Competency to be executed

Andrea L. Westerfeld

“As The Judges Saw It” Columnist and Assistant Criminal District Attorney in Collin County

Competency to be executed is a complex web of statutory and case law that can be a minefield, but the Court of Criminal Appeals recently gave important guidance on the issue in Battaglia v. State. The lessons can be applied not only in execution competency cases, but also in broader issues of competency and mental health issues.

The facts
John David Battaglia and his wife, Mary Jean, divorced in 2000.1 They had two daughters, Liberty and Faith. In 2001, Mary Jean reported Battaglia for violating his probation by leaving a threatening message on her answering machine. The police contacted him and told him to make plans to turn himself in. That day, Battaglia had a scheduled visitation with his daughters, ages 9 and 6. Mary Jean was at a friend’s house where she got a call that Battaglia was trying to reach her. She called him, and he put the phone on speaker. Faith asked, “Mommy, why do you want Daddy to go to jail?” Mary Jean then heard Faith scream, “No, Daddy, please don’t, don’t do it!” followed by gunshots, the girls screaming, and Battaglia shouting, “Merry f—ing Christmas!” When police arrived at the house, they found both girls dead of gunshot wounds near the front door. Battaglia was arrested at a tattoo parlor with his girlfriend.
    Battaglia was convicted and sentenced to death. Evidence was presented during punishment that Battaglia suffered from bi-polar disorder and was having a psychotic break during the murders, but his expert agreed that he knew what he was doing when he killed his daughters and that it was wrong. On the day of his execution, the Fifth Circuit granted a stay on the grounds that his counsel had abandoned him and did not raise the issue of his competency to be executed. Battaglia’s new counsel filed an Article 46.05 motion raising his competency, and the trial court held a series of hearings, including the testimony of four experts—two court-appointed, one for the defense, and one for the State. The trial court found Battaglia was competent to be executed, and he appealed that decision to the Court of Criminal Appeals.

Incompetency to be executed
A prisoner is incompetent to be executed if his mental illness prevents him from understanding the reasons for the penalty or its implications.2 But the harder question is what degree of “comprehension” is required. The CCA engaged in an extensive review of federal caselaw to determine what the state of the law truly is. The most recent Supreme Court opinion was Panetti v. Quarterman, a Texas case where the Court concluded that a “rational understanding” of the connection between the person’s crimes and his execution is required.3 Thus, he must not only understand that he is going to be put to death but also that that punishment is because of the crime he committed. A person with “gross delusions” may be aware that the State claims to be executing him for a crime but believe that another reason is the true purpose of the execution and thus not have a rational understanding.
    However, when Panetti was remanded for consideration of these factors, the trial court concluded that he was competent to be executed.4 Panetti claimed that he was on Death Row to preach the gospel and save souls, not because he committed a crime. Three experts believed he had a genuine delusion, but two others concluded that he was malingering and was “as normal as he wants to be.” Although he preached and ranted to fellow inmates, he spoke normally with his parents and had a sophisticated understanding of his case, including blaming political corruption for his conviction rather than a mission to preach the gospel. Giving heavy deference to the trial court’s credibility finding in the duel of experts, the higher courts upheld the trial court’s finding of competency.
    In Billiot v. Epps,5 a federal court in Mississippi concluded that Billiot was convinced he was going to be released rather than executed. Thus, he could not “prepare himself in any spiritual sense for death” and was incompetent to be executed.
    In Wood v. Thaler, an expert concluded that Wood was incompetent based on “persecutory delusions”—he believed that he was going to be convicted based on corruption in the system and a conspiracy by the trial judge and district attorney against him.6 But the expert, Dr. Roman, had no experience dealing with criminal defendants. Another expert in the same case, Dr. Conroy, concluded that Wood was competent because he had an accurate understanding of the reason for his execution. Dr. Conroy did not believe that he was delusional despite his belief in a conspiracy against him because “his explanation was one that we’ve heard over and over in this courtroom”—the State of Texas was “out to get him.” Dr. Conroy explained that this was a very common belief in the prison system. This was significant because the DSM-IV definition of “delusion” does not include beliefs that are shared by other members of the person’s culture or group. The experts who evaluated Wood and who had experience in the prison system concluded that he was not delusional because his only “delusion” was one of corruption in the system, a commonly shared delusion among prison inmates. The court specifically discounted Dr. Roman’s diagnosis because he had no experience in the prison population and did not make any reference to the DSM-IV’s requirement to consider the patient’s subculture or group. Additionally, the beliefs “suspiciously appeared suddenly after the Supreme Court’s Panetti decision was handed down.”7
    In case out of Florida, Ferguson had delusions that he was the Prince of God and would be resurrected after his execution to sit at the right hand of God.8 But he still understood the reasons and consequences of his upcoming execution, and some experts believed that he was malingering. The state courts concluded that, despite his mental illness and delusional beliefs, he still understood the connection between his execution and the murders he committed and that he would die when executed. Thus, he was competent to be executed. The federal courts upheld the decision, again deferring to the trial court’s decision to credit some experts’ testimony over others.
    In Eldridge v. Thaler,9 four experts examined Eldridge and again split on whether he was competent. Eldridge reported that his girlfriend (whom he was convicted of murdering in Texas) was not dead and that he had just spoken to her recently. Two experts believed he was truly delusional, but the other two believed he was malingering. One noted that he had never received any psychiatric treatment prior to his arrest and that his symptoms were almost entirely self-reported. The court found Eldridge competent to be executed, and the higher courts upheld the decision.
    Finally, in Madison, the defendant had several severe strokes and as a result had no memory of committing the murder that resulted in his death sentence.10 The trial court agreed with the State of Alabama’s experts that Madison was competent to be executed because he was able to accurately discuss his legal theories with his attorneys and had a rational understanding of his sentence. However, the 11th Circuit overturned that finding. The experts agreed that Madison was not malingering and genuinely had no memory of the murder. Even though he had been told why he was being executed, his total lack of memory about the event prevented him from truly having a rational understanding. “A person does not rationally understand his punishment if he is simply blindly accepting what he has been told.” Thus, he was not competent to be executed.

Texas law
In Texas, competency to be executed is governed by Article 46.05 of the Code of Criminal Procedure. A person is incompetent to be executed if he does not understand 1) that he is to be executed and that the execution is imminent, and 2) the reason he is being executed. After meeting a threshold burden of making a “substantial showing” of execution incompetency, the trial court must conduct an adversarial hearing where the defendant has the burden of proof by a preponderance of the evidence that he is incompetent to be executed.
    After Article 46.05 was enacted, the CCA decided Green v. State.11 Dr. Mosnick, a defense expert who had testified only a few times in criminal cases, concluded that Green was incompetent due to various delusions, including that he had not killed anyone and that “demons” lived inside him and controlled him. But State’s expert Dr. Moeller testified that Green was not delusional and understood he was to be executed because he was convicted of capital murder. The trial court found he was competent. On federal habeas, Green submitted more evidence that he believed his body was being controlled and he had conversations with voices in his head. Dr. Mosnik again concluded that he was incompetent. But the Fifth Circuit noted that Green had spent much of his interview discussing flaws in his trial and belief that the police “set him up,” and it found he was competent.12
    In light of findings in Green, the CCA concluded that the statutory language of Article 46.05 “must be interpreted in accordance with and consistent with Panetti.”13 Thus, the review cannot focus exclusively on the defendant’s “awareness of his situation” but must consider whether a delusional thought process prevents him from rationally comprehending a causal link between his offense and his imminent execution. Thus, a person is competent to be executed if he 1) knows the reason he is to be executed, 2) knows the execution is imminent, and 3) despite any delusional beliefs or mental illness he might have or his denial of committing the offense, he understands a causal link between the offense and his imminent execution.

Weighing expert testimony
When the Court actually evaluated Battaglia’s case, as in most of the federal cases the CCA examined, the question of competency came down to weighing the credibility of the experts who examined him. Three of the four experts who examined him—defense expert Dr. Mosnik, State’s expert Dr. Proctor, and court-appointed expert Dr. Allen—all concluded that Battaglia was delusional and incompetent to be executed.14 But the trial court credited the opinion of a fourth expert, court- appointed expert Dr. Womack, who believed that Battaglia was competent.
    Dr. Mosnik concluded that Battaglia was delusional, citing claims that he was to be executed as part of a cover-up scheme so he would not disclose others’ illegal behavior. She admitted he was aware he had a scheduled execution date and would be executed because he was convicted of murdering his daughters, but the doctor claimed Battaglia did not have a rational understanding because he believed the true reason he was being executed was due to a cover-up. Dr. Proctor similarly believed that Battaglia had a “vast and complicated delusional system,” though he admitted it was possible for an intelligent person to feign delusions. Dr. Allen noted that Battaglia had no prior psychiatric history and was intelligent and well-read. He observed that Battaglia had delusions of a “complex web of plots against him” and that this delusion prevented him from a rational understanding of the reason for his execution.
    However, at the evidentiary hearing, Dr. Allen retreated slightly from his written report—he noted that Battaglia had no psych referrals during his time in prison, and every mental status report showed normal functioning. At the hearing, he concluded that it was possible Battaglia was malingering but that he could not prove it either way. Along those lines, Dr. Womack concluded that Battaglia was competent. His jail mail and media interviews showed that he was aware of why he was going to be executed and showed a clear understanding, even though he denied committing the murder. His explanations were not consistent with a fixed delusion—for example, he wavered about whether he was never present at the crime scene or whether he had been there but had been mind-controlled. Dr. Womack noted that Battaglia was highly intelligent and capable of creating a complex story line to feign delusion. He also observed that complaints about the system being rigged or corrupt were common in the prison system and Battaglia did not show any particular emotion connected to the complaints.
    The law library supervisor at Battaglia’s unit was familiar with him both from her time as a corrections officer and while working in the law library. Battaglia came to the library as often as three days a week and requested legal materials. Notably, Battaglia requested Panetti and other competency cases just 12 days before his scheduled execution date. Dr. Womack pointed out that Battaglia had a “sudden insight” into his disorder despite not receiving any treatment, and reading caselaw about competency could give him enough information to fake delusions.
    Ultimately, the trial court determined that Dr. Womack was the most credible of the four witnesses and adopted his conclusions that Battaglia was highly intelligent and highly motivated to exaggerate his symptoms, was malingering, and was competent to be executed. After exhaustive review of the testimony and the caselaw, the CCA decided that this conclusion was supported by the record.15

Applicability for the future
Battaglia will be important for future practice for a few reasons. First and most importantly, of course, it nails down the test of competency to be executed for future death penalty cases. Its exhaustive discussion of existing execution competency caselaw and resolution of state law with federal requirements should prove useful in any upcoming cases on the issue. But it also discusses some important credibility issues when dealing with mental health experts in all cases.
    Specifically, the trial court concluded that one expert was not credible in part because she focused on clinical psychology rather than working with the prison population and testified exclusively for the defense.16 As in Wood, the expert determined most qualified was the one who spent most of his career working directly in the prison system.17 Because competency cases—and mental illness issues generally—so often turn on which expert the trial court believes, this is important reinforcement of factors that can affect credibility.
    The source of opinions was also given attention. The court noted that Battaglia’s delusions were all self-reported rather than being observed by others, and his letters, interviews, and phone calls all showed that he appeared to be intelligent and aware.18 It also pointed out several experts’ testimony that Battaglia was both highly intelligent and had a significant motive to malinger.19 Very importantly, the CCA looked at the suspicious timing of Battaglia’s claims—he showed no prior signs of mental illness in prison, but he requested competency caselaw only two weeks before his execution date and then started showing symptoms.20 These three factors are useful to question experts about when they are determining competency. Remember also not to be bound entirely by an expert’s written report. One of the experts here believed that Battaglia was incompetent in his written report, but after being cross-examined more on the factors above—including motivation to malinger and his investigation of caselaw about incompetency—he withdrew that opinion.
    Finally, one of the most useful pieces of information from Battaglia is the reinforcement from Green and Wood that a defendant is not delusional just because he proclaims his innocence.21 The DSM-IV requires that an expert consider the subject’s particular subculture or group when determining delusion. Because the belief that one is innocent or being set up by a corrupt system is very commonly espoused in the prison system, it is not in itself proof that a defendant is delusional. This is a very important fact that can be used both when cross-examining a defense expert or when arguing which expert’s testimony should be credited.
    Competency issues are never simple to deal with, especially in the highly charged context of an execution. But Battaglia gives important support for dealing with those cases.


1  Battaglia v. State, No. AP-77,069, slip op. at 1 (Tex. Crim. App. Sept. 20, 2017).

2  Ford v. Wainwright, 477 U.S.399 (1986).

3  Panetti v. Quarterman, 551 U.S. 930 (2007).

4  Panetti v. Stephens, 727 F.3d 398 (5th Cir. 2013).

5  Billiot v. Epps, 671 F.Supp. 2d 840 (S.D. Miss 2009).

6  Wood v. Thaler, 787 F.Supp. 2d 458 (W.D. Tex. 2011).

7  Id. at 499.

8  Ferguson v. Secretary, Florida Department of Corrections, 716 F.3d 1315 (11th Cir. 2013).

9  Eldridge v. Thaler, No. H-05-1847, 2013 WL 416210 (S.D. Tex. Jan. 31, 2013).

10  Madison v. Commissioner, Alabama Dept. of Corrections, 851 F.3d 1173 (11th Cir.).

11  Green v. State, 374 S.W.3d 434 (Tex. Crim. App. 2012).

12  Green v. Thaler, 699 F.3d 404 (5th Cir. 2012).

13  Battaglia, slip op. at 46.

14  Id. at 49.

15 Id. at 78.

16 Id. at 65-66.

17 Id. at 71-72.

18 Id. at 66, 70.

19 Id. at 67, 69.

20 Id. at 70-71.

21 Id. at 75-76.