Nov 22, 2014

Death Penalty for the Mentally Ill: Scott Panetti

A Documented 30 Year History of Mental Illness:

Scott Panetti received his first diagnosis of schizophrenia in 1978 at the age of 20. Between 1981 and 1992, he was hospitalized 14 times at six different institutions for showing symptoms of psychosis characterized by tangential and circumstantial thinking, hallucinations, delusions, grandiosity, and paranoia. Extensive medical records chronicle these symptoms.

In 1986 Panetti experienced a psychotic episode during which he tried to "...wash the devil from the walls of his house" and buried the family's furniture in the backyard, believing the devil was in it. He nailed the curtains shut so that “the neighbors would not film him.” Shortly before the murders in September 1992 Sonja Alvarado tried to have him committed after he "...came after her with a knife". She took his guns to the local police but they simply returned them, claiming they had no legal right to prevent Panetti from having them.

At no point was there any suggestion that he is malingering or faking symptoms.

In July 1994 a competency hearing was scheduled to determine whether Panetti was fit to stand trial. In Texas, these hearings are held before a jury: in most other states a judge determines competency with input from psychiatric professionals. The jury was unable to come to a consensus, and the judge declared a mistrial. At a second competency hearing Panetti’s lawyer testified that in the previous two years he had had no useful communication with Panetti because of his client’s delusional thinking. A psychiatrist for the defense concluded that Panetti was not competent to stand trial; a psychiatrist for the prosecution agreed with the previous diagnoses of schizophrenia, and noted that Panetti’s delusional thinking could interfere with his ability to communicate with counsel. The same doctor reported that Panetti did not know what year it was and could not identify the president.
Yet he still concluded that Panetti was competent to stand trial, and the jury agreed.

At both competency hearings Panetti was medicated with large doses of antipsychotic drugs.

In 1995 Panetti experienced what he calls an “April Fool’s Day revelation”: he believed that God had cured his schizophrenia, and stopped taking his medications. He also became convinced that he could not trust his lawyers, whom he thought were conspiring with the police and the courts; after trying to fire them the judge apparently held no further competency hearing and allowed him to represent himself. When his trial began in September of that year court documents claim that his defense could be "...described charitably as bizarre"; in fact Scott Panetti conducted his defense dressed as a cowboy in a purple suit and a hat.
  •  He attempted to call more than 200 witnesses, including John F. Kennedy, the pope, Anne Bancroft, and Jesus Christ. (The last he later recanted: “Jesus Christ, he doesn’t need a subpoena. He’s right here with me, and we’ll get into that,” Panetti said in court.)
  • He interrogated one prospective jury member as to whether the person had any “Indian blood,” before launching into a tirade about an event he called “Wounded Elbow”—conflating the battle of Wounded Knee with something to do with the Ayatollah Khomeini. 
  • He cross-examined himself on the stand, addressing his alter ego “Sarge.”
  • He disposed of documents prepared for him by backup counsel, convinced that the prison guards were colluding against him. He presented no mitigating evidence.
  • The judge declined to accept crucial medical records because Panetti had drawn all over them. 
 A psychiatrist who had assessed Panetti prior to trial and witnessed the proceedings says Panetti was “acting out a role of an attorney as a facet of the mental illness, not a rational decision to represent himself at trial.” After less than two hours of deliberation, the jury found Panetti guilty of murder and recommended capital punishment. (Life without parole was unavailable in Texas at the time.) In post-conviction proceedings the judge determined that he was incompetent to waive counsel.

Panetti v. Quarterman:

In 2007 Panetti’s case went to the U.S. Supreme Court, which held that the 5th Circuit Court of Appeals’ standard for assessing his competency for execution was unconstitutional. In Panetti v. Quarterman (2007), the court emphasized that evaluating Panetti’s factual understanding of the meaning of his execution and its consequences was not sufficient in light of his severe mental illness. The objectives of capital punishment, the court wrote, are not served “if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of these concepts.”
Both the district court and the 5th Circuit ignored the court’s direction. Neither attempted to reconcile how a severely mentally ill man like Panetti, whose delusions and reality are so intertwined that he believes the judges and the State of Texas are conspiring with Satan to execute him, can possess a rational understanding of the connection between his crime and death sentence.

The District Court showed a fundamental misunderstanding of the nature of delusions when it found that Panetti’s delusions were not “constant,” citing an earlier visit between Panetti and his parents. Panetti’s parents would have no reason to “press his buttons” or place him under stress with challenging questions, unlike the experts who are tasked with evaluating competency. In any event, the district court overlooked evidence that Panetti did, in fact, speak of his delusions with his parents: he spoke repeatedly of his efforts to fulfill his destiny and bring the word of god to the men on death row. For example, Panetti called the trial judge in his case a “devil worshipper” and explained: “Some of (these Death Row inmates) are possessed with devils. They’re anti- Christian, Satanists. So that’s why I’m here to deal with that.”

On appeal the 5th Circuit upheld this limited understanding of competency for execution. Under the 5th Circuit’s view, if a court can single out any shred of evidence that appears to show a prisoner’s rational understanding of the reason for his punishment, his delusional belief system and decades of severe mental illness are simply irrelevant.

The state does not dispute that Panetti believes that he would be executed for saving souls on death row, not for murder. It cannot be said that such a prisoner has the capacity to accept responsibility for his crime. If he doesn’t have a rational understanding of the link between his crime and his execution, the death penalty fails to serve its purpose as a punishment.
The courts should listen to the doctors who study psychotic disorders. The district court and the 5th Circuit’s reasoning downplays Panetti’s severe mental illness and how his delusions control his mind.

Request for Clemency:

In October 2014,  a district judge signed a warrant setting Scott Panetti's execution date for December 3, 2014. Panetti’s attorneys only discovered this when they read it in the newspaper two weeks later; the office of District Attorney Bruce Curry did not notify them, as is the pattern and practice of capital law in Texas. Panetti’s attorneys might have used that time to attempt to save his life. Texas has been scheduling executions in 2015: they pushed Panetti’s ahead so it can happen in 2014.

Petitions from over 50 national evangelical leaders as well as former Congressman Dr. Ron Paul  are being submitted to the Texas Board of Pardons and Parole and State Governor Rick Perry requesting them to consider granting Scott Panetti’s clemency petition and commute his death sentence to life in prison. The petitions claim that:
"The execution of Scott Panetti would be a cruel injustice that would serve no constructive purpose whatsoever. When we inflict the harshest punishment on the severely mentally ill, whose culpability is greatly diminished by their debilitating conditions, we fail to respect their innate dignity as human beings."

The U.S. Supreme Court should take Panetti’s case and clarify a precise standard for determining a prisoner’s competency for execution. Current law has left the lower courts with unfettered discretion in determining which prisoners will be executed. If we want to live in a just, humane society, we cannot continue to fail to protect people with severe mental illness from execution.

Houston criminal attorney George Parnham is an expert on the defense of individuals with mental illness and a passionate advocate for legal reform of their treatment in the criminal justice system.

Attorneys for Scott Panetti appeal to the Texas Court of Criminal Appeals: TDACP
Massive Failures of Justice: Why Texas is about to execute a profoundly mentally ill man; Boer Deng and Dahlia Lithwick,
Evangelical letter of Support, Panetti clemency (.pdf)
Dr. Ron Paul clemency letter (.pdf)

Nov 3, 2014

Houston Criminal Attorney: Child Pornography Convictions

As computers have become a part of daily life, so have prosecutions involving the use of computers as a vehicle for child pornography. Otherwise innocent people may find themselves caught up in overzealous government investigations of internet sex crimes.
Internet sex crimes such as possession of child pornography or online solicitation make media headlines, especially when business owners, teachers, or other prominent citizens are facing these accusations. Using the internet to solicit sexual acts from a minor is an incredibly serious offense. Any sex crime charge, even if false, can be extremely damaging. That's why it's important to seek immediate and aggressive legal representation.

Some pornography web sites can install software on your computer or come looking for you without your knowledge, and can then send you to another web site containing potentially illegal content. In addition police officers often pose as minors and seek to entice visitors to Internet chat rooms. In many of these situations, there are several legal means by which to challenge the legality of the this process.

Federal law defines “child pornography” in 18 USC Section 2256(B) (8): as "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct."

In addition, the Texas Penal Code Section 43.26 states that a person commits an offense if "the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct; and... the person knows that the material depicts the child".

Strict child pornography laws are important in the fight to keep our children safe from predators and others who attempt to exploit their innocence for criminal purposes. But because the laws are overly broad, they often have the opposite result and can easily be used to convict innocent people.

One example is a fad among teenagers known as "sexting", which involves sending or receiving sexually explicit text messages or photos via cell phones. Although most people understand the difference between a teen's poor decision and an adult exploiting a child for sexual purposes, the law makes no such distinction; in fact, even if the minors consensually shared personal images, both the sender and receiver can end up in juvenile jail and be forced to register as sex offender for the rest of their lives. In addition to identifying the child to the public, sex offender registration will impact their ability to get a job, live in certain areas and travel freely throughout their adult life.

Another commonly held assumption by law enforcement is that if a pornographic file shows up on your computer, it must be yours. In reality, that isn't necessarily the case and with proper legal defense it can be difficult for the prosecution to prove that the file was yours.
In fact there are multiple ways for media to to be downloaded to a person's computer without their knowledge. One of the most obvious, of course, is simply for another user to download files on a shared hard disk drive. But with the expansion of the internet and related technology, especially P2P or file sharing software such as BitTorrent and Limewire, people are increasingly at risk of not only unintentionally downloading illegal materials but also sharing them over the P2P network. A common example is the downloading of multi-part file packages such as .zip, .rar or .7z. These are compressed directories containing multiple files, and although the downloader may only be interested in part of the content they seldom know exactly what the package contains. Additionally, files from anonymous sources may often be intentionally  mislabeled or misidentified.

Another possible means of unknowingly spreading or accepting illegal digital media is through computer viruses or hacking. Illegal "botnets" have become a serious internet issue and can be used to literally take over a computer without the owner's knowledge or consent.
When a user's computer is infected with certain types of malicious software, or "malware" -which may lurk in virtually any email, website or digital file- modules are installed which allow the computer to be surreptitiously controlled by a third party. These robot networks of infected computers, or "botnets" can then be directed to connect to IRC channels, download and disseminate files, send mass email messages (spam), or to repeatedly connect to a specific URL, instigating a denial of service (DDOS) attack. In some cases the hacker may even take command of peripheral devices such as a connected webcam, all without the knowledge of the computer's owner.

Serious issues are also connected with the way your computer records and stores the media files that your web browser encounters while you're surfing the internet. Unbeknownst to many people, older versions of  browser software such as Internet Explorer and Firefox can, by default, automatically download and save a copy of every media instance -digital photograph, "Flash" video, and graphic- that they encounter. These may include pop-up and pop-under advertisements that the user doesn't actually see. Although modern web browsers include better controls over what the user allows to be saved by default, they are often complicated to use and poorly documented. These images may stay in your browser history indefinitely without your knowledge.

One tool that a defense attorney may use in fighting child pornography charges is metadata- information attached to every digital file which can be used to trace its origin. .JPEG images, a popular file format,  usually contains a wide variety of information including the camera's make and model, focal and aperture information, timestamps and sometimes even GPS coordinates.

Internet crime cases are often highly complex and technical. The specific penalties that a defendant faces for a federal computer crime conviction will vary depending upon the particular offense: imprisonment may be a common denominator for all computer crimes, heavy fines and victim restitution are likely in a case involving fraud and sex offender registration is mandatory in a case involving child pornography.

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant’s needs. Contact Parnham & McWilliams today at (713) 224-3967 or click here for our convenient online submission form.
We will work tirelessly to ensure the best possible outcome for your case.