A Growing Plea for Mercy for the Mentally Ill on Death Row - New York Times
The New York Times

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November 23, 2006
A Growing Plea for Mercy for the Mentally Ill on Death Row
By
RALPH BLUMENTHAL

LIVINGSTON, Tex. - Scott Louis Panetti says he was drowned and electrocuted
as a child and that he was recently stabbed in the eye in his death row cell
by the devil. Mr. Panetti says he has wounds that were inflicted by demons
and healed by President
John F. Kennedy.

"The devil has been trying to rub me out to keep me from preaching," Mr.
Panetti, explaining why he faces execution, said in an interview from behind
thick
glass in the Polunsky Unit here in East Texas, where condemned prisoners are
held before transfer to the death house 45 miles west in Huntsville.

Despite Mr. Panetti's obvious mental illness - he was a mental patient long
before he gunned down his in-laws in 1992 - he served as his own lawyer at
his
murder trial, throwing the courtroom into chaos with frequent gibberish. Now
the hyperactive and gangling Mr. Panetti, 48, has become an illustration of
the growing quandary over the application of a 1986 Supreme Court decision
barring execution of the insane.

The ruling appears to be limited to those without the capacity to understand
that they are about to be put to death and why. Whether Mr. Panetti fits
that
definition is a matter of dispute.

In an appeal to the Supreme Court that could affect the cases of other
mentally ill prisoners awaiting execution, Mr. Panetti's lawyers argue that
while
he has a "factual awareness" of his execution, he has a "delusional belief"
that it is unconnected to his crime, and that he should therefore be spared
lethal injection.

The case of another mentally ill death row inmate, Guy T. LeGrande, who
represented himself and is scheduled to die Dec. 1 in Raleigh, N.C., is
going through
its final state appeals, with his lawyers arguing that he, too, is
delusional, and that he hastened his execution by abandoning his defense.

Charged in the contract killing of a woman whose husband pleaded guilty to
plotting the murder and is serving life, Mr. LeGrande, 47, says he is
innocent
and was framed. He appeared in court in 1996 in a Superman T-shirt, cursed
the jurors as "Antichrists" and taunted them, "Pull the switch and let the
good
times roll." They took less than an hour to sentence him to death.

Experts and advocates in the field say the issue of executing the mentally
ill is the next frontier in death penalty law.

"This is an emerging issue," said Richard C. Dieter, executive director of
the Death Penalty Information Center, a research institute in Washington
that
opposes capital punishment.

Mr. Dieter cited the Panetti and LeGrande cases as gray areas in which "the
death penalty may be extreme punishment given their reduced culpability."

Franklin E. Zimring, a professor of law at the
University of California
, Berkeley, and author of "The Contradictions of American Capital
Punishment" (Oxford University Press, 2003), said there was something
"indigestible" about
these cases.

"We assume people don't want to die," Mr. Zimring said. "But these are
defendants that call the legal system's bluff."

Concern over execution of the mentally disabled prompted the
American Bar Association
last August to join a widening chorus of professionals calling for a halt
to death sentences and executions for defendants with severe mental
disorders
that "significantly impaired" their rational judgment or capacity to
appreciate the wrongfulness of their conduct. The moratorium was endorsed
earlier
by the
American Psychiatric Association
, the American Psychological Association and the National Alliance on Mental
Illness.

The groups also opposed death sentences for prisoners with mental disorders
that impaired their ability to assist their lawyers and make rational
decisions
on their appeals. The Supreme Court has already barred execution for the
mentally retarded and for juveniles.

"An increasing percentage of people executed are people giving up their
appeals," said Ronald J. Tabak, a lawyer at the firm Skadden, Arps, Slate,
Meagher
& Flom in Manhattan and a specialist in capital cases who led the bar
association's death penalty task force. "And of these, a significant
percentage have
serious mental illness."

The Supreme Court's 1986 ruling, on a Florida case, Ford v. Wainwright, left
much unclear. Although no state permitted execution of the insane, the
justices
affirmed that the Eighth Amendment against cruel and unusual punishment
prohibited it. But they did not provide a standard for determining when
someone
was competent enough to be executed.

In a concurring opinion later adopted as law by lower courts, Justice Lewis
F. Powell Jr. said it was enough "if the defendant perceives the connection
between his crime and the punishment." Justice Powell also said that the
Constitution "forbids the execution only of those who are unaware of the
punishment
they are about to suffer and why they are to suffer it."

The United States Court of Appeals for the Fifth Circuit found that Mr.
Panetti had the requisite legal awareness. And the Texas attorney general,
Greg
Abbott, has argued that the execution, as yet unscheduled after having been
postponed in 2004, should proceed.

There is no dispute that Mr. Panetti is "profoundly mentally ill," his
lawyers Gregory W. Wiercioch, Keith S. Hampton and Michael C. Gross said in
a petition
seeking to overturn the Fifth Circuit ruling. In the decade before the
murders, they said, he was hospitalized 14 times in six institutions for
schizophrenia,
manic depression, auditory hallucinations and delusions of persecution.
Believing the devil was in his furniture, he buried it in the backyard, and
thinking
the devil was in the walls, he hallucinated that they were running with
blood.

On Sept. 8, 1992, Mr. Panetti, dressed in military fatigues and carrying a
sawed-off shotgun, a rifle and knives, invaded the Fredericksburg home where
his estranged wife, Sonja Alvarado, had taken refuge with her parents, Joe
and Amanda Alvarado. In front of his wife and their 3-year-old daughter,
known
as Birdie, he shot the Alvarados to death and took his wife and daughter
captive before releasing them unharmed and surrendering.

In 1994, a first jury deadlocked on his mental competency, but a second
found him able to stand trial.

Waiving legal counsel, Mr. Panetti represented himself, appearing in court
in cowboy garb and seeking to subpoena Jesus before deciding "he doesn't
need
a subpoena - he's right here with me." He attributed the killings to an
alter ego named Sarge Ironhorse and, testifying in Sarge's voice after
calling
himself as a witness, recounted the killings:

"Sarge is gone. No more Sarge. Sonja and Birdie. Birdie and Sonja. Joe,
Amanda lying kitchen, here, there blood. No, leave. Scott, remember exactly
what
Sarge did. Shot the lock. Walked in the kitchen. Sonja, where's Birdie?
Sonja here. Joe, bayonet, door, Amanda. Boom, boom, blood, blood. Demons.
Ha, ha,
ha, ha, oh, lord, oh, you."

When Judge Stephen B. Ables tried to cut him off, Mr. Panetti said, "You
puppet."

Mr. Panetti does appear to have moments of lucidity, and these disconcerted
the juries at his competency hearing and trial, planting suspicions that he
might have been faking.

"Not to make excuses," he said in the death row interview, "but when someone's
insane, they're insane."

Psychiatrists testified that schizophrenic patients often spoke
intelligently.

Asked in the interview if he understood he was on death row for crimes he
committed, Mr. Panetti said: "Certainly not. They are in a strong
delusionment.
They'll be undeceived by delusionment."

Copyright 2006
The New York Times Company

Posted by Miriam V.