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“There is no justification for executing the insane, and no reasoned support for it, as only a glance at the brief of amici—filed by able and fervent citizens spanning the spectrum of political views—will confirm.” So wrote the U.S. Court of Appeals for the Fifth Circuit in its ruling last month that sent the case of Scott Panetti, a mentally ill man who was sentenced to death in 1995 in Texas, back to a U.S. District Court, with an order to appoint a new lawyer for him, and authorize federal funds for a mental health expert and investigator to assist in his defense.

For Greg Wiercioch, who has been representing Panetti since 2003, the Fifth Circuit’s decision was a victory that he attributes to the diverse coalition of support his appeal engendered. “It was quite a group effort,” he says. “And it wasn’t the usual suspects writing in support. As Judge Higginbotham wrote, our appeal was supported by individuals and organizations ‘spanning the spectrum of political views.’ ”

Panetti, a diagnosed paranoid schizophrenic who was convicted of killing his wife’s parents in 1992, represented himself at his trial in 1995 dressed as a cowboy, and attempted to call as his witnesses the pope, Jesus Christ, and John F. Kennedy. He was found guilty and sentenced to death, but appealed his conviction based on his mental incompetence. He was granted stays of execution in 2004 and 2014, and in 2007, the U.S. Supreme Court blocked his execution, saying a condemned inmate must have a rational understanding of the reason for his execution.

Wiercioch points to the U.S. Supreme Court’s decision in Ford v. Wainwright (1986) saying,”You have to have more than a bare factual awareness . . .  you need a rational understanding of the crime and punishment and that the reason you’re being executed is in retribution for the crime you committed. The reason there isn’t an absolute ban on executing mentally ill people is you can still be mentally ill and meet that standard. Scott is severely mentally ill, does have delusions, does have psychotic behavior. Even though Scott was found competent in 2008, our position is that he has deteriorated, has gotten worse, and that he’s entitled to a new Ford hearing.”

Wiercioch filed a motion to have the Fifth Circuit re-assign the case because presiding U.S. District Court Judge Sam Sparks has already rejected Panetti’s Ford claim twice, and has expressed frustration that the issue is being raised again.

But, says Wiercioch, “The Fifth Circuit said he is not ‘a poster child of abuse’ of the Ford claim. They are recognizing this is a very unusual case. They’re refuting Sparks’ 2008 and 2014 decisions against us. They’re backing us up. There are compelling reasons to have the case re-assigned.”

But, last week, the Fifth Circuit denied the motion for two reasons.

First, the court said, “There is no tension in a judge rejecting a claim of incompetence today and accepting it ten years later, for the mental state of prisoners on death row is not frozen over time.”

The court’s second reason for denial lay in its “own experience with the trial judge, with 25 years as a federal district judge preceded by a distinguished career as a trial lawyer. Agree or disagree with his decision, the state and defense will be fairly heard on remand.”

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