Debate renewed over executing the mentally ill

[finness]

State didn't prosecute man for earlier crimes

Staff

MIKE TOLSON

On a warm September afternoon almost a dozen years ago, Kelsey Patterson walked out of his East Texas home in Palestine with a .38-caliber pistol in his hand and a single purpose in his head.

He walked to an oil distribution company 100 yards or so from his front door and, without warning, shot its owner in the back of his head as he stood on a loading dock. When the man's secretary came out of the office to see what was going on, he shot her as well.

Then Patterson ambled back to his house, put down the gun, removed all of his clothes save for a pair of orange socks and stood in the middle of the street waiting for police to arrive. He later explained that he did not want the officers to think he still had a gun hidden in his clothing. He may have been crazy, but he wasn't stupid.

Patterson's reason for killing Louis Oates and Kay Harris was never understood, perhaps even to Patterson himself. The logic of the schizophrenic mind often is indecipherable. To anyone who knew him, however, the act was hardly surprising. He had shot two co-workers before without provocation and whacked another over the head with a 2-by-4.

On May 18, the state that never formally prosecuted him for the earlier assaults - everyone acknowledged that he was too seriously mentally ill to bother - is scheduled to execute him for the last one. This makes no sense to his attorney or to those who advocate for the mentally ill. They see in Patterson an example of a failed mental health system and a person too sick to have the same criminal culpability as a normal defendant.

"There are compelling reasons for not executing capital offenders who suffer debilitating mental illnesses that are similar to the reasons society will no longer tolerate the execution of the mentally retarded," attorney Gary Hart wrote on Patterson's behalf in a clemency petition to Gov. Rick Perry and the Board of Pardons and Paroles. "Execution of someone like Kelsey whose paranoid schizophrenia is severe and chronic serves neither the retributive nor the deterrent functions the death penalty was intended for."

Moreover, Hart added, but for the failure of the state's mental health and criminal justice systems to deal effectively with Patterson and his mental illness in previous years, he likely never would have killed Oates and Harris in the first place.

Warning signs

Patterson spent much of the two decades before the crime in and out of state mental hospitals.

Shortly before Patterson's deadly outburst, family members familiar with his tendency to spiral into violent behavior when he went off his medications said they tried to convince the local sheriff's department and mental health workers to do something about him, to no avail. Until he did something or threatened somebody, authorities told the family, there was nothing that could be done.

When he finally did something, it was so drastic that the district attorney decided to try to send him to death row so that the community would be forever protected. The capital murder prosecution was at the very least ironic, given that in one of his earlier assaults in Palestine the charges were dismissed because of his acutely psychotic state. Prosecutors were able to extract a promise that he would move to Dallas (where he later committed another assault).

Hart claims Patterson never should have been ruled competent to stand trial in the capital case. His behavior was so bizarre that he had to be removed from the courtroom at times. But the enduring irony of his final prosecution is that he may well have been legally sane at the time of the killings.

The legal standard requires only that prosecutors prove the defendant knew his action was wrong. If a defendant called the police after killing someone, as did Andrea Yates, or like Patterson simply expected them to arrive, that can be evidence enough to prove knowledge of wrongness.

That's one of the reasons many mental health advocates want the mentally ill to have some protected status when it comes to capital punishment.

Supreme Court

In 2001, the U.S. Supreme Court used the case of Atkins v. Virginia to reverse its earlier Penry decision and outlaw execution of the mentally retarded. The mental deficiencies of the retarded do not justify exempting them from criminal sanctions, the court concluded, but they do diminish their personal culpability.

Johnny Paul Penry was first convicted and sentenced to death in 1980 for the rape and slaying the year before of Pamela Moseley Carpenter, 22, in Livingston. In 1989, the U.S. Supreme Court overturned Penry's conviction and death sentence because the Texas court did not consider the evidence of mental retardation. Penry was tried and convicted again in 1990, and appealed a second time. The Supreme Court overturned his death sentence in 2001 because the district court in 1990 did not wait for the Texas Legislature to change state law so that jurors could consider evidence of mental retardation in capital murder cases. Penry was sentenced to death a third time in 2002. He remains on death row.

Mental health advocates argue the same reasoning should apply to mentally ill defendants.

"The logic of Atkins, that talks about how mental retardation adversely impacts cognition . . . certainly applies in some cases to people with mental illness, and almost certainly in this case, with someone who is delusional at best and whose cognitive abilities are clearly not normal," said Ron Honberg, legal director for the National Alliance for the Mentally Ill.

The difficulty in adopting an Atkins standard for the mentally ill, Honberg noted, comes from the difficulty in defining mental illness. If a diagnostic approach to defining it were used, some would argue that personality disorders, which apply to many prison inmates, including some of the most feared, would constitute a form of mental illness, Honberg said. Exempting sociopaths - think Ted Bundy or John Wayne Gacy - from the death penalty because of a personality disorder would never find public acceptance.

"There are so many different levels of mental illness that you can't exclude them all," said death penalty expert Dudley Sharp, a former policy analyst with the Houston-based victim rights organization Justice For All. "Is mental illness kleptomania? Depression? Antisocial behavior? Should they be excluded (from capital punishment)? No. The defense attorney can use that as mitigation in the punishment phase of the trial."

Honberg, however, said that mental illness is so little understood by most jurors, and so feared by many, that even bringing it up can invite harsher punishment, not lenience. Still, he recognizes that Sharp's opinion is widely held and that exempting the mentally ill from execution might be impossible to sell politically.

And for those hoping the U.S. Supreme Court will embrace the matter, he pointed out that one of the linchpin arguments of the prevailing justices in Atkins concerned an "evolving standard of decency." They recognized that many states had already passed legislation protecting the mentally retarded, indicating public opinion had shifted. There has been no such movement with respect to mental illness.

Renewed attention

But in the wake of Atkins, attention is beginning to fall on the condemned mentally ill. Patterson and Scott Panetti have been the subjects of lengthy reports by Amnesty International and brought the state unwelcome publicity.

Panetti had a long history of treatment for schizophrenia in Wisconsin and Texas before he killed his estranged wife's parents in Gillespie County in 1992, a few weeks before Patterson killed Oates and Harris. He was scheduled for execution in February before receiving a stay from a federal judge.

"This is an issue that the Supreme Court is going to have to revisit," said Michael Mello, a law professor at Vermont Law School and experienced capital murder lawyer. "I do believe the justices are going to see enough of those cases that they are going to reach a tipping point eventually, as they did in Atkins. Between Penry and Atkins, those justices let a lot of mentally retarded people be killed."

The state does not dispute that Patterson is delusional and has been so for years. His paranoia is so pervasive that he believes just about anyone connected to his case, including his own lawyers, is part of a vast conspiracy against him. He has claimed that local authorities in Palestine forced him to commit the murders by implanting medical devices in his brain.

As Hart tries to convince federal courts that he is not competent to be executed, Patterson continues to pen scores of incomprehensible letters to judges, lawyers, district clerks and the Anderson County district attorney insisting that they recognize his "amnesty rights." Just as he has for years, Patterson claims he has been given a permanent stay of execution by the Texas Court of Criminal Appeals based on actual innocence.

For his part, Patterson has insisted since he was first arrested that he is not mentally ill. He will not cooperate with mental health professionals assigned to evaluate him - even with his execution imminent - so convinced is he that they are part of the conspiracy to do him in.

[fergus51]

I'm surprised there is still debate over this issue. I don't understand why the mentally ill who commit crimes just can't be locked up for their safety and ours.

[finness]

It's appauling that we continue to cut federal and state funding to mental health organizations and outpatient facilities, only to funnel it back into the criminal justice system. According to NAMI, 65 percent of the national prision population of violent criminals suffers from some form of mental illness. I do NOT believe the debate will be over until politicians and taxpayers realize they are only spinning their tires. :angryfire

I'm surprised there is still debate over this issue. I don't understand why the mentally ill who commit crimes just can't be locked up for their safety and ours.