Update: 5th Circuit halts scheduled execution

Based on my specialized knowledge of this process, I now conclude that the death penalty as a form of punishment should be abolished because the execution of individuals does not appear to measurably advance the retribution and deterrence purposes served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty punishment option; and the risk of executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel. 

- Judge Tom Price, Texas Court of Criminal Appeals; Ex parte Panetti (No. WR-37,145-04)

Yesterday, just hours before he was scheduled to be murdered at the hands of the State of Texas, the Fifth Circuit Court of Appeals halted Scott Panetti's execution in order to review the legal claims made by his attorneys.

Last week the Texas Court of Criminal Appeals denied Mr. Panetti's writ seeking to halt the scheduled execution. Judge Tom Price, who is retiring from the bench at the end of this term, wrote a dissenting opinion in which he questioned the value of the death penalty. He said it served no penal purpose. He also expressed his reservations on the death penalty in light of the number of exonerations that have taken place over the past few years.

But Judge Price is a little bit late to the dinner table. If his concerns are enough to motivate him to question the legitimacy of the death penalty at the end of his time on the bench, where were those concerns when Mr. Panetti's case came before the Court on direct appeal and on prior writ applications? Where were those concerns when other inmate's lives were on the line?

The one question I can't seem to get out of my head is why on earth the trial judge would allow a diagnosed schizophrenic to fire his appointed counsel and proceed to trial pro se. Even if the initial decision could be justified, once it became apparent that Mr. Panetti hadn't the slightest clue as to what was going on, counsel should have been appointed. We're talking about a man's life here. This isn't about moving a docket along.

If we are going to continue to try to take away people's lives in the courtroom, then we damn well better be sure every procedure is followed and every protective measure is taken with regard to the accused. Anything less just shows us to be a bunch of ignorant rednecks holding a noose in the courtyard square.

Execution Watch: 12/3/2014

"[T]his has been like a slow-moving train wreck since 1995."  -- Kathryn Kase, attorney for Scott Panetti

On Wednesday night, the State of Texas will kill again...

SCOTT PANETTI. Convicted in the September 1992 shooting deaths of his in-laws inside their Fredericksburg home, Mr. Panetti told police it was his alter ego, Sarge, who committed the slayings. Mr. Panetti's previous execution date was put off by the Supreme Court, though the justices refused last month to hear his latest appeal, clearing the way for a new execution date to be set. He was diagnosed as schizophrenic and hospitalized multiple times in the 10 years leading up to the slayings. Mr. Panetti was allowed to represent himself at trial. He wore a purple cowboy outfit and called witnesses including John F. Kennedy and Jesus Christ. Mental health professionals who have evaluated Mr. Panetti say he believes the State of Texas wishes to kill him to prevent him from preaching the gospel.

For more information see:

"Can Ron Paul and conservative evangelicals save a Texas death row inmate?" Mother Jones (11/26/14)

"Texas execution of a severely mentally ill man would be an outrage," Los Angeles Times (11/29/14)

"Lawyers try to save 'delusional' death row murderer, 56, who tried to subpoena Jesus Christ and JFK at his trial, from Wednesday execution," Daily Mail (11/29/14)

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Unless a stay is issued, we'll broadcast live:

Wednesday, December 3, 2014, 6-7 PM Central Time

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Bill introduced to create a jail diversion program for the mentally ill

I've taken my shots at State Senator Joan Huffman (R-Houston) in the past for her attempts to weaken the rights of citizens accused by the government of committing criminal acts. Today is not one of those days.

On Wednesday, Sen. Huffman introduced a bill that would create a mental health jail diversion plan in Harris County. For those of y'all who don't know, the Harris County Jail is the state's largest provider of mental health services. It is estimated that a quarter of the inmate and detainee population receives some form of medication or treatment while in custody.

When Pat Lykos was elected District Attorney back in 2008 she said that the mentally ill don't belong in jail. She promised to create some type of program that would keep the mentally ill out of the revolving door at 1200 Baker Street. She was unsuccessful in her efforts.

The new DA, Mike Anderson, accused Ms. Lykos of being a softy when it came to crime. He said nothing during his campaign about stopping the warehousing of the mentally ill in the Harris County Jail. That kind of talk does nothing to warm the cockles of a wingnut's heart.

People who have mental illnesses get in trouble repeatedly because there is nowhere for them to turn to get treatment without money, insurance or a low number in the waiting list for county services. While they are in jail they are medicated. Some receive rudimentary treatment. But, once they get out of jail there is seldom anyone to make certain they take their medication. There is rarely anyone to make certain they attend aftercare programs. They are discharged and forgotten. Until the next time they're arrested, that is.

When discussing this issue we'll need to look past the question of whether a person suffering from a mental illness who isn't taking his medication is capable of forming the criminal intent to commit an illegal act. God knows we can't go there without opening a big can of worms. Suffice to say that there are a few folks in the criminal (in)justice system who have no business being caught up in the bureaucracy because they have a mental illness.

Of course the hype surrounding Sen. Huffman's proposed legislation is a bit over the top when you look at exactly what the legislation does (or purports to do). The bill authorizes the Department of State Health Services to design various pilot programs to divert the mentally ill from the Harris County Jail. The bill doesn't propose any funding other than the $32,650,000 that Harris County has promised to contribute every year.

The program, whatever it ends up being, will only serve between 500 and 600 people. Just to put that into perspective, the Harris County Jail system houses approximately 11,000 people and a quarter of those folks have some type of a mental illness - that works out to around 2,750 people. The pilot program - if ever instituted - would serve about 20% of the jail population.

The program would also be dependent upon public or private facilities accepting additional patients for whatever price the state is willing to pay. What happens if there are no new beds? What happens if no private caregiver wishes to participate? The county's mental health department (MHMRA) isn't equipped to handle an influx of new patients.

That being said, I am glad to see a politician in Texas willing to stand up and buck the "lock 'em all up" mob that populates the GOP.

The scourge of specialty courts

Anyone charged with a crime is entitled to their day in court. They are entitled to a trial by jury. They are entitled to confront the witnesses against them. They are entitled to put on evidence in their behalf. They are entitled to remain silent.

Upwards of 90% of cases in Harris County are resolved short of trial. The cases are either dismissed or the defendant enters into a plea bargain agreement with the state.

The cases are resolved because an investigation by both the state and defense either point out fatal flaws in the state's case or provide more than enough incentive for the defendant to cut his losses. Of course I am leaving out those cases in which defendants who couldn't make bail plead out in order to get out of jail - but that's another story for another day.

This traditional model in which a case is subjected to the crucible of truth in which two opposing advocates test the evidence presented to the court at trial.

None of this applies, however, if you find yourself in a specialty court - whether that be drug court, DWI court, mental health court or veteran's court. None of those courts is designed with the adversarial process in mind. The entire purpose of those courts is to get a defendant to enter into either a plea agreement or a pretrial diversion agreement and subject himself to monitoring for an extended period of time.

I'm sure courts for those with eating disorders or for those who wet the bed when they were little will be here before we know it.

Forget all about that crucible of truth. The only way a defendant in a specialty court gets relief is if he 'fesses up to what the state says he did. Everyone's part of the same team. We're all in this together, you know. Supposedly this is for the benefit of the defendant so he or she can seek treatment.

But, if someone needs treatment for a mental health or addiction issue, why are we using a sledgehammer (the courts) instead of a scalpel (professionals) to fix the problem? In the real world treatment works in fits and starts. Folks tend to fall off the wagon every now and then on their way to recovery. Those episodes should be treated for what they are - part of the recovery process - and not as a reason for the criminal (in)justice system to get involved.

If we are being honest with ourselves we will admit that you don't treat mental illness in the criminal courthouse - much like you wouldn't conduct surgery in the middle of the courtroom.

If the goal is to treat those folks with addictions so that they can overcome those addictions, then they need to be in rehab or a similar setting. They need counseling and support in order to beat back their demons. They don't need a judge holding a sword over their head. Fear is not a good motivator. The best motivator is a desire to kick the addictive behavior. Treatment works best when the patient is there because he or she decides it's what they need to do.

As for those with mental health problems, they need psychological or psychiatric help. But that therapy can only be successful if the patient wants it to be. A person seeking treatment because they have to is less likely to be successful than a patient who's there because he wants treatment. Besides, if a person has a mental health issue that's so severe they need to be transferred to a mental health caseload - then we probably have a problem with the requisite intent to commit the crime.

Maybe there is a noble purpose behind this growing trend of specialty courts - but the reality on the ground is that they subvert our criminal (in)justice system by depriving the accused of their rightful day in court.

Big brother on the couch

Daniele Canarelli is a psychiatrist in Marsailles. She deals with folks who have severe mental health issues on a daily basis. Joel Galliard is a paranoid schizophrenic who needed treatment.

Mr. Galliard became Dr. Canarelli's patient. Twenty days after leaving a session, Mr. Galliard killed German Trabuc with an axe. He was judged not responsible for his actions due to his mental illness and released under medical supervision.

But you know the story didn't end there. It's such an unsatisfactory ending when the person who did the deed is found to have not been responsible for his actions. There's a dead body. Somebody must be made to account for it.

And that someone was Dr. Canarelli. She was found guilty of involuntary homicide and sentenced to one year in prison. The sentence was suspended.

It is a fact that folks with severe mental illnesses can do things that shock the conscience. They can do things that are utterly unexpected. Once that person leaves a session there is nothing that a psychiatrist can do. Sure, you can prescribe medications. You can suggest certain behaviors to combat stressful situations. You can suggest that a patient be hospitalized.

The courts in France have stepped across a very dangerous threshold. The courts are the place for the law to be dispensed by those who are trained in it. The courts are not the place to second guess a doctor's treatment plan for a patient. Dr. Canarelli dealt with Mr. Galliard. Presumably he confided in her and she maintained his confidences. She made decisions based upon her diagnosis of Mr. Galliard's condition and her training in psychiatry. Maybe her treatment plan was wrong. And maybe the treatment plan failed because Mr. Galliard decided he didn't want to follow it.

While accepting that there was no such thing as "zero risk" in such cases and that doctors could not predict the actions of their patients, the court found that Canarelli had made several mistakes in Gaillard's treatment.

But now we have a court interjecting itself into the doctor-patient relationship and assigning criminal liability on a medical professional based on the actions of her patient. We don't need courts evaluating the treatment plans of psychiatrists. We don't need courts deciding whether or not a particular treatment plan was appropriate. We don't need courts deciding whether or not a physician should have done something else.

A legal system is good (just go with the analogy for a second) at trying to determine what happened and what penalty should be levied in the event that someone acted negligently or illegally. A legal system is not able to look into the future to determine what might happen.

A psychiatrist, on the other hand, must be able to get to the bottom of what happened in the past as well as be able to predict the future to a degree.

While a court takes what has already happened and tries to piece it together into a coherent narrative to determine how and why it happened, a psychiatrist must take what happened in the past and apply it to the present in order to make an educated guess at what might happen tomorrow - or the day after.

Maybe Dr. Canarelli was negligent in her treatment of Mr. Galliard. Maybe there were other courses of treatment she could have followed. But, if that's the case, she shouldn't be placed in the dock in a criminal court - she should have been defending herself in a wrongful death suit. Any errors she may have made fall under the heading of malpractice, not criminal behavior.

And now we have the specter of the state inserting itself in determining what type of care a doctor should provide her patient. What kind of an incentive is that going to give to psychiatrists in treating their patients?

Police kill double-amputee over a pen

He lost his right leg and right arm when he was hit by a train. He was confined to a wheelchair. He lived in a group home. He had some mental issues - some serious mental issues.

He got upset early the other morning because his caregiver wouldn't give him a cigarette. Naturally when he got upset someone called the police. And that's where things went wrong. Bad wrong.

Brian Claunch was waving a pen when the police arrived. Instead of determining whether Mr. Claunch was in need of medical attention the police escalated the situation and, when it was all over, Mr. Claunch was dead - in his wheelchair. Holding a pen.

It was bad enough when officers in Montgomery County managed to shoot a paraplegic to death in the cab of his truck, but it would appear that the good men of the Houston Police Department couldn't allow themselves to be outdone by their colleagues to the north.

I understand that the first rule of policing is to make it home safely at the end of the shift. But I also understand that a man waving a pen in a wheelchair is not a target worthy of hot lead in his chest.

The officer who killed Mr. Claunch claimed he was worried about his partner's safety. Really? Let's see. Mr. Claunch was missing an arm. He was waving a pen in one hand. His only hand. Just how was anyone in any danger?

The mind just wanders aimlessly trying to get a head around just what was going on in that home on Saturday morning. Whoever called 911 was aware that Mr. Claunch was emotionally disturbed. The caller was aware that he needed help - not a bullet.

The police are not equipped to handled mentally disturbed individuals. Nothing good ever comes of it. The mission of the police is to fight, and prevent, crime, not to provide mental health care. The police are used to be in charge. When an officer asks you to jump, the correct response is not why.

But, time and time again, the police find themselves dealing with someone who isn't in his or her right mind. A person who isn't going to ask how high; a person who either doesn't understand the question or has no way of answering it in a way that an officer wants.

These situations invariably end with someone being tased or shot because the officers involved were woefully unprepared or untrained to deal with the situation.

It's not Mr. Claunch's fault his brain isn't wired like ours. But he needed treatment and counseling, not the death penalty.

High court stays execution of mentally ill inmate

On Friday the Texas Court of Criminal Appeals did what a Brazos County state district judge was unwilling to do. It stayed the scheduled execution of Marcus Druery.

Mr. Druery was convicted of the 2002 murder of Skyyler Browne in Brazos County.

Earlier in the week, Mr. Druery's attorneys asked Judge J.D. Langley to stay the execution on the grounds that Mr. Druery was not competent to be executed due to his suffering from schizophrenia. Judge Langley quietly folded his hands, pinched the top of his nose, looked down at the attorneys, harumphed and said "no can do." (Okay, I made that part up.)

The question raised by Mr. Druery is whether it's cruel and unusual for the state to murder someone who has little understanding, due to a mental illness, that he is being killed.

Those in favor of the execution would argue that the only time a defendant's mental state is an issue is at trial - is he competent to stand trial and/or was he legally insane at the time of the offense. Whether he understands anything that's going on after his trial is not relevant to the plans of the state to murder him.

On the other hand, if the point in killing inmates is to punish the inmate and deter anyone else from acting in the same manner, does killing a man who can't grasp what's going on make any sense? If a person doesn't understand his life is being ended as punishment for killing another, is he really being punished?

We require a defendant to be aware of the reason he was arrested and why he's going on trial. We require that a defendant be capable of assisting his attorney in his defense. We require that a defendant entering a plea understand the legal rights that he is waiving. We require that the state prove the defendant possessed the appropriate mental state associated with the charged offense.

Where is it written that those due process safeguards vanish once a jury files back into the courtroom and pronounces guilt?

Execution Watch: 5/16/2012

The state that carries out more executions than any other state is ready to kill again...

ON WEDNESDAY NIGHT, TEXAS PLANS TO EXECUTE:

STEVEN STALEY, 49. Convicted of murdering a restaurant manager during a 1989 robbery in Fort Worth, Mr. Staley is a paranoid schizophrenic whose severe symptoms have caused three previous execution dates to be withdrawn on the grounds that he was too mentally ill to understand the real reason he was being put to death. Mr. Staley's mental incompetence is so frustrating to people who want his death sentence carried out, he has been the subject of a court order to be forcibly medicated in order to make him sane long enough to qualify for execution. His childhood included a father who was an acute alcoholic and a mother who was so mentally ill, she once tried to drive a stake through his chest and, on another occasion, tried to stab him with a butcher knife. Once doctor who evaluated Mr. Staley said his symptoms included hallucinations, paralysis, depression (sometimes to the point of being catatonic) and delusional thinking. The U.S. Supreme Court has not prohibited the execution of mentally ill people, but it bars the execution of anyone so mentally incompetent they do not understand why they are being put to death.

For more information on Mr. Staley, click here.

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