Issue of Mental Health Assessment a Focus as 3 Fight Death Sentences

Randall Mays is on death row for killing two sheriff's deputies. Scott Panetti was sentenced to die for killing his estranged wife's parents. And a jury condemned Robert Roberson for killing his 2-year-old daughter.

Beyond being on Texas’ death row, the three share another common thread: their attorneys are challenging whether the criminal justice process addresses the issue of mental illness fairly and comprehensively when weighing the death penalty for killers.

In each case, trial prosecutors and attorneys for the state have argued the men intentionally killed their victims and understand why they were convicted and sentenced to death, a constitutional benchmark before the condemned can be executed.

But attorneys for the men argue that although their clients are killers, their documented mental health histories could negate the intentional killing argument and therefore raise the question of whether execution is cruel and unusual punishment. Though the U.S. Supreme Court has ruled that states can't execute the intellectually disabled, an exact legal definition of that condition remains open to debate. Any of these three cases could ultimately help clarify that issue for others in similar situations.

Mays’ and Panetti’s attorneys argue their clients aren’t competent to be executed. Roberson’s attorneys say his right to due process was violated at trial.

Criminal justice experts say that determining mental health can be hard for anyone, including judges, defense attorneys, prosecutors and jurors. They say the cases of Mays, Panetti and Roberson are key in furthering the discussion in how mental health is gauged when applying the death penalty.

"When a defendant has mental or emotional problems, those problems don't just affect his or her conduct at the time of the crime," said Robert Dunham, the executive director of the Death Penalty Information Center. “They affect the way he or she is able to relate to his [or her] lawyers, to the defense lawyers, and the way they appear to the court and the way they appear to the jury.”

• Read More Faces of Death Row: A Look at the Inmates Currently on Death Row

Thoroughly gauging one’s illness takes training, which many in the criminal justice system may not have, he said.

"Mental illness is a complicated phenomenon, which some people who are luridly psychotic, the disorder may be obvious, but even people who are psychotic are not psychotic all the time," Dunham said.

Robert Roberson

Roberson, 49, was sentenced to death in 2003 for fatally beating his 2-year-old daughter, Nikki, in Palestine. He faces a June 21 execution.

During his trial, his attorneys argued that he was trying to quiet his daughter and lost his temper as a result of a brain injury. Roberson’s fight might not see a happy ending. 

But prosecutors said the killing was intentional, calling witnesses who said that his daughter's injuries were consistent with signs of shaking, bruising and blunt force trauma. Witnesses testified that Roberson had a bad temper and would shake and spank Nikki when she wouldn’t stop crying.

Roberson’s attorneys have said his due process was violated because Roberson wasn’t allowed to have an expert testify at his trial that he thought Roberson suffers from mental lapses from his brain injury. Saying that a jury probably wouldn’t have found him guilty if it had heard about his mental history, the attorneys are asking an appeals court to throw out his conviction. He’s now represented by Texas Defender Service attorneys, who declined to comment on his case.

Doug Lowe, the Anderson County district attorney during the trial, told The Texas Tribune that if Roberson wanted to raise his mental health as an issue at trial, he should have pleaded insanity. You either have insanity or you don’t, Lowe said.

"So they're saying we don't want to go [for] insanity, but we do want to slip this evidence in to say that he didn't intend to commit the crime and therefore it's not murder," Lowe said. "It wasn't an intentional or knowing act. They want to have it both ways."

The U.S. Supreme Court ruled in a 2006 case that states aren’t required to admit mental health evidence by the defense if they aren’t pleading insanity.

During the appeals process, the state has pointed to that case, Clark v. Arizona. Roberson did not launch an insanity defense at trial.

When insanity isn’t used as a defense, judges often determine that mental health evidence is irrelevant, said George Dix, a professor in the University of Texas School of Law. Intent to kill is not a complicated mental state to be in, he said.

"In many of the cases, if you carefully analyze what the expert is offering to testify to, he's essentially offering to testify that although the defendant did intend to kill, or intended to assault in other cases, his decision to do that was influenced by a pretty distorted perception of reality," Dix said.

Denied relief twice by the U.S. Supreme Court, Roberson has shifted focus to clemency, with a request before the Texas Board of Pardons and Paroles.

Randall Mays

On May 17, 2007, Henderson County sheriff's deputies responded to a domestic disturbance call at a Payne Springs home. Randall Mays and his wife were arguing.

When a deputy tried to arrest Mays, Mays got a rifle and began shooting, drawing return fire from deputies. During the firefight, Mays killed Inspector Paul Steven Habelt and Deputy Tony Price Ogburn, and wounded Deputy Kevin Harris. Mays surrendered after being shot himself.

He pleaded not guilty to the killings, claiming his history of mental illness did not allow him to knowingly and intentionally kill his victims.

At Mays’ trial, witnesses testified that he was friendly but had a history of mental illness. A psychologist for the defense explained that paranoia could become exaggerated in a moment of crisis, but even someone who is paranoid can intentionally and knowingly kill someone. The psychologist spoke in general and never interacted with Mays, so she couldn’t speak to the case specifically.

Psychiatrist Theresa Vail diagnosed Mays with depression and a psychotic disorder, according to court records. Vail, who treated Mays when he was in jail, said "that he suffered from delusions and hallucinations and that he was afraid that he was being poisoned and plotted against."

Vail said Mays' mental illness was severe and possibly permanent due to a history of drug abuse that would have damaged his brain. She did not talk to Mays about killing the deputies. Gilda Kessner, a psychologist also testified that Mays had paranoid personality disorder and psychosis but never spoke to Mays herself. Another psychiatrist, David Self, testified that he did not examine Mays directly but believed Mays suffered from delusions and paranoia, court records show.

A prosecutor told jurors that Mays could not be both a "nice guy" and a "paranoid psychotic."

"He's apparently the friendliest, most trusting guy they've ever met. And yet on the other hand, the Defense wants you to believe that he's some sort of paranoid psychotic," the prosecutor argued at Mays’ trial. “You can't just throw all the defenses against the wall and see what sticks. There has to be – there has to be a theory here."

The jury took an hour to find Mays guilty of capital murder.

Now, Mays’ attorneys say he is not competent to be executed, citing his mental health record. Mays, now 56, has a history of mental illness dating back to the 1980s, when he was committed twice to a state hospital, and was characterized as "actively psychotic," delusional and combative, according to details from a Texas Court of Criminal Appeals opinion.

The court has placed his execution on hold, intervening after his attorneys argued his competency has not fully been evaluated. A Henderson County court ruled Mays did not provide a “substantial showing” to prove that he lacks the competency to be executed. The Court of Criminal Appeals disagreed and returned the case to the same county, where Mays’ attorneys will get another shot at arguing that their client is not competent for execution.

Mays is represented by public defenders in the state's Office of Capital and Forensic Writs attorneys, who declined to comment for this article.

Scott Panetti

Panetti, 58, a diagnosed paranoid schizophrenic, shot and killed his in-laws, Joe and Amanda Alvarado, in 1992. After two hearings to gauge his competency to stand trial for capital murder, Panetti dropped his legal counsel, against the judge’s advice.

He rejected an offer to plead guilty in exchange for a life sentence and, representing himself, offered an insanity defense without calling mental health witnesses. Panetti tried to call John F. Kennedy, Pope John Paul II and Jesus Christ as witnesses. He was found guilty of capital murder and sentenced to death in 1995.

Panetti's case went before the U.S. Supreme Court in 2007. The question before the court: can Texas execute someone who understands the crime they committed but not why they're condemned to death? Justices said no and returned his case to Texas so his competency could be evaluated. Nearly a decade later, the issue is still not resolved.

Part of Panetti’s story includes tales of religious delusions and hearing voices. Texas has said, though, Panetti is not mentally ill. Then-Attorney General Greg Abbott addressed the case during a 2014 interview with Mark Davis, the host of a Dallas-Fort Worth radio talk show.

“Anyone can do strange things, and if strange things were good enough to get criminals off of death row, believe me, they’d be doing strange things all the time, every day,” said Abbott, now Texas governor. “Based upon the conclusions of many judges in this case, this guy is not insane, and at some point in time, that decision just needs to be put to rest.”

Panetti was scheduled to die in 2004 and again in 2014. Both times, the executions were halted so courts could weigh competency concerns. An appeals court now is weighing whether to send Panetti’s case to another court to determine whether he can have federally appointed counsel and funds for an evaluation by a mental health expert. Panetti can’t afford legal costs on his own.

Judges with the U.S. 5th Circuit Court of Appeals asked last year why Texas doesn’t provide funding for death row convicts to file and support incompetency claims. It’s not required to, an attorney for the state said. Asked about the Panetti case, a spokeswoman for the Texas attorney general’s office referred to the brief filed in the case.

The state insists Panetti can make the claim he shouldn’t be executed, but one of his pro bono attorneys, Kathryn Kase, says he can’t afford to do it, nor does he have the mental capacity to on his own.

Panetti’s lawyers say they can’t file a case arguing his incompetence for execution because he hasn’t received a mental health evaluation for more than seven years.

Jack Stoffregen, chief public defender with Texas Regional Public Defenders for Capital Cases, told The Texas Tribune in September that it’s hard for defendants to make the argument that they shouldn’t be executed due to mental illness if they don’t have access to an expert evaluation.

“If the defendant’s incompetent, how is that defendant even going to know to ask, to make the request for a counselor?” Stoffregen said.

Panetti doesn’t take medication because of a previous allergic reaction to psychotropic drugs, said Kase, executive director of Texas Defender Service.

After years of not being medicated and schizophrenia having brain-deteriorating effects, Panetti is “still very ill,” she said. Leaving death row would not mean freedom for Panetti, the attorney said.

“If Scott Panetti were out in the world, he wouldn't be wandering around freely,” Kase said. “He would be in a mental institution. He's that sick.”

Disclosure: The University of Texas at Austin has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.