Tuesday, April 17, 2007

Justices to eye Texas death case

Web Posted: 04/16/2007 12:28 AM CDT

Maro Robbins and Gary Martin

Incoherent as it might be, the babbling of a murderer from Fredericksburg could soon offer new insight into the recently reconfigured Supreme Court and its approach toward capital punishment.

This week, the justices will consider whether schizophrenic death row inmate Scott Panetti must be spared because, as the court said previously, it's cruel and unconstitutional to execute the insane.

Part of what makes the case a potential guidepost is that the newest justices — John Roberts and Samuel Alito — haven't yet said much about capital punishment and only a thin layer of Supreme Court precedent directly addresses psychosis and the death penalty.

Ultimately, any ruling on the execution of a mentally ill inmate who jabbers about satanic persecution will call on the court to conduct a gut check, said Douglas Berman, an Ohio State University law professor.

"At some point, it's just, 'Wow, this goes too far' or 'It doesn't go too far,'" said Berman, who teaches a death-penalty course. "It strikes me that those cases tend to be the most revealing."

Panetti's long history of bizarre behavior is only one of several elements that add intriguing potential to the case, which will be debated during oral arguments Wednesday.

The case presents an opening for the justices to further scale back the death penalty's reach, a potential trend that began before Roberts and Alito joined the court, with rulings protecting juveniles and inmates with mental retardation.

The case also offers the justices another chance to rebuke the courts that monitor Texas' use of the death penalty.

Several recent reversals have suggested some justices believe the state too readily ignores flaws in capital convictions.

This term, the court is reviewing four death cases from Texas. Many believe Panetti owes his spot among them partly to his outlandish performance at the trial, where he babbled at times and wore cowboy garb while acting as his own lawyer.

Panetti had been hospitalized more than a dozen times and diagnosed as schizophrenic by 1992 when he barged into the home of his parents-in-law and shot them with a .30-06 caliber rifle, while his estranged wife and toddler looked on.

The first jury couldn't decide if he was competent, but a second panel found him fit to stand trial.

As his own attorney, the first witness Panetti confronted was his former wife. Panetti told her she looked lovely and asked her to recall how they met.

Then, he asked her detailed but not-always coherent questions about her parents' murders.

"Now," he said at one point, "I was two paces away from your mom and dad and shot them. She ended up here, but your with burden, that you didn't remember where she was at, but she got splattered with blood and your blood all over the place?"

Sonja Alvarado long ago lost faith in law enforcement and the legal system and said no longer cares whether her ex-husband receives his death sentence or lives behind bars.

Her sister Minnie Ybarbo firmly believes her former brother-in-law is too dangerous to live and that his delusions are bogus.

"Scott is a very good actor," she said.

Perhaps the most striking plea for mercy comes from Panetti's daughter, who last saw her dad when she was 3 years old and watched him shoot her grandparents.

Now 18, Amanda Alvarado stopped responding to her dad's letters around the time she was 11. Even so, she opposes his execution.

"'Cuz he's my dad," she said. "I'd rather my dad be living ... than be dead."

So far state and federal courts have refused to spare Panetti, despite his assertions that his execution represents a conspiracy between Texas and the forces of evil to silence his preaching of the Gospel.

The Supreme Court's benchmark 1986 ruling in the case of Florida inmate Alvin Ford offers limited guidance.

Then, the majority cited hundreds of years of legal opposition to the execution of insane criminals but never articulated what inmates needed to prove sufficient madness.

Panetti's lawyers now want the court to embrace a concurring opinion by Justice Lewis Powell, who insisted that inmates must understand the connection between their crimes and their punishment for their executions to proceed.

The inmate's attorneys contend that, if Panetti is sane enough to receive a lethal injection, then no one is too deranged for the death penalty and the court's 1986 ruling is meaningless.

"He believes Satan's been trying to execute him since he was a child," said Andrea Keilen of the Texas Defender Service, which represents Panetti.

Texas believes Panetti's exaggerating his lunacy. But even if he's sincere, the state says requiring inmates to rationally understand their punishments would be too lenient a standard.

Few death row inmates are entirely rational — otherwise they wouldn't be murderers — and many suffer some degree of mental illness, said Ted Cruz, the state's solicitor general.

"Under Panetti's test, a significant number of those could be rendered immune from being executed despite their heinous crimes," he said.

Texas, for example, executed schizophrenic inmate James Colburn four years ago. The Supreme Court refused to intervene then when lower courts rejected Colburn's claim.

Few are predicting how the justices will decide Panetti's case, but the court recently hinted one way he could lose.

Two weeks ago, the court suddenly requested extra briefing. Never mind insanity; the court wanted to hear whether the case should be dismissed because Panetti had exhausted his appeals.

Such a ruling would allow the justices to sidestep deeper and potentially problematic questions embedded in the case, for instance, about the death penalty's purpose.

"They may say, 'Y'know what? Let's kick this on procedural grounds and ... dodge all this,'" Berman said.

But even a decision that opts for an easy exit would be revealing, the professor said.

It would suggest the court's current incarnation has limited interest in monitoring capital punishment.


Express-News Staff Writer Gary Martin contributed from Washington, D.C.

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