DALLAS — The 23-year saga that is the Scott Panetti death penalty case returned to the U.S. 5th Circuit Court of Appeals Wednesday as lawyers argued over whether the 57-year-old is competent enough to be executed, and who should pay to determine that.
Panetti's attorney, Greg Wiercioch, argued before a three-judge panel that his client does not meet the legal definition of competence needed for execution for the 1992 shooting deaths of his wife's parents. Panetti also has no money to hire experts to make his case, Wiercioch argued.
He asked the judges to return Panetti's case to a federal district court so it can decide whether Panetti can have federally appointed counsel and funds for an evaluation by a mental health expert.
Under Texas law, inmates must understand the crime they committed and know why they are on death row to be executed. Panetti has a documented history of mental illness going back almost 40 years, and his lawyers say he hasn't received a mental health evaluation for seven or eight years.
Without an evaluation, they argued, they can't file a case arguing his incompetence. Judge Patrick Higginbotham acknowledged Wednesday that Panetti has a history of "mental difficulties," and two judges appeared frustrated with both sides for failing to answer the question of his competency.
Higginbotham and Judge Priscilla Owen asked Panetti's attorney why they haven't filed a formal motion to have him declared incompetent. Wiercioch said Panetti, having no money, can't afford an expert and counsel to present the claims required to meet the threshold for the motion. The state won't pay for those resources, said Dustin Howell, an appellate attorney with the Office of the Solicitor General.
Owen expressed frustration with the notion that an indigent inmate on death row who might be mentally ill would have to fend for himself when trying to make a motion on competency.
"How in the world do they make a threshold showing?" she said, adding that the state could be denying defendants their due process under the law. "This is an impossible standard."
Higginbotham asked Howell why the state wouldn't just agree to help determine Panetti's mental state and move forward. Howell said no statute allows for it, and he could not commit to such an idea.
Panetti's case has been winding through the courts for years, creating a tangled legal trail of attempts to determine how — and why — Texas goes about executing a man with a long history of mental illness and aberrant behavior.
Court filings show that the Wisconsin native was diagnosed with schizophrenia when he was 20. At the time of the murders, he had been collecting federal disability checks because the illness prevented him from holding down a job.
Panetti represented himself during his capital murder trial, sometimes dressed in a cowboy outfit. He rejected an offer to plead guilty in exchange for a life sentence, and instead put on an insanity defense although he called no mental health witnesses. Panetti did try to call President John F. Kennedy, Pope John Paul II and Jesus Christ as witnesses.
Appeal filings over the years detail how Panetti was first diagnosed with schizophrenia in 1978 when he was taken to Brooke Army Medical Center following an accident in which he suffered electrical burns while working as an electrical lineman.
The diagnosis came shortly after Panetti spent only 10 months in the U.S. Navy. He would eventually be hospitalized at least a dozen times for mental illness.
According to an earlier filing before the U.S. Supreme Court, Panetti's first wife, Jane, had her husband committed in May 1986 to a psychiatric facility after he nailed curtains in their home shut, buried household furniture in the backyard and conducted an exorcism of the devil from their home that involved spraying water over valuables that he had not buried.
A flurry of subsequent hospitalizations followed at Kerrville State Hospital and the Veterans Administration medical centers in Waco and in Kerrville.
In 1990, two years before Panetti would kill the parents of his second wife, Sonja Alvarado, he was involuntarily committed again at Kerrville State Hospital. The action was taken after Panetti began "swinging a cavalry sword around the house and threatening to kill" his wife, their baby, his wife's father and himself. Panetti's wife eventually left him to live with her parents.
On Sept. 8, 1992, Panetti shaved his head, put on camouflage combat fatigues and then, armed with a sawed-off shotgun and a deer rifle, went to the Alvarado's home and killed them both in front of their daughter and granddaughter.
“Mr. Panetti still has paranoid schizophrenia, and he’s going to have it for the rest of his life,” said Kathryn Kase, one of Panetti’s attorneys with the Texas Defender Service. “This disease is not going to go away.”
But the state sees it differently, consistently arguing that Panetti is aware of what he did and understands why he is on death row — the legal requirements for competence to be executed. Last year, a prison doctor said Panetti did not need treatment. Kase disagrees.
Panetti's condition has worsened, Wiercioch argued Wednesday, saying that Panetti has asked for anti-psychotic medication and believes that his execution is tied to speaking out against corrupt prison staff.
During the hearing, Owen also questioned whether Panetti's attorneys had exhausted their appeals in state courts before filing at the federal level. Owen said Panetti's team had the opportunity to seek what they wanted at the state level but they "didn't try."
"You want to bypass the state," she told Wiercioch, who responded that Panetti has issues that only the federal courts can help remedy. He said his goal is to petition for a writ of habeas corpus in a federal court, a procedural move that claims unlawful imprisonment.