Fifth Circuit Holds Capital Defendant Not Entitled to All Expert Funding Requested; Was Competent-to-Be-Executed; Edwards Decision on State’s Right to Deny Self-Representation Not Retroactive

Panetti v. Stephens, 727 F.3d 398 (5th Cir. 2013.)

The Fifth Circuit Court of Appeals upheld the death penalty on August 21, 2013 for a mentally ill inmate alleging incompetence-to-be-executed, finding the district court’s decision to deny funding for additional expert assistance and testing was not an abuse of discretion. The Fifth Circuit also held that the district court’s decision weighed all of the evidence, including the inmate’s secretly recorded conversations with family, and was therefore not clearly erroneous. The Court further held that the United States Supreme Court case of Indiana v. Edwards, 554 U.S. 164 (2008), holding that the State may prohibit a mentally ill inmate found competent to stand trial from representing himself at trial had no retroactive application in federal habeas corpus proceedings.

In 1992, Scott Louis Panetti shot his estranged wife’s parents at close range, killing them and spraying his wife and three-year-old daughter with their blood. Panetti demanded to represent himself at trial although he had a long history of schizophrenia, and in spite of the trial judge’s pleas to accept counsel. His only defense was insanity. His appointed standby counsel described his self-representation as bizarre and his trial a farce and mockery of self-representation. The jury convicted him of capital murder and sentenced him to death. The conviction and sentence were upheld on direct appeal and collateral review.

In October 2003, the trial court set an execution date and Panetti filed a motion alleging for the first time that he was incompetent-to-be-executed. The trial court rejected the motion without a hearing. Texas law required Panetti to make a “substantial showing of incompetency” before entitling him to court-appointed experts. On federal habeas review, Panetti submitted additional evidence of mental illness and the district court stayed the execution to permit the state trial court to consider the renewed motion in light of the supplemental evidence. In February 2004, the state court appointed a psychiatrist and a clinical psychologist to examine Panetti, implicitly finding he had made a substantial showing of incompetency. These experts filed a joint report finding Panetti competent-to-be-executed. Without holding a hearing or ruling on Panetti’s motion to appoint him his own experts, the trial court found Panetti competent-to-be-executed.

Panetti then returned to federal court arguing that Texas’ failure to appoint him mental health experts and provide a hearing violated his due process rights under Ford v. Wainright, 477 U.S. 399 (1986). Ford held that denying a prisoner the right to present and rebut evidence in a competency-to-be-executed proceeding violated due process. The district court agreed and also found that such a denial by the state court was not entitled to deference under the Antiterrorism and Effective Death Penalty Act. Panetti’s experts then testified that he understood the reason for his execution – the murder of his in-laws, but his delusions caused him to believe Texas was in league with the forces of evil and sought to prevent him from preaching the Gospel. The State’s experts agreed Panetti was mentally ill, but his behavior was attributed to malingering. After hearing the evidence, the district court found that Panetti’s delusional belief system prevented him from rationally appreciating the connection between his crimes and his execution. But the district court found Panetti competent to be executed because the Fifth Circuit standard at that time was that the prisoner only needed to know the fact of his impending execution and the reason for it. The Fifth Circuit affirmed the district court decision and Panetti petitioned the United States Supreme Court for review.

In 2007, the United States Supreme Court granted Panetti’s petition for certiorari and reversed, finding the Fifth Circuit’s standard for competency-to-be-executed too restrictive. Declining, to set out a standard, the Supreme Court remanded the case requiring the district court to determine in a more definitive manner the nature and severity of Panetti’s mental health problems and whether his delusions impaired his concept of reality to the extent that he did not have a rational understanding of the reason for the execution. Panetti v. Quarterman, 551 U.S. 930 (2007).

On remand, the defense hired three experts, a clinical neurologist, a forensic psychiatrist and a forensic psychologist who had examined Panetti for the original hearing in 2004. These experts evaluated Panetti for a combined total of over 15 hours and administered a battery of tests designed to detect the likelihood of malingering. The district court authorized $9000 to pay the experts, but rejected his requests for additional funding. These experts all diagnosed Panetti with schizophrenia, although the psychologist who had examined him previously found Panetti had markedly improved since his 2004 examination. The other two experts testified that Panetti suffered from a genuine delusion that he was on death row to preach the Gospel and save souls. The defense also called two death row inmates who testified that Panetti preached incessantly in his cell and in the day room even though it irritated other inmates.

Texas presented testimony from a forensic psychologist and an expert psychiatrist and neurologist. Both testified that Panetti was partially fabricating his symptoms to thwart attempts to administer tests to detect malingering. The psychiatrist also doubted whether he was suffering from any form of mental illness, and was emphatic that Panetti had a rational understanding between his crime and execution because of his repeated assertions that he was unjustly convicted despite his insanity and that God had forgiven his guilt. Texas also called three correctional guards as witnesses who testified Panetti was never a problem; was generally wellbehaved, but would often have some religious statement to make; that the preaching was well thought out and the same as you would hear at church; and that some guards would assign Panetti to a cell to get revenge on an inmate because they knew his constant preaching would irritate him.

Texas also presented secret recordings of his conversations with his family. The tapes indicated that while Panetti did quote scripture and make religious comments, he did not rant or preach, and the conversations involved extended discussion about the trial judge’s corruptness and ineptitude. The district court’s summary of the tapes reflects that Panetti at no time became irrational, tangential or pressured in his speech. His comments about his legal proceedings reflected a fairly sophisticated understanding of his circumstances.

After hearing all of this evidence, the district court found that Panetti was seriously mentally ill and suffered from paranoid delusions of some type. The court also determined that Panetti was exaggerating some of his symptoms to avoid execution, stating that Panetti demonstrated a fairly sophisticated understanding of his case and that his refusal to cooperate with State experts contrasted with his treatment of his own experts. The district court then determined that Panetti had both a factual and rational understanding of his crime, his impending death and the causal retributive connection between the two.

On appeal, the Fifth Circuit first determined that the district court did not abuse its discretion in refusing to provide additional funding to permit his experts to review the secret recordings and to obtain a PET scan to detect malingering. The Fifth Circuit found that the district court authorized $9000 to fund an expert team to assist Panetti in presenting his competency evidence and they were able to review a large number of the secret recordings. The request for a PET scan also violated the court’s scheduling order. Although the Supreme Court’s decisions in Ford and Panetti established a constitutional right to expert assistance in Eighth Amendment competency-to-be-executed hearings, the Court held the cases merely entitle the inmate to an opportunity to present his own expert testimony before a neutral decision maker. The decisions do not require the court to provide all of the expert assistance the inmate requests.

The Fifth Circuit also agreed that the Supreme Court’s remand required a “rational understanding” test for Eighth Amendment competency-to-be-executed proceedings, but disagreed with the district court determination, finding that the test is not the same as the Dusky standard applied in competency to stand trial situations. The Eighth Amendment standard arises out of the retributive value of executing a person who has no comprehension of why he is being executed and the abhorrence of civilized societies to kill someone who has no capacity to come to grips with his own conscience or deity. Nonetheless, the Fifth Circuit agreed that the district court applied the correct rational understanding analysis in finding Panetti had both a factual and rational understanding of his crime, his impending death and the causal retributive connection between the two, based especially upon Panetti’s rationally articulated position that his punishment was unjustified because of his insanity at the time of his offense. The Fifth Circuit then found that the expert testimony was conflicting and that the district court’s finding of competency was therefore not clearly erroneous. The Court also found that the secret recordings generally corroborated the testimony of the State’s experts and that Panetti actually understood the reason for his punishment.

Finally, Panetti raised for the first time before the Fifth Circuit the issue that the State should not have permitted him to represent himself at trial. At the time of his trial, Panetti had been found competent to stand trial and then insisted on exercising his right of selfrepresentation. The United States Supreme Court cases of Faretta v. California, 422 U.S. 806 (1975), holding that defendants have a Sixth Amendment right to represent themselves, and Godinez v. Moran, 509 U.S. 389 (1993), suggesting that this right was absolute even if invoked by a severely mentally ill defendant, had been decided at the time of Panetti’s trial. The Supreme Court later held in Indiana v. Edwards, 554 U.S. 164 (2008), after Panetti’s trial, that the right of self-representation was not absolute and the State could insist that an attorney be appointed to represent a mentally ill defendant even though he had been found competent to stand trial.

The Fifth Circuit found, however, that this decision had no retroactive application to habeas petitions. In order to apply a new rule of constitutional law retroactively to federal habeas proceedings, the new rule must be a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceedings. The Court found that the right of the State to impose representation on a mentally ill defendant did not effect a sea change in criminal procedure. The Edwards decision also only applies in the exceptional situation where the defendant is competent to stand trial but so severely mentally ill that his self-representation threatens an improper conviction or sentence. Furthermore, Edwards is only permissive, allowing the state to insist on counsel but not requiring that it do so. The Court held that its application was therefore not retroactive.

Found in DMHL Volume 32 Issue 4