The Austin Chronicle

Panetti Sane Enough For Execution

By Jordan Smith, August 22, 2013, 10:09am, Newsdesk

For the second time in nearly a decade, the 5th U.S. Circuit Court of Appeals has ruled that Scott Panetti, a schizophrenic sent to death row for a 1992 double murder, is sane enough to be executed. Whether that means Panetti is actually closer to a date with the executioner, however, remains to be seen.

Panetti was convicted and sentenced to death for the Sept. 8, 1992 slaying of his in-laws, Joe and Amanda Alvarado, at the couple's home in Fredericksburg. Panetti had been hospitalized in connection with his illness at least 11 times prior to the slaying and was last released just two months before he killed the Alvarados. When he turned himself into police the afternoon of the murders he told investigators that "Sarge," a recurring auditory hallucination, was responsible for the crime. Panetti was heavily medicated when deemed competent to stand trial, but by the time he actually went to court for the crime he was off his meds and insisted on representing himself, a request granted by Kerr County District Judge Stephen Ables. At trial, Panetti wore a purple cowboy suit and subpoenaed hundreds of witnesses, including Jesus Christ and Anne Bancroft. Despite his bizarre and disturbing behavior, he was ultimately convicted in 1995.

Since then, however, Panetti's case has made it's way to the U.S. Supreme Court twice as questions persist about whether he is actually sane enough to be executed. At issue, in part, is whether Panetti has "rational understanding" of why he is to be executed. Panetti has repeatedly acknowledged that the state says it intends to kill him for the murder of the Alvarados, but that he believes that is a ruse to hide a satanic plot to kill him in order to stop him from preaching the "gospel of the Lord King."

In 2004, federal District Judge Sam Sparks ruled that although Panetti is clearly seriously mentally ill, it was unlikely to make a difference to the Fifth Circuit, which held that Panetti only need a basic understanding of the relationship between his crime and execution in order to pass the Eighth Amendment ban on cruel and unusual punishments. That is indeed what the Fifth Circuit ruled, but that was later overturned by the U.S. Supreme Court, which concluded that the lower court's test for sanity was too restrictive (despite the persuasive efforts of then-Solicitor General Ted Cruz to convince the court that an ill inmate's awareness that the state has a reason for carrying out an execution is enough to satisfy the constitution). The case went back to Sparks for another hearing and this time, aided in part by the content of "secret" recordings of conversations between Panetti and family members that demonstrated he had a complex understanding of his case, the judge ruled that although still seriously ill, Panetti was likely sane enough to die.

On Wednesday, the Fifth Circuit again agreed, ruling also that Panetti was afforded sufficient access to medical experts to present his case and that he was not entitled to relief based on a claim that Ables should have insisted that Panetti be represented by counsel at trial despite his desire to represent himself. In evidence before the court during the most recent hearing, in 2008, the court wrote, Panetti demonstrated "that he has thought about the death penalty and its moral and political implications, corroborating the State's experts' determination that he is capable of understanding the retributive connection between his crime and punishment."

Still, when, or whether, Panetti will ultimately be executed is unclear. Because competency is fluid, what may appear to be malingering today may in fact be madness tomorrow.

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