I'm not there and only know what's reported in the media, but given the history of the case, it seems warranted.

The state trial court denied Panetti's request and the appeal is pending in TexCCA.

The odd thing is why the federal appeal took so long. The District Court decision is 2008, and the Fifth Circuit affirmance is 2013. At that rate, there will be no end if the lapse of years requires a new hearing.

Comment received by email from Ian Sonego:

I reviewed the history of the Panetti case via Westlaw. The USDC stayed Panetti's case appeal from the competency to be executed ruling so his attorneys could petition the Texas Court of Criminal Appeals twice on the ground that Panetti's constitutional rights under Indiana v. Edwards were violated. Panetti v. Quarterman, 2008 WL 2338498 (W.D. Tex. March 26, 2008). Panetti v. Thaler, 2010 WL 2640336 (W.D.Tex. July 01, 2010)(second stay order). Ex Parte Panetti, 326 S.W.3d 615 (Tex.Crim.App. Dec. 15, 2010)(second ruling denying petition), cert. denied, 131 S.Ct. 3027 (June 20, 2011). Subsequently, the USDC rejected the Edwards claim. Panetti v. Thaler, 2012 WL 290115 (W.D.Tex. Jan. 31, 2012). That ruling presumably cleared the way to resume the appeal on the mental incompetency claim. The Fifth Circuit ruled on both mental incompetency claim and the Edwards claim as part of the same appeal. Panetti v. Stephens, 727 F.3d 398 (5th Cir. Aug. 21, 2013), cert. denied, 135 S.Ct. 47 (Oct. 6, 2014). Thus, it appears the decision to stay the case twice for the Edwards claim and litigation in the USDC over the Edwards claim caused nearly four years of delay. I respectfully disagree with the USDC stay rulings, especially the second stay.

In any event, most of the delay was caused by his attorneys' request for two stays to file two petitions raising the same claim in the state court. As you have frequently noted in death penalty cases, the attorneys for the prisoner are often highly motivated to extend and to delay the litigation for as long as legally possible.

Thanks Kent (and Ian) for the update; that's very enlightening.

I miss Westlaw :(

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