Is Scott Panetti Too Mentally Ill for Execution? Does Texas Care?

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UPDATE December 3, 2014: The U.S. Fifth Circuit Court of Appeals has stayed the execution of Scott Panetti, who had been scheduled for execution in Texas December 3 at 6 p.m.

Scott Panetti has been in that will-they-or-won't they execution limbo for about a decade.

However, by this time next month, Panetti will be dead, unless someone -- Gov. Rick Perry with a stay of execution or the Texas Board of Pardons and Paroles with a commutation -- steps in. That's what a variety of people and organizations, including Christian evangelicals, the American Bar Association, the American Psychiatric Association and a whole bunch of legal experts and lawyers are requesting so that it can at least be determined whether Panetti, a diagnosed schizophrenic who has been documented with mental illness for more than 30 years, is mentally competent enough for execution. The clemency petition was filed Wednesday.

He's scheduled to be executed at 6 p.m. on Dec. 3, 2014, the final punishment for the murders of Joe Alvarado and Amanda Alvarado, his parents-in-law on September 8, 1992 in Gillespie County. The thing is Panetti has suffered from mental illness for more than 30 years. He was diagnosed as schizophrenic in 1978 and was in and out of mental hospitals years before he committed the murders, and he didn't exactly get less erratic after.

"I'm sure there are people that say, 'Why do we care about this?' But when you run a criminal justice system and you're punishing people, it's important for people to understand why they're being punished. That becomes particularly complicated with the mentally ill," Kathryn Kase, a lawyer representing Panetti through the Texas Defender Service, says.

After Panetti was indicted and charged for the crime in 1992, he insisted on representing himself and the judge on the case allowed it. He wore a cowboy outfit, trimmed with purple, and carried a cowboy Bible throughout the trial.

His legal self defense didn't improve as the trial went on. He interrogated one prospective jury member as to whether the person had any "Indian blood," before launching into a tirade about an event he called "Wounded Elbow" -- apparently he confused the battle of Wounded Knee with something to do with the Ayatollah, according to the clemency petition. He attempted to call about 200 witnesses, including JFK and Jesus Christ. Reading the transcript of the trial, Kase says she couldn't believe that no one ever forced proper representation on him.

"There's a constitutional standard and it seems clear to me that Mr. Panetti was at no time rational and able to represent himself," she says. "And yet here we are 20 years down the road and the state is trying to kill him."

Unsurprisingly, he was convicted of capital murder, and sentenced to death in 1995. The problem is, it's unclear if Panetti was ever actually anywhere near what could even charitably be called sane. In 2004, Texas tried to execute Mr. Panetti, but a federal judge court stayed the execution and the United States Supreme Court ultimately found the Fifth Circuit's standard for determining competency to be executed unconstitutional in Panetti v. Quarterman.

However, while the case essentially turned Panetti into the poster child for the murky morality of executing the mentally ill, it didn't stop Texas officials from continuing to pursue his execution.

As we've mentioned before, the Fifth Circuit almost never finds anyone too mentally ill for execution. In 2013, the Fifth reviewed Panetti's case once more and again the justices ruled that Panetti was competent enough to be executed, despite a district court's finding that he has severe mental illness and paranoid delusions.

Finishing off this slog through the courts, last week the 216th in Kerrville denied requests to delay Panetti's execution so that he could have another competency review (he hasn't been reviewed since 2007, Kase says.) And now, that question is still up in the air, meaning that Panetti could conceivably be executed by the state without ever grasping why he was being punished -- Panetti reportedly believes his upcoming execution is the work of Satan to prevent him from preaching the gospel on Death Row.

If the clemency petition or the separate appeal sent to Perry by the American Bar Association gain any traction and a delay is granted, Kase says they would bring in mental health professionals to determine again whether Panetti is mentally competent enough to understand what he is being executed for. It's still possible that Panetti could again be found mentally ill, but competent enough to be executed, but at least then he would have been reviewed in the light of his current mental status, which Kase contends has deteriorated since his last review in 2007.

But really, this is about more than just Panetti, Kase acknowledges. "You know there's a saying that whatsoever you do to the least of my brothers, you do unto me, and if anyone is the least of our brothers that is Scott Panetti," Kase says. "The failure of the Texas criminal justice system to stop this travesty is unexplainable. Killing a mentally ill man crosses a moral line and I can't explain why Texas is choosing to do that."

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