In a remarkable, and it turns out repeated, violation of the established pattern and practice of capital cases in Texas, it was discovered last week that Kerr County District Attorney Bruce Curry had once again failed to notify defense attorneys that the state had sought and received an execution date for their client–in this case, Scott Louis Panetti, a severely mentally ill Texas inmate now scheduled to be killed on December 3rd.

The failure to notify defense counsel, and the resulting harm to Panetti’s ability to appeal his competency to be executed, adds yet another wrinkle to this already storied case, which reached the Supreme Court back in 2007, and established new case law on the limits to the execution of the mentally ill.

Attorneys Greg Wiercioch and Kathryn Kase only learned that Panetti had been assigned an execution date through the media. The Houston Chronicle ran this small item on October 30th.  It was a three paragraph story updating the schedule of executions for the remainder of 2014.  Their discovery of the impending date came a full two weeks after a judge’s October 16th warrant had given the state the go-ahead to execute Panetti, and longer still since Curry had made his request.

Under Texas law, a court’s determination that an inmate is competent to be executed is subject to review only if an appeal is filed more than twenty days before an execution.  Panetti was last evaluated for competency seven years ago.  This is a man who, before going to prison, was hospitalized fourteen times for mental illness, diagnosed with paranoid schizophrenia, delusions, and hallucinations, and famously represented himself at trial wearing a cowboy costume and purple bandana.  He subpoenaed Jesus Christ and JFK to testify on his behalf.  It is undisputed that he is severally mentally ill.

By filing for an execution warrant without notifying Panetti’s lawyers, Curry not only failed to perform the basic lawyerly task of alerting opposing counsel of motions or requests to the court.  It appears he deliberately compromised the ability of Panetti’s defense to make a showing of his incompetency to be executed under the standard that Panetti’s own Supreme court case made into federal law.

According to Kathryn Kase, Panetti’s attorney, “every other district attorney in the State of Texas advises defense counsel that an execution date will be sought.”  More damning still, it turns out this isn’t the first time Curry has done this in the case of a mentally impaired death row inmate, and with the most serious of consequences.

A Repeated Failure

In December 2013, attorneys for Ramiro Hernandez, a death row inmate also in Kerr County, who was a Mexican national with an IQ below 70, filed a cert petition asking for review of his case on Atkins grounds that mental retardation barred his execution, particularly in light of the Supreme Court’s then pending case of Hall v. Florida, in which the Court was due to clarify the application of Atkins in cases of defendants at or near the threshold of mental retardation.

That same month, District Attorney Curry applied for and obtained an execution warrant for Hernandez, and the court set a date in April 2014.  But Curry failed to notify Hernandez’s defense counsel, Shari Lynn Johnson, about either the warrant application, or the fact that it had been granted.  Indeed, according to Johnson’s subsequent letter to the court, she learned of the scheduled execution a month later “from an employee of the Mexican consulate in Houston…The consular official who notified us learned about the date by chance while looking for information about a different case on the Texas Department of Criminal Justice’s website.”

Six weeks of time for appeal had been lost.  On April 9, 2014, Hernandez was executed.  The following month, the Supreme Court decided Hall v. Florida, holding that “[a] state that ignores the inherent imprecision of these [IQ] tests risks exe­cuting a person who suffers from intellectual disability,” and requiring a multi-factorial analysis of mental impairment before allowing executions of mentally impaired defendants.  We will never know what the result of Hernandez’s appeal on Hall grounds would have been, because he was killed five weeks before the decision came down.

An Even Tighter Time Frame

In the Hernandez case, Curry’s lack of notice to the defense left his attorneys with a little over two months to pursue their final appeals.  In the Panetti case, however, his attorneys will now have one week to file a claim of incompetency that is reviewable (for a complete account of the position they now find themselves in, you can read their motion requesting a withdrawal of the execution warrant here).

Often at the Open File, we write about prosecutors hiding evidence, or failing to disclose deals they’ve made with witnesses—cases that clearly violate court rules, legal decisions, and constitutional rights.

What the Kerr County District Attorney is doing in the case of Scott Louis Panetti is neither of these things.  Indeed, the statutory law of Texas does not explicitly require the prosecution to notify the defense of the effort to obtain an execution date.  Bruce Curry isn’t breaking the law.  What he is doing instead is violating those bare modicums of professional decency that even his fellow prosecutors who seek the death penalty in Texas manage to uphold.  He is violating the spirit of his profession, if not the letter of it.  And he is doing it in an effort to kill a deeply mentally ill man.

For such behavior, the only possible accountability is to make sure he isn’t allowed to do his work in the dark.

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