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October 30, 2014


I spent some 35 years in the practice of law in various jurisdictions with stints as a Deputy Attorney General, Deputy Prosecutor, special and/or pro tem judge, though never as an elected or appointed judge. Though long since retired, I receive pamphlets and invitations to seminars from bar associations to which I belonged years ago. I do not attend, instead contenting myself with blogging on issues found mostly at the intersection of economics and government, with occasional forays outside that parameter.

This is one such foray and was triggered by an article I read in a year-old Mother Jones magazine dealing with potential execution of criminal defendants who think they are God, Jesus Christ, victims of satanic plots etc. When and under what circumstances do you execute an ostensibly insane convict? Courts are far from uniform in answering this question, and the answers they adopt can result in lethal outcomes.

It occurred to me after reading this article that I have represented many criminal defendants, but never one I would consider to be crazy, though a few were (in my lay view) marginal. I recall that one, a stock broker whose state securities license I was called upon to defend against occasional charges of swindling, would sometimes wax biblical at lunches we shared. On one such occasion after ordering a hamburger and inspecting the small amount of meat on a large bun, he called the waitress back to our table, invited her to inspect the disparity in sizes between bun and hamburger, and loudly announced that “Man shall not live by bread alone.” Standing alone, it was a funny statement, but its loud and raucous delivery tainted its humor, leaving the waitress dumbfounded and fellow diners aghast.

Another such perhaps marginally insane defendant I represented (via federal court appointment for the indigent) was a five-time loser charged with burglarizing a rural bank. He was busy with his torch on the bank’s safe late at night when the county sheriff and several state troopers came on the scene. With the noise of the torch and his busy engagement, my client did not see or hear them. The sheriff, who had a sense of humor, tapped my client on his back and asked my burglar client as follows: “Good evening. It’s a bit late to be making a deposit, isn’t it?” My client, seeing that his goose was cooked, replied: “As a matter of fact, Sheriff, I was thinking about making a substantial withdrawal.”

That rather humorous interchange did not suggest that he was marginally insane. It was rather my subsequent discussion of alternatives with him. He told me he liked it in prison (where he was a cook), but his reasoning for such a preference was garbled and almost incoherent. I concluded nonetheless that his situation did not call for an insanity defense since he knew full well what he was doing AT THE TIME when torching the bank’s safe after hours.

Neither of these cases called for capital punishment, of course, and neither of my clients claimed or pretended to claim that he was God, Jesus Christ, or appointed by some higher entity to destroy communism, as some have done.

For instance, following a Supreme Court holding in 2007 that mentally ill convicts can be executed so long as they have a “rational understanding” of their sentence and the reason for it (a vague standard difficult to apply in my book), state courts have interpreted that language very broadly. Thus in Florida a paranoid schizophrenic named John Ferguson who killed eight people AFTER being released from a mental hospital in 1976 said he believed he’d been condemned to “prevent him from ascending to his rightful throne as the Prince of God” – a perch from which he believed he would save the United States from communism. (Look for the next homicidal nut case to substitute ISIS for communism.) In May of 2013 a federal appeals court refused to commute his sentence with one judge on the panel writing that Ferguson’s belief in an afterlife didn’t make him insane, adding that, “If it did mean that, most Americans would be mentally incompetent to be executed.” The Supreme Court declined review of the case, and Ferguson was executed in August of 2013. His last words were, “I am the Prince of God and I will rise again.” He hasn’t been spotted to date.

Others who are awaiting execution and have delusions of divinity include Michael Owen Perry, who murdered five family members, who believed he was a god and Olivia Newton-John was a goddess. He was condemned to death by one court in Louisiana before another court ruled that the state could not forcibly medicate him simply to make him rational enough for execution (an attempt by state authorities apparently designed to conform to the Supreme Court standard set forth above). Then there is Emanuel Kemp, Jr., who believed he was God, and therefore above punishment for a 1987 murder. He was found to be incompetent. Another murderer who was found to be incompetent (over the protests of then-Texas Solicitor General and now Senator Ted Cruz) is Scott Louis Panetti, who believes that his sentence for murdering his wife’s parents is part of a satanic plot to keep him from his divine mission to spread the word of God. Panetti caused a bit of a stir in the courtroom when he appeared dressed as a cowboy, represented himself and tried to subpoena Jesus, who did not appear at the hearing. Finally, there was Percy Levar Walton. Walton murdered three people in Virginia in 1996 and believed he was Jesus, Superman, a queen bee, “the King of Hearts,” and a caveman. His death sentence was commuted to life without parole in 2008. These four killers have survived but remain incarcerated.

Those who were executed in addition to John Ferguson include another Floridian, Thomas Harrison Provenzano, who believed he was Jesus Christ and whose lawyers argued that he was schizophrenic, which prompted one Florida legislator to quip, “Just crucify him.” He was duly executed in 2000, though by non-Roman means. Then, finally, there was Larry Robison, who was diagnosed as a paranoid schizophrenic three years BEFORE he murdered his roommate and four neighbors in an attempt to “find God.” He believed he had received biblical prophecies through a clock in his home. The clock has presumably kept on ticking. He hasn’t. Texas executed him in 2000.

I have a problem with the Supreme Court’s standard that mentally ill convicts can be executed “if they have a rational understanding of their sentence and the reason for it.” It seems to me that courts (composed of lawyers wearing robes) are not well positioned to make such determinations (even with expert testimony at their disposal) and that the standard speaks to post-crime punishment rather than to criminal culpability at the time the crime was committed (or before in the case of conspiracy and premeditation). I think (even with the cover of expert testimony) that courts cannot look inside the minds of addled criminals, but even if they could to some limited extent, that the standard employed for execution should revolve around the commission of the crime rather than an understanding of the punishment to be exacted by society. Left to my own devices, I would not vote to execute anyone who was certified to be mentally ill at the time of commission of the crime rather than at some subsequent point in time calling for an understanding of his/her sentence, but I wear no robe these days. GERALD  E


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