Texas Department of Criminal Justice

Texas Attorney General Media Advisory

Austin – Texas Attorney General Greg Abbott offers the following information on 50-year-old Kelsey Patterson, who is scheduled to be executed after 6 p.m. on Tuesday, May 18, 2004: In July 1993, Kelsey Patterson was sentenced to die for fatally shooting Louis Oates and Dorothy Harris in Palestine, TX, the prior year. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

At about 3 p.m. on September 25, 1992, Patterson walked out of his home in Palestine with a .38-caliber pistol in his hand. He walked to Oates Oil Company about a block away from his home and, without warning, shot its owner, Louis Oates, in the head. Oates fell to the ground in front of the loading dock and Patterson walked away. Oates’ secretary, Dorothy Harris, walked out of her office onto the loading dock, saw Oates’ body lying on the ground, and began screaming. Patterson returned and shot Harris.

Then Patterson walked back to his house, put down the gun, removed all his clothing and began walking up and down the street in front of his home. Police arrived a short time late and arrested Patterson for his involvement in the double murder.

PROCEDURAL HISTORY

Sept. 25, 1992 — Patterson arrested for murders of Louis Oates and Dorothy Harris.
Oct. 16, 1992 — Patterson indicted for capital murder in Anderson County.
June 1993 — An Anderson County jury finds Patterson competent to stand trial.
July 1, 1993 — An Anderson County jury finds Patterson guilty of capital murder and assesses a death sentence.
Nov. 29, 1995 — Texas Court of Criminal Appeals affirms Patterson’s conviction and sentence on direct appeal.
Dec. 8-9, 1997 — State habeas trial court, after granting Patterson funds to retain mental health expert, conducts evidentiary hearing concerning several of Patterson’s claims, including claim that he is incompetent to be executed.
Mar. 10, 1998 — State habeas trial court issues findings of fact and conclusions of law and recommends denial of habeas corpus relief.
May 13, 1998 — Texas Court of Criminal Appeals denies habeas corpus relief.
1998 — Patterson files petition for writ of habeas corpus in federal district court. Federal district court, after appointing independent mental health expert and granting Patterson funds to retain a partisan expert, conducts two evidentiary hearings concerning Patterson’s claim that he is incompetent to be executed.
Jan. 22, 2001 — U.S. District Judge Paul Brown denies Patterson’s request for habeas corpus relief.
May 23, 2003 — 5th U.S. Circuit Court of Appeals affirms district court’s denial of habeas relief.
Nov. 10, 2003 — U.S. Supreme Court denies certiorari review.
Dec. 23, 2003 — State trial court schedules Patterson’s execution for May 18, 2004
Jan. 28, 2004 — Patterson files motion to determine his competency for execution.
Mar. 26, 2004 — State trial court conducts hearing on Patterson’s Article 46.05 motion.
Mar. 31, 2004 — State trial court concludes Patterson failed to raise substantial doubt regarding his competency.
April 2004 — Patterson files petition for writ of certiorari in the U.S. Supreme Court, which remains pending.
April 2004 — Patterson files petition for writ of habeas corpus in U.S. District Court, Eastern District of Texas.
May 11, 2004— A U.S. district court denies Patterson’s request for a stay of execution.

PRIOR CRIMINAL HISTORY

On May 7, 1980, Patterson shot Richard Lane twice without provocation while they were working together at a Dallas hospital; Lane survived the incident. Patterson did not stand trial for the shooting because he was found mentally incompetent. On November 20, 1983, Patterson shot Kevin Hughes in the arm and chest without provocation while they were working together at a Palestine restaurant; Hughes survived the incident. Patterson did not stand trial for the shooting because he was found mentally incompetent.

ProDeathPenalty.com

A 49-year-old former Palestine man who has spent the past 10 years on Texas Death Row for a 1992 double murder has been scheduled to die in May. Kelsey Patterson, 49, is set to be put to death May 18 at the Texas Department of Criminal Justice's Walls Unit in Huntsville for murdering a local Texaco distributor and his secretary on Sept. 25, 1992. Patterson, who has been diagnosed by some mental health professionals as paranoid schizophrenic, has referred to court officials as "hell workers" during past court proceedings, while also complaining of "remote control devices" inside his body. Authorities have said Patterson shot Oates twice from point-blank range in the yard of the victim's West Reagan Street business. According to testimony in the man's 1993 Anderson County trial, Patterson then halted his escape and returned to shoot Harris who had walked outside and screamed at the sight of Oates laying helplessly on the ground. Oates was pronounced dead at the scene, while Harris died the following day at a Tyler hospital. Patterson's death sentence has been upheld by the Texas Court of Criminal Appeals, while the defendant's federal writ of habeas corpus also was denied last November.

UPDATE: A local district judge has denied a motion made by attorneys representing death row inmate Kelsey Patterson, keeping the former Palestine man's execution on schedule for May. Patterson's Austin-based attorneys, Gary Hart and Robin Norris, had filed a motion on behalf of their client, asking that 2 mental health experts be appointed to examine the convicted capital murderer. Patterson has previously been found competent to stand execution. The 50-year-old Patterson is scheduled to be put to death by lethal injection May 18 in Huntsville for the 1992 capital murders of local Texaco distributor, Louis Oates, and his secretary, Dorothy "Kay" Harris. 87th State District Judge Deborah Oakes Evans heard arguments by attorneys representing both sides and then took the matter under "advisement," telling the parties she would rule by early this week. In a brief letter, Evans informed attorneys she had denied the motion for the appointment of two experts, concluding "the Defendant has failed to raise a substantial doubt of the Defendant's competency to be executed."

Hart argued that Patterson, who has been diagnosed as paranoid schizophrenic, has been unable to assist them in his defense and "has had a long history of...delusional statements." In the past Patterson has spoken of "remote control devices" inside his body and referred to court officials as "hell workers." Sue Korioth, a special prosecutor from Dallas, represented the state along with Anderson County District Attorney Doug Lowe during Friday's hearing. Korioth argued that the standard for mental competency to be executed is "lower, by far" than the same standard to stand trial. "Mental illness does not equal incompetency to be executed," Korioth argued. "Many of these defendants are mentally ill, but still competent to be executed." Lowe was out-of-town this morning and unavailable for comment on the court's ruling. Had the court granted the defendant's motion to appoint mental health experts, Patterson's execution would have likely been delayed. Testimony in Patterson's 1993 trial showed that he shot Oates twice from point-blank range in the yard of the victim's West Reagan Street business and then halted his escape to return to shoot Harris who had emerged from inside the business.

Texas Execution Information Center by David Carson.

Kelsey Patterson, 50, was executed by lethal injection on 18 May 2004 in Huntsville, Texas for the murder of two people.

On 25 September 1992, Patterson, then 38, walked out of his home in Palestine to Oates Oil Company, which was about a block away. The owner, Louis Oates, 63, was standing on his loading dock when Patterson walked up behind him and shot him with a .38-caliber pistol. After shooting Oates, Patterson began walking away. Dorothy Harris, Oates' secretary, walked out of her office and onto the loading dock, saw Oates' body lying on the ground, and began screaming. Patterson returned and shot Harris, 41, in the head. Patterson then walked back home, told his roommate what he had done, laid down his weapon, and removed all of his clothing except his socks. When the police arrived, he was walking up and down the street, naked. He later explained that he removed his clothes because did not want police to think he was hiding a gun.

Patterson had been previously involved in two shootings. In May 1980, Patterson shot Richard Lane, a co-worker, for no apparent reason. In 1983, he shot another co-worker, Kevin Hughes, again for no apparent reason. On both occasions, Patterson was found incompetent to stand trial and was sent to a state mental hospital. He was diagnosed with paranoid schizophrenia. After receiving treatment and having his competency restored, the charges in both cases were dismissed because he was insane at the time of the shootings. Patterson was again admitted to a state mental hospital in 1988 after threatening his family. He was treated and released.

In pre-trial procedures for the double murder of Oates and Harris, a psychiatric expert examined Patterson and, testifying for the defense, declared him to be sane at the time of the murders and competent to stand trial. The jury also found Patterson competent to stand trial. During both his competency hearing and his trial, Patterson testified that his actions were being remotely controlled via electronic devices implanted in him by his lawyers. He frequently complained about his lawyers and told them to "shut up." He was removed from the courtroom on several occasions for his disruptive outbursts.

Patterson had no prior felony convictions. He had misdemeanor convictions in 1985-86 for assault, carrying a weapon, and marijuana possession. A jury convicted Patterson of capital murder in July 1993 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in November 1995.

Most of Patterson's appeals questioned his competency to be executed because of his mental condition. A state appeals court held an evidentiary hearing on Patterson's competency claims in December 1997. The state court found that, although Patterson harbored delusions regarding implanted devices, he was capable of following rules, refraining from disruptive behavior, and communicating with his attorneys "when he chose to," and ruled him to be mentally competent. The court also found that Patterson's delusion of being under a "Hell pledge," meaning that he believed that the judges, prosecutors, and defense attorneys involved in his case were all conspirators from Hell, arose only after the murders were committed. The state court's decision was affirmed by the Court of Criminal Appeals in May 1998.

Patterson's lawyer then raised the competency claim in federal court. In January 2001, a U.S. district judge declared Patterson mentally competent. The U.S. Fifth Circuit Court of Appeals affirmed that decision in May 2003. In summary, all of Patterson's appeals were denied, including those based on other claims.

Under the law, a condemned prisoner is considered to be competent to be executed if he understands his crime and understands that he is going to be put to death. Patterson's lawyer, Gary Hart, told a reporter that his client was legally incompetent. He said that Patterson believed that the Hell court had granted him a full pardon, and was not aware that he was going to be executed. Hart said that Patterson had refused to speak with him for over seven years because he did not understand Hell law. A lawyer from the Texas attorney general's office cited Patterson's frequent verbal and written claims of having received a stay of execution as evidence that Patterson understood his punishment.

On the day before his execution, the Fifth Circuit Court of Appeals rejected another appeal filed by Hart. However, the Texas Board of Pardons and Paroles, in a 5-1 vote, recommended to the governor that Patterson's sentence be commuted to life in prison. On the day of the execution, both the U.S. Supreme Court and Governor Rick Perry declined to grant a stay. "State and federal courts have reviewed this case no fewer than ten times, examining his claims of mental illness and competency, as well as various other legal issues," Perry said in a statement. "In the interest of justice and public safety, I am denying the defendant's request for clemency and a stay."

A prison spokesperson said that Patterson refused to complete paperwork associated with the execution, such as choosing a last meal or selecting witnesses. She said that a tray of sandwiches and cookies was made available to him, and he accepted a candy bar and soft drink.

"Murderer ... no kin, no kin," Patterson mumbled while witnesses were entering the death chamber. "I'm not guilty of the charge of capital murder ... acquitted by the Court of Criminal Appeals." When the warden Patterson asked if he had a last statement, he replied "Statement to what? Statement to what?" He then rambled, "I'm not guilty of the charge of capital murder ... They're doing this to steal my money. My truth will always be my truth. No kin to you ... undertaker ... murderer. Go to Hell. Get my money. Give me my rights." After two minutes, the warden signaled for the lethal injection to be started. Patterson was pronounced dead at 6:20 p.m.

Patterson's case is only the third time since executions resumed in Texas in 1982 that the Board of Pardons and Paroles has recommended clemency to the governor. It is the first time that a governor has declined such a recommendation. Perry's decision was criticized by Patterson's lawyer and by mental health advocacy organizations, but friends and relatives of the two victims called it courageous.

Dallas Morning News

"Perry rejects board opinion; killer executed; Pardons, parole panel wanted clemency for schizophrenic," by Diane Jennings." (05/18/04)

Huntsville - Rejecting a state board's unusual recommendation for a stay, Gov. Rick Perry allowed the execution Tuesday evening of death-row inmate Kelsey Patterson, a diagnosed paranoid schizophrenic.

The Texas Board of Pardons and Paroles had voted 5-1 Monday to recommend that Mr. Patterson's sentence be commuted to life or that the governor grant a 120-day reprieve. Mr. Patterson's attorneys had argued that he suffers from mental illness and should not be executed. Ninety minutes before the execution was to occur, Mr. Perry declined to intervene. Mr. Patterson was sentenced to death for the 1992 killings of Dorothy Harris and Louis Oates in Palestine.

In a prepared statement, Mr. Perry said he denied commutation or a stay because none of the courts that reviewed the case found any reason Mr. Patterson should not be executed.

Mr. Perry said one reason he denied clemency was because "the defendant is a very violent individual. Texas has no life without parole sentencing option, and no one can guarantee this defendant would never be freed to commit other crimes were his sentence commuted."

As the warden leaned over him and asked if he had a final statement, Mr. Patterson responded, "Statement to what? Statement to what? I'm not guilty of the charge of capital murder." Mr. Patterson continued to ramble, asking repeatedly for his rights. At one point, he said, "Go to hell." And as he was saying, "Give me my life back," the lethal drugs took effect. Mr. Patterson gasped several times and took a deep breath. Nine minutes later, at 6:20 p.m., he was pronounced dead.

J. Gary Hart, Mr. Patterson's attorney, said he was outraged by the governor's actions. "I'm disappointed, I'm angry." Michele Smith, whose mother, Dorothy Harris, was killed by Mr. Patterson, sobbed to reporters after watching the execution. "I want to especially thank the governor for giving me a chance to start again and have an end to such a horrible time in my life," she said. "I started the day off very pessimistic, but it ended as I prayed it would."

Mr. Perry's decision to reject the Pardons and Paroles Board's recommendation – only the fourth such decision in the last six years – was greeted with dismay by death-penalty opponents and mental-health advocates and with approval by death-penalty supporters. "It's a sad day for Texas," said Genevieve Tarlton Hearon, executive director of Capacity for Justice, a nonprofit organization dedicated to those who suffer from mental illness. "I'm sick, I'm just crushed," she said. "Because if clemency cannot occur for this individual, then the possibility for it for any Texan is dim."

Dianne Clements of Justice for All, a criminal justice reform organization in Houston, said she was relieved by the decision and applauded the governor. "He did exactly the right thing," she said. Ms. Clements said she was disturbed not by Mr. Perry's decision, but by the board's recommendation.

The U.S. Supreme Court prohibits executing the insane and the mentally retarded, but not the mentally ill. If an inmate understands why he has been sentenced to death and that he is facing execution, he is eligible for execution. Prosecutors argued that Mr. Patterson met both criteria. "I don't think there's a dispute about him being diagnosed as paranoid schizophrenic," Anderson County District Attorney Doug Lowe said. "But that doesn't mean a person isn't accountable for what they do."

Clemency had been sought on Mr. Patterson's behalf not only by death-penalty opponents but also by 33 advocacy organizations for mental-health issues. Before his capital trial, Mr. Patterson had been ruled incompetent in two other nonfatal shooting cases – one in Dallas in 1980, the other in Palestine in 1983.

Mr. Patterson shot Mr. Oates, owner of an oil company, while he was standing on the company loading dock. When Ms. Harris, a secretary began screaming, Mr. Patterson shot her, too. Afterward, he returned home, undressed and was arrested while walking naked in front of his house. During his trial he talked frequently about being controlled by "remote control devices" and "implants."

Mr. Patterson's attorney, Mr. Hart, said public safety wasn't an issue, because if his client's sentence had been commuted to life, he would have been imprisoned at least 28 more years before eligibility for parole. "That would make him 78 years old," he said. "Not only that, but the parole board's in charge" – meaning authorities would need to vote to release Mr. Patterson. The message from Mr. Perry's statement is: "That this is a mad dog, and we have to take him out and shoot him because it's the only way to handle it," Mr. Hart said.

Commutations are relatively rare in Texas, but the Board of Pardons and Paroles has recommended three this year. In March, Mr. Perry granted a commutation to life for Robert Smith after prosecutors and defense attorneys agreed he was mentally retarded. Another commutation recommendation came in January in the case of Joe Lee Guy, who was a lookout but did not kill anyone in a 1993 robbery and murder in Hale County. Mr. Perry has yet to rule on that recommendation. Mr. Guy does not have an execution date.

Fort Worth Star-Telegram

"Mentally ill inmate executed after Perry rejects request," by Michael Graczyk. (AP May 18, 2004)

HUNTSVILLE - A mentally ill convicted killer was executed Tuesday evening after Gov. Rick Perry rejected a rare recommendation from the state parole board that the prisoner's sentence be commuted to life or the punishment be delayed. Kelsey Patterson, 50, also lost an appeal to the U.S. Supreme Court in the hour before he received lethal injection.

Strapped to the death chamber gurney, Patterson mumbled, "No kin, no kin, no kin. I'm not guilty of a charge of capital murder. Give me my rights. I'm acquitted of capital murder." As the warden leaned over him and asked if he had a final statement, Patterson responded, "Statement to what? Statement to what? I'm not guilty of the charge of capital murder." Patterson continued to ramble, asking repeatedly for his rights. At one point, he said, "Go to hell." And as he was saying "Give me my life back," the lethal drugs took effect. Patterson gasped several times and took a deep breath. Nine minutes later at 6:20 p.m., he was pronounced dead.

Patterson, a diagnosed paranoid schizophrenic, was condemned for a double slaying in Palestine in East Texas almost 12 years ago. In a 5-1 vote, the Texas Board of Pardons and Paroles endorsed a petition from Patterson's lawyers and supporters that he be spared. Texas resumed carrying out executions in 1982, and Monday's board action marked the first time at this late stage in a condemned inmate's case the panel recommended the governor commute a death sentence.

"State and federal courts have reviewed this case no fewer than 10 times, examining his claims of mental illness and competency, as well as various other legal issues," Perry said in a statement less than an hour before Patterson's scheduled execution time. "In each instance the courts have determined there is no legal bar to his execution. "This defendant is a very violent individual. Texas has no life without parole sentencing option, and no one can guarantee this defendant would never be freed to commit other crimes were his sentence commuted. In the interests of justice and public safety, I am denying the defendant's request for clemency and a stay."

"I want to especially thank the governor for giving me a chance to start again and have an end to such a horrible time in my life," Michele Smith, whose mother was killed by Patterson, sobbed to reporters after watching the execution. "I started the day off very pessimistic, but it ended as I prayed it would."

Although Patterson made no meal request, a tray of sandwiches and cookies was available to him before his execution, and he was offered and accepted a candy bar and a soft drink. He earlier had refused to complete paperwork associated with an execution, like picking a last meal or selecting witnesses. "He denied to the warden that he's ever going to be executed," said J. Gary Hart, Patterson's lawyer.

Hart had cited Patterson's actions as another reason why the prisoner was mentally incompetent and should not be put to death. He said he was outraged by the punishment. "I don't even know what to think about this," he told The Associated Press. "I guess I was surprised because I didn't see what the downside would be for him to follow the recommendation of the parole board."

Patterson was condemned for the 1992 shootings of Dorthy Harris, 41, a secretary at an oil company office in Palestine, and her boss, Louis Oates, 63. Throughout his trial, outbursts earned Patterson repeated expulsions from the courtroom. He frequently talked about "remote control devices" and "implants" that controlled him. While on death row, he told people and wrote nearly incomprehensible letters to courts about having amnesty and a permanent stay of execution.

The U.S. Supreme Court has ruled it's unconstitutional to execute someone who is mentally retarded, but has not extended the same protection to those claiming mental illness. However, the high court in a 1986 ruling regarding insanity and the death penalty said an inmate may not be executed if he doesn't know why he's on death row and the punishment he faces. Lawyers from the Texas attorney general's office, opposing appeals by Patterson's attorneys to halt the punishment, cited Patterson's references to stays of execution as indicating the prisoner had an awareness of his punishment.

Evidence showed Patterson left his home in Palestine, about 100 miles southeast of Dallas, and walked about a block to where Oates was standing on a loading dock at his business. Patterson walked up behind him, shot him in the head with a .38-caliber pistol and started walking away. When Harris saw the scene and began screaming, Patterson grabbed her and shot her in the head. Then he went home, took off his clothes except for socks, and was arrested walking on the street in front of his home. In 1980 in Dallas and in 1983 in Palestine, Patterson was ruled mentally incompetent to stand trial on charges related to nonfatal shootings.

In March, Perry for the first time since taking office in 2000 commuted the death sentence of a prisoner. The inmate is mentally retarded and was not within hours of a scheduled execution. In 1998, four days before former self-confessed serial killer Henry Lee Lucas was to die, then-Gov. George W. Bush commuted Lucas after questions were raised about his conviction. It was the only death sentence commuted by Bush in his six years in office when 152 executions were carried out.

Palestine Herald

"Daughter recalls loss of mother," by Paul Stone. (AP May 16, 2004)

HUNTSVILLE, Texas — Holidays are especially difficult for Michele Smith, the only child of Dorthy "Kay" Harris who was murdered almost a dozen years ago at age 41 by a Palestine man. Smith misses her mother's voice; longs for her advice; and can only wish her own children, Beth and Alicia, had grown up with the influence of the woman who helped shape her life.

On Tuesday, Smith will travel to Huntsville to witness the scheduled execution of Kelsey Patterson who shot and killed Harris and local Texaco distributor Louis Oates in the yard of the latter's business on Sept. 25, 1992. Patterson's attorneys have filed a clemency petition with the Texas Board of Pardons and Paroles. A vote by the 18-member board is expected Monday. If that petition is denied and the courts fail to intervene, Patterson, who is now 50, would be the ninth Texas Death Row offender executed this year.

Smith, who was 20 at the time of her mother's murder, has learned to live with the setbacks of a capital system which victims sometimes decry as geared to protect rather than punish the perpretrator. "Once you go to the trial and hear the verdict, you think it's over," Smith said in an interview with the Herald-Press last week. "But it's just the beginning."

Smith has been prepped and coached by Renee Moore, the crime victims' coordinator for the Anderson County district attorney's office, and others and realizes the man who murdered her mother - a woman he did not even know - could live to see Wednesday. Patterson's attorneys have consistently argued that their client is mentally incompetent to be executed under state law, and the case has recently attracted some statewide media coverage, including a front page story in the Houston Chronicle. Amnesty International, a world organization that opposes the death penalty, has also recently given attention to Patterson's case.

"I don't know how I'll deal with things if next Tuesday doesn't go as planned," Smith said. "After waiting for 12 years and you get this close, it's hard to have another disappointment. They seem to be bigger and bigger disappointments." Smith laments the grandmotherly things her mother never got to experience - watching the girls graduate from kindergarten; being there as Beth moved on to middle school; and seeing the grandkids in their Girl Scout uniforms. "Beth (who was 18 months old at the time of her grandmother's death) had just learned to say Nana a few weeks before she died," Smith remembered. "As a grandparent, that's a milestone."

Last weekend - as children of all ages both young and old were celebrating moms throughout the world - Smith, along with her husband and two children, went to visit her mother's gravesite at a country cemetery outside of Palestine. "I don't really have words," Smith said when asked about the void left by such a loss. "I can tell you that especially like Mother's Day and things like that - holidays in general - it's been compounded by delays of the justice system, having to wait for almost 12 years. It's eternity."

As a wife and mother of two young girls, Smith has plenty to keep up without having "to take time out of my life" to drop by the Anderson County district attorney's office to make certain there have been no changes in Patterson's case. "That doesn't seem fair," Smith said. Smith saw Patterson in an Anderson County state district courtroom earlier this spring when he was here for a hearing. When she looked at her mother's killer, Smith said she saw a man who has made the natural transition from his late 30s to turning 50. "It's hard to see him and see that he is aging because he doesn't show any punishment," Smith said. "He just shows life. I don't see where 12 years of prison has punished him or lessened him as a person."

Smith indicated Tuesday's execution will help her turn a page in the chapters of her life. "For you to actually heal from something, it has to be completely over," Smith said. "Until he's executed, it won't be completely over."

Palestine Herald

"Governor yet to make a decision on Patterson," by Paul Stone. (05-18-04)

Texas Gov. Rick Perry continued late this morning to review a pair of recommendations made Monday by the Texas Board of Pardons and Paroles regarding today's scheduled execution of a Palestine man. Late Monday afternoon, the Texas Board of Pardons and Paroles voted, 5-1, to recommend that the death sentence of 50-year-old Kelsey Patterson be commuted to "a lesser sentence," while also recommending that the offender receive a 120-day reprieve.

Patterson is scheduled to be put to death sometime after 6 p.m. today in Huntsville for the 1992 Palestine murders of former Texaco distributor Louis Oates, 63, and his secretary, 41-year-old Dorthy "Kay" Harris.

This morning Perry was reviewing the board's recommendations, but no timetable had been set for his decision, according to Kathy Walt, a spokesperson for the governor. "The case is under review," Walt told the Herald-Press shortly after 8:30 a.m. today. "There is no special timetable by which the governor will make a decision."

Some veteran observers of the death penalty process in Texas have referred to the board's recommendation of a commutation of Patterson's sentence as virtually unprecedented at this late stage. Texas Department of Criminal Justice officials, meanwhile, were proceeding as if Patterson's execution will take place as scheduled. "Even though the parole board has made a recommendation that Mr. Patterson's sentence be commuted to life," TDCJ spokesperson Michelle Lyons said her agency was preparing for tonight's execution.

This morning, for instance, Lyons said Patterson will be allowed to visit family members and friends. If TDCJ officials have not received word of Perry's decision by early afternoon today, she added that Patterson will be transported from the Polunsky Unit in Livingston to the Walls Unit in Huntsville.

The Anderson County district attorney's office, meanwhile, was "pulling out all the stops" this morning to try to allow Patterson's execution to occur as scheduled. In addition to faxing letters to the governor's office from multiple individuals, Lowe said he spoke this morning with State Sen. Todd Staples, R-Palestine, asking the local legislator to speak with Perry about the matter. This morning Staples told the Herald-Press he had talked with the governor today about Patterson's case and scheduled execution.

"This individual (Patterson) is a cold-blooded killer," Staples said. "The jury heard the facts and evidence at the time of sentencing, numerous courts have heard and rejected the appeal, and I believe the jury's punishment should be upheld. I have conveyed these thoughts to the governor." Lowe described members of the victims' families as "let down. "It's kind of like you got hit in the stomach," Lowe said.

Austin attorney J. Gary Hart, who has represented Patterson for the past 7 1/2 years, has steadfastly argued before the courts that his client is "delusional" and incompetent to be executed under state law. Up until Monday, Hart's arguments consistently had been rejected. This morning Hart told the Herald-Press he is continuing to file motions with state and federal courts despite the board's recommendations to Perry. Hart said he had separate motions before the U.S. Supreme Court and the Texas Court of Criminal Appeals this morning.

Patterson was twice charged with attempted murder in the early 1980s in separate shootings. On both occasions, however, he was found incompetent to stand trial. On a third occasion, Hart said Patterson used a "two-by-four" to assault a fellow employee at a Dallas business.

Hart said Patterson, who has been diagnosed as paranoid schizophrenic, was admitted to Rusk State Hospital on at least three occasions during the 1980s and also was hospitalized at Terrell State Hospital. "He would spend, on average, about two or 2 1/2 months each time, and they would simply cut him loose each time," Hart said. The attorney said the "system" has to bear some of the responsibility for the actions of a delusional man who was not properly handled. "At every step of the process, the judicial system, the mental health system, the criminal justice system has to share some of the blame for this," Hart said this morning. When asked if the system failed Patterson, Hart responded, "I believe that myself with all my heart."

Houston Chronicle

"Schizophrenic killer executed after Perry denies request for stay." (AP May 18, 2004)

HUNTSVILLE - Prison officials executed a mentally ill convicted killer this evening as Gov. Rick Perry rejected a parole board recommendation to commute the sentence to life in prison or delay the lethal injection. The U.S. Supreme Court also denied a stay for Kelsey Patterson, 50, whose lawyers challenged lower courts' rejected claims that Patterson was mentally incompetent to be executed. Patterson, a diagnosed paranoid schizophrenic, was condemned for a double slaying in Palestine in East Texas almost 12 years ago.

In a 5-1 vote, the Texas Board of Pardons and Paroles endorsed a petition from Patterson's lawyers and supporters that he be spared. Texas resumed carrying out executions in 1982, and Monday's board action marked the first time at this late stage in a condemned inmate's case the panel recommended the governor commute a death sentence.

"State and federal courts have reviewed this case no fewer than 10 times, examining his claims of mental illness and competency, as well as various other legal issues," Perry said in a statement less than an hour before Patterson's scheduled execution time. "In each instance the courts have determined there is no legal bar to his execution. "This defendant is a very violent individual. Texas has no life without parole sentencing option, and no one can guarantee this defendant would never be freed to commit other crimes were his sentence commuted. In the interests of justice and public safety, I am denying the defendants request for clemency and a stay."

Patterson arrived at the death house early this afternoon. "Mr. Patterson seemed even tempered although he kept insisting to the wardens that he had amnesty," said Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice in Huntsville, where executions are carried out. "He seemed particularly concerned about whether or not he'd be allowed to see his legal materials, which he was." Although Patterson made no meal request, a tray of sandwiches and cookies was available to him, and he was offered and accepted a candy bar and a soft drink. He earlier had refused to complete paperwork associated with an execution, like picking a last meal or selecting witnesses.

"He denied to the warden that he's ever going to be executed," said J. Gary Hart, Patterson's lawyer. Hart had cited Patterson's actions as another reason why the prisoner was mentally incompetent and should not be put to death.

Patterson was condemned for the 1992 shootings of Dorthy Harris, 41, a secretary at an oil company office in Palestine, and her boss, Louis Oates, 63. Throughout his trial, outbursts earned Patterson repeated expulsions from the courtroom. He frequently talked about "remote control devices" and "implants" that controlled him. While on death row, he told people and wrote nearly incomprehensible letters to courts about having amnesty and a permanent stay of execution.

The U.S. Supreme Court has ruled it's unconstitutional to execute someone who is mentally retarded, but has not extended the same protection to those claiming mental illness. However, the high court in a 1986 ruling regarding insanity and the death penalty said an inmate may not be executed if he doesn't know why he's on death row and the punishment he faces. Lawyers from the Texas attorney general's office, opposing appeals by Patterson's attorneys to halt the punishment, cited Patterson's references to stays of execution as indicating the prisoner had an awareness of his punishment.

Evidence showed Patterson left his home in Palestine, about 100 miles southeast of Dallas, and walked about a block to where Oates was standing on a loading dock at his business. Patterson walked up behind him, shot him in the head with a .38-caliber pistol and started walking away. When Harris saw the scene and began screaming, Patterson grabbed her and shot her in the head. Then he went home, took off his clothes except for socks, and was arrested walking on the street in front of his home. In 1980 in Dallas and in 1983 in Palestine, Patterson was ruled mentally incompetent to stand trial on charges related to nonfatal shootings.

In March, Perry for the first time since taking office in 2000 commuted the death sentence of a prisoner. The inmate is mentally retarded and was not within hours of a scheduled execution. In 1998, four days before former self-confessed serial killer Henry Lee Lucas was to die, then-Gov. George W. Bush commuted Lucas after questions were raised about his conviction. It was the only death sentence commuted by Bush in his six years in office when 152 executions were carried out.

Tyler ZWIRE

"PERRY ASKED TO STOP ET MAN'S TUESDAY EXECUTION, by Megan Middleton." (May 17, 2004)

PALESTINE - Almost 12 years ago, 38-year-old Kelsey Patterson left his home in Palestine armed with a .38-caliber revolver, walked about a block down the street and shot two people he did not know at point-blank range for reasons that most still do not understand. Louis Oates, the owner of Oates Oil Company, and his secretary, Dorthy Kay Harris, were gunned down in broad daylight just outside their workplace.

After being convicted of capital murder and spending more than a decade on death row, Patterson, now 50, was scheduled to die by lethal injection Tuesday night in Huntsville. But a little more than 24 hours before his scheduled execution, the Texas Board of Pardons and Paroles approved, in a 5-1 vote, recommendations that ask the governor to either commute Patterson's death sentence to a life sentence or grant him a 120-day reprieve, Gary Hart, Patterson's lawyer, said.

It is now up to Gov. Rick Perry to act before the scheduled 6 p.m. execution deadline. Patterson's lawyers say their client is mentally ill and not competent to be executed. Patterson has been diagnosed with paranoid schizophrenia and despite his looming execution date, has repeatedly told others for years that he has, in fact, received a "permanent stay," Hart said. The issue of whether Patterson was competent to stand trial in 1993 and whether he is competent to be executed are issues Hart has been appealing for years - and is continuing to work on until time runs out.But state prosecutors see things differently. In one court document, the state argues that "the fact that Patterson understands the concept of stay of execution is evidence of his competence, even if he is mistaken as to the nature or the duration of the stay." Family members of those who died at Patterson's hands 12 years ago just want to see justice done.

"SENSELESS ACT"

Testimony at Patterson's summer 1993 trial and other documents reveal the details of the crime. It was about 3 p.m. on Sept. 25, 1992, when Patterson told his roommate he was going to the grocery store and that it might be the last time he saw him. He walked out the front door and shot three times into an aluminum pan sitting in the front yard. After reloading, he walked about a block - headed for Oates Oil Company at 507 W. Reagan St. Oates stood on the company's loading dock. Patterson walked up the steps and approached the 63-year-old man from behind. Lester Gross, a former Oates Oil Company truck driver, testified he saw Patterson attack Oates by grabbing him by the collar and shooting him in the head.

Eddie Jowell, who was doing construction work on the oil company property, testified he heard the gunshots. "I heard 'bang, bang' - just a couple of bangs," Jowell said during the trial, according to a 1993 Tyler Morning Telegraph article. Witnesses testified that after the shooting, Patterson walked off the property. But the violence was not over. Mrs. Harris, 41, walked out onto the dock from her office and began screaming as she discovered her boss lying on the ground.

And then Patterson came back. Jowell testified that he heard Mrs. Harris' screams and saw Patterson grab her and shoot her in the head. The secretary and bookkeeper begged for her life, he said. Patterson cursed at her. "She was yelling very, very loud," Mark Bashus, a Union Pacific Railroad car man, testified at the trial. "... He never hesitated." A court document shows that Patterson said to Mrs. Harris, "You're going to get yours. You ain't going to get by with it." Following the shootings, witnesses watched as Patterson walked down the street and back to his home. He stripped off his clothes and walked up and down the street, shouting and gesturing to those watching. Some time later police arrived and took Patterson to jail.

COMMUNITY SHAKEN

Beckie Carrico, Mrs. Harris' sister, remembers that day well. "I remember that day like it was yesterday," Mrs. Carrico said. "I know what I had on. I know what I did that day for lunch ... I guess it's something that you'll never ... never forget." "Sister," as Mrs. Carrico called her only sister, was her best friend. Mrs. Harris, a mother and recent grandmother, was very active in church, very quiet and would help anyone out, Mrs. Carrico said. "Sister was liked by everybody," she said. She said that unbeknownst to her and her parents that day, God found a way to let them spend time with their loved one shortly before the shooting. "It's like God was letting us have our last moments with her," she said.

Unexpectedly, Mrs. Harris' parents' car radiator hose broke as they arrived to pay a bill at Oates Oil Company, where their daughter worked. Louis Oates told Mrs. Harris to take her parents out to lunch and that he would have their vehicle fixed. Later that day, Mrs. Carrico called up to the office to talk to her sister. It was about a quarter to 3 and her sister was busy giving someone directions, but soon called her back around 3 p.m. "We got to talk for about 10 minutes. I hung up the phone and within nine minutes she was dead," she said. "It was like our last goodbyes. "It's hard to say goodbye to somebody when you know they're going to die," she said. "... But we got our chance to be with her on the phone and in person for those last few minutes."

And when news spread of the shootings, citizens were shocked. "The whole community was just outraged," said Jeff Herrington, the Anderson County district attorney at the time of the killings. "It had a big impact on our county for a long time. It's because the way the crime was committed - it was so senseless." But through its shock and outrage, the community responded with sympathy to the families of those who died. The florist had to work late that night, Mrs. Carrico said. Mourners packed the visitation and funerals. And when the trial arrived, the courtroom also was packed.

TRIAL

Patterson's defense at trial was insanity. And despite his persistent outbursts during the trial, which forced Patterson out of the courtroom time and time again, the jury did not accept that defense. One psychologist testified that while Patterson does have schizophrenia, "at the time of the offense, he knew right from wrong. "Just because a person is delusional does not mean he's insane," Dr. Walker Quijano, a clinical psychologist, testified. Dr. James Grigson, a specialist in forensic psychiatry, agreed.

But Patterson had been judged legally insane in 1980. And Patterson had shot at other people in previous years for no apparent reason, as surfaced in the punishment phase of the trial. He was not convicted, but was institutionalized for those incidents. He shot at a coworker in May 1980 in Dallas. The man shot was hit twice and hospitalized for three months. The other victim was also a coworker, who worked with Patterson at a pizza place in Palestine in November 1983. Patterson hit that man with a large object and then fired a pistol at him several times. Grigson, who had evaluated Patterson several times in the previous 10 years, said the defendant's behavior had changed from when he was judged legally insane. At the 1993 trial, he called Patterson's behavior "deliberate and intentional."

While defense attorneys tried to explain their uncooperative client's delusional world, prosecutors painted a different picture. "He knew what he'd done, and he knew it was wrong," said Paul Stafford, Anderson County first assistant district attorney in 1993. "Kelsey Patterson is not insane. He's just plain old mean."

Patterson's actions during the trial appear to have warranted a great deal of attention. After failing to be quiet after the judge's repeated warnings, sheriff's deputies seated Patterson in a chair, taped his arms to the armrests and taped his mouth shut, according to a Tyler Morning Telegraph article. And against advice from his attorneys, Patterson took the stand, refusing to answer questions, except to tell the district attorney that he was taking the Fifth Amendment. In the punishment phase, Patterson's half-brother and half-sister testified they believed treatment would help his condition. "He's a totally different person ... I believe, Kelsey Patterson, with medication, would not be violent," David Simpson, his half brother testified. But the jury returned after about four hours of deliberating and sentenced Patterson to die for the murders. It had taken jurors two hours earlier that day to decide his guilt.

AFTERMATH

Years of appeals have followed Patterson's conviction. Hart was appointed to represent the convicted killer in 1996. But it has not been without much frustration. Patterson refuses to cooperate with his lawyers and he refuses to be evaluated by psychiatrists. He does not believe he is mentally ill or incompetent, Hart said. Yet he says "implants" in his brain are what caused him to kill, Hart said. "The reason he won't cooperate with me to prove that he is incompetent to be executed is his mental illness," Hart said. And experts say Patterson is not malingering, Hart said.

But Patterson grew up with a relatively normal childhood and was raised by his maternal grandmother, his lawyer said. He played football for the Palestine High School football team and went on to serve in the Air Force. It was shortly after his grandmother died that signs of a mental illness surfaced and trouble with the law began. "He was certainly not one of these troubled teenagers," Hart said. "As far as anybody knew, he was perfectly normal growing up - a good sibling, a good grandson ..."

The Austin attorney believes so far the system has failed his client - from allowing him to be on the street in the first place at the time of the killings to possibly executing him. "I do think the judicial system has failed Kelsey because of his mental illness," Hart said. "It can't work for him. To take him through the whole process on the assumption that it can is proving to be disastrous." Hart points to Patterson's refusal of a plea bargain offered before his trial as an example. "The only reason he wouldn't agree to plead guilty is that he thought his own lawyers were in cahoots against him and thought it was all a plot ... so he turned down the offer," he said. "If Kelsey had not been mentally ill, he'd be serving a life sentence right now."

Hart said he understands the families' desire for an execution and he does not blame them for that. But in Hart's application for reprieve from execution and commutation of sentence sent to the Board of Pardons and Paroles, he stated simply that Patterson's death would not serve the purpose of capital punishment. "But for his mental illness, he would never have committed the offense that landed him on death row," Hart writes. "But for the limitations on both the mental health and criminal justice systems in Texas, he would not have been set free to wander the streets of Palestine, Texas, unmedicated, psychotic, and eventually so delusional that he was unable to control the impulse to kill Louis Oates and Kay Harris for reasons that are unfathomable to rational human beings. Executing someone like Kelsey Patterson does not vindicate the twin goals of capital punishment - namely retribution and deterrence. "It is, ultimately, as senseless as the killings of Oates and Harris were."

But Mrs. Carrico, who plans to attend the execution if it is still carried out, said she and her family want to see this case resolved with Patterson's death. "It's something we've waited a long time to see," she said. "'Sister' begged for her life. She just had a few seconds to beg for her life, and this guy has had 12 years."

The International Justice Project

Kelsey Patterson
Texas - Mental Illness – Paranoid Schizophrenia - Execution date: May 18, 2004

Case Overview

Kelsey Patterson’s Social History prior to the crime

Kelsey Patterson was born and raised in Palestine, Texas. His mother died when he was four years old, leaving behind Mr. Patterson’s maternal grandmother to raise him. Kelsey seemed to be a normal child and an average student. After graduating from high school, he immediately joined the military. After two years of military service, Patterson was honourably discharged to take care of his terminally ill grandmother.

Patterson’s first contact with the law came in 1978, when he was arrested for aggravated assault on a police officer. One year later he was charged with another assault. In 1980, Patterson was charged with shooting Richard Noel Lane at the University of Texas Health Science Center at Dallas. Lane was not certain why Patterson shot him, but earlier the same day, Lane and a few other co-workers were teasing Patterson about not putting his lunch in the refrigerator. Patterson had told them that his food was being poisoned while in the refrigerator and he was not going to use that refrigerator anymore.

Patterson was charged with attempted murder for the shooting. A jury found Patterson incompetent to stand trial, but likely to regain his competency. In 1981, during the subsequent testing, Patterson was first diagnosed with paranoid schizophrenia. Psychiatrists at the Dallas County Jail concluded that at the time of the offense he was suffering from a mental disease or defect and could not conform his behavior to the law. The charges in the Lane shooting were eventually dismissed and Patterson voluntarily committed himself.

In 1983, Patterson was charged with criminal attempt to commit murder. Patterson was working at a Pizzeria, when he threw a pizza pan at fellow employee Kevin Huges and struck him in the head. Patterson then pulled out a gun and shot Huges in the left arm and in the right lung. Psychiatrists once again concluded that Patterson had a mental disease at the time of the crime that would render him incapable of conforming his conduct to the requirements of the law or of knowing the difference between right and wrong. The charges were again dismissed.

In 1986, Patterson was arrested for assault on a co-worker. As a result of a statement by Patterson that the guards were putting sedatives in his food and were raping him while he slept, he was then sent to the Mental Diagnostic Center at Parkland Hospital in Dallas. Patterson would eventually be transferred to Terrell State Hospital where he would spend the next several months. A year later, in 1988, Patterson was admitted to Rusk State Hospital with a diagnosis of Schizophrenia Paranoid Chronic with Acute Exacerbation. He was discharged a month later.

The crime

Kelsey Patterson was convicted for the 1992 killing of Louis Oates, a 63-year-old owner of Oates Oil Co. in Palestine, Texas, and his business secretary Dorothy Harris, 41. Louis Oates was standing on the loading dock of his business when Patterson walked up behind him and shot him with a pistol. Patterson walked away after the shooting but returned to shoot Dorothy Harris in the head when she came outside and began to scream. Patterson then walked a short distance to a friend’s house, put down the gun and took off his clothes, except his socks, which he kept on for some unfathomable reason. He was standing almost naked in the streets when he was arrested. A motive in the murders is unclear.

When Patterson was arrested for the murder of Mr. Oates, the standard for competency in Texas had become a more stringent benchmark for defendants to meet. Psychiatrists did not dispute that Patterson was mentally ill at the time of the crime, however, given the new standard, Patterson appeared to now meet the criteria for mental competency. The jury did eventually find Patterson competent to stand trial. However through the competency hearing, and the trial itself, Patterson ranted about devices that were implanted in him, as well as other conspiracies against him. The jury eventually found him guilty and sentenced Patterson to death.

Current Status

Mr Patterson’s delusions are such that all authority figures become a part of his delusional structure; this includes his attorney and prison psychiatrists. Such delusions have made it impossible for his lawyer to communicate with Mr. Patterson. Mr. Patterson refuses all medical treatment and his attorney’s attempts to diagnose him. The prison officials no longer attempt to treat Patterson believing that he does not pose a threat to himself or to others. Patterson spends much of his time writing letters to judges and to the parole board, referencing a non-existent permanent stay of execution that he has received on grounds of innocence.

In 2000, a federal judge noted that "Patterson had no motive for the killings... he claims he commits acts involuntarily and outside forces control him through implants in his brain and body. Patterson has consistently maintained he is a victim of an elaborate conspiracy, and his lawyers and his doctors are part of that conspiracy. He refuses to cooperate with either; he has refused to be examined by mental health professionals since 1984, he refuses dental treatment, and he refuses to acknowledge that his lawyers represent him".

Letters Asking for Clemency

Council of Europe letter asking for clemency on 26 April 2004

European Union demarche to the Texas Board of Pardons and Paroles urging clemency in the case of Kelsey Patterson on 26 April 2004.

European Union demarche to Governor Rick Perry urging clemency in the case of Kelsey Patterson on 26 April 2004.

Government of Switzerland - letter asking for clemency on 23 April 2003 signed by the Ambassador of Switzerland, Christian Blickenstorfer.

News

May 18, 2004, 6:29PM
Schizophrenic killer executed after Perry denies request for stay. (Associated Press)

HUNTSVILLE - Prison officials executed a mentally ill convicted killer this evening as Gov. Rick Perry rejected a parole board recommendation to commute the sentence to life in prison or delay the lethal injection. The U.S. Supreme Court also denied a stay for Kelsey Patterson, 50, whose lawyers challenged lower courts' rejected claims that Patterson was mentally incompetent to be executed. Patterson, a diagnosed paranoid schizophrenic, was condemned for a double slaying in Palestine in East Texas almost 12 years ago.

In a 5-1 vote, the Texas Board of Pardons and Paroles endorsed a petition from Patterson's lawyers and supporters that he be spared. Texas resumed carrying out executions in 1982, and Monday's board action marked the first time at this late stage in a condemned inmate's case the panel recommended the governor commute a death sentence. "State and federal courts have reviewed this case no fewer than 10 times, examining his claims of mental illness and competency, as well as various other legal issues," Perry said in a statement less than an hour before Patterson's scheduled execution time. "In each instance the courts have determined there is no legal bar to his execution. "This defendant is a very violent individual. Texas has no life without parole sentencing option, and no one can guarantee this defendant would never be freed to commit other crimes were his sentence commuted. In the interests of justice and public safety, I am denying the defendants request for clemency and a stay."

Patterson arrived at the death house early this afternoon. "Mr. Patterson seemed even tempered although he kept insisting to the wardens that he had amnesty," said Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice in Huntsville, where executions are carried out. "He seemed particularly concerned about whether or not he'd be allowed to see his legal materials, which he was." Although Patterson made no meal request, a tray of sandwiches and cookies was available to him, and he was offered and accepted a candy bar and a soft drink. He earlier had refused to complete paperwork associated with an execution, like picking a last meal or selecting witnesses. "He denied to the warden that he's ever going to be executed," said J. Gary Hart, Patterson's lawyer.

Hart had cited Patterson's actions as another reason why the prisoner was mentally incompetent and should not be put to death. Patterson was condemned for the 1992 shootings of Dorthy Harris, 41, a secretary at an oil company office in Palestine, and her boss, Louis Oates, 63. Throughout his trial, outbursts earned Patterson repeated expulsions from the courtroom. He frequently talked about "remote control devices" and "implants" that controlled him. While on death row, he told people and wrote nearly incomprehensible letters to courts about having amnesty and a permanent stay of execution.

The U.S. Supreme Court has ruled it's unconstitutional to execute someone who is mentally retarded, but has not extended the same protection to those claiming mental illness. However, the high court in a 1986 ruling regarding insanity and the death penalty said an inmate may not be executed if he doesn't know why he's on death row and the punishment he faces. Lawyers from the Texas attorney general's office, opposing appeals by Patterson's attorneys to halt the punishment, cited Patterson's references to stays of execution as indicating the prisoner had an awareness of his punishment.

Evidence showed Patterson left his home in Palestine, about 100 miles southeast of Dallas, and walked about a block to where Oates was standing on a loading dock at his business. Patterson walked up behind him, shot him in the head with a .38-caliber pistol and started walking away. When Harris saw the scene and began screaming, Patterson grabbed her and shot her in the head. Then he went home, took off his clothes except for socks, and was arrested walking on the street in front of his home. In 1980 in Dallas and in 1983 in Palestine, Patterson was ruled mentally incompetent to stand trial on charges related to nonfatal shootings. In March, Perry for the first time since taking office in 2000 commuted the death sentence of a prisoner. The inmate is mentally retarded and was not within hours of a scheduled execution. In 1998, four days before former self-confessed serial killer Henry Lee Lucas was to die, then-Gov. George W. Bush commuted Lucas after questions were raised about his conviction. It was the only death sentence commuted by Bush in his six years in office when 152 executions were carried out.

Houston Chronicle

Gov's Office Considering Recommendation for Death Row Inmate

The Texas Board of Pardons and Paroles, in a highly unusual action, recommended Gov. Rick Perry either commute or grant a reprieve to a mentally ill killer scheduled to die Tuesday for a double slaying in East Texas. The panel, in a 5-1 vote Monday, recommended the death sentence of Kelsey Patterson be commuted to life. If he declined, the board said Perry should grant Patterson a 120-day reprieve.

The recommendation was "under review," Perry spokeswoman Kathy Walt said. Patterson repeatedly has been diagnosed as a paranoid schizophrenic and his lethal injection set for Tuesday evening in Huntsville renewed the legal quandary of whether it's proper to execute someone who is mentally ill when the U.S. Supreme Court has ruled it's unconstitutional to execute someone who is mentally retarded.

The courts have halted the executions of 3 Texas inmates this year because the inmates were considered mentally retarded. Also, the state's highest criminal court last month for the 1st time commuted a death sentence because the convict was deemed retarded. But no such protections, based on Supreme Court ruling 2 years ago in a Virginia case known as Atkins, have been extended to inmates considered mentally ill, like Patterson. And since the Atkins decision, at least three mentally ill prisoners have been executed in Texas. Patterson, 50, was condemned for the shooting deaths of Louis Oates, 63, who owned an oil company in Palestine, and Oates' secretary, Dorthy Harris, 41, almost a dozen years ago. "I'm not going to count my chickens," J. Gary Hart, Patterson's lawyer, said Monday evening. "It's encouraging."

Hart said he was continuing to file appeals in the courts to block the execution, which would be the 9th this year in the state. "I can't quit what I'm doing because I don't know what Gov. Perry is going to do," Hart said. "I can't assume." Hart's appeals centered on Patterson's competency to be executed. One appeal was rejected earlier Monday by the 5th U.S. Circuit Court of Appeals. In March, Perry commuted the death sentence of Robert Smith, convicted of a 1990 Harris County slaying. Smith's lawyers contended their client was mentally retarded and ineligible for execution. The commutation in a death penalty case, recommended by the parole board, was the first for Perry since he took office in 2000. In that time, 82 inmates were executed. Smith, however, was not within hours of a scheduled execution and Harris County prosecutors agreed with the recommendation.

Another inmate, Joe Lee Guy, is awaiting a decision from Perry after the board recommended his sentence be commuted to life. Guy was the lookout in a Plainview case where two gunmen received life prison terms. Anderson County District Attorney Doug Lowe had planned to make the trip from Palestine to Huntsville on Tuesday to attend Patterson's punishment. "I'm hopeful we can have this execution accomplished," he said Monday before the parole board recommendation. "I don't think there's a dispute with him being diagnosed as a paranoid schizophrenic, but that doesn't mean a person isn't accountable for what they do." No one, including Patterson, disputed the fact he killed 2 people. Evidence showed he left his home in Palestine, about 100 miles southeast of Dallas, Sept. 25, 1992, carrying a .38-caliber pistol. He walked about a block to where Oates was standing on a loading dock at his business. Patterson walked up behind him, shot him in the head and started walking away. When Harris stepped outside, saw the scene and began screaming, Patterson grabbed her and shot her in the head. Then he went home, took off his clothes and was arrested in front of his home while walking on the street.

Throughout his trial, outbursts earned him repeated expulsions from the courtroom and he frequently talked about "remote control devices" and "implants" that controlled him. The fatal shootings were not the 1st involving Patterson. In 1980 in Dallas and in 1983 in Palestine, he was ruled mentally incompetent to stand trial on charges related to nonfatal shootings. While on death row and now as his execution date neared, he refused to consult with his lawyer and has written jabbering letters to the courts. "He keeps talking about his permanent stay from execution based on innocence and his amnesty and tells people he's been acquitted and exonerated," Hart said. "We've got plenty of documentation to show that he's a serious paranoid schizophrenic. We just don't have the functional equivalent of an Atkins opinion."

The Supreme Court has ruled that as long as someone understands why they are on death row and the punishment they face, they are competent to be put to death. Lawyers from the Texas attorney general's office argued Patterson understands he's under a death sentence for a double killing, even if he believes his execution has been stopped as a result of a delusional belief system. Michele Smith, who was 20 and a new mom when her own mother was gunned down, also had planned to be in the death chamber Tuesday evening. "Devastating would not even begin to explain how I have felt for the last 11 1/2 years since my mother was killed," she said. "I couldn't work... It affected my whole life. "I need to see this man be executed for the murder of my mother so it can finally be really and completely over and I can let myself move past this tragedy to a place where I can find peace with what has happened."

May 14 - Mentally ill killer's stay bid rejected (Associated Press)

The U.S. Supreme Court on Thursday refused to halt the execution next week of a convicted killer who has repeatedly been diagnosed as mentally ill. Kelsey Patterson, 50, is set for lethal injection Tuesday evening in Huntsville for the fatal shootings of a man and woman in the East Texas town of Palestine. An appeal to the high court asked that Patterson's execution be delayed and that the court formally review his case. The court denied both requests. Additional appeals in the federal courts were planned, Patterson's lawyer said.

The Supreme Court, in a 2002 ruling in a Virginia case, barred the execution of mentally retarded people. The same prohibition has not been extended to those considered mentally ill. A request for clemency for Patterson was pending Thursday before the Texas Board of Pardons and Paroles, but a vote by the panel wasn't expected until Monday, said J. Gary Hart, Patterson's attorney.

Patterson left his home in Palestine the afternoon of Sept, 25, 1992, carrying a .38-caliber pistol. He walked about a block to an oil company office where he shot the owner, Louis Oates, in the head. Oates' secretary was fatally shot after she walked outside, saw his body on the ground and started screaming.

In 1980 in Dallas and in 1983 in Palestine, Patterson was ruled mentally incompetent to stand trial on charges related to nonfatal shootings. He was found competent to be tried for the double slaying, however, and was convicted of capital murder and sentenced to death. In his request to the Supreme Court, Hart noted that Patterson, diagnosed as a paranoid schizophrenic, had to be expelled from his murder trial because of outbursts "almost certainly fueled by his delusional system"and missed nearly half of the testimony against him. At least a half-dozen prisoners claiming mental illness have been put to death in Texas over the past 2 years.

Clemency Information

In Texas, the Board’s clemency recommendation is binding on the governor. This procedural rule means the Governor cannot grant clemency without the Board’s recommendation. However if the Board does recommend clemency, the Governor does not have to follow that recommendation. Below is the contact information for the Board and the Governor.

Governor Rick Perry Office of the Governor
P.O. Box 12428
Austin, Texas 78711
Chairwoman Rissie Owens
Texas Board of Pardons and Paroles
P.O. Box 1340
Austin, Texas 78711-3401

Amnesty International

UNITED STATES OF AMERICA
Another Texas injustice: The case of Kelsey Patterson, mentally ill man facing execution.
(First page of a 13-page letter to a federal court from Kelsey Patterson, February 2004)

"[The expert witness] has said right up front that Kelsey Patterson is suffering from paranoid schizophrenia. No doubt about it, he does, according to the mental health experts." Prosecutor, final argument at Kelsey Patterson's capital trial, 1993.

On 10 November 2003, the United States Supreme Court dismissed Kelsey Patterson's appeal against the death sentence imposed on him over a decade ago for a double murder committed in Texas in 1992. This cleared the way for the state to seek an execution date. Unless Kelsey Patterson is granted relief by the courts or clemency by the executive, he will be killed in the Texas lethal injection chamber on 18 May 2004.(1)

Forty-nine-year-old Kelsey Patterson has long suffered from paranoid schizophrenia, a serious mental illness whose symptoms can include hallucinations, delusions, confused thinking, and altered senses, emotions or behaviour.(2) Kelsey Patterson was first diagnosed with this brain disorder in 1981. His execution would fly in the face of repeated resolutions at the United Nations Commission on Human Rights calling on all states not to pursue the death penalty against anyone suffering from a mental disorder. In the USA, the grassroots organization NAMI, formerly the National Alliance for the Mentally Ill, is among those that consider that the death penalty can never be an appropriate response for a defendant suffering from schizophrenia or other serious brain disorders.

There is no doubt that Kelsey Patterson shot Louis Oates and Dorothy Harris, and there would appear to be little doubt that mental illness lay behind this tragic crime. He made no attempt to avoid arrest - after shooting the victims, he put down the gun, undressed and was pacing up and down the street in his socks, shouting incomprehensibly, when the police arrived.

In 2000, a federal magistrate judge wrote that "Patterson had no motive for the killings - he claims he commits acts involuntarily and outside forces control him through implants in his brain and body. Patterson has consistently maintained he is a victim of an elaborate conspiracy, and his lawyers and his doctors are part of that conspiracy. He refuses to cooperate with either; he has refused to be examined by mental health professionals since 1984, he refuses dental treatment, and he refuses to acknowledge that his lawyers represent him. Because of his lack of cooperation, it has been difficult for mental health professionals to determine with certainty whether he is exaggerating the extent of his delusions, or to determine whether he is incompetent or insane. All of the professionals who have tried to examine him agree that he is mentally ill. The most common diagnosis is paranoid schizophrenia."(3) Nevertheless, the magistrate judge recommended that Kelsey Patterson's death sentence stand.

A jury found Kelsey Patterson competent to stand trial. Yet his behaviour at his competency hearing, and at the trial itself - when he repeatedly interrupted proceedings to offer rambling narrative about his implanted devices and other aspects of the conspiracy against him - provided compelling evidence that his delusions did not allow him a rational understanding of what was going on or the ability to consult with his lawyers. At a post-conviction hearing in 1997, his state-level appeal lawyer, who had attended part of the trial, recalled that Patterson "didn't seem able to discriminate between those individuals that were advocating for him in the courtroom and those who weren't. He seemed to perceive everyone in the courtroom as an enemy, as someone who was involved in this - this plan or this conspiracy, this collaboration to do him harm." He continued: "Thinking about it from the perspective of the [trial] attorneys, it would have been an insurmountable obstacle to do anything in effect for him. There would have been no way that he could have helped them if he - if they had the same experience as I did with him" (that is, his later experiences as Patterson's appeal lawyer).

In early February 2004, Kelsey Patterson's lawyer filed a motion in a Texas trial-level court raising a claim, under the US Supreme Court decision Ford v Wainwright (1986), that Patterson is not competent for execution, that is, that he does not understand the reality of, or reason for, his impending punishment. The constitutional protections in this area are minimal, however, and other prisoners have gone to their deaths despite suffering from serious mental illness. Patterson's Ford claim was still before the courts at the time of writing.

Since learning of his execution date, Kelsey Patterson has written various letters, including to the Texas Board of Pardons and Paroles, the Texas Court of Criminal Appeals, and the US District Court for the Eastern District of Texas. In these letters, as he has done previously, he refers to his "amnesty" and to the permanent stay of execution that he has received on grounds of innocence.

There were ample warning signs before Kelsey Patterson's crime that he was capable of committing acts of potentially lethal violence during periods when his schizophrenia was left untreated. If the same resources had been put into his long-term treatment as were expended on securing and pursuing a death sentence against him, his crime could perhaps have been prevented and the spectre of his looming execution averted.

Amnesty International opposes the death penalty in all cases, regardless of the gravity of the crime, the guilt or innocence of the condemned, or the method used to kill the prisoner. This is a punishment that should have no place in modern society. It consumes resources that could otherwise be used towards constructive strategies to combat violent crime and to offer assistance to its victims and their families. In addition, the capital justice system in the USA is marked by arbitrariness, error and discrimination.(4) It prolongs the suffering of the murder victim's family, and extends that suffering to the loved ones of the condemned prisoner. The death penalty is a symptom of a culture of violence, not a solution to it. It is an affront to human dignity. It should be abolished.

Denying society's failure

The crime and punishment of Kelsey Patterson raises wider questions about society's treatment of the mentally ill. Texas ranks 47th out of the 50 US states in terms of the amount of money spent per capita in the treatment of the mentally ill.(5) The most recent state legislative session in 2003 did not improve what many see as a public mental health crisis in the state. The Mental Health Association in Texas (MHAT) reported that "legislators heard [the] stories of families ripped apart and lives shattered, and still the legislature reduced the budget of the public mental health system... MHAT and other advocacy organizations worry that this shift will lead to more people getting their mental health care in emergency rooms, or ending up in court rooms and morgues."(6)

In the days before the crime, Kelsey Patterson's half-brother had tried to get him help because of his obviously deteriorating mental state. This had happened over the years - the family would seek help, only to be told that there was nothing the authorities could do unless Patterson turned violent and became a threat to himself or others. Kelsey Patterson's half-sister related to Amnesty International in October 2003 how helpless she feels about his plight, how she thinks about his "heartbreaking" situation much of the time - the shared fate of relatives of condemned prisoners who become the "collateral damage" of this cruel and degrading punishment. She described how his mental health had begun to deteriorate after the grandmother who raised him died, how he became withdrawn, how he would talk and laugh to himself, how he used to tape up his windows as part of his paranoia, and how he came to believe that he had had electronic devices implanted in him. She recalled how his mental health would improve when he received treatment, and how it would begin to deteriorate again when he stopped taking medication. She spoke of the delusional letters that he sends her from death row, letters she has become reluctant to open, and sometimes waits for a few days until she does, because they make "no sense", and compound her distress. Finally, she spoke of her wish that no other family, worried that a relative was descending towards violence, would be denied mental health care before it was too late.

During oral arguments on the case in August 2002, a federal judge on the US Court of Appeals for the Fifth Circuit reportedly asked the state prosecutor, "What are we doing here? This is a very sick man", and wondered how the state would respond when Kelsey Patterson was brought into the lethal injection chamber "screaming about Satan". Another of the judges at the hearing was reported to have suggested that the ultimate responsibility for this tragic situation lay with the state mental health care system's failure to provide a long-term solution in Patterson's case.(7) Nevertheless, the Fifth Circuit upheld the death sentence in May 2003.

If Kelsey Patterson is put to death, it would not be the first time that the Texas system had, in effect, buried its own failure in its execution chamber. Larry Robison, who was executed in January 2000, had suffered from paranoid schizophrenia long before committing the crime for which he was sentenced to die. His family had tried to obtain help for him, but were turned away because he had not yet turned violent.(8) James Colburn was also a diagnosed paranoid schizophrenic whose family had tried, unsuccessfully, to get appropriate health care before the murder for which he was sent to death row.(9) He was executed on 26 March 2003. In another recent case, Scott Panetti received a 60-day stay of execution shortly before he was scheduled to be executed in Texas on 5 February 2004. He had been hospitalized for mental illness many times before the crime.(10)

Kelsey Patterson's trial lawyer later recalled that when Patterson was condemned to die, "it was the darkest moment of my professional life. This is a case that should never have happened. He should have been institutionalized a long time ago. The system failed him. But they don't indict the system".(11)

A motiveless crime

On the afternoon of 25 September 1992, Kelsey Patterson walked up behind Louis Oates on the loading dock of his oil supply company in Palestine, Texas, and shot the businessman in the head. When company employee Dorothy Harris came out of the office, Kelsey Patterson grabbed her, repeatedly told her that "you ain't going to get away with it", and shot her too. Both victims died.

After the shootings, Kelsey Patterson took off all his clothes except his socks and began to pace up and down the street, gesticulating and yelling incomprehensibly until the police arrived.

The crime against Louis Oates and Dorothy Harris was not the first time that Kelsey Patterson had shot people in apparently motiveless acts of violence. In 1980, he shot a fellow worker in a Dallas hospital where he worked. Three years later, he shot another co-worker, this time at a pizza restaurant in Palestine. In both cases, the victims survived. In each case, Kelsey Patterson was found incompetent to stand trial because of his mental illness. After he received treatment and was restored to competency, he was not prosecuted because he was considered to have been unable to conform his behaviour to the law, in other words that he was legally insane at the time of the offence under Texas law in force at the time.

In a high-profile US case in 1982, John Hinkley was sent to mental hospital after being found not guilty by reason of insanity for his attempted assassination of President Ronald Reagan. The case led to several states amending their laws to limit the insanity defence. They included Texas. Previously, to be found not guilty by reason of insanity in Texas, defendants had to show that because of mental disease or defect at the time of the crime, they were (1) unable to conform their behaviour to the law; or (2) did not know that their conduct was wrong. In other words, a defendant could be found insane if they had an understanding that their action was wrong, but were unable to control their behaviour in conformity with the law because of their mental illness.

By the time Kelsey Patterson shot Louis Oates and Dorothy Harris, an inability to conform one's conduct to the law was no longer a defence against conviction in Texas. Instead, the insanity defence was simply that at the time of the crime, due to mental disease or defect, the defendant did not know that his or her conduct was wrong, a much tougher standard to meet. In 1992, the Anderson County District Attorney apparently felt confident that he could obtain a death sentence against Kelsey Patterson under this revised statute, and charged Patterson with capital murder.

The competency hearing

Kelsey Patterson was provided with legal counsel, who filed motions to have a psychiatric expert appointed for the defence, and a hearing to determine whether their client was competent to stand trial.(12) The judge granted both motions, but set a cap of $750 on the sum that could be paid for the expert. The lawyers chose Dr Tynus McNeel, who determined that Patterson was competent to stand trial and had been sane at the time of his crime.

A competency hearing in front of a jury was held on 3 May 1993. At jury selection for the hearing, the prosecutor asked Patterson to stand up so that it could be ascertained if any of the potential jurors knew the defendant. Kelsey Patterson stood and said: "I have an implant in me. I heard you in Dallas County in '86. Ask you how much you are going to invest. You said one percent." He was immediately removed from the courtroom.

Later at the hearing, against the advice of his lawyers, Kelsey Patterson took the witness stand. He described in rambling fashion the persecution that he was facing, including his food being poisoned and his body implanted with devices. He accused his lawyers of being part of the conspiracy. For example, the following exchanges took place when questioned by one of his lawyers:

Patterson: Purposely you have been part of it, then you come in here and play crazy with me, just as straight faced as ever. Lawyer: What kinds of things have I done to you? Patterson: You have talked on the speaker system. Even nasty in my food. I have put a spoon of mashed potatoes in my mouth and had to spit them out, after he had said that he did something to the food. His subsequent testimony included the following interchange: Patterson: They have some type of implant devices that they used on me in the military, which I receive. Like the device that they put in the inner ear in which they can send subliminal message and make a person act beyond their controllability to know you have taken an action. Lawyer: Kelsey, do you believe those implants are still in your body? Patterson: I know for a fact. Y'all play with it all of the time. After the direct examination by the defence lawyer had finished, the prosecutor rose to cross-examine Kelsey Patterson. The defendant refused to answer his questions. The prosecution moved to have Patterson's testimony struck from the record. The judge granted the motion and instructed the jury to disregard everything that Patterson had said.

The defence lawyers did not call Dr McNeel at the hearing, but rather limited themselves to cross-examining the state's witnesses. These included clinical psychologist Walter Quijano, and forensic psychiatrist James Grigson. Neither had examined Kelsey Patterson, but testified, from the information given to them by the state, that he was competent to stand trial. Both agreed that he was mentally ill, and suffering from paranoid schizophrenia.

Can a man whose mental illness leads him to believe that his lawyers are part of a conspiracy against him, and who therefore refuses to cooperate with them, truly be competent to stand trial? At the end of the hearing, the jury found that Kelsey Patterson was.

At a three-day post-conviction evidentiary hearing in state court in December 1997 and January 1998, Walter Quijano admitted that at the time of Patterson's competency hearing, he had been operating under the mistaken assumption that he should presume the defendant to be competent until it could be positively demonstrated that he was not. In fact, because Kelsey Patterson had previously been adjudged incompetent (following the 1980 and 1983 shootings), the burden was on the state to prove that he was competent this time. Given this error, and having learned of Kelsey Patterson's outbursts during the pre-trial and trial proceedings (see further below), Dr Quijano said that he would have recommended that the competency issue be revisited. During the post-conviction hearing, Kelsey Patterson was again disruptive, and was removed from the courtroom.

Dr. Grigson's testimony at the competency hearing represented something of a turnaround. In 1980 it had been Dr Grigson who had found Kelsey Patterson incompetent to stand trial after the Dallas shooting. He subsequently found Patterson to be competent in 1981 after he had been treated. Although he had not examined Kelsey Patterson between 1981 and 1992, he suggested at the 1993 competency hearing that the defendant was by now so familiar with the criminal justice system that he had learned to manipulate it, and was currently faking his psychosis. Dr Grigson described the difference between Patterson's mental state in 1981 and 1993 as being "like night and day". Two years later, Dr Grigson, dubbed "Dr Death" because of his unswervingly pro-prosecution testimony in capital cases, was expelled from the American Psychiatric Association, for his unethical, unscientific testimony in such cases.(13)

Both Drs Grigson and Quijano only reviewed Kelsey Patterson's records relating to his commitment to Rusk State Hospital in 1984. They did not review his records from previous and later commitments to Rusk or other facilities over the years, and had not spoken to Patterson's family.

At the state post-conviction evidentiary hearing, Dr Allen Childs, a clinical and forensic psychiatrist, testified that he was in no doubt that Kelsey Patterson had been incompetent to stand trial in 1993. Dr Childs had conducted a comprehensive review of Patterson's psychiatric history, including his records from his commitments to Rusk State Hospital in 1981, 1984 and 1988; his commitment to Terrell State Hospital in 1987, and records from local facilities. He reviewed evidence from the family, and was also able to read the transcripts of Patterson's testimony and outbursts during proceedings. Dr Childs concluded that far from malingering, Kelsey Patterson was trying to feign mental health rather than mental illness.

In 2000, the federal magistrate who reviewed the case, wrote that: "Were this Court determining this question de novo (anew), it would find, based on the recantation by Dr Quijano, the impeachment of Dr Grigson's credibility, the thoroughness of Dr Childs' review and the conviction with which he expressed his opinion, that Patterson was incompetent to stand trial". However, the Court noted that "the evidence produced must be sufficiently clear and convincing to rebut the presumption of correctness accorded the jury's determination of competency." The judge wrote that, although it was "a close question", the jury's determination held. The federal district court adopted this finding, and the death sentence has been allowed to stand.

Insanity defence rejected During the actual trial a few months after the competency hearing, Kelsey Patterson made numerous outbursts, and on several occasions was removed from the courtroom on the order of the judge. In the end, he reportedly spent less than half of the trial in the courtroom. For example, at jury selection Patterson interrupted as a potential juror was being questioned:

Patterson: What you said, the District Attorney -
Judge: Mr Patterson, you cannot talk if you stay in here. I will not permit you to talk.
Patterson: Implant devices placed in my body that they used to do charges beyond my control, and show of the community.
Judge: Sheriff, please remove Mr Patterson
Patterson: For the clerk's office.
Kelsey Patterson was removed from the court. On another day of jury selection, he again interrupted as a juror was being questioned:
Patterson: Defendant will call that, that's play. I don't want to -
Judge: Mr Patterson, you cannot talk out loud and remain in here. Do you understand? [To lawyer] Please continue.
Patterson: Why come I can't help? They asked to resign as my lawyers on the 17th.
Judge: Remove the defendant from the courtroom.
Patterson: I asked for them to be removed as lawyers. I gave you a proper motion asking you for it.
Judge: Remove the defendant.
Patterson: Requested since October 16th. They specialize in being setup lawyers. I heard them make a deal in my room where they were the guests of Jeff Herrington [prosecutor] and Bascom Bentley and had some remote control device put in my body.
Patterson was again removed from the courtroom. His interventions continued after he was back in the court later, as another juror was being questioned:
Patterson: Mr Hamilton (juror), ask Mr Stafford (prosecutor) what murder was he part of - two for sure of 1960.
Prosecutor: This is a -
Patterson: In 1960 - putting poison in me.
Judge: Remove the defendant from my courtroom.
Patterson: Ask him which one was a party to - putting electrical devices in my body, remote controls, and do charges on me. And, by the way, this man here, he'll consult me in my sleep - in the head - He was removed from the courtroom. This happened on several other occasions during jury selection.

On the eve of the trial, after the jury had been selected, the prosecution offered a life sentence if the defendant would plead guilty as charged. Against the advice of his lawyers, Patterson rejected the offer. At the trial, Patterson's lawyers raised an insanity defence, that is, whether because of his mental illness he had known right from wrong at the time of the crime.

The defence called Dr Walter Quijano who had testified for the state at the competency hearing. The defence lawyer then elicited from Dr Quijano that, in his opinion, Kelsey Patterson was sane at the time of the offence. He said that he could not rule out that Patterson was delusional on the day of the crime, but he said that "just because a person is delusional does not mean he is insane". He acknowledged that a schizophrenic's delusion might be so strong that it could "distort his perception of right and wrong", but the impact of this was blunted on cross-examination by the prosecutor when Quijano state that it is possible to "fake" paranoid schizophrenic delusions.

Kelsey Patterson's half-brother David Simpson testified that he had attempted to get help for Patterson in the days before the crime. During this period, Patterson had been staying with Simpson, and the latter related how he had paced all night long, talking to imaginary people.

A clinical psychologist, a former employee of Rusk State Hospital, Dr Mary Cox, testified that Kelsey Patterson was a diagnosed paranoid schizophrenic. She said that Kelsey Patterson had refused to be interviewed by her, and she suggested that she could not offer an opinion as to whether he was legally sane or insane at the time of the crime without such an interview. Again, on cross-examination, the prosecutor elicited from Dr Cox that it was possible to "fake" the symptoms of schizophrenia.

Patterson's outbursts continued in the trial itself. For example, during the guilt phase, as a witness was being questioned, Kelsey Patterson again interrupted:

Patterson: What he did to me in my sleep - Jeff Herrington [the prosecutor].
Judge: Sheriff, remove the defendant from the courtroom.
Patterson: He's who is also with Dick Swift, when they used remote control devices on me.
The defendant was removed from the courtroom. When he was brought back in later, the following occurred:
Patterson: I would like to stay if I could.
Judge: You may stay if you choose to be quiet.
Patterson: You know, Stafford, the one who had the implant device in '69.
Judge: Mr Patterson, you can stay as long as you're quiet.
Patterson: John McDonald - I just received my -
Judge: Sir, did you understand what I said?
Patterson: Clerk's yesterday - and I am misrepresented, but I have got to go through this.
Judge: Sheriff, take the defendant out of the courtroom. He insists on talking -
Patterson: I will stay if you will let me. You know, these men don't represent me. And has got Louis Oates' son working at the jailhouse - and with the knife saying it ain't the time or place of death.

On another occasion, the jury was removed after an interruption. The following then occurred:
Judge: Mr Patterson -
Patterson: Like my lawyers. I can't even have communication with my lawyers. You know that they tried to resign on the 16th, the 17th of this month. How can I help them when I can't even talk to them when - and, by the way, got a bill with Jeff Herrington [prosecutor].
Judge: Mr Patterson, listen to me without interrupting for a moment. Now, I'm not going to keep popping you in here and popping you out. If you persist in disrupting these proceedings, I'm going to order that your mouth be taped and that you be handcuffed to your seat. Do you understand what I've said to you?
Patterson: How can I let you railroad me without a chance? These men don't represent me. There is no audience here. My people who are - other people - people who could witness very much to the fact of what was did.
Judge: Mr Patterson, did you hear what I said? One more word out of you and we're going to -
Patterson: Yes. John's in trouble.
Judge: Do you understand that?
Patterson: But how can I tell - I never have been close to - I can't even communicate with them.
Judge: I do not want you interrupting these proceedings.
Patterson: And you know that they have implant device where I can't - to have the control. Where I need - but I will try my best.

However, the interruptions persisted. Despite these interruptions, which suggested that the defendant was not able to participate meaningfully in his own defence, the judge did not revisit the competency issue. The US Supreme Court has held that a trial court has an obligation to ensure the competency of defendants throughout their trial.(14)

Against the advice of his lawyers, Kelsey Patterson also took the witness stand during the guilt phase of the trial. As the judge was attempting to explain to the defendant that if he choose to testify, he would be obliged not only to answer questions from his own lawyers but also the prosecution, Patterson kept interrupting with more narrative about the persecution he was suffering. This led the judge to order him to be gagged with tape.

Kelsey Patterson's subsequent testimony was more of the same. He was generally unresponsive to the questions asked, and focussed on his persecution. He was asked why he wanted his lawyers to be fired. His response included:

"They have proceeded, misrepresenting me, these two men, and if I would be allowed a chance to tell, that's what I need because they got some electronic devices in me which works like a remote control that has - can alter your body make your mind body react beyond your control conscious awareness. And there's people that they have shown this and I have documented this for over a year and a half." The prosecution attempted to cross-examine him, but the defendant continued in the same vein while pleading that he wanted to remain silent. He was eventually taken off the stand and when he continued to interrupt, was again removed from the courtroom.

For his part, the prosecutor undercut the insanity defence with some highly questionable argumentation. For example, he argued to the jury that to find a defendant legally insane on the basis that he has been diagnosed with schizophrenia is tantamount to providing such people with "a licence to kill". He added that jurors "get to set the standards of what is acceptable conduct". He was wrong. The law sets the standards, and the jury is governed by the law. The prosecutor's statements included the following:

"You know, if you take the defense's position with this general psychological stuff, if you take - if you ever diagnose schizophrenia in the past 15 years ago, what that is going to do is give that person a licence to kill anybody, anywhere, anytime, and they come in and say, 15 years ago some psychologist said I was schizophrenic. So, because of that I just blew holes in two people's heads. You can't hold me responsible for it. That is a licence to kill".

"You know, that's the great thing about this jury system, is you get to set the standards of what is acceptable conduct. You get to make that decision. Is that the kind of standard you are going to set in this community? Well, you know, somebody can go out, shoot somebody, raises something that happened in 1980 - 'I am not responsible'. Schizophrenic, that's what this is". Such arguments play on the fears of jurors, namely that a finding of not guilty by reason of insanity would lead to a dangerous man being released on to the streets. Given the failure of the system to guarantee long-term treatment for people with mental illness in Texas, and given Kelsey Patterson's history, perhaps such fears among jurors would not have been surprising.

Texas jurors, under state law, cannot be told what the implications are for the defendant if they return a verdict of not guilty by reason of insanity. This lack of full information will likely fuel the fear among some jurors that the defendant will walk away from the courtroom as a free person if acquitted on an insanity defence.(15)

Kelsey Patterson's jury took less than two hours to reject the insanity defence and find him guilty of capital murder. Even as the judge read the verdict, there were further manifestations of the defendant's mental problems:

Judge: Mr Patterson, please stand. I'll read the verdict of the jury: "We the jury find the defendant, Kelsey Patterson, guilty of capital murder as charged in the indictment." You may be seated, sir.
Patterson: Yeah, October 26th and on November 24th, 1992. Letter by gunpoint by James Todd 1983, November 21st.
Judge: Mr Patterson, you may be seated.
Patterson: [mumbling inaudibly in the background].
Judge: Sheriff, cause the defendant to be seated, please. Remove him from the courtroom.
Patterson: Prior to jury - and by the way - [inaudible]. Kelsey Patterson was removed from the courtroom at this point, and the court adjourned for a lunch recess after which the sentencing phase would open. At the beginning of the sentencing phase, Kelsey Patterson was again removed from the courtroom after he again interrupted.

At the end of the sentencing stage of the trial, the jury retired to decide what Kelsey Patterson's punishment should be. After a little under four hours of deliberation, during which time the jury requested a dictionary so that they could look up the meaning of "mitigating circumstances",(16) the jury voted that Kelsey Patterson was a future danger to society and that there was not sufficient mitigating evidence to warrant imposition of a life sentence rather than the death penalty.

The judge read out to the court the jury's verdict; again Kelsey Patterson interjected:
Patterson: Through the nasal and passages, up through the sinuses.
Judge: Mr Patterson - Sheriff, would you, please, restrain the defendant and tape his mouth? We have to continue this procedure.
Patterson: I will be quiet [the defendant continues to mumble inaudibly in the background].
Judge: One more word, Mr Patterson, and I'm going to have your mouth taped and you handcuffed. On 1 July 1993, the judge formally sentenced Kelsey Patterson to death. That judgment is due to be carried out in the Texas lethal injection chamber on 18 May 2004.(17)

Competency for execution

The execution of the insane is prohibited under the US Constitution. The 1986 Supreme Court decision, Ford v Wainwright, held that such executions violate the Eighth Amendment ban on cruel and unusual punishments.(18) In Ford, the Court did not set forth the standard for determining whether a condemned prisoner is competent for execution, but Justice Powell, in his concurring opinion, stated that "the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it". This definition was subsequently adopted by a majority of the Court.(19) The Ford decision left the determination of sanity up to each state.

Under current Texas law, "a defendant is incompetent to be executed if the defendant does not understand (1) that he or she is to be executed and that the execution is imminent; and (2) the reason he or she is being executed". In early February 2004, Kelsey Patterson's appeal lawyer initiated a Ford claim, challenging Patterson's competency to be executed. In Texas, the procedure followed is that the trial-level court, if it accepts that the defence has made a "substantial showing of incompetency", will appoint two experts to evaluate the prisoner's competence and will subsequently conduct a hearing on the merits of the claim. If the court finds that, by a preponderance of the evidence, the prisoner is incompetent, the case will go to the Texas Court of Criminal Appeals (TCCA) for review. If the finding is that the prisoner is competent for execution, no such "appeal" to the TCCA is provided.

In Kelsey Patterson's case, the fact that he refuses to meet with mental health professionals (or his lawyers) makes it difficult if not impossible for his competence to be assessed. If this occurs and the experts are unable to make an assessment, the court may very well hold that Patterson has failed to meet his burden to prove he is incompetent to be executed by a preponderance of the evidence. The irony is that the same mental illness that likely renders Patterson incompetent to be executed also functions to prevent his attorneys from meeting their burden of proof to show he is incompetent to be executed.

Although there are prisoners, including in Texas, that have been found incompetent for execution, Ford has provided only minimal protection, and has not prevented seriously mentally ill prisoners from being put to death in the USA. For example, Thomas Provenzano, a prisoner with a long history of mental illness, was put to death in Florida in 2000. A judge ruled him competent for execution despite finding "clear and convincing evidence that Provenzano has a delusional belief that the real reason he is being executed is because he is Jesus Christ." The judge said that the present standard for determining competency is "a minimal standard", and that his ruling "should not be misinterpreted as a finding that Thomas Provenzano is a normal human being without serious mental health problems, because he most certainly is not".(20)

Like Thomas Provenzano, Kelsey Patterson may be able to make some connection between his crime and his punishment. But, if this connection takes place in an inner world that is entirely delusional and the product of profound mental illness, can he truly be said to have an understanding of what is happening to him and why?

On 9 December 1997, at his state post-conviction hearing, Kelsey Patterson was questioned about his conviction:
Q: Do you understand that you were convicted of the offence of capital murder?
A: I understand what it means, and I'm trying - I hope I'm not trying to lead you too much, but I don't want to die. And I don't want to lose my life on the sentence of death. It means I would die to get sentenced to death.
Q: Do you know who you are convicted of killing?
A: I was convicted of killing.
Q: Who is that?
A: The alleged victims was Dorothy Harris and Louis Oates. Given this testimony, the state court ruled that while Kelsey Patterson was mentally ill, "this mental illness does not prevent the petitioner from knowing and realizing that he is under a death sentence for actions he took in taking the lives of his victims".

During his federal proceedings, a magistrate judge appointed Dr Edward Gripon as an independent mental health expert and granted funds for the defence to hire an expert, Dr Richard Rogers. An evidentiary hearing was held on 9 August 1999 on the issue of Patterson's competence to be executed. At the hearing, both experts testified that the prisoner had refused to meet with them. In his findings of October 2000, the judge wrote:

"Dr Rogers testified that, because he was unable to conduct a clinical interview and standardized testing on Patterson, he was unable to arrive at a definitive opinion regarding Patterson's competency to be executed, but that he was concerned because recent letters from Patterson indicated that Patterson believed that the execution could easily be stopped by the state district court if that court would only recognize and acknowledge the conspiracy against him, and that Satan was controlling the legal process and court system, and that he had received a permanent stay of execution from the board of pardons and parole. Dr Rogers also testified that Patterson's refusal to cooperate with his attorneys and the experts as itself a product of his psychosis". Dr Gripon also could not reach a conclusion about the prisoner's current competency to be executed, but agreed that his refusal to be examined was a product of his illness.

Nevertheless, the federal judge found that Kelsey Patterson was competent to be executed. He wrote: "All that is required for legal competency is for the prisoner to understand the fact of his impending execution and connection between his crime and the execution. That the prisoner may believe that he is not morally responsible for the killing because he was being controlled by outside forces is not part of the test".

The judge expressed some concern that Kelsey Patterson believed that he had a permanent stay of execution from the clemency board. However, he wrote that "because this Court did in fact stay his execution, the fact that Patterson is mistaken about the source of the stay or its duration is insufficient to rebut the presumption that he is incompetent." Drs Rogers and Gripon had suggested that it might be possible to get a clearer picture of Patterson's competency if he were placed in a mental health facility for long-term observation. The judge dismissed this out of hand, suggesting that such a course "would be an open invitation for death row inmates to delay the execution of their sentences".

Since learning of his 18 May 2004 execution date, Kelsey Patterson has written various letters, including to the Texas Board of Pardons and Paroles, the Texas Court of Criminal Appeals, and the US District Court for the Eastern District of Texas. In these letters, he refers to the permanent stay of execution that he has received on grounds of innocence.

In a 13-page letter to the US District Court in February 2004, Patterson writes: "I am myself Kelsey Patterson who ask that you the United States District Court Eastern District of Texas Honor Honor Honor my rights give me my rights is in amnesty give me my rights give me my rights stop the death warrants death warrants murders stop the execution stop and remove the execution execution date execution date told to me by Major Miller on January 15 who said the order came from Attorney General of Texas execution murder execution execution punishments body health destruction disfigurement... devil murder homo rape death machines death warrants death warrants murder execution execution date execution hell that is being did to me my bodies from my body my men from me Kelsey Patterson my eye my sight my vision my family my family see and apply in action in action for me my family the fact that the Texas Court of Criminal Appeals and kuntz-TDCJ authority have told me stay and that I have been give a permanant stay from execution based on innocence....".

In a letter the same month to the Texas Court of Criminal Appeals, Kelsey Patterson wrote: "the McClennan County state district court Mclennan County has said stay and stay stay stay stay stay stay and stay stay stay always stay from execution to me my men from me Kelsey Patterson stay from murder and execution to me Kelsey Patterson...".

Protection for the mentally ill

In 2002, the US Supreme Court outlawed the execution of people with mental retardation.(21) Numerous such prisoners had been executed in the USA since the Court ruled in Penry v Lynaugh in 1989 that such killing was constitutional.(22) In Atkins v Virginia, the Court overturned the Penry decision, finding that "standards of decency" had evolved in the USA to the extent that the execution of people with mental retardation was now unconstitutional.

Writing the Atkins opinion, Justice Stevens said that "today society views mentally retarded offenders as categorically less culpable than the average criminal." What about the mentally ill? How does the execution of the mentally ill comport with evolving standards of decency? Does society view the mentally ill as categorically less culpable than the average criminal offender, or does society's fear and ignorance of mental illness render the execution of such defendants acceptable in the USA?

In Atkins, the Supreme Court wrote that "Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial, but, by definition, they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others' reactions. Their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability".

Kelsey Patterson does not have mental retardation. But does not his mental illness diminish his culpability in the crime for which he is facing execution? Do his delusions not diminish his capacity to process information and to communicate, to engage in logical reasoning, to control impulses, and to understand other's reactions?

The Atkins Court continued "[T]here is a serious question whether either justification underpinning the death penalty - retribution and deterrence of capital crimes - applies to mentally retarded offenders. As to retribution, the severity of the appropriate punishment necessarily depends on the offender's culpability. If the culpability of the average murderer is insufficient to justify imposition of death [most murders in the USA do not result in a death sentence], the lesser culpability of the mentally retarded offender surely does not merit that form of retribution. As to deterrence, the same cognitive and behavioural impairments that make mentally retarded defendants less morally culpable also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the death penalty's deterrent effect with respect to offenders who are not mentally retarded." So, too, for the mentally ill?

Finally, the Atkins decision suggested that defendants with mental retardation may face a "special risk of wrongful execution", including because of "their lesser ability to give their counsel meaningful assistance, and the facts that they are typically poor witnesses and that their demeanour may create an unwarranted impression of lack of remorse for their crimes." It is clear that Kelsey Patterson was, in effect, his own worst enemy at his trial, unable to communicate rationally with his lawyers, and serving as a poor witness on his behalf.

In Texas, a jury cannot hand down a death sentence unless it finds that the defendant is likely to commit acts of criminal violence in the future, the so-called "future dangerousness" question. A mentally ill defendant who has committed an apparently motiveless crime may be particularly likely to be seen by jurors as a future danger, particularly if the state's mental health system is known to be under-resourced and unable to guarantee appropriate treatment.

The fact that the USA is willing to execute even the mentally ill, while a majority of countries have stopped using the death penalty against anyone, is a badge of shame upon a country which claims to be a progressive force for human rights. The execution of Kelsey Patterson would be another shameful episode in the USA's ugly history of judicial killing. It would be another Texas injustice.

Patterson v. Dretke, 2004 WL 1091998 (5th Cir. 2004) (Habeas).

Background: Petitioner, convicted in state court of capital murder and sentenced to death, sought federal habeas relief. The United States District Court for the Eastern District of Texas, T. John Ward, J., denied petition. Petitioner appealed.

Holding: The Court of Appeals held that state court's determination that petitioner had not raised substantial doubt as to his competency to be executed under Texas law was not unreasonable determination of facts. Affirmed.

PER CURIAM:
This appeal presents the question of whether the petitioner is mentally competent to be put to death under the rationale of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). Kelsey Patterson was convicted in the Texas courts of capital murder and sentenced to death. In an unpublished opinion in May 2003, this court affirmed the district court's denial of federal habeas relief. We granted a certificate of appealability for Patterson's claim that he was then incompetent to be executed, but dismissed that claim without prejudice in order to allow the state court to consider Patterson's claim of incompetency to be executed, in the light of the evidence presented at the federal evidentiary hearings in 1999, as well as any evidence of his condition subsequent to that time, after an execution date had been scheduled.

On December 23, 2003, the convicting court ordered the issuance of a death warrant, setting Patterson's execution date for May 18, 2004. On January 28, 2004, Patterson's counsel filed a motion in the convicting court to determine Patterson's competency to be executed under Article 46.05 of the Texas Code of Criminal Procedure. [FN1] A supplement to that motion was filed on March 16, 2004. In support of the motion, Patterson's counsel submitted his medical and psychiatric records from the Texas Department of Criminal Justice, affidavits from a psychologist and a spiritual counselor, and recent letters written by Patterson.

Patterson's medical and psychiatric records indicate that, since July 2001, Patterson has been evaluated every 90 days and that he is not taking any psychotropic medications. As his counsel acknowledged in the motion, Patterson's prison records reflect that he remains docile when left alone. The spiritual advisor stated in her affidavit that Patterson told her that he had received a stay in 1998 and that in 1999, the Texas Court of Criminal Appeals had acquitted him on an "innocence" claim. He also told her that his only friend is the State of Texas. The psychologist stated in his affidavit that, based on his review of Patterson's recent writings, Patterson continues to have bizarre delusions; that there is no credible evidence that he is malingering his delusions or their effects on his functioning; that it is likely that his chronic delusions impair his rational understanding of his conviction and pending execution; and that his statements raise serious concerns whether he has a factual understanding of his pending execution. Patterson's handwritten letters to various courts and the Texas Board of Pardons and Parole contain references to his "rights in amnesty" and a "permanent" stay of execution "based on innocence." However, they also contain references to the execution date "told to me by Major Miller" and requests to "stop and remove and prevent the execution." For example, in a letter to the Texas Court of Criminal Appeals in February 2004, Patterson states that he needs to "conduct my legal work needed to stop the execution murder assaults injury execution date murder machines grave graveyard murder...."

The convicting court conducted a hearing on the motion on March 26, 2004. The court noted that it had reviewed the documents submitted by Patterson in support of his motion, and that it was taking judicial notice of the records of prior proceedings in Patterson's case, including the fact that hearings were conducted in December 1997 and January 1998, and that the court had made a factual finding that Patterson's mental illness did not prevent him from realizing that he was going to be executed and the reason for his execution. At the March 2004 hearing, the court questioned Patterson:

THE COURT: Mr. Patterson, do you understand that I've set your execution date for May the 18th of 2004?
MR. PATTERSON: No, I don't for the reason of this: I have been told I have been stayed from execution based on innocence by the Texas Court of Criminal Appeals and stayed, stayed, stayed, always stayed from execution.
THE COURT: Okay.
MR. PATTERSON: By a number of state district courts, even acquitted, exonerated, not guilty of the charge of capital murder.
THE COURT: Did you receive a copy of the warrant that I signed?
MR. PATTERSON: No.
THE COURT: Okay. Do you know or understand that you're convicted of killing Dorothy Harris [and] Louis Oates?
MR. PATTERSON: Do I know?
THE COURT: Do you know that you've been convicted; not whether or not you agree with it, but do you know that you've been convicted of that offense?
MR. PATTERSON: I've heard it stated.

Later in the hearing, Patterson was provided a copy of the warrant setting his execution date. The following colloquy then took place:
THE COURT: Do you have a copy of the warrant?
MR. PATTERSON: This?
THE COURT: Yes, sir. Do you understand that I've set your execution date for May 18th, 2004?
MR. PATTERSON: I get what you're saying. And I said my rights of amnesty.
THE COURT: My rights to amnesty. Is that what you said?
MR. PATTERSON: Yeah. ....
THE COURT:.... Mr. Patterson, do you understand that there's no more stays? ....
MR. PATTERSON: No, I do not. [FN2]

On March 31, 2004, the convicting court entered an order denying Patterson's motion and his request for appointment of two mental health experts to examine him. The court concluded that Patterson had failed to raise a substantial doubt as to his competency to be executed. Because Article 46.05 does not provide for an appeal from such a decision, Patterson has exhausted his state remedies. See Ex parte Caldwell, 58 S.W.3d 127, 130 (Tex.Cr.App.2000)

Patterson filed a petition for federal habeas relief and a motion for stay of execution, raising only the claim that he is incompetent to be executed. The State does not contend that Patterson's petition should be treated as successive under 28 U.S.C. § 2244(b). In a memorandum opinion filed on May 11, 2004, the district court denied habeas relief, concluding that the state court's decision that Patterson had failed to make a substantial showing of incompetency to be executed was not based on an unreasonable determination of the facts in the light of the evidence presented in the state court proceedings. The district court observed that Patterson has consistently expressed the delusions that he killed the victims only because devices implanted in his body by conspirators made him do it, and that he has received a permanent stay of execution based upon his innocence.

However, the district court also noted that, in his recent writings, Patterson has made numerous requests that his execution be halted. The district court referred specifically to two of Patterson's pro se petitions, one filed in March 2001, and one filed in March 2004, copies of which are attached to the district court's memorandum opinion. In each of these form petitions, Patterson filled in the blanks that he was requesting relief from the sentence of death, and stated that he received that sentence for having been convicted of capital murder. In his March 2004 petition, Patterson asked the court to "stop and remove and prevent the execution murder death warrants execution date execution hell that is being did to me can I get free from death row...." [FN3] The district court concluded that this evidence shows that Patterson understands both the fact of his execution and the reason for it and consequently denied relief. The district court then granted Patterson's application for a certificate of appealability.

A habeas petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in state court proceedings unless the state court's adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) provides the standard of review for questions of law and mixed questions of law and fact." Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir.2000). A state court's decision is "contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States ... if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision "involve[s] an unreasonable application of [ ] clearly established Federal law, as determined by the Supreme Court of the United States ... if the state court identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. pertains to questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir.2000). A state court's findings of fact are presumed to be correct unless the petitioner rebuts the presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

As the district court noted, a state court's determination that a prisoner is competent to be executed is a factual finding entitled to the presumption of correctness under Section 2254(e)(1). In adjudicating Patterson's motion to determine competency under Article 46.05, however, the state court did not find that Patterson was competent to be executed. Instead, it ruled only that Patterson was not entitled to the appointment of psychiatric experts to examine him and was not entitled to an evidentiary hearing, because he had not raised a substantial doubt as to his competency to be executed. The district court treated the state court's decision as a factual determination, and applied Section 2254(d)(2), citing Delk v. Cockrell, No. 02-40326 (5th Cir. Feb. 28, 2002) (treating state court's determination that Delk was competent to be executed, as well as its determination that Delk had failed to make a substantial showing of incompetency under Article 46.05, as factual findings entitled to deference under § 2254(e)(1)), and Caldwell v. Johnson, 226 F.3d 367, 372 n. 6 (5th Cir.2000) ("To the extent Caldwell challenges the state trial judge's holding that he had not made a substantial showing of incompetence, the challenge is without merit--even if we were not to accord that finding the deference it is due.").

Patterson argues, however, that Section 2254(d)(1) provides the appropriate standard of review. This is so because the state court's determination that he failed to make a substantial showing that he is incompetent to be executed is a mixed question of law and fact. Thus he argues that the state court's decision is both contrary to, and an unreasonable application of, Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). Alternatively, he contends that, if the state court's decision is a factual determination governed by § 2254(d)(2), he has rebutted the presumption of correctness, and that the state court's decision is based on an unreasonable determination of the facts.

The state court's decision is not an unreasonable determination of the facts in the light of the evidence presented to it. That evidence indicates that, although Patterson is mentally ill and expresses the delusional belief that he has been granted amnesty and a permanent stay of execution, his writings also repeatedly request that various courts stop or stay his pending execution. The prison medical and disciplinary records contain nothing to indicate that Patterson's condition has deteriorated since the state court's previous determination that he was competent to be executed. It is true that Dr. Rogers expresses doubt about Patterson's rational and factual understanding that he is to be executed; however, he does not address Patterson's requests that his execution be halted; nor does he explain the inconsistency between those requests seeking relief from execution and his opinion that Patterson may lack understanding that he is going to be executed and the reason why.

Even if we assume that Patterson is correct, and that we are not bound by Delk and Caldwell to accord the state court's decision the deference owed to factual determinations under sections 2254(d)(2), Patterson nevertheless has not shown that the state court's decision is contrary to, or an unreasonable application of Ford.

As this court observed in Delk, Article 46.05 essentially codifies Ford. Delk, No. 02-40326, at p. 4. Justice Marshall's opinion for a plurality of the Court states that "[i]t may be that some high threshold showing on behalf of the prisoner will be found a necessary means to control the number of nonmeritorious or repetitive claims of insanity." Id. at 417. In his concurring opinion, Justice Powell observed that, "in order to have been convicted and sentenced, petitioner must have been judged competent to stand trial, or his competency must have been sufficiently clear as not to raise a serious question for the trial court." Id. at 425-26 (Powell, J., concurring). Accordingly, Justice Powell concluded that "[t]he State therefore may properly presume that petitioner remains sane at the time sentence is to be carried out, and may require a substantial threshold showing of insanity merely to trigger the hearing process." Id. at 426 (Powell, J., concurring).

The threshold showing of incompetency to be executed required in Article is a "substantial doubt." Patterson does not challenge the adequacy of the procedures established by Article 46.05. Instead, he contends that the state court's decision that he had failed to raise a substantial doubt as to his competency to be executed is objectively unreasonable. He argues that the evidence he presented in support of his motion is "materially indistinguishable" from the facts in Ford, and that, because the Supreme Court determined that Ford had raised a viable claim under the Eighth Amendment, the state court's decision that Patterson failed to raise a substantial doubt as to his competency is contrary to Ford. Patterson also contends that the state court's decision is an unreasonable application of Ford 's threshold standard to the particular facts of this case, or alternatively, an unreasonable resolution of the facts in the light of the evidence presented to the state court. Finally, he contends that, when this Court granted a certificate of appealability for this claim, it determined that he had made a "substantial showing" that he is not competent to be executed. Patterson argues that the district court should have held an evidentiary hearing and that it erred by not considering the totality of the evidence.

Contrary to Patterson's assertion, the facts of his case are distinguishable from those in Ford. Ford was convicted of murder and sentenced to death in 1974. Although no question of his competence was raised at the time of his offense or at trial, he became delusional beginning in 1982. A psychiatrist who interviewed Ford in 1983 "concluded that Ford had no understanding of why he was being executed, made no connection between the homicide of which he had been convicted and the death penalty, and indeed sincerely believed that he would not be executed because he owned the prisons and could control the Governor through mind waves." 477 U.S. at 403. The evidence presented by Patterson is not so precisely a fit.

Unlike Ford, whose competence was called into question eight years after his conviction, Patterson's competence has been at issue throughout the proceedings, and has been the subject of evidentiary hearings in state and federal court. At the state habeas evidentiary hearing in December 1997, Patterson acknowledged that he had been convicted of killing Louis Oates and Dorothy Harris and that the State intended to execute him by lethal injection for that offense. Although Patterson states repeatedly in his recent letters that he has been given a permanent stay of execution, amnesty, and a pardon for innocence, those same letters also contain repeated requests to stop his pending execution. The state convicting court's decision that Patterson failed to raise a "substantial doubt" as to his competency to be executed is therefore not contrary to Ford.

Furthermore, the state court did not unreasonably apply Ford 's threshold standard to the facts of Patterson's case. The court considered the documentary evidence proffered by Patterson, as well as the records of the prior proceedings involving Patterson, and conducted a hearing on the motion. Although Patterson stresses the evidence of his delusional belief that he has been pardoned and has received a permanent stay of execution, Ford does not require the state convicting court to ignore other evidence indicating that, despite his delusional beliefs, Patterson is aware that he is going to be executed for the capital murders of Louis Oates and Dorothy Harris in determining whether Patterson has made the threshold showing of a "substantial doubt" as to his competency to be executed.

Finally, the fact that this court granted a certificate of appealability for Patterson's claim does not make the state court's decision unreasonable. The standards governing the issuance of a certificate of appealability are governed by federal law, and are not binding on Texas courts applying the "substantial doubt" standard in Article 46.05. As Patterson's counsel conceded at the state court hearing, this court did not purport to construe the meaning of Article 46.05. Because the state court did not unreasonably determine that Patterson had failed to raise a "substantial doubt" as to his competence to be executed, the district court did not abuse its discretion by failing to conduct another evidentiary hearing on Patterson's claim.

For the foregoing reasons, the judgment of the district court is AFFIRMED. Patterson's motion for a stay of execution is DENIED.