All of the State's players in the Texas criminal justice system are elected: the district attorney who decides whether to seek death as well as the judge who presides over the trial and post-conviction review. Texas politics notoriously favors frontier justice. If, as a judge, you presided over a trial where a "monster" was sentenced to death--and kept him there--you're tough on crime, and thus re-electable. (One East Texas judge, Elizabeth Coker, recently had to recuse herself from a retrial when, after the previous trial, her campaign material for re-election boasted of how she "cleared the way for the jury to issue a death sentence" in a particular case.) Panetti's trial and subsequent state court appellate proceedings were coordinated to obtain this end from the beginning.
Based upon his mental health history, the judge presiding over Panetti's capital murder trial, Stephen B. Ables, conducted a competency-to-stand-trial inquiry. The competency inquiry concerns the defendant's ability to consult with his lawyer with a reasonable degree of rational understanding and to possess a rational as well as factual understanding of the proceedings against him. The court appointed a psychiatrist to evaluate Panetti:
Dr. E. Lee Simes reported that Mr. Panetti did not know what year it was or who the President was; had some looseness and tangentiality in his thought processes; admitted to both auditory and visual hallucinations, including seeing Jesus in his jail cell; related chronic delusions marked by religiosity; appeared to have “an odd fragmentation of his personality in describing himself as several different people;” and suffered from “obvious mental difficulties.” [1]
But court-appointed mental health experts, at least in Texas, have biases towards competency findings, because many depend heavily for the livelihood on the revenue they receive from such court appointments, and were they to find too many people incompetent--particularly in cases in which the media are following, as most capital murder cases are--judges would soon stop appointing them to evaluate pre-trial criminal defendants. So Dr. Simes, despite his above findings, concluded that Panetti was competent to stand trial.
A competency hearing was then held, and the jury deadlocked, 9-3 in favor of incompetency. [2] So the State got to try again. This time it got a jury that would find Panetti competent to stand trial. But Panetti, off his medication and delusional, inevitably began to believe that his lawyer was part of the grand satanic conspiracy against him, and so sought to represent himself at trial. The question of his competency to waive counsel was in the hands of the court alone. Judge Ables' finding him competent to so waive sealed his fate and made a death sentence a foregone conclusion. Judge Ables would have known this.
During his trial petitioner engaged in behavior later described by his standby counsel as “bizarre,” “scary,” and “trance-like.” According to the attorney, petitioner’s behavior both in private and in front of the jury made it evident that he was suffering from “mental incompetence,” and the net effect of this dynamic was to render the trial “truly a judicial farce, and a mockery of self-representation[.]” [3]
Panetti's brief before the Court provided a fuller account:
Wearing a cowboy outfit, Mr. Panetti raised a defense of not guilty by reason of insanity. He told the jury in his opening statement that only an insane person could prove insanity. Mr. Panetti made bizarre and inappropriate statements to the jury; went on irrelevant, irrational, and illogical reveries; exhibited sudden flights of ideas; asked questions that were incomprehensible or burdened with excessive and extraneous detail; rambled incessantly; perseverated; recited senseless, fragmented aphorisms and anecdotes; badgered the judge, the prosecuting attorney, and witnesses; and was unable to control his behavior despite the judge’s repeated efforts. Mr. Panetti applied for over 200 subpoenas, including John F. Kennedy, the Pope, and Jesus. See 36 RR 1207 (“I didn’t want to go subpoena crazy and I turned the Pope loose and J.F.K. and I never subpoenaed them, but Jesus Christ, he doesn’t need a subpoena. He’s right here with me, and we’ll get into that.”).
He made unintelligible comments to the panel of prospective jurors during general voir dire:The death penalty doesn’t scare me, sure but not much. Be killed, power line, when I was a kid. I’ve got my Injun beliefs as a shaman. I sent the buffalo horn to my sister. Adjustment, Jesus wrote. I was born in the North woods in a reservation hospital and my granddad was a justice of the peace and he sobered up the doctor and the doctor was half sobered and they delivered me and my mom had a bad sickness in her milk and they wondered why I wasn’t dead, and a lot of beatings I took from the kids that show me had prejudice, which I don’t have any prejudice, and they said this about me in the newspapers in the beginning, but I don’t love Injuns and Mexicano, and Mexicano know, but I suffered a lot of reverse prejudice from Colored people, which is rare, darn rare, but I was named “He who doesn’t cry” because I didn’t cry when I should have, and I must admit, though, in Gillespie County Jail when I was in my little suicide box where there was an old boy committed suicide, I went through about a week of pretty much scuba diver’s tears; although, I don’t scuba.***
He assumed the personality of “Sarge” when he testified about the crime:Joe, Joe, Amanda, no talking, no words, knife, Sarge knife, threatened, scared, fight, no. Sarge shoots, CC. Sarge turns, shoots, boom, boom. Where is Amanda? Mom is dead. Joe look up. No. Where’s Birdie? Sonja bedroom. Birdie. Joe. Where’s Amanda? Sarge, Sarge, left a bullet. Scott, what? Scott, what did you see Sarge do?
Fall. Sonja, Joe, Amanda, kitchen. Joe bayonet, not attacking. Sarge not afraid, not threatened. Sarge not angry, not mad. Sarge, boom, boom. Sarge, boom, boom, boom, boom. Sarge, boom, boom.
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.
The Court: Mr. Panetti, let’s stop. [4]
He was, of course, convicted and sentenced to death. One of the psychiatrists who had treated Panetti prior to the offense and who observed the trial reflected, "I suspect that the members of the Jury as lay persons saw Scott and thought he was normal and pretending to be mentally ill. In my opinion it [is] not possible to imitate the words and deeds of a mentally ill person. To an expert, there are too many details of voice and action that indicate the signs of mental illness: the inappropriate behavior, the repetition of words, the fixation on details, the bizarre presentation."[5] Less than two months later, the same judge ruled that Panetti was incompetent to waive appointment of counsel for the purpose of collateral review of his sentence. (For more on Panetti, his mental illness, and his farce of a trial, watch the short documentary, below.)
All of this was no more than a set-up to ensure that Panetti would receive a death sentence and, eventually, be executed. But why would Judge Ables order a competency hearing if he was attempting to manufacture a death sentence? And why would he insist on Panetti being represented by counsel during state post-conviction review if he was not trying to guarantee an execution? With Panetti's extensive, documented mental health history, a competency hearing was a necessary step to a death sentence. There was simply no way that any conviction obtained without one could have been upheld on appeal. As for insisting on state post-conviction counsel, that, too, helps insulate the conviction. At that stage, there is no longer a jury to act as a potential obstacle to the death sentence, as the trial court itself controls and acts as the fact-finder of the post-conviction proceedings. There was thus no longer any danger of Panetti getting any kind of relief, and so a lawyer could be tolerated. The provision of a lawyer in these proceedings would then act as a buffer of sorts against invalidation of the sentence in subsequent federal review.
As Panetti's execution became imminent in 2003, his lawyers--who at this stage could no longer be compensated by the courts and were therefore acting pro bono--again had to appeal to Judge Ables to stay the execution due to Panetti's incompetence. (The Eighth Amendment prohibits executing a person who is incompetent at the time of execution.) Despite his intimate knowledge of Panetti's mental health and additional material from a psychologist who had recently conducted a preliminary evaluation of Panetti, Ables did not so much as bother to grant a stay or a hearing to inquire into his competence to be executed. Panetti then requested relief from the federal district court, which granted a stay to“allow the state court a reasonable period of time to consider the evidence of [petitioner’s] current mental state.” The following is a description of the ensuing state court proceedings from Justice Kennedy's majority opinion:
Due to the absence of a transcript, the state-court proceedings after this point are not altogether clear. ... Based on the docket entries and the parties’ filings it appears the following occurred.
The state trial court ordered the parties to participate in a telephone conference on February 9, 2004, to discuss the status of the case. There followed a court directive instructing counsel to submit, by February 20, the names of mental health experts the court should consider appointing pursuant to Art. 46.05(f). The court also gave the parties until February 20 to submit any motions concerning the competency procedures and advised it would hold another status conference on that same date.
On February 19, 2004, petitioner filed 10 motions related to the Art. 46.05 proceedings. They included requests for transcription of the proceedings, a competency hearing comporting with the procedural due process requirements set forth in Ford, and funds to hire a mental health expert.
On February 20 the court failed to hold its scheduled status conference. Petitioner’s counsel called the courthouse and was advised Judge Ables was out of the office for the day. Counsel then called the Gillespie County District Attorney, who explained that the judge had informed state attorneys earlier that week that he was cancelling the conference he had set and would appoint the mental health experts without input from the parties.
On February 23, 2004, counsel for petitioner received an order, dated February 20, advising that the court was appointing two mental health experts pursuant to Art. §46.05(f). On February 25, at an informal status conference, the court denied two of petitioner’s motions, indicating it would consider the others when the court-appointed mental health experts completed their evaluations. On March 4, petitioner filed a motion explaining that a delayed ruling would render a number of the motions moot. There is no indication the court responded to this motion.
The court-appointed experts returned with their evaluation on April 28, 2004. Concluding that petitioner “knows that he is to be executed, and that his execution will result in his death,” and, moreover, that he “has the ability to understand the reason he is to be executed,” the experts alleged that petitioner’s uncooperative and bizarre behavior was due to calculated design: “Mr. Panetti deliberately and persistently chose to control and manipulate our interview situation,” they claimed. They maintained that petitioner “could answer questions about relevant legal issues . . . if he were willing to do so.”
The judge sent a letter to counsel, including petitioner’s attorney, Michael C. Gross, dated May 14, 2004. It said:“Dear Counsel:
“It appears from the evaluations performed by [the court-appointed experts] that they are of the opinion that [petitioner] is competent to be executed in accordance with the standards set out in Art. 46.05 of the Code of Criminal Procedure.
“Mr. Gross, if you have any other matters you wish to have considered, please file them in the case papers and get me copies by 5:00 p.m. on May 21, 2004.”
Petitioner responded with a filing entitled “Objections to Experts’ Report, Renewed Motion for Funds To Hire Mental Health Expert and Investigator, Renewed Motion for Appointment of Counsel, and Motion for Competency Hearing” in Cause No. 3310 (May 24, 2004) (hereinafter Objections to Experts’ Report). In this filing petitioner criticized the methodology and conclusions of the court-appointed experts; asserted his continued need for a mental health expert as his own criticisms of the report were“by necessity limited[;]” again asked the court to rule on his outstanding motions for funds and appointment of counsel; and requested a competency hearing. Petitioner also argued, as a more general matter, that the process he had received thus far failed to comply with Art. 46.05 and the procedural mandates set by Ford.
The court, in response, closed the case. On May 26, it released a short order identifying the report submitted by the court-appointed experts and explaining that “[b]ased on the aforesaid doctors’ reports, the Court finds that [petitioner] has failed to show, by a preponderance of the evidence, that he is incompetent to be executed.” The order made no mention of petitioner’s motions or other filings.[6]
Kennedy summarized his view:
The state court refused to transcribe its proceedings, notwithstanding the multiple motions petitioner filed requesting this process. To the extent a more complete record may have put some of the court’s actions in a more favorable light, this only constitutes further evidence of the inadequacy of the proceedings. Based on the materials available to this Court, it appears the state court on repeated occasions conveyed information to petitioner’s counsel that turned out not to be true; provided at least one significant update to the State without providing the same notice to petitioner; and failed in general to keep petitioner informed as to the opportunity, if any, he would have to present his case. There is also a strong argument the court violated state law by failing to provide a competency hearing.[7]
The Supreme Court, via Kennedy, held, "The state court failed to provide petitioner with a constitutionally adequate opportunity to be heard."[8]
That Panetti was being set up by a Texas judge to be executed was confirmed by Justice Clarence Thomas, who in dissent described Judge Ables's actions during the state competency proceeding as merely "humor[ing] the Federal District Court," which had granted the stay specifically to allow the state court to consider Panetti's incompetency claim.[9] Unbelievably--and with a wink that only a conservative who knows just enough to think he knows everything can give--Justice Thomas (joined by the Court's three other conservative ideologues) made this characterization of the state court approvingly. That four Supreme Court Justices would approve of a state trial court "humoring" a federal district court in a matter as serious as a man's sanity to be executed speaks volumes about the utter lack of respect the four ideologues have not only for the rights of American citizens but even the federal courts themselves. It must be wondered how anyone can ever again take seriously anything they write as federal judges. Are we, too, merely to "humor" them when they rule?
1. Brief for Petitioner, Panetti v. Quarterman at 8.
2. Id. at 8 n.6
3. Panetti v. Quarterman, slip op. at 3.
4. Brief for Petitioner at 11-14.
5. Id. at 16.
6. Panetti at 5-8.
7. Id. at 17-18.
8. Id. at 19.
9. Panetti v. Quarterman, slip op. at 10 n.7 (Thomas, J., dissenting).
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