Texas death row inmate Scott Panetti's legal team will ask the U.S. 5th Circuit Court of Appeals Wednesday afternoon to return his case to a federal district court, appoint counsel and order support so experts can help determine whether Panetti, who has a history of schizophrenia, is competent enough to be executed.

Panetti is on death row for the 1992 shooting deaths of his in-laws, Joe and Amanda Alvarado of Kerr County. Given his history of mental illness, which has been documented for almost 40 years and involves religious delusions, the state should not execute him, his attorneys say.

Panetti was set to die Dec. 3 when the 5th Circuit issued a stay. A three-judge panel of the New Orleans-based court, sitting in Dallas, will hear Panetti attorney Greg Wiercioch argue that his execution should be forestalled while his mental state is investigated. 

“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 Texas Defender Service. “This disease is not going to go away.”

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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 has not had a mental evaluation since 2007, she said. “When you have severe mental illness, your competence can change,” she said. 

“That’s been a persistent issue for Scott,” she said. “He doesn’t have a rational understanding.”