No IN THE SUPREME COURT OF THE UNITED STATES. COMMONWEALTH OF PENNSYLVANIA Petitioner v. GEORGE BANKS Respondent REPLY BRIEF FOR PETITIONER

Transcription

1 No IN THE SUPREME COURT OF THE UNITED STATES COMMONWEALTH OF PENNSYLVANIA Petitioner v. GEORGE BANKS Respondent ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA REPLY BRIEF FOR PETITIONER LINDA KELLY Attorney General Commonwealth of Pennsylvania JAMES BARKER Chief Deputy Attorney General Appeals & Legal Services Section WILLIAM R. STOYCOS * Senior Deputy Attorney General Counsel of Record Office of Attorney General 16th Floor, Strawberry Square Harrisburg, PA (717)

2

3 QUESTIONS PRESENTED (Capital Case) 1. Whether the Supreme Court of Pennsylvania impermissibly expanded this Court s Eighth Amendment jurisprudence banning the execution of an insane person when it based its finding that George Banks is currently incompetent to be executed on the existence of evidence that he does not consistently exhibit a rational understanding of the existence, meaning, and purpose of his sentence given that Panetti v. Quarterman, 551 U.S. 930 (2007) only prohibits execution of a mentally ill inmate when his delusions are so severe that he is prevented from reaching a rational understanding of the existence, purpose, and meaning of his sentence? 2. Whether the current distinction in this Court s Eighth Amendment jurisprudence between a death row inmate s factual and rational understandings of his sentence is problematic and requires clarification given that: (a) a death-row inmate s rational understanding of the existence, purpose, and meaning of his sentence can always be accurately characterized as factual in nature, which in turn unfairly prevents the prosecution from ever prevailing in a competency-to-be-executed proceeding where the inmate presents any evidence of irrational subjective thought about his death sentence regardless of its intensity or frequency; and (b) the courts, counsel, and mental health experts have difficulty navigating this important but elusive concept as currently articulated? i

4 TABLE OF CONTENTS Page QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF CITED AUTHORITIES... iii ARGUMENT IN REPLY TO PETITIONER S BRIEF IN OPPOSITION... 1 A. The instant petition challenges the Pennsylvania Supreme Court s fundamental misunderstanding and unauthorized expansion of the standard established by this Court in Panetti governing when a death row inmate is insane for purposes of the Eighth Amendment B. In an effort to steer this Court away from settling an important issue of federal law that has not been, but should be, settled by this Court, Respondent s brief omits any reference to: (1) the well-established fact that the effects of mental illness wax and wane over time; and (2) the abundant evidence of record that Banks has manifested rational understanding regarding the existence, purpose, and meaning of his sentence C. A standard that eliminates the factual vs. rational distinction would greatly serve the interests of justice... 4 CONCLUSION... 6 ii

5 TABLE OF CITED AUTHORITIES Page Cases Ford v. Wainwright, 477 U.S. 399 (1986).1, 2, 4 Indiana v. Edwards, 554 U.S. 164, 175 (2008)... 3 Panetti v. Quarterman, 551 U.S. 930 (2007). i, ii, 1, 2, 4, 5 iii

6

7 ARGUMENT IN REPLY TO PETITIONER S BRIEF IN OPPOSITION A. The instant petition challenges the Pennsylvania Supreme Court s fundamental misunderstanding and unauthorized expansion of the standard established by this Court in Panetti governing when a death row inmate is insane for purposes of the Eighth Amendment. Banks inaccurately states in his brief that at bottom, the Commonwealth s complaint is that the Pennsylvania courts made fact-findings adverse to its position (Brief of Resp. at 16). The duplicitous nature of this false assertion is manifested by the statement appearing five pages earlier in his brief acknowledging that the Commonwealth is arguing that the Pennsylvania courts misapplied this Court s precedents in Ford and Panetti (Brief of Resp. at 11). Indeed, the petition for writ of certiorari respectfully argues that this Honorable Court should grant review because the Pennsylvania Supreme Court fundamentally misunderstood and impermissibly expanded this Court s holding in Panetti regarding when a death row inmate is insane for purposes of the Eighth Amendment. Rather than analyze whether Banks delusions are so severe that he is prevented from reaching a rational understanding of his sentence, the court analyzed whether Banks delusions prevent him from consistently rationally understanding his sentence. Although Panetti required the court to ask whether Banks is without subjective understanding about his sentence that conforms to reality, the court instead asked whether Banks is without delusional thought 1

8 on the subject. In so doing, the state supreme court radically transformed the narrow definition of insanity under the Eighth Amendment articulated in Ford and Panetti into a much broader one that contravenes this Court s holdings. This Court s intervention is required because Pennsylvania s highest court has failed to adhere to this Court s binding pronouncements construing the Eighth Amendment of the United States Constitution as it applies to mentally ill death row inmates. Such infidelity to this Court s rulings is untenable and must be corrected because it ignores this Court s supremacy on matters of federal constitutional law and communicates to all inferior courts, state and federal, that the language in Panetti does not mean what it actually says. B. In an effort to steer this Court away from settling an important issue of federal law that has not been, but should be, settled by this Court, Respondent s brief omits any reference to: (1) the well-established fact that the effects of mental illness wax and wane over time; and (2) the abundant evidence of record that Banks has manifested rational understanding regarding the existence, purpose, and meaning of his sentence. The brief in opposition omits any reference to the well-established fact that the frequency and intensity of symptoms of mental illness wax and wane over time. In the words of this Honorable Court: Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an 2

9 individual s functioning at different times in different ways. Indiana v. Edwards, 554 U.S. 164, 175 (2008) (emphasis added). The foregoing statement is entirely consistent with the prevailing scientific literature on the subject. It is also borne out by the record below, which shows that five out of the six mental health experts who testified at the competency hearing acknowledged that to one degree or another, Banks has a capacity to rationally comprehend the existence, purpose, and meaning of his sentence despite the existence of his psychotic mental disorder that involves delusional thinking. Equally important, the brief in opposition fails to acknowledge the abundant evidence of record that Banks has manifested rational as well as irrational understanding regarding the existence, purpose, and meaning of his sentence. This includes the evidence that Banks stated to Dr. Mechanick in 2010 that: (1) he had committed 11 murders; (2) the murders were morally wrong; (3) as a consequence of the murders the state sentenced him to death; (4) his execution will be carried out and result in his death; and (5) a person who shoots and kills another person should be subjected to the death penalty as a punishment. (N.T. at , , , 531, 536, 641). Indeed, if one were to read Banks brief in a vacuum, one would simply have no awareness of the 22 very real manifestations of Banks rational understanding of his situation documented in Pet. App. 4A and would falsely conclude that Banks is completely and perpetually irrational. 3

10 These omissions by Banks counsel are significant because to date, this Court has not addressed the applicability of the Ford/Panetti standard in the context of a death row inmate who exhibits both rational and irrational thoughts about the existence, purpose, and meaning of his sentence. This is a question of federal law that has not been, but should be, settled by this Court. For obvious reasons, Banks would prefer this Court to believe that he can never reach a rational understanding of his situation. Implicit in Banks selective recitation of the facts to this Court is the acknowledgment that if the rule announced in Panetti is faithfully applied to the actual facts of his case, he will be found competent to be executed. C. A standard that eliminates the factual vs. rational distinction would greatly serve the interests of justice. Notwithstanding Banks boilerplate assertions to the contrary, legal and medical practitioners as well as judges have experienced difficulty with the factual vs. rational distinction set forth in Panetti. The petition for writ of certiorari identifies three specific examples of confusion about this distinction in the instant case that raise doubts about the legal validity of the Pennsylvania Supreme Court s ultimate finding on the competency question. The articulation of a new standard that applies the same legal principles but eliminates the enigmatic distinction between factual and rational comprehension would greatly serve the interests of justice. 4

11 In response to Banks complaint that the Commonwealth has failed to offer an alternative formulation of the rule for this Court s consideration, the Commonwealth now posits the following standard as a viable substitute for the existing one: Whether a mentally ill death row inmate suffers from delusions so severe that he is prevented from reaching a subjective understanding of the existence, purpose, and meaning of his sentence that conforms to reality. It is respectfully asserted that this re-wording of the rule would: (1) eliminate the current confusion caused by the fact that rational understanding of a subject subsumes factual understanding of that subject; and (2) accomplish the objective of this Court s Opinion in Panetti of ensuring that a court engaged in a competency to be executed analysis considers not only whether the prisoner can recite what the state is telling him, but also whether the prisoner has a capacity to reach a factually accurate subjective understanding of the existence, purpose, and meaning of his death sentence. 5

12 CONCLUSION The Court should grant the petition. Respectfully submitted, LINDA KELLY Attorney General Commonwealth of Pennsylvania JAMES BARKER Chief Deputy Attorney General Appeals & Legal Services Section WILLIAM R. STOYCOS * Senior Deputy Attorney General Counsel of Record Office of Attorney General 16th Floor, Strawberry Square Harrisburg, PA (717) Counsel for Petitioner Date: September 20,