Fifth Circuit Stops Texas From Executing Disabled Man

(CN) — In a case in which Texas set an execution date without notifying the death row inmate’s counsel, the Fifth Circuit on Tuesday granted his request for review of whether he is mentally competent to be executed.

Scott Panetti was sentenced to death for the murders of his estranged wife’s parents at their home in Fredericksburg, in central Texas, in 1992.

Panetti, a diagnosed schizophrenic, had been hospitalized more than a dozen times for his mental illness before he shot his in-laws to death in front of his wife and 3-year-old daughter.

When he represented himself at trial, he dressed like a cowboy and tried to subpoena Jesus Christ, the pope, and John F. Kennedy as witnesses.

His execution was set for December 2014, but he received a stay of execution after his attorneys — who learned of the execution date from a newspaper article in October that year — requested a delay for new competency examinations.

A federal judge in San Antonio denied Panetti’s requests for appointed counsel and funding to hire a mental health expert.

The Fifth Circuit reversed and remanded on Tuesday.

Writing for the three-judge panel, Fifth Circuit Judge Patrick Higginbotham called the case a chapter in the “judicial plunge into the dark forest of insanity and death directed by the flickering and inevitably elusive guides.” He also vacated the factual findings on Panetti’s competency.

“There is no justification for executing the insane, and no reasoned support for it, as only a glance at the brief of amici — filed by able and fervent citizens spanning the spectrum of political views — will confirm,” Higginbotham wrote.

He found that state’s actions in prosecuting Panetti denied him due process and rendered futile his attempt to determine competency.

After requesting an execution date without notifying Panetti’s counsel — leaving them only 10 days to file a competency motion before they lost the right to appeal — the state suggested Panetti file a skeletal petition.

“Meanwhile, the State used its own resources to seek out and file new evidence with the TCCA [Texas Court of Criminal Appeals], all while opposing Panetti’s access to the same resources,” Higginbotham wrote.

Panetti did not have the money to acquire his own up-to-date evidence and his last professional competency evaluation had been conducted in 2007.

“As the argument goes, it is one thing to respond to a petitioner’s claims on the existing record; it is quite another, with assistance of counsel and paid experts, to generate new evidence while preventing the petitioner from doing the same,” Higginbotham wrote.

Since Panetti was last found competent seven years ago, escorting officers have noticed that he often acts in an “irrational and delusional manner,” according to the ruling.

He has said he believes Texas implanted a listening device in his tooth that sends command messages to his brain; believes CNN anchor Wolf Blitzer displayed his stolen ID card during a report; and has claimed to be the father of actress-singer Selena Gomez.

Panetti’s attorneys Greg Wiercioch and Kathryn Kase said in a statement that they were grateful the court found that their client’s “nearly four decades” of documented severe mental illness was sufficient to require experts and resources to pursue his incompetency claim.

“We are confident that when the lower court is presented with all the evidence, it will find that Mr. Panetti, a schizophrenic man who insisted on representing himself at trial … is not now competent for execution,” the attorneys said. “Ultimately, commuting Mr. Panetti’s sentence to life in prison without parole would keep the public safe and affirm our shared beliefs in a humane and moral justice system.”

Chief Fifth Circuit Judge Carl Stewart and Fifth Circuit Judge Priscilla Owen joined Higginbotham on the panel. Owen concurred in part and dissented in part. She wrote in dissent that the majority failed to employ proper appellate standards of review.

“I agree that Panetti was and is entitled to appointed counsel at every step of the ongoing legal proceedings. But the error in failing to appoint counsel is not a dispositive issue and does not warrant a continued stay of execution since Panetti was actually represented by his former federal habeas counsel, who proceeded pro bono in the state courts and in federal district court, and they capably represented him,” Owen wrote.

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