Scott Panetti's prison records show different drafts of his execution forms. On some he wrote "HOLY SPIRIT GOD JESUS" as his spiritual adviser. In some he checked the box for "no will" and then wrote and circled "I Desire A Will," on others. In the weeks before his planned execution date in 2004, the diagnosed schizophrenic told a psychiatrist that the Holy Spirit had taken off his handcuffs after prison guards locked him in a room with other inmates. He has claimed the guards are agents of the devil who want to stop his preaching. Scott Panetti has been off his medication for 12 years.
On Wednesday, the U.S. Supreme Court heard arguments on whether Panetti is too mentally incompetent to understand the facts of his own execution.
Panetti shot his wife's parents in front of her and her daughter in Fredericksburg 15 years ago. In the years after that, he defended himself in his murder trial dressed as a cowboy.
"Incompetence runs like a fissure through every proceeding in this case," wrote attorney Keith Hampton in the court brief.
On Wednesday the Supreme Court considered both the merits of Panetti's case and its more technical issues - whether the state gave his lawyers a chance to defend him from accusations of exaggerating his mental illness.
"It would be a real disappointment if the court dismisses the case," said Andrea Keilen, executive director of the Texas Defender Service, which coordinated Panetti's defense. "It's an issue which cries out for better guidance from the Supreme Court."
The main issue in the Panetti case is interpretation of the 1986 decision Ford v. Wainwright, which stated that it is indeed cruel and unusual to execute the mentally ill. In a concurring opinion, Justice Lewis Powell wrote that the criteria for competency should be whether the prisoner understands that he will be executed and why. Powell's criteria was subsequently adopted by many states, including Texas, as the criteria for competency in order to face execution.
"The district court found that Panetti understands he committed these two murders," said Ted Cruz, solicitor general of Texas, before the court Wednesday. "He understands that he is going to be put to death."
Gregory Wiercioch, who argued for the defense, contended that though Panetti is aware of both facts, he does not rationally understand the link between his crime and his death sentence.
"Someone who suffers from the kind of delusions Panetti does doesn't have the mental capacity to understand that," Wiercioch said.
The court will come to its decision by June, but Keith Hampton, one of Panetti's attorneys, said that beneath this issue is another, unanswered since Ford v. Wainwright. Hampton said he expects the issue to come up sometime after Panetti: If rational understanding of the link between crime and punishment is necessary to constitutionally execute someone, is it legal to forcefully give someone enough drugs to make them understand the facts of their execution?
Currently, inmates who are judged incompetent to face execution because of the Ford decision are executed if they regain their awareness, so most go untreated rather than have their doctors give them medication and break the Hippocratic oath to do no harm.
"The sort of limbo the Ford decision puts them [in], they suffer pretty unbearable lives," said Dick Burr, the original defense attorney in the Ford case 20 years ago. "People who have been found incompetent have been in this kind of netherworld for years. Death sentences must be transmuted to life sentences."
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